Leaving closed session

[SDMiller]

I'm a member of a school board governed by Michigan's Open Meetings Act and (in our bylaws) by RONR. The OMA specifies several reasons that we can go into closed session and prescribes procedures for doing that. However, the OMA is silent on how to return from closed session to open session.

The state attorney general's office has recognized this gap and issued guidance recommending that a motion be made to return to open session. However, the AG's recommendation is silent on whether the motion needs a second, and on whether it is debatable.

I'm tempted to say that the motion to end closed session and return to open session is effectively a motion to adjourn, and therefore needs a second but is not debatable. But perhaps this decision falls within the chair's prerogatives. Or perhaps I'm missing something in RONR.

Thoughts please?

[Richard Brown]

I agree with the Attorney General's recommendation.  Ending the executive session should be done by a motion to do so.  It requires a second and a majority vote unless it is done by unanimous consent (which is often the case).  The motion is debatable, just like the motion to go into executive session.

[Joshua Katz]

I don't see why it would be effectively a motion to adjourn.  The meeting is not ending.

[Dan Honemann]

3 hours ago, Richard Brown said:

I agree with the Attorney General's recommendation.  Ending the executive session should be done by a motion to do so.  It requires a second and a majority vote unless it is done by unanimous consent (which is often the case).  The motion is debatable, just like the motion to go into executive session.

But let's say that the motion that was adopted to go into executive session was to do so in order to consider and vote upon a certain proposal, and the motion is made to end the executive session before that proposal has been disposed of. Won't this motion to end the executive session require more than a majority vote for its adoption?

Yes, sure it will. 

[Steven Britton]

You should check with an attorney licensed to practice law in Michigan. Your question for the attorney should concern - what limitations on voting in executive session does the act prescribe? If the act limits voting - in executive session, it is possible that the qualification in Dan's motion to go into executive session to vote was not in order due to rules outside of RONR. You need to check with your own attorney.

[Josh Martin]

4 hours ago, Godelfan said:

I don't see why it would be effectively a motion to adjourn.  The meeting is not ending.

Actually, the meeting quite likely is ending. Many public bodies hold executive sessions at the end of their meetings, and then adjourn immediately afterward. By following this procedure, members of the public who are attending the meeting may safely go home when the executive session begins, rather than awkwardly hanging out somewhere nearby for an indefinite period of time.

Nonetheless, I concur with Mr. Brown that the motion is debatable.

4 hours ago, Daniel H. Honemann said:

But let's say that the motion that was adopted to go into executive session was to do so in order to consider and vote upon a certain proposal, and the motion is made to end the executive session before that proposal has been disposed of. Won't this motion to end the executive session require more than a majority vote for its adoption?

Yes, sure it will. 

Assuming this is all in order to begin with (it may not be in order to vote on a proposal in executive session, depending on the specifics of the state's open meeting act), I agree. Since the motion changes action previously taken by the assembly, a 2/3 vote, or a vote of a majority of the entire membership, is required. Of course, since this is a small board, there may be little or no difference between a majority vote and a vote of a majority of the entire membership.

A motion to Adjourn, however, would be in order while the assembly is in executive session (at least so far as RONR is concerned - applicable law may (and apparently does) provide otherwise) and would require only a majority vote for adoption. I assume that this would have the effect of ending the executive session - or does this depend on whether the next meeting is a continuation of the same session or the start of a new session?

[Dan Honemann]

Well, I'm not all that fond of the idea that it will take a motion to Rescind or Amend Something Previously Adopted to adopt a motion to come out of executive session under any circumstances, and hence that smiley face of mine.

[George Mervosh]

20 hours ago, Daniel H. Honemann said:

But let's say that the motion that was adopted to go into executive session was to do so in order to consider and vote upon a certain proposal, and the motion is made to end the executive session before that proposal has been disposed of. Won't this motion to end the executive session require more than a majority vote for its adoption?

Yes, sure it will. 

In that case, would it not be best to avoid stating a reason for entering into executive session?  Yes, sure it would.

[Steven Britton]

Would a better wording be, "to return to public session?"

[Gary Novosielski]

11 hours ago, George Mervosh said:

In that case, would it not be best to avoid stating a reason for entering into executive session?  Yes, sure it would.

Except that according to Sunshine Laws that restrict the use of executive session to certain types of business, they usually require that the motion to go into exec includes the nature of the business to be discussed. 

[George Mervosh]

8 hours ago, Gary Novosielski said:

Except that according to Sunshine Laws that restrict the use of executive session to certain types of business, they usually require that the motion to go into exec includes the nature of the business to be discussed. 

Yes, procedural rules in statute always prevail. I was referring to the example on p. 230, where the sample script doesn't go quite so far as to include voting on the matter.

[Gary Novosielski]

I was about to say that it would be best to leave out the voting part, but then I recalled that the NJ Sunshine Laws, which which I'm familiar, in addition to stating what sort of business is to be discussed, also require a statement on whether action may be taken in executive session or not.  Even then, there is no reason to state that action definitely will be taken.

While in executive session, no business other than that mentioned in the motion could be discussed, and no action taken unless notice was given in the motion.  There were such severe restrictions on what votes could be taken in secret that I never saw it happen in fifteen years.

[Dan Honemann]

35 minutes ago, George Mervosh said:

Yes, procedural rules in statute always prevail. I was referring to the example on p. 230, where the sample script doesn't go quite so far as to include voting on the matter.

The motion in the example is "that the open portion" of the meeting be declared ended.

So, will a motion, while in executive session, to come out of executive session conflict with this motion that the open portion of the meeting be ended whereas, if the motion had been, instead, "that this open portion" of the meeting be declared ended it would not?

[George Mervosh]

4 minutes ago, Daniel H. Honemann said:

The motion in the example is "that the open portion" of the meeting be declared ended.

So, will a motion, while in executive session, to come out of executive session conflict with this motion that the open portion of the meeting be ended whereas, if the motion had been, instead, "that this open portion" of the meeting be declared ended it would not?

Hmmm.  Maybe so.    I think from now on I'll stick with the simple:  "I move that we enter into executive session at this time".  Will that work?

[Gary Novosielski]

4 minutes ago, Daniel H. Honemann said:

The motion in the example is "that the open portion" of the meeting be declared ended.

So, will a motion, while in executive session, to come out of executive session conflict with this motion that the open portion of the meeting be ended whereas, if the motion had been, instead, "that this open portion" of the meeting be declared ended it would not?

That was the essentially the way we used to do things, scheduling the executive session at the end of the public meeting.  But as a matter of form, we still adopted a motion to come out of executive session (which would be recorded in the exec minutes), then opened the door to the conference room to see if anyone was still waiting in the large meeting room, and immediately adjourn (which action would be recorded in the open minutes.)

[J. J.]

On 12/23/2016 at 9:45 AM, Daniel H. Honemann said:

The motion in the example is "that the open portion" of the meeting be declared ended.

So, will a motion, while in executive session, to come out of executive session conflict with this motion that the open portion of the meeting be ended whereas, if the motion had been, instead, "that this open portion" of the meeting be declared ended it would not?

I don't think that could happen.  A motion, "To go into executive section to vote on a motion to fire Mr. X," would reveal what will be considered in executive session.

 

Also, I would advise the SDMiller to seek an attorney's, licensed in his state, to review the legality of voting in executive session. 

[Gary Novosielski]

On 12/27/2016 at 9:02 PM, J. J. said:

I don't think that could happen.  A motion, "To go into executive section to vote on a motion to fire Mr. X," would reveal what will be considered in executive session.

Yet Sunshine Laws often require it.  Not the name, of course, that would be improper for several reasons.  But the motion might be "to go into executive session to discuss a matter concerning employee performance." (or conduct, or whatever X. is being accused of.)

[SDMiller]

I apologize for being in absentia on this thread. I had asked to be notified of replies, and I wasn't notified. Finally decided to check today, and I see that I stirred up quite a little discussion a couple of weeks ago. Let me try to bring it back around to the questions at hand:

Michigan's Open Meeting Act does require that the reason for entering closed session be entered in the minutes of the open meeting; in practice this means the reason is stated in the motion. It does not have to be so specific as "to fire Mr. X", but does need to be one (or more) of several specific reasons listed in the act, e.g., to discuss discipline of an employee. The act also requires all deliberations at a meeting constituting a quorum, and all decisions, to be taken in an open meeting. 

The state attorney general's opinion says: "Leaving a closed session – the OMA is silent as to how to leave a closed session. We suggest that you recommend a motion be made to end the closed session with a majority vote needed for approval. Admittedly, this is a decision made in a closed session, but it certainly isn't a decision that ;effectuates or formulates public policy.'"

So we need a motion, and we need a vote. Richard Brown was very declarative that this motion needs a second and is debatable, and Josh Martin concurs. Neither learned gentleman cites an authority for this position. The remaining replies, while interesting, are not on point, except those suggesting we consult a Michigan attorney, which we have done. He agreed with my contention that the motion is akin to a motion to adjourn, because the closed session is effectively a meeting within a meeting, and the motion is to end the "child" meeting (and therefore to return to the "parent" meeting). But he agreed in a kind of "sounds good to me" way, not with any conviction or authority.

I state the questions again, with a third question:

1. Does the motion to leave the closed session require a second?
2. Is the motion debatable?
3. What authority supports your answer?

Thanks for the interesting discussion!

 

[J. J.]

1 hour ago, SDMiller said:

So we need a motion, and we need a vote. Richard Brown was very declarative that this motion needs a second and is debatable, and Josh Martin concurs. Neither learned gentleman cites an authority for this position. The remaining replies, while interesting, are not on point, except those suggesting we consult a Michigan attorney, which we have done. He agreed with my contention that the motion is akin to a motion to adjourn, because the closed session is effectively a meeting within a meeting, and the motion is to end the "child" meeting (and therefore to return to the "parent" meeting). But he agreed in a kind of "sounds good to me" way, not with any conviction or authority.

I state the questions again, with a third question:

1. Does the motion to leave the closed session require a second?
2. Is the motion debatable?
3. What authority supports your answer?

Thanks for the interesting discussion!

 

1.  Try pp. 226-7.

You may also see "Question of Privilege:  Reopening the Windows," National Parliamentarian, third quarter, 2002.  Though tied to the tenth edition, it addresses your question. 

 
 

[Richard Brown]

1 hour ago, J. J. said:

1.  Try pp. 226-7.

You may also see "Question of Privilege:  Reopening the Windows," National Parliamentarian, third quarter, 2002.  Though tied to the tenth edition, it addresses your question.

J.J., I suspect that not many of us have copies of the National Parliamentarian from 2002 lying around and I doubt that Mr. (or Ms) Miller has them. So, how about elaborating on your answer and quoting the relevant provisions from  the article?  Or providing a link to it if one is available?

[Richard Brown]

4 hours ago, SDMiller said:

I apologize for being in absentia on this thread. I had asked to be notified of replies, and I wasn't notified. Finally decided to check today, and I see that I stirred up quite a little discussion a couple of weeks ago. Let me try to bring it back around to the questions at hand:

Michigan's Open Meeting Act does require that the reason for entering closed session be entered in the minutes of the open meeting; in practice this means the reason is stated in the motion. It does not have to be so specific as "to fire Mr. X", but does need to be one (or more) of several specific reasons listed in the act, e.g., to discuss discipline of an employee. The act also requires all deliberations at a meeting constituting a quorum, and all decisions, to be taken in an open meeting. 

The state attorney general's opinion says: "Leaving a closed session – the OMA is silent as to how to leave a closed session. We suggest that you recommend a motion be made to end the closed session with a majority vote needed for approval. Admittedly, this is a decision made in a closed session, but it certainly isn't a decision that ;effectuates or formulates public policy.'"

So we need a motion, and we need a vote. Richard Brown was very declarative that this motion needs a second and is debatable, and Josh Martin concurs. Neither learned gentleman cites an authority for this position. The remaining replies, while interesting, are not on point, except those suggesting we consult a Michigan attorney, which we have done. He agreed with my contention that the motion is akin to a motion to adjourn, because the closed session is effectively a meeting within a meeting, and the motion is to end the "child" meeting (and therefore to return to the "parent" meeting). But he agreed in a kind of "sounds good to me" way, not with any conviction or authority.

I state the questions again, with a third question:

1. Does the motion to leave the closed session require a second?
2. Is the motion debatable?
3. What authority supports your answer?

Thanks for the interesting discussion!

 

 

Answer to questions 1, 2 and 3:   A motion to enter or leave an executive session is a question of privilege affecting the assembly.  As the text on pages 226-227 cited by J.J. indicates, such a motion requires a second and is debatable, I think that in most instances a member simply moves to go into executive session (and to close it) without the prefatory statement. I would suggest reading all the way through page 230. I think page 230 in particular may be helpful.

In understanding this, it is important, as either Mr. Honemann or Mr. Gerber explained to me once a while back, to understand the difference between "raising a question of privilege" and making the motion.  You may have to read the cited pages more than once to fully understand that.

Edited again to add:  An executive session entered into during a meeting is not a meeting within a meeting.  It is all the same meeting, with part of it being held in secret and closed to non-members other than those who may be invited to stay.

Edited January 9, 2017 at 04:13 AM by Richard Brown
added last two sentences to first paragraph and added last paragraph

[Kim Goldsworthy]

9 hours ago, SDMiller said:

Q1. Does the motion to leave the closed session require a second?
Q2. Is the motion debatable?
Q3. What authority supports your answer?

If a motion to go into, or to go out of, executive session, is treated as a main motion, then:

1.) It does require a second, because Robert's Rules of Order, in its Standard Descriptive Characteristics for main motions, says that main motions require seconds.

2.) The motion is debatable, because Robert's Rules of Order, in its Standard Descriptive Characteristics for main motions, says that main motions are debatable.

3.) The source for #1 and #2 above is: The Standard Descriptive Characteristics of main motions. See Robert's Rules of Order Newly Revised, 11th edition.

***
All motions in "Robert's Rules of Order Newly Revised" are given eight "Standard Descriptive Characteristics."

"Debatability" is one characteristic (yes or no); "Second requirement" is one characteristic (yes or no).

Other characteristics of motions:

   • are they subject to reconsideration?

   • what vote threshold is necessary for adoption?

   • are they amendable?

Etc.

***

Q. Is that the "authority" you were looking for?

 

 

[J. J.]

11 hours ago, Richard Brown said:

J.J., I suspect that not many of us have copies of the National Parliamentarian from 2002 lying around and I doubt that Mr. (or Ms) Miller has them. So, how about elaborating on your answer and quoting the relevant provisions from  the article?  Or providing a link to it if one is available?

1.  A PDF of the text is attached.

2.  Copies may be order through the National Association of Parliamentarians at not cost, IIRC.

3.  This was reprinted in Best of NP (2000-07), which is also available  from NAP, at a cost.

4.  The published text mentions our good friend Gary c. Tesser, as the inspiration. 

NP 14 RW1.pdf

[SDMiller]

@Kim Goldsworthy Yes, of course everything you say follows from your premise that the motion to end the closed session is a main motion -- but is it? Or is it a privileged motion, effectively to adjourn the closed session?

@Richard Brown, forgive e, but I do not see anything in the text J.J. helpfully posted about the motion requiring a second or being debatable. What am I missing? 

[J. J.]

1 hour ago, SDMiller said:

@Kim Goldsworthy Yes, of course everything you say follows from your premise that the motion to end the closed session is a main motion -- but is it? Or is it a privileged motion, effectively to adjourn the closed session?

@Richard Brown, forgive e, but I do not see anything in the text J.J. helpfully posted about the motion requiring a second or being debatable. What am I missing? 

You should be looking at the cited sections of RONR, especially, pp. 226-7, 4-6.