Executive Session

[Guest Jackson]

Your board may be autonomous with respect to whatever the mission is that it was created for, but this latest information about the involvement of one (and maybe two) other autonomous boards in selecting members for your board makes me wonder if you really do have sole authority for deciding who is and who is not a member of your particular board. It sounds to me like you really need to examine very closely the bylaws and whatever other documents might govern your actions to see if they provide for any procedures to deal with this issue.

I have looked at the bylaws very closely. There is nothing specific regarding removing board members, except that members who fail to attend may be dismissed from the board.

What is very specifically laid out is what makes one ineligible to serve. This "member" is ineligible to serve per the bylaws, which is based in state law. It is not only a violation of the bylaws for this "member" to serve, it's a violation of state law due to public funding.

[Guest Jackson]

If this perceived "conflict of interest" is the sole basis for thinking this person's not eligible to serve I hope your bylaws clearly defines what constitutes a conflict of interest and that this person's conflict of interest clearly qualifies. We get frequent questions here asking whether having both a husband and wife serving on the same board constitutes a "conflict of interest" and our stock answer is that RONR doesn't care if it does or not (though I think one should resist the assumption that it does).

In other words, a conflict of interest is often in the eye of the beholder.

The "conflict of interest" is in the eye of state law due to laws regarding public funds. Prohibited individuals include those who would stand to gain personally or on behalf of their company, from the public funding this board administrates. In other words, it is highly improper for a board member to be delegating public monies to a particular company that that board member is employed by, contracted with, or owns. Such is the case with this member.

This member has failed to disclose their employment. In fact, now that I think about it more via replying, it probably warrants an investigation as to whether this member and his votes have altered the direction of any public funding, to his company, whilst he has been a board member.

[JohnR]

What is very specifically laid out is what makes one ineligible to serve. This "member" is ineligible to serve per the bylaws, which is based in state law. It is not only a violation of the bylaws for this "member" to serve, it's a violation of state law due to public funding.

If the member was ineligible to serve when he was appointed, then the appointing body (the "final board"?) may recognize that the appointment is null and void by a Point of Order raised at their meeting.

[Guest Jackson]

If the member was ineligible to serve when he was appointed, then the appointing body (the "final board"?) may recognize that the appointment is null and void by a Point of Order raised at their meeting.

If the member was ineligible to serve when he was appointed, then the appointing body (the "final board"?) may recognize that the appointment is null and void by a Point of Order raised at their meeting.

Right. So, here we come full circle: this member is not a legitimate member, thus it is best to handle this in Executive Session.

[Guest Edgar]

Given that the member does not need to be "removed" because they are not a valid/legitimate member, it seems best to address this "member" in Executive Session.

So, here we come full circle: this member is not a legitimate member, thus it is best to handle this in Executive Session.

I guess I'm not seeing why it's so important that this meeting be held in executive session. Not that it can't be, of course; I just don't see the connection between making a point of order that an ineligible person was elected and doing so in executive session.

[Guest Jackson]

I guess I'm not seeing why it's so important that this meeting be held in executive session. Not that it can't be, of course; I just don't see the connection between making a point of order that an ineligible person was elected and doing so in executive session.

I think there are several very good reasons to do so:

1) The board needs to be able to fully discuss this, openly, and yet without the 30 or so public from various organizations and government there. You can bet there are guests that would attempt to butt it.

2) Given that the "member" has made such an egregious "error", which could reasonably affect his employment, why open the board to any potential mess, beyond simply excusing the "member"? Keep it clean and simple I say.

3) There are other reasons, not necessary to mention here.

4) There is another member conduct issue, that I expect another member will take up with respect to censuring the Chair. It is not necessary to publicly embarass the Chair, should he be censured, but merely to address the problem.

[JohnR]

Keep it clean and simple I say.

Here's to that and best of luck.

[Guest Beth]

Please tell me the Robert's Rules regarding the use of Executive Session.

I am a member of a non-profit with a self elected BOD. Members want to vote the BOD.

The Bylaws call for qtr meetings and provide for special meetings but no where is there any provision for Executive Session other than a reference to Exec Session items as being the part of the BOD meeting in which an Emeritus Board member cannot attend, implying that he can attend the rest of the BOD mtg.

This NP has been holding all Board meetins in closed session and calling them Exec Session.

The Bylaws defer to Roberts Rules when there is no stated procedure. Given this covenant, what is the Robert's Ruless guidelines for Executive Session?

Thanks so much for your help.

[jstackpo]

Please tell me the Robert's Rules regarding the use of Executive Session.

Anything that is proper in a regular (open) meeting is proper in an executive session.

[Guest Drop Dead Fred]

They should be documented in the minutes of the executive session, which are kept alongside the mminutes of the open session, but remain confidential. The minutes must be approved in executive session.

Can a member record the meeting on their Phone during the excuitive session because he does not think the minutes are trustworthy?

[Guest Drop Dead Fred]

What happens if he refuses to turn off the phone -

[Guest Edgar]

Can a member record the meeting on their Phone . . . ?

If the assembly (the members present) permits it. Note that "member" refers to members of the body that is meeting (i.e. members of the board at board meetings), not necessarily all the members of the organization.

What happens if he refuses to turn off the phone -

He can be expelled from the meeting.

For future reference, this forum works best if you post your new questions as a new topic (even if you find a similar topic already posted).

[Chris Harrison]

Can a member record the meeting on their Phone during the excuitive session because he does not think the minutes are trustworthy?

Yes, though the assembly could order him to turn off the recorder.

What happens if he refuses to turn off the phone -

If he refuses to turn off the recorder after being ordered to do so he could (and should) be subjected to disciplinary actions (see RONR pp. 645-649)

[Gary c Tesser]

And now, back to our story ...

... 2) Given that the "member" has made such an egregious "error", which could reasonably affect his employment, why open the board to any potential mess, beyond simply excusing the "member"?

A moment now, please, Guest Jackson. Are you proposing Executive Session as a means to "excuse" -- that is, actually"expel", or boot the targeted "member" from the meeting hall -- prior to his "removal" (the word used in the original post) from the board, or prior to establishing the determination that he is not really on the board?

If that's what you're hoping for, then:

Keep it clean and simple I say.

-- will not be the case. It will be extremely messy from the get-go. Don't go anywhere near trying that.

I hope I have misread this snippet. Great Steaming Cobnuts, what a nightmare.

[Guest Jackson]

Points to Gary c Tesser for paying attention.

We have a "member" who was never eligible to be a member let alone an officer. This has recently come to light. This "member" has been on this board for several years now, and has kept his employment (which is what makes him ineligible) to himself and unknown to all of the board members--save perhaps one.

What is needed, what I am after, is the best way to boot, excuse, remove, dismiss, say "Gotchya, yer outta here", or what-have-you, WITHOUT a big public display.

1) The entirety of the board, as far as I know, is not aware that this member was never eligible to serve from the get go.

2) Given the nature of the work of this board, and the nature of this individual's employment (not to mention being an officer on this board for 2-3 years) the fact that this "member" has sat on this board at all, as long as he has, and as an officer is egregious--but that is neither here nor there, is it, because it's not to what degree he was ineligible and "bad", it's just that he was ineligible, right?

3) As I understand from previous posts/thread, since he was ineligible when appointed, his appointment is null and void, thus he doesn't need to be "removed" per se.

4) So, the intention of Executive Session, would be to inform the board of this member's ineligibility, thus he has never been a valid member, thus he can...leave, stand down, sit in the gallery, go home, whatever, just not carry on as a board member.

Alright, Gary c Tesser, please poke holes away...

[Gary c Tesser]

First I'd like to know why it is I get to be the Gary c Tesser around here in the middle of the night all the time.

Prefatorily to addressing the (thnakfully) numbered questions, I'll observe that there are delectable philosophical questions, but they should be set aside (see next paragraph's parenthetical musing) to stick with the practical issue: for some years now, this pseudo-member (let's call him Mitt, because ... mm ... the appellation maybe fits him like a glove*) has been understood by all to be a member: he walked, talked, quacked like a member. It will be uphill to dislodge this perception. And it will need to be formally recognized, I think. I endorse Chris H's suggestion #1, or maybe #2, a couple dozen posts ago, to buttonhole everyone well before the meeting, one or two at a time, to get the point across. We do face the horrific prospect of board members regarding Mitt as an established member even in the face of the facts -- regarding the new evidence of the rules, and MItt's employment, as dredging up ancient history, or opening up cans of old worms, or the like.

1. Yup. Got to turn that around. And best to enroll others who have become allies, so it's not a one-man (or one-Jackson) crusade.

2. Yeah, but I"m getting uncomfortable answering leading questions.

3. Yeah, and see answer to #2.

4. Whether removing a real member or dissolving the faux-membership of a faux member, indeed it is questions of delicacy like this that executive session is about (see RONR, 11th Ed, p. 95, lines 19 -22). More important is that, in executive session or in open session, the board needs to formally make the statement that Mitt is not a member, notwithstanding his having been treated like a member all this time.

(And -- I should usually, and do, put this aside remark at the end -- perhaps because it's more sensible than to put this end remark aside -- that Guest Jackson, and, for the reading public, other guests of the Internet, all five of you, would do well to join the website and stop wrangling with the obnoxious Capcha code. The managers promise not to misuse your Social Security number, fingerprints, or retina scan; they just take that stuff routinely. It's just procedure, nothing to worry about.)

________

*"Mitt" -- you all thought I was going to say something political, instead of, as usual, inane?

[sMargaret]

1) The board needs to be able to fully discuss this, openly, and yet without the 30 or so public from various organizations and government there. You can bet there are guests that would attempt to butt it.

Is your reason for going into Executive session simply that you wish to remove non-members from the room? You can do this without going into Executive session, and I will further note that non-members may attend in Executive session. Why does your board need to fully discuss this?

This member has failed to disclose their employment. In fact, now that I think about it more via replying, it probably warrants an investigation as to whether this member and his votes have altered the direction of any public funding, to his company, whilst he has been a board member.

Was the member asked for their employment status? How has this employment status been determined? Can this member just deny it, in other words?

I'm wondering if you can put forward a point of order - "Madam Chair, I would like to make a point of order. I recently became aware that Mr. X is employed by Company Y, and was so employed at the time he became a member of this board. According to state law, employees of such companies are prohibited from serving on this board, and therefore, unless we wish to be non-compliant with the law, Mr. X should be removed from the Board."

[Guest Jackson]

@Gary c Tesser~

Thanks to you and "Mitt", I believe I have learned something*.

@sMargaret~

As Gary c Tesser labeled this situation in post #41, it is indeed "delicate", thus it is necessary and best to handle in Executive Session.

As I indicated in posts #26, #27, and #31, this "member" appears to have not only violated the bylaws, but has violated state law, and this could potentially affect his employment: I doubt very much the board wants to be opened up to any potential reprisal or retribution from this individual, thus it is necessary and best to handle in Executive Session.

Also, as I indicated in the above dilineated posts, there are guests who would certainly attempt to butt in. We have an ineffective chair as is, and this would potentially cause mayhem, thus it is necessary and best to handle in Executive Session.

Also, as mentioned above, the members of this board have likely never opened any edition of ROR, and need the situation spelled out to them, point-by-point, which I am sure they would prefer to learn and consider without the eyes of the guests watching and interferring (we often have guests successfully interfere), thus it is necessary and best to handle in Executive Session.

Also, as previously mentioned, I think it is highly likely one member may move to censure the President (which I expect will be unanimously supported by the board), thus it is necessary and best to handle in Executive Session.

As to whether or not the member was required to disclose his employment, I have not seen his application, however, by virtue of the eligibility requirements and the bylaws, which have been amended at least once with this member voting on them, it's not a case where this member can argue ignorance. I suspect his application does not disclose his employment, but whether it does or does not does not matter because he was ineligible to serve whether he disclosed his employment or not--however, no member that I am aware of, save possibly one, knew of his employment. I can not speak to members no longer serving.

Regarding the recent "discovery" of this member's employment during his appointment, he carelessly made the disclosure.

*Something--I have yet learned to avoid the annoying captcha, though your argument was compelling--especially the fingerprints.

[sMargaret]

Guest_Jackson, my point is that you do not need to go into Executive session to get rid of non-members, and as it is, going into Executive session does not necessarily get rid of non-members. Make a motion to ask non-members to leave. Do not attempt to get the member in question to leave at this point, as whether or not he is a member is up to the association to confirm.

I do not see how going into Executive session would eliminate potential reprisal or retribution from the member.

As Gary c Tesser labeled this situation in post #41, it is indeed "delicate", thus it is necessary and best to handle in Executive Session.

It appears to be a "delicate" situation due to legal considerations - keeping it secret may not be the best method to handle it.

[Guest Jackson]

Guest_Jackson, my point is that you do not need to go into Executive session to get rid of non-members, and as it is, going into Executive session does not necessarily get rid of non-members. Make a motion to ask non-members to leave. Do not attempt to get the member in question to leave at this point, as whether or not he is a member is up to the association to confirm.

I do not see how going into Executive session would eliminate potential reprisal or retribution from the member.

It appears to be a "delicate" situation due to legal considerations - keeping it secret may not be the best method to handle it.

@sMargaret~

1) I did not miss your point that it may not be "necessary"--in that it could certainly be done in the open. My point is that it seems addressing this in Executive Session is a better way to go about it, for all of the reasons I've previously mentioned--and a few I have not mentioned.

2) If you perceive delicacy due to legal considerations (and I perceive more delicacy due to the board members themselves and their knowledge--rather, lack thereof--in handling such a situation), how would you propose handling the problem of the illegitimate "member"?

Keep in mind:

a) The board needs to be informed and educated about the illegitimate member with respect to 1) the bylaws, 2) the member's employment, and 3) the breach that cannot be healed.

This board needs to make a formal statement that this "member" is a member no longer.

Further,

[Dan Honemann]

So, there is no "general membership".

We are an autonomous board.

To become a member of this board, one must apply, go through committee, who recommends this board approve the member, then this board refers the member/application to another (autonomous) board, who sends the member/application to another final board where the stamp of official approval is given.

We are the first step, (plus our committee).

This member failed to disclose that they were not eligible to serve and in fact have a major conflict of interest which is addressed in the bylaws by prohibiting one with such a conflict from being eligible.

I understand, from this forum, that if the member was never eligible to serve, his appointment was never valid--is this correct as far as you know? Based on this, my understanding is the member does not need to be "removed" because they were never a valid member. If this is not an accurate understanding, on my part, of how to best proceed, then it would seem the "final board" may want to "remove" the member.

Given that the member does not need to be "removed" because they are not a valid/legitimate member, it seems best to address this "member" in Executive Session. Do you have better recommendations?

Regarding the censure: I expect one member may move to censure the Chair, and if so, I expect the board (save the VP) will unanimously agree to censure the Chair.

Guest Jackson, it is not at all clear from these facts that your board has the authority to declare the appointment of any of its members a nullity, but please understand that this is a question which none of us here is in a position to answer. To provide any sort of reliable response will require reading all governing documents in their entirety, and probably a great deal of additional facts as well. This is all beyond the scope of this Forum.

In any event, it appears that this thread may be wandering away from specific questions concerning proper procedure under Robert’s Rules of Order. As best I can determine, all those which have been asked relating to executive session and small board rules have been answered, but if any specific questions remain, feel free to come back and ask them (although it might be best to consider starting a new thread to do so).

[Guest Jackson]

@Dan Honemann~

I agree that my questions were answered fairly early on, and I am satisfied with those answers.

Although there is more information, of course, details, the relationship of board, committees, appointment process, etc., those are not details I chose to share, nor find important to share relative to my question--or the scope of this forum. I do not need anyone to suggest what authority the board I sit on has, I am confident I understand our authority. My interest expressed here is propriety of procedure.

Thank you all for reading and responding.