Material Outside of Executive Session

[Guest Wise and Prudent]

If a group enters executive session (split into two or more meetings), can a group of members that are a part of that executive session lobby the rest of the group to vote in a particular way on a motion publicly/outside of that session with a series of arguments, and a list of members who support voting that particular way?

The concern here is that this potentially circumvents the need for secrecy and confidentiality that attends the need for the executive session in the first place.  By publicly signing a letter of support for voting a particular way, the singing parties essentially 'out,' or identify the others (and, potentially, how they may vote) who were not part of the the public letter, before the follow up meeting and the final vote.

A related concern is that the public letter effectively repeats arguments that were made in the initial executive session, as well (although that is harder to demonstrate because minutes are not kept during executive sessions).

Cheers!

[Josh Martin]

6 minutes ago, Guest Wise and Prudent said:

If a group enters executive session (split into two or more meetings), can a group of members that are a part of that executive session lobby the rest of the group to vote in a particular way on a motion publicly/outside of that session with a series of arguments, and a list of members who support voting that particular way?

The concern here is that this potentially circumvents the need for secrecy and confidentiality that attends the need for the executive session in the first place.  By publicly signing a letter of support for voting a particular way, the singing parties essentially 'out,' or identify the others (and, potentially, how they may vote) who were not part of the the public letter, before the follow up meeting and the final vote.

A related concern is that the public letter effectively repeats arguments that were made in the initial executive session, as well (although that is harder to demonstrate because minutes are not kept during executive sessions).

Nothing that happens in an executive session may be disclosed outside of executive sssion, unless the assembly agrees to do so, by majority vote. So I think the answer is “no.”

[Richard Brown]

25 minutes ago, Josh Martin said:

Nothing that happens in an executive session may be disclosed outside of executive sssion, unless the assembly agrees to do so, by majority vote. So I think the answer is “no.”

I agree with most of this statement, but I'm not so sure I necessarily agree with the last sentence which says the answer is no. I think we need more information and the answer depends on the exact details of this situation.

I can visualize a situation where although the meeting is being conducted an executive session, it may be of such a nature that the object of the meeting, such as the expulsion of a member, is well-known to the general membership. Although it is improper to disclose what was done or said in an executive session without the consent of the assembly, it is not, in my opinion, improper for a member to say how he intends to vote on something or what he intends to say about something or to urge others to vote a certain way on the matter in the executive session. The executive session has not yet occurred. That is not disclosing what transpired in the executive session.

And example we sometimes use is an executive session to discuss whether the moon is made of green cheese. Although the meeting might be for the purpose of discussing in executive session whether the moon is made of cheese, that does not prevent such a member from commenting outside of the executive session that he believes the Moon is in fact made of green cheese unless he says he (or someone else, such as Jack Smith) made the statement in the executive session that the moon is made of green cheese. 

Back to the situation at hand, it is one thing to talk about how people voted in the executive session but it is quite another to say in advance of the executive session how you hope people will vote, assuming that the purpose of the executive session is already known, which is frequently the case.

The bottom line is that I don't think we have enough information to State unequivocally that the answer to the original poster's question is an unequivocal no.

 

 

[Guest Wise and Prudent]

Thanks, Josh!  That is my gut feeling, as well.  On the one hand, the bloc/group is not disclosing anything from the first round of the executive session, per se, but it seems like they are de facto circumventing confidentiality requirements by identifying a group that will vote in a particular way (thus effectively outing others who did not sign the letter), and summarizing arguments that *may* have been made previously, or will at the very least most likely be made in the final session and before the final vote.

[Guest Who's Coming to Dinner]

59 minutes ago, Guest Wise and Prudent said:

A related concern is that the public letter effectively repeats arguments that were made in the initial executive session, as well (although that is harder to demonstrate because minutes are not kept during executive sessions).

An executive session should have its own minutes which are kept separate from the other minutes, unless it is a brief session only for the purpose of approving the minutes of another executive session.

[Richard Brown]

1 hour ago, Guest Wise and Prudent said:

A related concern is that the public letter effectively repeats arguments that were made in the initial executive session, as well (although that is harder to demonstrate because minutes are not kept during executive sessions).

Cheers!

 

12 minutes ago, Guest Who's Coming to Dinner said:

An executive session should have its own minutes which are kept separate from the other minutes, unless it is a brief session only for the purpose of approving the minutes of another executive session.

I agree that an executive session should have its own minutes, but the minutes, whether of a regular session or an executive session, should not be repeating what was said or the arguments made in executive session, but should merely be a record of what was done in the executive session

Edited November 13, 2018 at 12:48 AM by Richard Brown

[Guest Wise and Prudent]

Thanks, also, Richard!  Your points are well taken, as well.  This one is a bit of a sticky wicket.  And quite a mind (and potentially procedure) bender.

One of the issues is that the executive session has been split into two parts.  So, on the one hand, we already have a set of arguments, some of which have been appropriated in the group letter.  While it doesn't identify particular people, per se, it does say things like "some have argued that . . . the moon is made of green cheese" (e.g.).

The other concern is that by publicly identifying the people in a particular voting bloc, you are de facto identifying people who are (potentially, at least) voting the other way in the second and final meeting.  That seems like a sneaky way around the confidentiality requirement (i.e. don't identify the people voting for a motion, per se, but identify people voting against a motion which de facto identifies people who *may* be voting for the motion).

Thanks to 'guest who's coming to dinner' (love the name, btw!) about the need to keep minutes.  I do not believe that was done, but it would be one way to check the arguments that have been publicly made against the arguments made in the first leg of the executive session.

 

[Guest Wise and Prudent]

p.s. The point about recording what was done, not what was said in executive session is well taken, too (I believe that is what was done in this case).  While it makes it more difficult to prove that arguments have been revealed in violation of confidentiality requirements, it seems to be in accord with the rules as I read them.

[Guest Zev]

It seems clear to me that a group of individuals with a difference of opinion have decided to test whether in numbers there is safety or not. In the process they have attempted to identify and publicly shame the other side by making claims of what was purportedly said in debate, things which may not even be true. If these things are not a violation of the secrecy of an executive session then I am at a loss as to what is.

[Josh Martin]

13 hours ago, Guest Wise and Prudent said:

Thanks, also, Richard!  Your points are well taken, as well.  This one is a bit of a sticky wicket.  And quite a mind (and potentially procedure) bender.

One of the issues is that the executive session has been split into two parts.  So, on the one hand, we already have a set of arguments, some of which have been appropriated in the group letter.  While it doesn't identify particular people, per se, it does say things like "some have argued that . . . the moon is made of green cheese" (e.g.).

The other concern is that by publicly identifying the people in a particular voting bloc, you are de facto identifying people who are (potentially, at least) voting the other way in the second and final meeting.  That seems like a sneaky way around the confidentiality requirement (i.e. don't identify the people voting for a motion, per se, but identify people voting against a motion which de facto identifies people who *may* be voting for the motion).

Thanks to 'guest who's coming to dinner' (love the name, btw!) about the need to keep minutes.  I do not believe that was done, but it would be one way to check the arguments that have been publicly made against the arguments made in the first leg of the executive session.

As I previously stated, nothing may be disclosed from an executive session without the assembly’s consent. When this executive session actually occurs, a member cannot even disclose his own vote, let alone the votes of others (whether those votes are for or against).

As Mr. Brown suggests, there are potential complications in applying these rules to members stating how they intend to vote in a meeting which has not yet occurred. In this particular case, however, the upcoming executive session is a continuation of an executive session which has already occurred. If this motion was originally made in executive session, even the existence and wording of the motion itself is secret unless that has been disclosed. In any event, the arguments in debate are certainly secret, unless they have been disclosed.

Edited November 13, 2018 at 02:53 PM by Josh Martin

[J. J.]

15 hours ago, Josh Martin said:

 In this particular case, however, the upcoming executive session is a continuation of an executive session which has already occurred.

I have to disagree on this point, especially if the "continuation" runs into another session.

A motion to "that the assembly go into executive session," is a privileged motion and does not adhere  the motion discussed in executive session. 

For example, assume that the motion "to buy the Flemm Building," is considered in executive session at the October meeting, and postponed and made a special order for the November meeting.  The assembly returns to regular session.  In November, in order to consider the motion "to buy the Flemm Building" in executive session, the assembly would have to adopt a fresh motion to go into executive session.  If, at the November meeting, the assembly would chose not to go into executive session; that would be tantamount to assembly releasing the information.

I agree with Mr. Brown that there are circumstances where it would not violate the executive session to openly discuss the topic of the executive session,  especially in some "lobbying" circumstances.  A member that  was in execution session in October, could certainly express his opinion that the group should buy the Flemm Building.   He could not, however, note that a motion "to buy the Flemm Building" was under consideration at the October meeting or that it would be a special order at the November meeting. 

[Guest Wise and Prudent]

Thank you to everyone for your feedback, and helping me think my way through this.  It is a sticky wicket, to be sure!

 

 

[Guest Guest, just uncertain]

OK, how how about this situation:

Members of a university faculty have made and seconded a motion for a vote of no confidence in the university's president during the public portion of a regularly-scheduled general faculty meeting. The faculty of the university have voted during the public portion of that meeting to go into executive session to debate the motion and to allow the executive session to continue in a second meeting the next week. The faculty has also voted in the public portion of the meeting to modify the rules to require the vote to be made electronically, over a period of nearly a week following the conclusion of the final executive-session meeting. All of this has been published in the campus newspaper. 

Every faculty member with voting rights is able to vote on the motion, regardless of whether they attend part or all of the two executive session meetings; the vote is being taken electronically to allow every faculty member with voting rights to vote (the meetings are scheduled when most,, but not all, faculty are on campus and not teaching; nevertheless, both are scheduled at times when some faculty are teaching). 

There is no official parliamentarian, although one was appointed by the chair for the duration of one of the meetings. No agreement or ruling was made during the meetings of the executive session regarding whether those present at the meetings may privately discuss with colleagues who were entitled to but unable to or chose not to attend some or all of the meetings, and will vote on the motion, what was said in those meetings. Similarly, there was no agreement or ruling made about whether a group of faculty could or couldn't write a letter urging a particular way of voting; almost no one is familiar with the details of Robert's Rules and this high-stakes debate is unprecedented on our campus. 

Some members of the Board of Trustees have written a public (or at least widely distributed) letter strongly urging the faculty to vote against or delay the motion. A group of voting faculty subsequently sent the voting faculty and the campus newspaper a public letter, announcing their intention to make, and urging their colleagues to join them in making, an electronic vote abstaining from voting (there are three voting options: for the motion, against the motion, and abstention).

Other faculty have sent individual letters to the distribution list of faculty with voting privileges arguing for one position or another. Whether that, or the group letter, was appropriate or not, virtually no one on the faculty is familiar with either the specific language in Robert's Rules regarding executive-session secrecy or the traditions of the interpretation of that language. 

24 hours after the final executive session meeting, the member of the faculty who was the temporary parliamentarian for one of the two executive-session meetings, wrote the entire faculty (not only those with voting privileges) asserting (without referencing or quoting the relevant section) that Robert's Rules is clear that due to the secrecy of executive session meetings, those who participated in a meeting or meetings of the executive session cannot privately discuss with those who missed all or part of the meetings, but who will nevertheless vote on the motion, what was discussed in the meetings/parts of the meetings that those voting faculty missed. In other words, if you were at the meeting, you cannot discuss what was said or by whom with someone who was not at all or a portion that meeting or meetings, even though they were entitled to participate in the meeting and will vote on the motion. 

Under these unusual circumstances, is that indeed an accurate, widely-accepted interpretation of the Robert's Rules guidelines regarding executive-session secrecy? Is there widely-accepted precedent that those who will vote on the motion being considered and who miss all or part of the debate cannot be privately informed of the what arguments were made in the debate? 

My own reading is that Robert's Rules simply does not anticipate this sort of unusual situation in which a vote is taken electronically outside of and after multiple executive sessions meetings scheduled at times that conflict with some of the voting members' teaching commitments. I am, however, not an experienced parliamentarian. 

 

 

 

 

[Josh Martin]

2 hours ago, Guest Guest, just uncertain said:

Under these unusual circumstances, is that indeed an accurate, widely-accepted interpretation of the Robert's Rules guidelines regarding executive-session secrecy? Is there widely-accepted precedent that those who will vote on the motion being considered and who miss all or part of the debate cannot be privately informed of the what arguments were made in the debate? 

No, this is completely false. Members are free to discuss what happened in executive session with members who missed part or all of the debate. The purpose of executive session is to keep the proceedings secret from non-members, not from members.

[Richard Brown]

3 hours ago, Guest Guest, just uncertain said:

24 hours after the final executive session meeting, the member of the faculty who was the temporary parliamentarian for one of the two executive-session meetings, wrote the entire faculty (not only those with voting privileges) asserting (without referencing or quoting the relevant section) that Robert's Rules is clear that due to the secrecy of executive session meetings, those who participated in a meeting or meetings of the executive session cannot privately discuss with those who missed all or part of the meetings, but who will nevertheless vote on the motion, what was discussed in the meetings/parts of the meetings that those voting faculty missed. In other words, if you were at the meeting, you cannot discuss what was said or by whom with someone who was not at all or a portion that meeting or meetings, even though they were entitled to participate in the meeting and will vote on the motion. 

Under these unusual circumstances, is that indeed an accurate, widely-accepted interpretation of the Robert's Rules guidelines regarding executive-session secrecy? Is there widely-accepted precedent that those who will vote on the motion being considered and who miss all or part of the debate cannot be privately informed of the what arguments were made in the debate? 

In my opinion, the opinion of the "temporary parliamentarian" is not correct.  Nothing in RONR prohibits members of a body which met in executive session from discussing the details with other members of that same body who were absent from the meeting.  Just as members of that body who missed the meeting are entitled to see the minutes of the executive session, all members of that body, regardless of whether they were at the meeting, are free to discuss the details with each other.

Edited to add:  I see that Josh Martin posted a response while I was typing mine but was interrupted by a phone call.  Needless to say, I agree with his comments.

 

Edited November 15, 2018 at 03:16 PM by Richard Brown
Additions as noted by underlining and added last paragraph

[Richard Brown]

Guest Guest just Uncertain and Guest Wise and Prudent (if you are two different people):  To follow up on my comments above regarding the freedom of members of an assembly to discuss details of an executive session among themselves regardless of whether they attended the first of two contemplated executive sessions, consider this scenario:

Suppose these two meetings are part of an extended disciplinary action (which just might be your situation).  All members of that body are entitled to attend both (or either) of the two meetings.  If a member missed the first meeting but is present at the second meeting, does it make sense that he should have to vote on the imposition of discipline without having the ability to find out from other members what transpired at the first meeting or to see written documents which were presented as evidence?  No, of course not.  He and the members who were present at the first meeting are perfectly free to discuss the details with each other and for the members who were at the first meeting to bring the member who missed the first meeting "up to speed" on what transpired and what evidence was presented at that meeting.

The misunderstanding or mis-interpretation on the secrecy of an executive session perhaps arises from the fact that people often speak rather loosely and colloquially (and incorrectly) of it by making comments like "We are in executive session.  What is said here is not to leave this room".  Or, "We are in executive session.  You cannot discuss what happens here with anyone".   Both statements are inaccurate but are often repeated.  I suspect that might be the source of your "temporary parliamentarian's" opinion.  The members who were present at the executive session are perfectly free to discuss what transpired with other members of the body that was meeting, such as the Board of Directors, regardless of whether those other members were present.  The prohibition is with discussing the details with people who are not members of the body that was meeting, i.e., people who are not members of the Board if it was a board meeting.

[Guest Zev]

On ‎11‎/‎12‎/‎2018 at 3:31 PM, Guest Wise and Prudent said:

A related concern is that the public letter...

When at first you said "public letter" that indicated to me the violation of the secrecy of the executive session. However, if this "public letter" is circulated solely between faculty members that did have a right to attend these meetings and vote, then I retract my previous statement and join Mr. Brown and others that say that there is no violation of the secrecy of the executive session.

[Guest Guest, just uncertain]

Thanks, everyone. The "wise and prudent" guest is a different person than me, although I would bet a lot of money that we are colleagues. 

We seem to have two issues that got conflated on our campus (I'm restating this to make sure I have it clear in my own mind).

1) Some members of the faculty sent a public letter (i.e., sent it to their faculty colleagues and had it published in the campus paper) urging colleagues to vote in a particular way. Doing so created the complications articulated by my "wise and prudent" (assumed) colleague above. There seems to be a clear consensus here that making the letter available to people not eligible to participate in the executive session discussions and vote was inappropriate, but sending a letter only to those eligible to participate in the executive session discussions would have been appropriate. (What's done is done, regardless.) 

2) Separately, but clearly arising from the upset resulting from the unfortunately-public letter, the question arose as to whether it is allowable for those who participated in the executive session meetings to discuss with other colleagues, who were eligible to participate but unable to attend all or part of the discussions, what was said in those discussions. There seems to be a clear consensus here that this is allowable, as long as nothing is revealed to those not eligible to participate in the discussions. 

I am now less uncertain, and appreciate the thoughtful and clear responses.