Executive Session

[Guest Michael Ellis, MD]

Can ex-officio members w\ot vote be excluded from an Executive session?

We are told that Robert's Rules considers "ex-officio" members as afforded all rights, even with no vote and therefor must be included in Executive Session.?

[George Mervosh]

Can ex-officio members w\ot vote be excluded from an Executive session?

Yes.

" Only members, special invitees, and such employees or staff members as the assembly or its rules may determine to be necessary are allowed to remain in the hall." RONR, p. 93 Emphasis added.

"A member of an assembly, in the parliamentary sense, as mentioned above, is a person having the right to full participation in its proceedings - that is, as explained in 3 and 4, the right to make motions, to speak in debate on them, and to vote. " RONR, p. 3 Emphasis added

"Whenever the term member is used in this book, it refers to full participating membership in the assembly unless otherwise specified. Such members are also described as "voting members" when it is necessary to make a distinction." RONR, p. 3

[Josh Martin]

Can ex-officio members w\ot vote be excluded from an Executive session?

We are told that Robert's Rules considers "ex-officio" members as afforded all rights, even with no vote and therefor must be included in Executive Session.?

It is correct that in RONR, "ex-officio" members have the same rights as other members. RONR does not address the topic of "non-voting members." If your Bylaws define such a class of members, it will be up to your organization to interpret its own Bylaws to determine what rights such members have. See RONR, 10th ed., pgs. 570-573 for some Principles of Interpretation.

Yes.

" Only members, special invitees, and such employees or staff members as the assembly or its rules may determine to be necessary are allowed to remain in the hall." RONR, p. 93 Emphasis added.

"A member of an assembly, in the parliamentary sense, as mentioned above, is a person having the right to full participation in its proceedings - that is, as explained in 3 and 4, the right to make motions, to speak in debate on them, and to vote. " RONR, p. 3 Emphasis added

"Whenever the term member is used in this book, it refers to full participating membership in the assembly unless otherwise specified. Such members are also described as "voting members" when it is necessary to make a distinction." RONR, p. 3

If you're suggesting that the cited passages support the idea that non-voting members do not have the right to attend meetings, I disagree. It will be necessary for the organization to interpret its Bylaws to determine the rights of their customized class of membership.

[George Mervosh]

If you're suggesting that the cited passages support the idea that non-voting members do not have the right to attend meetings, I disagree. It will be necessary for the organization to interpret its Bylaws to determine the rights of their customized class of membership.

No I'm not suggesting anything about his bylaws, and for the 8 1/2 hours prior to your post no one thought I was either (or didn't mention it). If the bylaws skew what the rules in RONR are, so be it, I have no interest in finding out of his do or caveating the reply.

[Gary c Tesser]

George, I myself had been looking for a way to phrase a reply for a while before Mr Martin did. ISTM that the bylaws of Dr Ellis's organization are intrinsically involved here, because there is virtually no other way to get a class of non-voting members.

It is often Mr Fish (with the support of the NAP's Star Chamber committee) who comes down on this issue, taking the other view (that when one right is removed, all other rights are retained). I find Chris H's customary reply to this frequently-asked question commendable. He first points up the two views, and then explains that the since neither view has conclusively won over the other, the organization itself must determine what its rules mean. (George, I thought you also took this position; did you flip-flop on it when I wasn't looking?)

[George Mervosh]

George, I myself had been looking for a way to phrase a reply for a while before Mr Martin did. ISTM that the bylaws of Dr Ellis's organization are intrinsically involved here, because there is virtually no other way to get a class of non-voting members.

It is often Mr Fish (with the support of the NAP's Star Chamber committee) who comes down on this issue, taking the other view (that when one right is removed, all other rights are retained). I find Chris H's customary reply to this frequently-asked question commendable. He first points up the two views, and then explains that the since neither view has conclusively won over the other, the organization itself must determine what its rules mean. (George, I thought you also took this position; did you flip-flop on it when I wasn't looking?)

Gary, I'll try for the third time, I think the rule in RONR is clear, if you're not a full blown member, as described on p. 3, you have no right to attend executive session......Do you disagree? If I gave off any other vibe, it wasn't intentional.

Oh and I don't have it in front of me, but IIRC the Star Chamber was opining on what a set of bylaws said (something we don't do here).....(feel free to correct me if I'm wrong)

[Gary c Tesser]

I regret being so tiresomely obtuse.

Yes, of course I agree the rule in RONR is clear. Please remember that when we have bothered to try to hash this argument out, here on the Robert's Rules Website Forum (RONR MB), I lean towards your side.

But that can't be the beginning and end of it, because OP Dr Ellis's question (the first one -- the second is hinky) asks something that can't be strictly answered according to RONR, because he posits the existence of non-voting members, which to RONR is an oxymoron. So his question is based on some other source, which would ordinarily be his bylaws; which is why I don't see that your answer "yes," based on Robert's Rules and NOT taking into account the class that the other source creates, can answer his question.

Suppose that someone else had posted the first reply to Dr Ellis. Suppose that that poster had first told Dr Ellis that, in RONR's view, members can vote, by definition. Then the poster asked Dr Ellis why these ex-officio members could not vote. Would you have thought that question irrelevant to what Dr Ellis asked us?

(Of course the NAP committee had to discuss bylaws: where else could these questions come from?)

[George Mervosh]

Dr Ellis's question (the first one -- the second is hinky) asks something that can't be strictly answered according to RONR.

Sure it can be, and I think it was. He came here asking what RONR's says. It's tiresome adding, "but if your bylaws", "unless your bylaws", blah blah blah

Hey Gary, at least we agree on what RONR says.....let's have a 2FP meeting (everyone's invited) and celebrate!

[Shmuel Gerber]

Dr Ellis's question (the first one -- the second is hinky) asks something that can't be strictly answered according to RONR, because he posits the existence of non-voting members, which to RONR is an oxymoron.

Sure it can be, and I think it was. He came here asking what RONR's says. It's tiresome adding, "but if your bylaws", "unless your bylaws", blah blah blah

Hey Gary, at least we agree on what RONR says.....let's have a 2FP meeting (everyone's invited) and celebrate!

George, I think you're evading the issue somewhat, or at least not stating your position explicitly. You neglected to quote an important part of Gary's sentence: "... because he posits the existence of non-voting members ..."

The question itself establishes (whether correctly or not, we have no idea) that this organization has a class of members that are ex-officio members without vote.

We know that, in general, nonmembers do not have the right to attend meetings, whether held in executive session or not. How does the passage that you've quoted from page 93 answer the question whether these particular nonmembers, who evidently have some sort of special status conferred upon them as compared to nonmembers in general, have the particular right of attending meetings? And if they do, would not such a right supersede anything that RONR says about the effect of a motion to enter into executive session?

[Chris Harrison]

Even though my usual response is the "two schools of thought" approach I tend to lean towards the viewpoint that a member retains all their rights except for those which are removed for two reasons one being parliamentary in nature and one being practical in nature.

First, practically I think that most members are not savvy with parliamentary procedure and so they don't anticipate that creating a different class of membership can cause all those questions of which rights are retained. For practical purposes I believe that the default position should be that the organization means what it says and says what it means (if they wanted a specific class of member to not have the right to vote and that they can't make motions they would say so). Of course I am very aware that is wishful thinking but I still think that should be the default viewpoint.

For parliamentary purposes I think that when an organization adopts RONR as its parliamentary authority that it is adopting all 643 pages of the book as part of its bylaws except for when the bylaws conflict with it. If RONR pp. 1-643 are part of the bylaws then what p. 3 defines as a member should be binding on the organization unless the bylaws remove one or more of those rights just as when RONR says that an ex officio member has all of the rights of membership that should be binding on the organization except for when the bylaws remove one or more of those rights. When those rights are removed the rest of the rights of membership as defined by RONR p. 3 should stay intact.

<Waiting for the Wrath of Dan, or George, or Gary, or who knows who else to come raining down on me.>

[George Mervosh]

George, I think you're evading the issue somewhat, or at least not stating your position explicitly. You neglected to quote an important part of Gary's sentence: "... because he posits the existence of non-voting members ..."

The question itself establishes (whether correctly or not, we have no idea) that this organization has a class of members that are ex-officio members without vote.

We know that, in general, nonmembers do not have the right to attend meetings, whether held in executive session or not. How does the passage that you've quoted from page 93 answer the question whether these particular nonmembers, who evidently have some sort of special status conferred upon them as compared to nonmembers in general, have the particular right of attending meetings? And if they do, would not such a right supersede anything that RONR says about the effect of a motion to enter into executive session?

I'm certainly not trying to be evasive. I'm assuming Dr. Ellis correctly states and has correctly interpreted his bylaws to say that the members in question have no right to vote.

If that's true, RONR confers no right upon them to attend anything held in Executive Session, since RONR defines on p. 3 what it means by the word "member" on p. 93.

If you want to say that they have other rights conferred upon them by their status in Dr. Ellis' bylaws, fine. I won't dispute that.

[Guest Nancy N.]

I'm certainly not trying to be evasive. I'm assuming Dr. Ellis correctly states and has correctly interpreted his bylaws to say that the members in question have no right to vote.

If that's true, RONR confers no right upon them to attend anything held in Executive Session, since RONR defines on p. 3 what it means by the word "member" on p. 93.

If you want to say that they have other rights conferred upon them by their status in Dr. Ellis' bylaws, fine. I won't dispute that.

I can be fairly certain that Mr. Mervosh was not trying to be evasive. It's not in his nature.

[J. J.]

I'm certainly not trying to be evasive. I'm assuming Dr. Ellis correctly states and has correctly interpreted his bylaws to say that the members in question have no right to vote.

If that's true, RONR confers no right upon them to attend anything held in Executive Session, since RONR defines on p. 3 what it means by the word "member" on p. 93.

If you want to say that they have other rights conferred upon them by their status in Dr. Ellis' bylaws, fine. I won't dispute that.

RONR says two things in this regard.

1. Voting members, exclusively, have a right to attend executive sessions.

2. Members ex officio have the right to vote (pp. 466-7) and are voting members within the p. 3 definition.

Though some action of the bylaws, according to Dr. Ellis, that particular right to vote, at least, has been removed. We don't know if the other rights within the bundle of rights of membership given on p. 3 have been removed by bylaws. We do know that the answer to that question is a function of the bylaws, which is just beyond the scope of this board.

I could easily see (and have seen) bylaw language that would grant a member ex officio all membership rights, including the right to attend executive sessions, except for the right to vote. I could easily see bylaw language that would remove both the right to vote and the right to attend executive sessions for a member ex officio.

[Guest Michael Ellis, MD]

I greatly appreciate the debate occurring over my question, which continues to occur re: our hospital\Medical Staff bylaws. Here is part of our debate

I ASSERT THAT OUR MEDICAL EXECUTIVE COMMITTEE HAS THE RIGHT TO EXCLUDE "EX-OFFICIO" MEMBERS WHO DO NOT HAVE A VOTE

OTHER PARTY FIGHTING MY ASSERTION:

An Executive Session can be called by the Chair with request that all non-members of the Committee be excused. Ex-officio members are members of the Committee. Other administrative participants are not members of the MEC such as Chief Operations Officer, Chief Nursing Officer, VP of Operations, Director of Medical Staff Affairs and can be excused.

Our Bylaws provide that they are members of the MEC. And below is provision regarding Robert’s Rules of Order.

10.4.11. PROCEDURES: Each committee may formally or informally adopt it own rules of procedure, which shall not be inconsistent with the terms of its creation of these Bylaws. The Chairperson has authority to rule on all matters of procedure and he may consult, but is not necessarily bound by, the latest edition of Robert’s Rules of Order in making his decisions.

MY RESPONSE:

I would interpret that to mean that the MEC (like ANY committee) therefor has the right to Adopt ITS OWN RULES of procedures (and like the chairperson) IS NOT NECESSARILY bound by RROO. The chairperson can only rule on matters of procedure that THE COMMITTEE Adopts. (Chairs cannot dictate or set policy, only "rule" on that which has been established by the entity or its accepted reference).

Therefor a vote of the committee re: attendance of "non-voting" (therefor NOT "full" members of the committee) attendance in Executive Session CAN happen - i.e. The Chair can rule on procedure either based on RROO or the "new" rules adopted by the Committee.

When one sees that the CEO or Board can appoint "anyone" as a designee to represent them on the MEC, i.e. a "non-physician", it would be TOTALLY inappropriate for that person to attend an Executive Session on a "peer review" matter of disciplining a physician.

OUR BYLAWS 10.4.2. EX OFFICIO MEMBERS The Chief Executive Officer (NOT ALWAYS A DOCTOR) and Chief Medical Officer shall be ex-officio members of all Medical Staff Committees. The Chief Executive Officer may designate another senior administrative Member to attend any meetings in his/her place.

At the prerogative of the Governing Board, Board Members(s) may be appointed by the Governing Board to serve as representatives(s) of the Governing Board on any Medical Staff Committee or Hospital Committee.

Other ex-officio members of specific standing committees shall be defined in the committee composition for each committee.

(CLEARLY, THESE "NON-PHYSICIAN, NON-ELECTED" "NON-VOTING" PEOPLE SHOULD NOT HAVE THE "RIGHT" TO SIT IN ON PEER REVIEW EXECUTIVE SESSIONS) -

[Chris Harrison]

It obviously is not clear to everyone concerned. Since RONR is not binding on the Committee or its Chair (which I highly recommend against since that would allow the Chair to basically become a dictator for life...or at least until the General Membership changes the rules or Chair) it ultimately will be up to the Chair (subject to the procedures) to decide whether ex officio members have a right to attend Executive Sessions.

[Guest Nancy N.]

[snip]

It's not clear to me, either. (I suspect Chris meant that it is obviously not clear to other members of the organization ... but I suspect that it wasn't all that clear to Chris himself.)

First, I do think it's clear that an ordinary motion to go into executive session, excluding non-members in the ordinary sense, is not adopting a rule of procedure. So whatever is, or has been, done in one case for its own sake, does not establish a rule (or, heaven help us, a "precedent").

And I don't think that having the right to adopt rules of procedure includes the right to say who has the membership right of attending. (Somebody please help. This gets me dizzy.)

Um ... one more thing. In parliamentary terms, an executive committee is not really a committee at all, it is something of a board of a board. (Yes, calling it a committee is a misnomer.) Bylaws governing committees, then, would probably not apply to an executive committee at all. (Such as a bylaw authorizing committees to adopt its own rules.) So, as far as this medical organization is concerned, is the "medical executive committee" a real committee, or an "executive committee"? (That is, do these bylaws use the term "executive committee" to mean one of the committees, as the words themselves would ordinarily indicate, or in its parliamentarily correct, though misleading on its face, sense?) -- It's questions like that question that dictate that all this is not clear, at least to outsiders like Chris H and me; and since we're dealing with physicians and other humans, not parliamentarians, the distinction might not be all that clear to many of the members, either.

[Shmuel Gerber]

When one sees that the CEO or Board can appoint "anyone" as a designee to represent them on the MEC, i.e. a "non-physician", it would be TOTALLY inappropriate for that person to attend an Executive Session on a "peer review" matter of disciplining a physician.

OUR BYLAWS 10.4.2. EX OFFICIO MEMBERS The Chief Executive Officer (NOT ALWAYS A DOCTOR) and Chief Medical Officer shall be ex-officio members of all Medical Staff Committees. The Chief Executive Officer may designate another senior administrative Member to attend any meetings in his/her place.

At the prerogative of the Governing Board, Board Members(s) may be appointed by the Governing Board to serve as representatives(s) of the Governing Board on any Medical Staff Committee or Hospital Committee.

Other ex-officio members of specific standing committees shall be defined in the committee composition for each committee.

(CLEARLY, THESE "NON-PHYSICIAN, NON-ELECTED" "NON-VOTING" PEOPLE SHOULD NOT HAVE THE "RIGHT" TO SIT IN ON PEER REVIEW EXECUTIVE SESSIONS) -

You've inserted your own opinions as to what rights these ex-officio members should have, but I see nothing in what you've quoted to indicate that these ex-officio members are not full-fledged members of the committees whose rights would include attending all meetings and voting on all questions.

[Gary Novosielski]

I thought you said these ex-officio members didn't have a vote, but nothing you quoted says that.

[J. J.]

I ASSERT THAT OUR MEDICAL EXECUTIVE COMMITTEE HAS THE RIGHT TO EXCLUDE "EX-OFFICIO" MEMBERS WHO DO NOT HAVE A VOTE

OTHER PARTY FIGHTING MY ASSERTION:

An Executive Session can be called by the Chair with request that all non-members of the Committee be excused. Ex-officio members are members of the Committee. Other administrative participants are not members of the MEC such as Chief Operations Officer, Chief Nursing Officer, VP of Operations, Director of Medical Staff Affairs and can be excused.

Our Bylaws provide that they are members of the MEC. And below is provision regarding Robert’s Rules of Order.

10.4.11. PROCEDURES: Each committee may formally or informally adopt it own rules of procedure, which shall not be inconsistent with the terms of its creation of these Bylaws. The Chairperson has authority to rule on all matters of procedure and he may consult, but is not necessarily bound by, the latest edition of Robert’s Rules of Order in making his decisions.

MY RESPONSE:

I would interpret that to mean that the MEC (like ANY committee) therefor has the right to Adopt ITS OWN RULES of procedures (and like the chairperson) IS NOT NECESSARILY bound by RROO. The chairperson can only rule on matters of procedure that THE COMMITTEE Adopts. (Chairs cannot dictate or set policy, only "rule" on that which has been established by the entity or its accepted reference).

If your bylaws make these persons members of the committee, the committee, or its chair cannot remove them or limit their rights of membership.

As previously noted, this is a question about what is in the bylaws. If members ex officio are voting members of this committee, they cannot be excluded in any event. Even if these ex officio members are designated as non-voting members of this committee, the bylaws might grant them the ability to attend executive session.

Nothing you have posted from the bylaws so far would indicate these ex officio members cannot vote.

[Josh Martin]

MY RESPONSE:

I would interpret that to mean that the MEC (like ANY committee) therefor has the right to Adopt ITS OWN RULES of procedures (and like the chairperson) IS NOT NECESSARILY bound by RROO. The chairperson can only rule on matters of procedure that THE COMMITTEE Adopts. (Chairs cannot dictate or set policy, only "rule" on that which has been established by the entity or its accepted reference).

OUR BYLAWS 10.4.2. EX OFFICIO MEMBERS The Chief Executive Officer (NOT ALWAYS A DOCTOR) and Chief Medical Officer shall be ex-officio members of all Medical Staff Committees. The Chief Executive Officer may designate another senior administrative Member to attend any meetings in his/her place.

At the prerogative of the Governing Board, Board Members(s) may be appointed by the Governing Board to serve as representatives(s) of the Governing Board on any Medical Staff Committee or Hospital Committee.

Other ex-officio members of specific standing committees shall be defined in the committee composition for each committee.

There are two main problems here:

-I highly doubt that the rule granting committees the ability to adopt their own rules of procedure was intended to permit committees to strip committee members of the basic rights of membership.

-The main premise of your question was based on the assertion that these members are "non-voting" members of the committee, however, nothing that you have quoted so far suggests that this is the case. Ex-officio members are full members of committees (or board) with all rights of membership, including voting and attending meetings, unless the Bylaws state otherwise.

It is, ultimately, up to the organization to interpret its own Bylaws, but unless there's something else you haven't shown us, it looks to me that if you think it is inappropriate for these members to attend meetings in executive session, you're going to need to amend the Bylaws.

[Guest Michael Ellis, MD]

PERHAPS THESE EXTRACTS FROM OUR BYLAWS WILL HELP ?

I STILL CONTEND THESE ARE NOT "FULL" MEMBERS & THEREFOR COULD BE EXCLUDED FROM "EXECUTIVE SESSION"

Definition in our Bylaws:

Ex Officio: Service as a Member of a body by virtue of an office or position held, and unless otherwise expressly provided, means without voting rights.

10.5. OPERATIONAL MATTERS RELATING TO COMMITTEES 10.4.2. EX OFFICIO MEMBERS

The Chief Executive Officer and Chief Medical Officer shall be ex-officio members of all Medical Staff Committees. The Chief Executive Officer may designate another senior administrative Member to attend any meetings in his/her place. At the prerogative of the Governing Board, Board Members(s) may be appointed by the Governing Board to serve as representatives(s) of the Governing Board on any Medical Staff Committee or Hospital Committee. Other ex-officio members of specific standing committees shall be defined in the committee composition for each committee.

10.5. MEDICAL EXECUTIVE COMMITTEE (This section was taken from TMC Bylaws and put in

Model Bylaws Format.)

10.5.1. COMPOSITION 10.5.1.7. Chief Executive Officer, ex-officio, without vote, and his designee representing each off-site location

10.5.1.8. Immediate Past Chief of Staff, ex-officio, without vote

10.5.1.9. Dean, University School of Medicine, ex-officio, without vote

10.5.1.10. Chief Medical Officer, ex-officio, without vote.

10.5.1.11. Medical Director, Faculty Practice Plan, ex-officio, without vote

10.5.1.12. Medical Director, if applicable, of each acute-care off-site location, ex-officio, without vote

THANKS AGAIN FOR ALL THE HELP ON THIS IMPORTANT MATTER.

MIKE

[Josh Martin]

PERHAPS THESE EXTRACTS FROM OUR BYLAWS WILL HELP ?

Well, they help clarify that the words "without vote" are indeed in the Bylaws (in multiple locations). I still find the claim that the committee can just adopt a rule stripping their right to attend to be dubious. In my view, the question is whether the members currently have the right to attend meetings, based upon the Bylaws. If they do not, the committee could vote to exclude them from executive session. It will ultimately be be up to the society (not a subordinate committee) to interpret the Bylaws. Interpretation of the society's Bylaws is beyond the scope of this forum. See RONR, 10th ed., pgs. 570-573 for some Principles of Interpretation.

I STILL CONTEND THESE ARE NOT "FULL" MEMBERS & THEREFOR COULD BE EXCLUDED FROM "EXECUTIVE SESSION"

Okay. Brush up on the Bylaws and the cited pages of RONR and be prepared to give your arguments to the other members of the society, as they're the people you need to convince.

[Gary Novosielski]

PERHAPS THESE EXTRACTS FROM OUR BYLAWS WILL HELP ?

I STILL CONTEND THESE ARE NOT "FULL" MEMBERS & THEREFOR COULD BE EXCLUDED FROM "EXECUTIVE SESSION"

Definition in our Bylaws:

Ex Officio: Service as a Member of a body by virtue of an office or position held, and unless otherwise expressly provided, means without voting rights.

Does the word "FULL" member appear in your bylaws? It's not in RONR. Normally, according to RONR, an ex-officio member is a voting member. According to your bylaws it's clear that right has been withheld.

But a member has other basic rights such as the right to attend meetings, make motions, and speak in debate, and it's not clear to me where those rights are withheld. If you think they are, that's the case you'll need to make to your organization. Can you find support for that in your bylaws?