Off With Her Head!

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'  Lewis Carroll

Farce: an empty or patently ridiculous act, proceeding, or situation.
Mirriam_Webster

As many of you know, WAMcKinley (WAM) was banned from SBFII earlier this summer.  She had not been posting, but had had some private discussions with SBFII members.  She was accused of “bullying” in these private conversations, though the exact nature of the alleged bullying was not revealed to her. 

WAM denied the charge and asked for “a means to redress this issue as I feel it is in no way fair.” In a reply, WAM was told the following:

“You still have the possibility to address your self to the Appeal Panel, from our part this is the last communication with you."

WAM informed SBFII that she intended to do so.  The appeal was delayed because the chair of the Appeal Panel had some medical issues.  So WAM waited, fully expecting her appeal to go forward.

However, it was not to be.  WAM received a message in September, signed SBFII, informing her that contrary to the earlier message,  she would not be allowed to appeal. (For more details: Sentence First - Verdict Afterwards )

“After consulting two of our our legal advicers, we are very sorry to have to inform you that we cannot allow for an appeal in your circumstances.
According to our bylaws an appeal is only possible after the forth warning and is meant to prevent further sanctions as described in our sanction rules.
An administrative ban is not open to appeal.”

Let’s examine the rules and bylaws of SBFII.  The warnings/sanctions escalate in severity as you read down the list.    The first four sanctions are temporary.  The rest are permanent.  The last sanction listed is the most severe of all, a complete ban.

Sanctions Policy

Warnings stay on record for 12 calendar months.
1. First warning - No sanctions, but a PM reminder of the rules and notification of warning.
2. Second warning - Moderated posts for 7 days. *Pre – Approval status
3. Third warning - Removal of posting and PM privileges for 30 days. *Read Only status
4. Fourth warning - Removal of posting and PM privileges for six months.*Read Only status
5. Fifth warning - Permanent removal of posting and PM privileges. Read-only privileges. *Read Only status
6. At the discretion of the Administrators, those who continuously disrupt the forum or violate Rule #3 persistenly may be put on indefinite pre-mod
7. For very serious offences member will be issued a complete ban (flagrant violation of the rules, bullying, cyber stalking and spamming) 

Note: You can appeal the decision to the Appeal Panel as of the 4th warning.

Here is the relevant section of the bylaws.

Article VIII -Appeal Panel
The Appeal Panel is a committee whose mandate is to receive appeals from members of the forum.susan-boyle.com. The appeal Panel consists of one (1) chairperson who is not a member of Staff or a member of the Board, one (1) Administrator of forum.susan-boyle.com, preferably not a Director, one(1) moderator of the forum who is not a Director, and two (2) members of the voting membership who are not Directors. 

The function of the Appeal Panel will be to hear appeals of sanctions received as a result of serious breaches of the rules committed by members who have acquired a sanction of the removal of posting and PM privileges of six (6) months (fourth warning) or more, as decided by the forum Staff in accordance with published Sanctions. Decisions of the Appeal Panel are final and will be made within three (3) weeks after the request for appeal has been made. The decisions will be made by majority vote.

The rules list the sanctions in order of severity.  The rules say that “you can appeal the decision to the Appeal Panel as of the 4th warning.”  The bylaws state that the Appeal Panel will hear appeals of “members who have acquired a sanction of the removal of posting and PM privileges of six (6) months (fourth warning) or more..”

The obvious purpose in allowing only the most severe sanctions to be appealed is to prevent clogging the appeal committee with appeals for minor offenses and sanctions.  The first three sanctions are short term and would likely expire before an appeal was completed.  Only as things get more serious and the sanctions last longer, is there an opportunity for appeal.

By using the terms “as of” and “or more”, they are recognizing the increasing severity along the continuum of offences and sanctions.  The term “as of” generally means starting at that point and going  beyond.  “Or more” means essentially the same thing, a sanction that is this severe or more severe.   A ban is the final sanction on the list, more severe than any of the previous ones.  It is clearly “more” serious than the fourth sanction, a punishment far beyond the fourth sanction.  As such it ought to be appealable. 

The bylaws do not prevent an appeal of a ban.   Nor were they were intended to.

When the meaning of a rule or statute is unclear, it can be instructive to examine the intentions of the author of the rules and bylaws. It can be helpful to examine other writing from the time the rule was written.  We can safely presume that the administration is responsible for the rules as well as the revised bylaws, having either written or approved them.

The bylaws were posted on May 27, 2011.  WAM was banned on June 12.  She wrote to Kalua and received a reply.  It was signed “The administration”, so it was clearly intended to be an official response.  She was told “You still have the possibility to address your self to the Appeal Panel …..”

So, as of June 12, less than three weeks after the new bylaws were posted, we can see that the original intent of the administration was that bans could be appealed.  Only later, in a desperate attempt to prevent WAM’s appeal, did they seek another interpretation.

I fail to understand how an appeal could threaten the administration so much that they would prohibit it.  The SBFII Appeal Panel was already stacked in favor of the staff by the substitution of PonyLady as chair.   (Citroenlady had been removed as chair.)  Based on past comments, it is extremely unlikely that PonyLady would ever vote against a decision made by the staff.

But having a stacked deck was not enough.  The administration decided to eliminate the possibility of WAM ever presenting her case at all.  To me, that implies they knew they had a very weak case.  Had they been confident that their decision to ban WAM would stand up to scrutiny, they would have let the appeal proceed.