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Lifting the secrecy of an Executive Session.


George Mervosh

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A board has adopted a motion to go into executive session to deal with a matter requiring confidentiality.  At a subsequent session, the board decides secrecy is not needed regarding that subject and wants to lift the secrecy and inform the membership.  What is the vote required to lift the secrecy of the executive session? 

 

Is it possible that this may well require the same vote as is needed to rescind or amend anything else which has previously been agreed to by the adoption of a main motion?

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Generally speaking, I think that adoption of a motion to lift secrecy will require the same vote as is needed for adoption of a motion to Rescind or to Amend Something Previously Adopted.

 

There are decisions which may be made in executive session which must necessarily be disclosed in order to be carried out, and I do not think that any motion at all is needed in order to enable the making of such disclosures, but the discussion and proceedings leading up to the making of such decisions will remain secret unless secrecy is lifted.

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Should members be troubled by the fact that remarks made in confidence can later be disclosed by a board whose membership may have changed?

 

Troubled or not the secrecy can be lifted regardless of a change in membership.  The question asked here is the vote required to do so.

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Guest Gary c Tesser disguised as

Sorry. I thought that question had been answered.

 

I think it was, and I suppose can be considered summarily answered by post 2, unless someone feels like taking a crack.  (Can Rob Elsman possibly have found something more useful to do with his free time?)  I myslef would have supposed that lifting the secrecy requires no greater vote than what it takes to leave an executive session once we're in it, i.e., a majority, and often simply achieved by hearing no objection.  Around 2003 or 2004, seeing no mention  in RONR 9th or 10th about leaving executive session, I saw no way out:  that once entered into executive session, an organization was stuck there forever, or perhaps, as a reasonable compromise, until the heat-death of the universe.  (J.J. was calling it the "cold death," which led me to believe for a while that he was vehemently rebutting my position, until a physicist I know from college advised me that "cold death" is an unremarkable equivalent term, though somewhat quaintly antique (like J.J., unsurprisingly).)  I don't remember how anyone talked me out of it; perhaps it was one of the times Shmuel Gerber and Dan Seabold ganged up on me mercilessly.

 

Ah, those halcyon college days.

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If the motion was  "That the Board continue the meeting in Executive Session" then surely the adoption of a motion "That the members be informed of the Board's decision regarding xxxx at the last meeting" should suffice.  Just because something is decided upon in Executive Session does not mean that people can not be told of the outcome.

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If the motion was  "That the Board continue the meeting in Executive Session" then surely the adoption of a motion "That the members be informed of the Board's decision regarding xxxx at the last meeting" should suffice.  Just because something is decided upon in Executive Session does not mean that people can not be told of the outcome.

 

Oh Edness.  You were doing so well.

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I myslef would have supposed that lifting the secrecy requires no greater vote than what it takes to leave an executive session once we're in it, i.e., a majority, and often simply achieved by hearing no objection. 

 

The two things - entering/leaving executive session and lifting the secrecy are distinct and different acts in my opinion.  When the executive session is complete and a motion to return to a regular session, or adjourning the meeting, whichever, is made, it doesn't rescind or amend the motion to go into it to begin with.  The executive session is simply complete and the motion is carried out in full and it's time to return to the regular session, or go home. 

 

One of the two purposes of entering into executive session by the adoption of a main motion to do so, is to impose a level secrecy on those who attend. That secrecy level will continue until the board agrees to remove some or all of it.  If the board in this case decides to reveal secret information to the membership it is, in fact, rescinding/amending the secrecy agreement or part of it.

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The two things - entering/leaving executive session and lifting the secrecy are distinct and different acts in my opinion.  When the executive session is complete and a motion to return to a regular session, or adjourning the meeting, whichever, is made, it doesn't rescind or amend the motion to go into it to begin with.  The executive session is simply complete and it's time to return to the regular session, or go home. 

 

One of the two purposes of entering into executive session by the adoption of a main motion to do so, is to impose a level secrecy on those who attend. That secrecy level will continue until the board agrees to remove some or all of it.  If the board in this case decides to reveal secret information to the membership it is, in fact, rescinding/amending the secrecy agreement or part of it.

 

 

It will become a question if making something secret is an act that has been completely carried out.

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If the board in this case decides to reveal secret information to the membership it is, in fact, rescinding/amending the secrecy agreement or part of it.

 

You're not troubled by the possibility that the board that decides to reveal secret information might be composed of persons who who were not members of the board that decided to keep it secret?

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You're not troubled by the possibility that the board that decides to reveal secret information might be composed of persons who who were not members of the board that decided to keep it secret?

I'm not troubled by it, even if there is no overlap whatsoever between the current membership of the board and the members who decided to keep the information secret. In some cases, it may not be until many years later that it is prudent to release information, in which case there is likely to be little or no overlap. In others, it may be that a particular set of board members has been overly secretive, and when most or all of those board members are ousted, the newly elected board members release much of the secret information. No doubt this could also be abused in other situations, but on the whole, I think it is best that a board can release information previously deemed secret, even although some or all of the board's members may have changed.

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Would you at least admit that, if your confidential comments might someday be disclosed, you'd be less likely to speak freely?

 

No.

 

Then what's the point of confidentiality?

 

I was thinking it was analogous to a (secret) ballot vote which might more accurately reflect the "true sentiments" (p.412) of the voters. If the voters thought their (secret) vote might someday be disclosed they might vote differently. Or not at all.

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A board has adopted a motion to go into executive session to deal with a matter requiring confidentiality.  At a subsequent session, the board decides secrecy is not needed regarding that subject and wants to lift the secrecy and inform the membership.

 

 

Would you at least admit that, if your confidential comments might someday be disclosed, you'd be less likely to speak freely?

 

I think there's an important distinction here. When George says in his initial post that "the board...wants to lift the secrecy and inform the membership", I take that to mean inform the membership of the decisions made and/or the action taken while in executive session. I don't see how that should equate to :"confidential comments might someday be disclosed". Certainly if minutes are kept in the proper form, those confidential comments should not have been recorded at all.

 

And if you consider this in connection with the issue raised about the membership of the board having completely changed, then the only reliable source for what action was taken in some past executive session will be those minutes, so no record of who said what should exist.

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I think one of the problems with Rescind is that there is no main motion adopted to be rescinded (p. 305, ll 28-31). 

 

The second problem is that this might not be something technically in force.  I would use an analogy of a motion, "That the society purchases 100 shares of X Company common stock."  The motion is adopted and the stock is purchased.  At some point after that, the society decides to sell the stock.  It would not be necessary to rescind the first motion.

 

The society adopted a motion, in effect, that anything that happens during this session will not be disclosed.  While the effect of adopting a motion to go into executive session will be that the information will not be disclosed, they did not adopt a motion stating that, 

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I think one of the problems with Rescind is that there is no main motion adopted to be rescinded (p. 305, ll 28-31). 

 

The second problem is that this might not be something technically in force.  I would use an analogy of a motion, "That the society purchases 100 shares of X Company common stock."  The motion is adopted and the stock is purchased.  At some point after that, the society decides to sell the stock.  It would not be necessary to rescind the first motion.

 

The society adopted a motion, in effect, that anything that happens during this session will not be disclosed.  While the effect of adopting a motion to go into executive session will be that the information will not be disclosed, they did not adopt a motion stating that, 

 

The obligation not to divulge anything that occurred in executive session is something having continuing force and effect which was made or created as the result of the adoption of the motion to go into executive session, thus falling clearly within the language found on page 305, lines 28-31.

 

The analogy offered is flawed. Adoption of a motion to purchase 100 shares of X Company common stock imposes no continuing obligation not to sell that stock once it has been purchased.

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I think there's an important distinction here. When George says in his initial post that "the board...wants to lift the secrecy and inform the membership", I take that to mean inform the membership of the decisions made and/or the action taken while in executive session. I don't see how that should equate to :"confidential comments might someday be disclosed". Certainly if minutes are kept in the proper form, those confidential comments should not have been recorded at all.

 

And if you consider this in connection with the issue raised about the membership of the board having completely changed, then the only reliable source for what action was taken in some past executive session will be those minutes, so no record of who said what should exist.

But we already know that the general membership can order the board's minutes read whether the board meeting was held in executive session or not.

 

So it seems to me that "lifting the secrecy of an Executive Session" might reveal more than that what's recorded in the minutes. Otherwise, what's the point?.

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I have been going along with Mr Guest's point here, although I will say, as George pointed out, notwithstanding his concern, the applicable rules are unambiguous, and I don't expect Mr Guest disagrees on this.  Perhaps what we might glean from the discussion is that it should be understood that when members express private, candid, perhaps painfully, riskily, indiscreet thoughts related to action that their organization might take, with a virtual guarantee that these expressions are, and will be kept, confidential, it will be a betrayal of that implicit guarantee if, when the secrecy, in general, is lifted, that current members might not feel themselves as "honor-bound" (p. 96, line 8) to maintain the confidentiality of what was enforceable once the enforcement is, nominally, lifted.  They still are.  And maybe parliamentarians ought to emphasize this.

 

(Great Steaming Cobnuts, I think I'm leaving something out.)

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I have been going along with Mr Guest's point here, although I will say, as George pointed out, notwithstanding his concern, the applicable rules are unambiguous, and I don't expect Mr Guest disagrees on this. Perhaps what we might glean from the discussion is that it should be understood that when members express private, candid, perhaps painfully, riskily, indiscreet thoughts related to action that their organization might take, with a virtual guarantee that these expressions are, and will be kept, confidential, it will be a betrayal of that implicit guarantee if, when the secrecy, in general, is lifted, that current members might not feel themselves as "honor-bound" (p. 96, line 8) to maintain the confidentiality of what was enforceable once the enforcement is, nominally, lifted. They still are. And maybe parliamentarians ought to emphasize this.

(Great Steaming Cobnuts, I think I'm leaving something out.)

I can understand these sentiments, but I might describe it somewhat differently. If an assembly lifts secrecy regarding some or all of the information discussed in an executive session, then members are not bound by rules or honor to maintain confidentiality regarding that information. The assembly has chosen, for whatever reason, to release members (and other attendees) from such obligations. One would certainly hope, however, that people will utilize good judgment and respect when exercising their newfound freedom to speak out.

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I agree with Josh Martin in his comments expressed in post # 22 above and disagree somewhat with my friend Gary Tesser.  I think it is unreasonable for a member to think that his comments expressed in an executive session have "a virtual guarantee that these expressions are, and will be kept, confidential".   I believe such a belief is simply unrealistic.  And I do believe that the confidentiality of an executive session can later be waived by the board regardless of any change in the makeup of the board or the passage of time.

 

I also agree with those who have expressed the view that doing so is probably tantamount to rescinding or amending something previously adopted and that the vote requirements for that motion would apply.

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But we already know that the general membership can order the board's minutes read whether the board meeting was held in executive session or not.

 

So it seems to me that "lifting the secrecy of an Executive Session" might reveal more than that what's recorded in the minutes. Otherwise, what's the point?.

 

 

The board, in this case, would be lifting the veil of secrecy.

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...

. If an assembly lifts secrecy regarding some or all of the information discussed in an executive session, then members are not bound by rules or honor to maintain confidentiality regarding that information. The assembly has chosen, for whatever reason, to release members (and other attendees) from such obligations....

 

How exactly did the obligations of honor get released?

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