What constitutes "active participation"?

[Майор Хаткевич]

Fills out paperwork
Advises Group Commander and member of action

By your logic, group CC shouldn't see anything of the CAPF2B unless there's an appeal...

[lordmonar]

Fills out paperwork
Advises Group Commander and member of action

By your logic, group CC shouldn't see anything of the CAPF2B unless there's an appeal...

No...he should see it when it is filed as per the regs.

Opps.....doubled checked......it depends on the reason for the 2b.

6. Termination Procedures. When a unit commander determines that it is appropriate to terminate an individual's CAP membership, the following procedures will be followed:
a. For reasons not involving misconduct or termination for cause, the unit commander will prepare a CAPF 2B, Personnel Action Request-Termination of CAP Membership, in three copies. The original copy will be mailed to National Headquarters; the second copy will be mailed to the member's last known address; and the third copy will be retained in the unit's file.
b. Cadets being terminated for misconduct and senior members being terminated for cause are entitled to the appeal procedures set out in section D hereafter. In such cases, the unit commander will initiate the termination action by notifying the individual by letter (see attachment 2). Commanders should ensure that the notification letter states each appropriate charge and a brief statement of the facts believed to support the charge and follows the format in attachment 2. Within 10 days of the commander's decision to terminate, the letter of notification should be delivered by personal delivery to the member or a copy mailed both by certified mail and by regular mail to the member's residence address as recorded in the membership unit. At the time the letter of notification is sent to the member, a copy of the letter will be sent to the appropriate approving authority, to the wing commander (if the approving authority is below wing level) and to NHQ/DP. Upon notification of a proposed termination action, the appellant will be considered in suspended status and will not be authorized to participate in CAP activities or represent the corporation in any capacity until the termination action is completed. A flow chart outlining the entire termination process is shown in attachment 3.
c. Members not appealing termination of their CAP membership

So....for a non cause 2b....the approving authoirty is not notified of the 2b.

[Майор Хаткевич]

Fills out paperwork
Advises Group Commander and member of action

By your logic, group CC shouldn't see anything of the CAPF2B unless there's an appeal...

No...he should see it when it is filed as per the regs.

Taints the whole impartial bit, doesn't it?

[JeffDG]

Fills out paperwork
Advises Group Commander and member of action

By your logic, group CC shouldn't see anything of the CAPF2B unless there's an appeal...

No...he should see it when it is filed as per the regs.

Taints the whole impartial bit, doesn't it?

No, it is the same information provided to the member.  As such, it is not an ex parte communication between one party (the initiating commander) and the appeal authority (group commander).

[Luis R. Ramos]

Too much back and forth...   


Simple...

Jeff, how many times have you undergone the 2b process?

Eclipse, how many times have you undergone the 2b process?

[JeffDG]

Too much back and forth...   


Simple...

Jeff, how many times have you undergone the 2b process?

Eclipse, how many times have you undergone the 2b process?

That's called "appeal to authority" and is a logical fallacy.

Eclipse keeps saying that it's all in the regs, yet he can't seem to quote them.  He's arguing "proof by repeated assertion", I'm providing citations for my statements.

[Eclipse]

Everything relevent was quoted and cited, multiple times by multiple people.

[JeffDG]

Everything relevent was quoted and cited, multiple times by multiple people.

Yep, mostly by me.

You are continuing "Proof by repeated assertion"

[Майор Хаткевич]

[vorteks]

No, it is the same information provided to the member.  As such, it is not an ex parte communication between one party (the initiating commander) and the appeal authority (group commander).

If the ex parte communication is to be considered an "impermissible conflict of interest" (using the language in 35-3), the regulation addresses this by simply requiring the appointment of a new approving authority. If it's not an "impermissible" conflict of interest, is due process violated?

[JeffDG]

No, it is the same information provided to the member.  As such, it is not an ex parte communication between one party (the initiating commander) and the appeal authority (group commander).

If the ex parte communication is to be considered an "impermissible conflict of interest" (using the language in 35-3), the regulation addresses this by simply requiring the appointment of a new approving authority. If it's not an "impermissible" conflict of interest, is due process violated?

I've addressed that above in terms of recusal:

If a squadron commander asks such advice from a Group Commander, the Group Commander has a few options:
1.  Provide such advice.  If the matter proceeds to an appeal, advise the Wing Commander of the fact that you as Group/CC was part of the decisionmaking process, and advise him to appoint another Group/CC to handle the appeal.

2.  If your advice would be to 2B the member, do it yourself, vesting the appeal rights with the next echelon, the Wing Commander.

3.  Demur to provide advice in your role as appeal authority, perhaps directing the squadron commander to seek advice from the Group Personnel Officer (who would then be precluded from serving on an Appeal Board), or alternatively to have the Squadron/CC seek advice instead from Wing (who are not part of the appeal process)

4.  Provide advice, then simply rule on the appeal and pretend you're not reviewing your own decision, and hope the member doesn't find out and appeal to the MARP.  This options shows a total lack of integrity.

As for non-recusal, here's the basic concept of neutrality, fundamental to due process:

The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.

(Ray MARSHALL, Secretary of Labor, et al., Appellants, v. JERRICO, INC.
446 U.S. 238 (100 S.Ct. 1610, 64 L.Ed.2d 182), internal citations omitted)

If you're pre-clearing your 2B with the approving authority, how can it be that the member has the "assurance that the arbiter [approving authority] is not predisposed to find against him."  The very act of pre-coordination places the approving authority in a position where they are pre-disposed to find against the member...they had a hand in the adverse decision against that member.

You can't suck and blow at the same time.

[lordmonar]

No, it is the same information provided to the member.  As such, it is not an ex parte communication between one party (the initiating commander) and the appeal authority (group commander).

If the ex parte communication is to be considered an "impermissible conflict of interest" (using the language in 35-3), the regulation addresses this by simply requiring the appointment of a new approving authority. If it's not an "impermissible" conflict of interest, is due process violated?

Which was what we all said way back when!   If a conflict of interest arises....the higher authority should take it upon itself to initiate the 2b and let the next level be the appeal authority.

[JeffDG]

No, it is the same information provided to the member.  As such, it is not an ex parte communication between one party (the initiating commander) and the appeal authority (group commander).

If the ex parte communication is to be considered an "impermissible conflict of interest" (using the language in 35-3), the regulation addresses this by simply requiring the appointment of a new approving authority. If it's not an "impermissible" conflict of interest, is due process violated?

Which was what we all said way back when!   If a conflict of interest arises....the higher authority should take it upon itself to initiate the 2b and let the next level be the appeal authority.

Option #2 in my list.

[JeffDG]

For those reading CAPR 35-3, here's a question for you.

The National Commander decides to terminate the membership of the National Vice Commander for misconduct.  The National Vice Commander appeals the decision.  Who appoints the Appeal Board and acts as the Approving Authority deciding the appeal?  (Note, the regulation specifically waives conflict-of-interest provisions in this situation)

[vorteks]

As a layman I find this all very interesting. But I still fail to see the problem with discussing a potential membership action with your commander, given the provisions in the regulations. It just makes sense and I bet it goes on all the time. Maybe just discussing the circumstances without mentioning names is the way to do it.

[JeffDG]

As a layman I find this all very interesting. But I still fail to see the problem with discussing a potential membership action with your commander, given the provisions in the regulations. It just makes sense and I bet it goes on all the time. Maybe just discussing the circumstances without mentioning names is the way to do it.

The issue with discussing it with your immediate commander is simple:  That commander is required to rule on any appeal.

There are no provisions in the regulations that require such consultation.  None, despite Eclipse's repeated assertions that that is "NHQ designed process", he's been unwilling to provide any citations to that fact.

If you involve your commander in the decision, through discussions and seeking advice, then the member no longer has any "assurance that the arbiter is not predisposed to find against him".  How can a commander who advised you to do something, or said "Sounds good, go ahead", then provide a credible assurance that he is not predisposed to follow his own advice?

[Eclipse]

It's called "integrity".

[JeffDG]

It's called "integrity".

And acting as the appeal authority for a decision you helped make, shows a distinct lack thereof.

[lordmonar]

As a layman I find this all very interesting. But I still fail to see the problem with discussing a potential membership action with your commander, given the provisions in the regulations. It just makes sense and I bet it goes on all the time. Maybe just discussing the circumstances without mentioning names is the way to do it.

On the surface there is nothing wrong with discussing the situation with the commander.......IF and this is the big IF.....only the circumstances that are going to be on the 2b are the only circumstances discussed.

Even asking for advices is okay.

But.....if you call up your next higher CC and lay out all the stupid things that a member needs to be gone, and then you pick one of those things for the 2b......then you have poised the well of a fair an unbiased hearing on the part of the appeal authority.

The member is going to rebut the info provided on 2b and the info provided to the board during the appeal process (as per 35-3).  But if the commander has shared information to the appeal commander then THAT is the violation of DUE process.

Now some (IG's for instance) are always on the look out for loop holes.  Both to make sure our members get fair hearings and have due process and to make sure that CAP is a professional organization and we try to keep the level of BS down to a low roar.

Like I said before....it is a gray area.   How does a commander get advice on how to proceed and not trip over due process.

One way.....is to ask advice up one level of authority.   Another is for the the level that you ask for advice to take on the job him/her self.   Another way is for you to keep to the point of the 2b and only 2b and nothing but the 2b.   "He won't do his safety compliance, won't answer his e-mails, won't do any work for the unit.  Have not seen him in six months....so I'm gonna 2b him.....what do you think".   That would be the absolute limit of any "pre clearance" that I would think is okay.

Yes...it goes on all the time......but that does not mean it is right.   Not mentioning names is useless....as it is the circumstances that count....and it is not like you produce so many 2bs that the next level commander is not going to remember that conversation you had just last month. (remember there is a time line on this).

[vorteks]

There are no provisions in the regulations that require such consultation.

Nor are there any prohiting it, which I think there would be if it were an inherant problem.

"d. To protect members' due process rights, the initiating unit commander may not discuss the potential termination action with the approving authority at any time prior to submission of form 2B"

If you involve your commander in the decision, through discussions and seeking advice, then the member no longer has any "assurance that the arbiter is not predisposed to find against him".

The regulations provide a way to address an impermissible conflict of interest, whatever that is.

How can a commander who advised you to do something, or said "Sounds good, go ahead", then provide a credible assurance that he is not predisposed to follow his own advice?

Because he can change his mind if/when made aware of new facts. The regulation provides that a termination action can be withdrawn by the initiating unit commander or the approving authority at any time.