Newfoundland Club of America - Hearing Procedures
Disciplinary (By-Laws - Article VI)
The Newfoundland Club of America requires its members to abide by its long established Ethics Guide. To clarify current established procedures and to avoid confusion these following avenues are described below. Allegations against members that the Ethics Code has not been adhered to will be handled in accordance with Arbitration Policy and the Constitution and By-Laws depending upon the type of allegation made.
All allegations which involve a contractual dispute: dog transactions, including puppy sales; co-ownership agreements; stud services; etc. between NCA members and the public are handled by the Arbitration Committee. Non-NCA members may file complaints through this process; however, no complaints can be heard against anyone who is not an NCA member. All complaints of this nature are to be submitted in accordance with procedure directly to the Arbitration Committee. Any complaint received directly by the NCA Board which has not gone through the Arbitration Committee will be referred to that committee in accordance with procedure.
Unsportsmanlike conduct at an AKC event are governed by the Disciplinary Rules of the American Kennel Club. Occurrences at NCA events (which are non-AKC) and violations of the Ethics Guide (which are not transactions) are not matters for the Arbitration Committee. Grievances that arise at NCA working events are held in accordance with rules established by the NCA.
Other allegations of Ethics Code violations may be handled in accordance with the NCA Constitution and By-Laws, Article VI - Discipline. Complaints must be specific and must reference the Ethics Guide section which has been alleged to be violated. The Board will determine if it has appropriate jurisdiction and notify the complainant of its decision as to whether the complaint will be heard. Disputes of a "personal nature" which are not dog related will not be entertained.
1. Preliminary Matters
a. Definition of Terms
i. The term “Complainant” shall be the person filing the charges
ii. The term “Respondent” shall be the person against whom the charges are preferred. The term “Respondent shall be synonymous with the term “Defendant”, as used in the By-Laws.
iii. Collectively, the Complainant and the Respondent shall be referred to as the Parties. When referring to both the Complainant and the Respondent individually, the term Party shall be used.
iv. The term “Board” shall refer to the Board of Directors of the Newfoundland Club of America, Inc.
v. President, Recording Secretary, etc. refer to the Officers as set forth in the NCA Constitution.
vi. The Chairperson shall be a person whose duties are as set forth more fully later in this document.
vii. In this document, where appropriate, the singular will include the plural and the male gender will include the female gender.
b. Objections to Individual Board Members Deciding a Complaint
i. If either of the Parties have any objections to any members of the Board deciding a complaint, then those objections must be stated in detail and in a writing sent to the Recording Secretary, the Chairperson, the individual board member(s) so challenged and the opposing Party.
ii. Normally, objections must be stated within twenty (20) days after receipt of the notice of hearing and if not so stated are waived. Objections do not have to be made to any member(s) of the Board who have previously disqualified themselves because they will normally not hear or decide the complaint. The time limits of this section may be extended by the President or the Chairperson for reasonable cause.
iii. Within five (5) days of receipt of the challenge, the opposing Party shall indicate if they are in agreement or oppose the challenge. This writing shall also be sent to all of the people named in the preceding section.
iv. The ultimate decision as to whether an individual Board member can sit in this matter will be made by the President after consultation with the challenged member(s) and other members of the Board.
v. Since this is a fraternal organization where the Board members will most likely know the Parties or have heard of them, familiarity of itself with the Parties involved will not be a ground for disqualification, although more extensive involvement may be grounds.
vi. Failure to make a timely objection will result in waiver of any objections to that Board member determining this matter.
c. Objections to Procedural Irregularities in the Proceedings
i. All objections to procedural irregularities such as, but not limited to, the validity of the election of the Board of Directors, the appropriateness, legality or ability of the Board to hold a hearing, the adequacy and sufficiency of the notice of the hearing, or any other similar matter going to the issue of whether or not a hearing should be held, must be stated as soon as the problem becomes known or, in the exercise of due diligence, would have been known.
ii. If either of the Parties have any such procedural objections, then those objections must be stated in detail and in writing sent to the Recording Secretary, the Chairperson and the opposing Party.
iii. Specifically excluded from this section is any requirement to object to the factual determination of the Board to hold a hearing based upon a consideration of the evidence initially presented it in executive session.
iv. Failure to make a timely objection will result in waiver of that ground.
2. Fixing of the Date, Time and Place of the Hearing
a. The hearing shall be held at such time, place and location as the Board may designate. Normally such hearings will be held at a scheduled face-to-face meeting of the Board.
b. The Board may initially indicate a general time and place and date for the hearing and then, at a later time, indicate a specific date, time and place for the hearing.
c. The Board may for good cause postpone or adjourn the hearing upon request of a Party or upon the Board’s own initiative. If a situation arises where there is insufficient time for the Board as a group to determine whether a postponement should be granted, then the decision will be made by the NCA President.
3. Preparation and Contents of Documentary Evidence Packets
a. In order to provide the Board and the Parties with a convenient manner of reviewing and referring to the various documents likely to be presented at the hearing, the Chairperson shall prepare and distribute prior to the hearing a documentary packet.
b. The packet shall include the following contents:
i. Table of Contents
ii. Chronology of events, if appropriate
A brief biographical summary, if submitted, of the Parties including their names, educational background, their general experience with dogs, their experience with Newfoundlands, and how long they have been a member of the NCA. The Parties shall be responsible for providing the information to the Chairperson. The purpose of this section is to provide the Board with a brief summary of the background of the Parties. This section may also include biographical summaries of witnesses if deemed appropriate
iv. Complaint, with attached exhibits
v. Response, with attached exhibits
vi. Replies, with attached exhibits to the Response
vii. Sur Replies, if any, to the Replies
viii. Any other documentary evidence that the Chairperson feels is desirable to include. This may include documentary evidence to be presented by one Party although objected to by the other Party if the Chairperson is satisfied that it is more likely than not that the evidence will be admitted at the hearing
Conduct of the Hearing
1. General Procedures
a. The hearing shall normally proceed in the following manner:
i. Opening statements
2) The opening statement of the Parties shall include what they expect to prove by their testimony and a brief summary of the facts about which they expect each witness will testify.
ii. The principal presentation of the Parties starting with the Complainant’s die followed by the Respondent’s side.
iii. Rebuttal and Sur rebuttal of the Parties concerning matters which they reasonably could not have expected to present in their original presentations.
iv. Closing statements
1) After all testimony has been received, the Complainant (or his representative), the Respondent (or his representative) shall in that order address the Board summarizing facts they think fairly proven and arguing, if desired, the correctness of their position and urge the Board to reach a specific conclusion.
2) The closing statement of the Parties shall include what facts they believe they have fairly proved at the hearing, any principals of laws or regulations they feel are applicable to the facts, and the relief that they desire from the Board.
3) After the Parties have addressed the Board, the Chairperson may offer any concluding remarks which he feels are appropriate, including commenting upon the evidence and applicable regulations and laws.
v. Deliberation and decision of the Board
1) After the hearing is closed and the Parties have made all of their statements, the Board shall retire in private to discuss and analyze the evidence presented to them and reach a fair decision.
2) Normally, the Board shall begin deliberations immediately after the reception of the evidence and remain together until they have reached a decision. The Board may, however, adjourn such deliberations to meet the requirements of the members of the Board.
b. Adjournments during the course of the hearing
i. Normally, the Board will begin the hearing and continue without interruption or break, other than normal breaks to attend to other matters.
ii. The Board may adjourn the hearing if it appears to the members of the Board that the matter cannot be resolved without additional evidence not available at the time or under other circumstances which in the Board’s opinion are just cause for continuing the hearing.
2. Duties of the Parties
a. The Parties have a duty of candor and truthfulness to the Board and the NCA membership.
b. The Parties have a duty to aid the Board and the general membership in reaching a just decision based upon all of the evidence.
3. Duties and Selection of the Hearing Chairperson
a. The Board of Directors by majority vote of its members shall elect either one of its members or some other person to act as the Chairperson of the hearing. It will generally be preferable if the Chairperson is an attorney.
b. The Chairperson shall be responsible for the general conduct of the hearing and contacts with the Parties prior to the hearing in order to ensure that the hearing proceeds in an orderly fashion and in accordance with this procedures.
c. In the interests of justice, the Chairperson may modify these rules concerning the Conduct of the Hearing prior to or during the hearing.
d. If general questions of law arise, it shall be the duty of the Chairperson to advise the Board on the applicable principals of laws. The Board may also request advice of its legal counsel on matters of law.
e. Because there may be multiple Parties, the Parties may be so geographically spread out, and simultaneous communication may be impracticable and burdensome, the Chairperson may speak with only one Party at a time.
4. Representation by Other of the Parties at the Hearing
a. There is no right to having an attorney or other representation at a disciplinary hearing, however, the Board may permit representation by an attorney.
b. If the Board permits representation, then such representation shall be designated in writing delivered to the Recording Secretary, the Chairperson of the hearing and the opposing Parties. Normally such representation should be made known as soon as possible but in no event less than thirty (30) days prior to the hearing.
c. The Chairperson may modify these time limits in the interest of fairness.
5. Attendance of the Parties at the Hearing
a. The hearing may proceed in the absence of any Party, who, after due notice, fails to be present or fails to obtain a postponement or adjournment.
b. The Parties and their witnesses should be prepared to start at the designated time and ensure that they are close enough to the hearing location before it starts so that travel will not be a problem nor a cause for delay.
c. The Board may require the appearance of a Party if the Board determines the appearance is necessary to have a just decision of the dispute and to afford due process.
d. An award shall not be made against a Party simply because the Party did not appear. The Board shall require the submission of evidence as may be required for the making of a decision.
e. The failure of a Party to appear at a proceeding without just cause shall be considered in determining the merit of that Party’s position and may be considered as an admission of the truthfulness of the opposing Party’s allegations.
f. If a Party attends the hearing, the Party must remain and be present when the Board’s decision is announced.
6. Attendance of Other Persons at the Hearing
a. Persons having a direct interest as a participant in the hearing are entitled to attend hearings. It shall be discretionary with the Chairperson to determine the propriety of the attendance of any other person.
b. Normally the hearing shall be closed to the general public. If both Parties request an open hearing and all Parties consent in writing, then the hearing will be open to the general public. If not all Parties reach a unanimous decision, the Chairperson shall so inform them and give them a chance to reconsider their decision.
c. Each Party must signify in writing within thirty (30) days of receipt of notice of the hearing if they agree to an open hearing. If both Parties agree, the Chairperson then shall so inform all Parties.
d. In the discretion of the Chairperson, witnesses may be sequestered to minimize their testimony from being influenced by the testimony of other witnesses.
7. Presentation and Reception of Evidence
a. The Chairperson of the hearing, who may, but is not required to consult the members of the Board, shall be the initial judge of whether the evidence is relevant and admissible. The Chairperson’s action in receiving evidence is not necessarily indicative of the weight which the Board will give the evidence and their ultimate determination of the case.
b. The final decision of the relevance, materiality, and weight accorded the evidence shall be made by the individual Board members in their individual decisions.
c. Relevant, material and competent evidence may be offered but the evidence need not be in strict conformity to legal rules of evidence, either federal or state. The Board, not being bound by legal rules of substantive law, evidence or procedure, may be liberal in receiving evidence.
d. Character witnesses are generally not necessary at a hearing because the Board is familiar with the reputation of the Parties for truth and veracity. Upon prior application at least forty-five (45) days prior to the hearing date, a Party may request to present character evidence if it includes the names, addresses and a brief statement as to what the witness will testify. Examination of character witnesses will normally not be extended to include prior bad acts of the Party unless they are convicted of a crime equal to a felony under federal law or a lesser conviction for crimes involving falsehood or fraud.
e. The Chairperson and Parties may offer such evidence as is relevant and material to the dispute and the Parties shall produce such evidence as the Board may deem necessary to an understanding and determination of the problem. Normally, the evidence offered by the Chairperson shall be of a documentary background nature in the form of stipulations between the Parties and other evidence which the Chairperson feels will be helpful to the Board in reaching a determination.
8. Documentary Evidence
a. The Board may initially receive and consider documentary evidence which on its face appears to be normal and made in the regular course of business. The Board may also receive and consider the evidence of witnesses by affidavit as well as the records of the NCA. The ultimate weight of any documentary evidence is for the individual members of the Board.
b. If possible, all documents including affidavits to be submitted at the hearing shall be transmitted to the Chairperson at least forty-five (45) calendar days prior to the hearing. This provision may be waived by the Chairperson for good cause shown and shall not include rebuttal evidence.
c. If a Party or the Chairperson offers documentary evidence which is not contained in the Documentary Evidence Packet, they shall provide nineteen (19) copies of the document to be distributed to the twelve (12) Board members, each of the opposing Parties, the Chairperson and four (4) copies for NCA records.
9. Questioning of Parties and Witnesses During the Hearing
a. The normal procedure shall be the Complaint’s side and witnesses to proceed first and then the Respondent’s side and witnesses. Each witness shall testify, be open to questions from the opposing Party or their representatives, then from the Chairperson and the individual members of the Board. The Chairperson and the members of the Board may ask questions out of turn if they feel a particular point needs clarification.
b. Questions of witnesses or informational questions of anyone present concerning the production of documents and the facts surrounding any affidavits may be asked by the Chairperson or any member of the Board.
c. The Chairperson may establish such additional rules and regulations as necessary to facilitate the orderly progress of the proceedings.
10. Administration of Oaths
a. The Board shall not require a witness to testify under oath or affirm that their statements are true under the penalties of perjury; however, the Board may request such an oath or affirmation and weigh testimony under oath or affirmation greater than testimony not under oath or affirmation.
11. Stenographic and Tape Recording Record of the Hearing Proceedings
a. A stenographic record of the hearing shall not be required. Either the Board or the Parties, however, may request such a record if it informs the other Party, makes the necessary arrangements, and pays the cost thereof directly to the person or agency making such record.
b. Whether or not a stenographic record of the proceeding is made, an audio tape recording may be made.
c. Records made under these rules shall remain the exclusive property of the Party who makes the record, but the other Party or the representatives of the Board will be entitled to inspect and copy it. If a copy is made, either of a stenographic record or a tape recording, the cost to the requesting Party shall be the actual, reasonable costs of duplication.
12. Formal Closing of Hearing
a. The Chairperson shall specifically inquire of all Parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies or if satisfied that the record is complete, the Chairperson shall declare the testimony portion of the hearing closed and permit closing statements.
b. After the testimony has been closed and arguments have been heard, the Chairperson shall formally declare the hearing record closed and the matter ready for decision by the Board.
Decision of the Board
1. Standard of Proof
a. The standard and burden of proof to be used in determining the correctness of the factual situation shall be the standard commonly used in civil proceedings, namely: by the fair
weight of the credible evidence and shall not be the standard used in criminal proceedings, namely: proof beyond a reasonable doubt.
b. The ultimate burden of persuasion shall be upon the Complainant.
2. Credibility of Witnesses, General
a. Each member of the Board in reaching a decision has the sole responsibility of deciding whether the testimony of each witness or documentary evidence is truthful and accurate and is to be believed or disbelieved in whole or in part.
b. Among the factors that the Board members should consider for witnesses that appear before the Board are:
i. the manner of testifying, how he looked, conducted himself and spoke while testifying;
ii. his ability to remember the events about which he testified;
iii. whether the witness was positive and certain or hesitant and doubtful about the matters to which he testified;
iv. whether the witness testified frankly and fairly or whether he displayed favoritism or was biased in any way;
v. whether the witness or any group he is associated with has anything to gain or lose from the outcome of the Board’s decision; and
vi. whether and to what extent the witness’ testimony is supported or contradicted by other evidence which the Board member believed.
c. Among the factors that the Board should consider for documentary evidence are:
i. how regular the document appears on its face and if it is the whole document or merely a portion of the document;
ii. what is the normal purpose of the document;
iii. how the document was secured;
iv. assessment of the fact that such evidence may not be under oath, not subject to cross examination and may be less than all of the facts concerning this matter;
v. whether the document was prepared in the normal course of the preparer’s business or if the document was prepared at the request of a Party for the purposes of litigation or this hearing;
vi. the reasons for the non production of the information by actual witnesses; and
vii. the ability and opportunity for the opposing Party to refute the evidence.
i. In assessing the credibility and reliability to be placed on witnesses, the Board shall look at the candor that the Party has displayed in responding to the allegations of the initial complaint, the request for additional documentation, and the answers of its witnesses. The Board shall also use the same standard of candor with respect to evidence presented against the Parties.
ii. Lack of truthfulness, evasiveness, and deception, will be taken into account and may be used as a standard to justify disregarding all of the evidence produced by a Party.
e. After examining all the testimony and the documentary evidence and using the Board member’s individual experience and good common sense, the Board member should give the evidence such credibility and weight as he or she thinks it deserves.
3. Voting Procedure for Reaching Board Decision
a. The Board will deliberate as a group with only Board members present.
b. The final decision of the Board with respect to this matter shall be by secret ballot, each member present being entitled to one vote. Board members may not abstain from voting. A simple majority decision of those voting shall control the result.
c. The President shall remind the Board of its duty to try and reach a decision and the importance of this matter to the Parties and the members. If there is a deadlock of the Board and no majority decision can be reached, then the complaint shall be dismissed and no action shall be taken against the Respondent.
d. The Board may, if it desires, during its deliberations, request the presence and assistance of legal counsel of the Chairperson in interpreting these rules concerning matters related to the hearing and formulating its decision or any other such matters as the Board deems appropriate. The Parties’ representatives shall not have a right to be present during these deliberations, although they may be permitted to be there by the Board.
4. The Form of Decision by the Board
a. The Board of Directors may enter a decision to dismiss the charges, suspend the member for a period of six (6) months or less or recommend to the membership the expulsion of the member.
5. Delivery of the Decision to the Parties
a. The decision of the Board shall be publicly announced by the President or his representative at an open meeting of the Board of Directors, usually immediately after the conclusion of the hearing and the deliberation of the Board. The decision shall be recorded and published in the minutes of the meetings.
b. Generally, the decision shall be made and delivered no later than one (1) calendar day from the date the hearing is completed. Failure to adhere to this time limit shall not nullify the decision.
c. The decision shall also be reduced to writing and shall be substantially in the following form:
i. If the decision is in favor of the Respondent, the decision shall read, “After due consideration and hearing which occurred on <date> , the Board of Directors dismissed the charges brought by <Complainant> against <Respondent> by a vote of <x> members for dismissal and <y> members against dismissal”
ii. If the decision is against the Respondent, the decision shall read, “After due consideration and hearing which occurred on <date>, the Board of Directors upheld the charges brought by <Complainant> against <Respondent> by a vote of <x> members for dismissal and <y> members against dismissal and decided on the following discipline: by a majority vote of <x> for and <y> against: <a brief summary of the discipline is then inserted here>
iii. When there are multiple Complainant against a Respondent and one individual hearing is held and some charges are upheld and some are dismissed, the decision shall be in the form as set forth for individual complaints.
d. Normally, the decision of the Board will be delivered to the Parties when the Board’s decision is publicly announced. The Parties are expected to remain until the decision is rendered or they are released by the President.
e. The Parties shall also accept as delivery of the decision the placing of the decision or a true copy thereof in the mail, addressed to the Parties or their designated representatives at their last known address or by any other form of service permitted by law.
f. Prior to the beginning of the hearing, the Respondent may elect to have the Board decision reported in Newf Tide in a special box of one column width and approximately two inch height which shall be substantially in the written form of the Board’s decision referred to in the preceding subparagraphs.
1. Time and Manner of Taking an Appeal When the Decision of the Board is Suspension of the Respondent
a. The By-Laws of the NCA do not provide for an appeal if the decision of the Board is suspension. The Board recognizes the possible desire to have the decision of the Board reviewed by the general membership at an annual meeting and therefore, will provide the Respondent an opportunity to appeal the Board’s decision if he so desires.
b. If the Respondent wishes to appeal, he or she must notify the Recording Secretary in writing within fifteen (15) hours after the public announcement of the decision of the Board, unless the time is extended by the Board when the decision is orally announced. If the Respondent has been excused from the proceedings and he is informed by mail, the time for requesting an appeal will be extended until ten (10) days after receipt.
c. The appeal shall proceed in accordance with Alternative Presentation of the Disciplinary Action for Membership Review section of these rules, namely Section ____.
2. Time and Manner of Taking an Appeal When the Board Recommends Expulsion
a. No appeal to the general membership is necessary if the decision of the Board is to recommend expulsion to the general membership as that decision will be automatically reviewed by the general membership.
b. If the Respondent chooses to resign his or her membership in the Newfoundland Club of America, Inc. after the decision but prior to the presentation of the decision to the general membership, then at the Respondent’s discretion:
i. the matter will not be presented to the general membership for their determination
ii. the Respondent may, if they choose, have five (5) minutes to address the general membership and then the Complainants will have a total of five (5) minutes to address the general membership. These times may be extended by the President for cause shown. In this instance the membership will not vote on the discipline imposed.
3. Alternative Presentation of the Disciplinary Action to the Membership for Their Review
a. The By-Laws provide only for review of the Board’s recommendation for expulsion and provide a set procedure for that review.
b. The Board realizes that the Respondent may want a more open forum to address this issue. The purpose of this section is to provide an alternate, equally fair and balanced procedure for both the Board and the Parties to present their positions to the general membership so they make a decision regarding the appeal or the desired discipline.
c. The decision of the Board of Directors can come before the general membership either as an appeal by the Respondent of the Board’s decision, ratification of the Board’s recommendation for expulsion, or both.
d. Method of Processing before the membership at an annual meeting:
i. Prior to the meeting the Chairperson shall make available the documentary evidence produced at the hearing and a copy of the tape recording, if available, for the general members to listen to.
ii. If the disciplinary hearing was open to the general public, then anyone may attend the general members meeting. If the hearing was closed and the Respondent objects to non-members attending the meeting, then the meeting shall be open only to NCA members in good standing.
iii. The Chairperson, or his designate, shall review the charges, the evidence presented and the Board’s decision.
iv. The Respondent, or his representative, shall have five (5) minutes to address the general membership giving their version of the facts.
v. The Complainant, or his representative, shall have five (5) minutes to address the general membership giving their version of the facts.
vi. The Complainant(s) shall be present and available for questioning. The Respondent will have two (2) minutes to ask questions of the Complainants and the general membership shall have five (5) minutes.
vii. The Respondent(s) shall be present and available for questioning. The Complainant will have two (2) minutes to ask questions of the Respondent and the general membership shall have five (5) minutes.
viii. The above time limits may be extended by the Chairperson if it appears that an extension is necessary in the interest of fairness.
e. Voting at the general meeting
i. Only members in good standing shall be entitled to vote on this matter.
ii. The decision of the members shall only be to ratify and accept the Board’s decision or not to uphold the Board’s decision. The general membership may not have any other decision or impose any other discipline.
iii. If the recommended discipline is suspension, then a simple majority of those present and voting is needed to affirm the Board’s decision. If the recommended discipline is expulsion, then a two-thirds (2/3) vote of the members present is necessary to affirm the Board’s decision for expulsion.
iv. Voting shall be by secret ballot which shall be counted by a committee appointed by the President. Board members, the Chairperson and representative of the Parties shall be allowed to be present during the counting, if they desire.
1. Interpretation and Application of Rules
a. The Board shall interpret and apply these rules insofar as they relate to the Board’s powers and duties.
b. The Chairperson’s decision with regard to the conduct of the hearings and the initial admissibility of evidence shall be final.
c. These rules shall be interpreted liberally to treat all parties fairly and to further the interests of a just determination of the dispute.
a. The expenses incurred by either of the Parties in conjunction with these proceedings shall be at the cost and sole expense of the Party procuring them. This clause shall apply to all expenses including, but not limited to, producing witnesses at the hearing, procuring documentary evidence presented at the hearing, preparation for the hearing, or representation of the Parties by counsel.
3. Waiver of Objections By Silence or Failure to Timely Object
a. It is fundamentally unfair to permit a Party to have an objection, not voice it as soon as possible so that it can be dealt with or have the Board consider it, permit the Board to reach a decision, and then object if the Party does not like the decision.
b. If a Party proceeds with the hearing after knowledge that any provision or requirement of these rules has not been complied with and fails to state an objection in writing before the hearing or if no opportunity exists prior to the actual hearing, then to orally object at the hearing, then the Party shall be deemed to have waived the right to object on that ground.
4. Effective Date
a. These rules shall be effective immediately and shall apply to all pending and future proceedings.