Runaway exec board closed sessions

[Alex Meed]

My voluntary organization's board, which I serve on, has a rancorous relationship with a faction of the general membership. Our board meetings are open by default, with notes of the discussions released to the membership.

Recently, we had a closed session initially to discuss an unrelated topic, but we then began discussing a more controversial matter. We ended up hastily adopting a motion on that matter that, while I think it was ultimately justified, further inflamed tensions between the board and the aforementioned faction.

I don't want this to happen again. What are good ways to keep a closed session on its original topic? How can we discourage board members from bringing up topics in closed session that allow them to blow off steam but could ultimately do damage to the organization?

We're also lucky to be in the midst of a bylaws revision. One idea that the bylaws committee had, but did not adopt, was making a list of topics that may be discussed in closed session and requiring everything else to be done in open session. This is what public bodies do, but is this a good idea for the board of an ordinary society? What matters should be considered when drawing up the list?

Edited November 19, 2019 at 08:36 AM by Alex M.
Mention that our board meetings are open by default

[Guest Zev]

1 hour ago, Alex M. said:

What are good ways to keep a closed session on its original topic?

One method would be to refer it to a committee. The committee may be empowered to invite the membership at large, they blow off their stream, the committee makes a recommendation and the assembly decides what to do with the motion. Another method would be to refer the motion to a Committee Of The Whole. The problem with this route is that the assembly has to suffer through whatever the disaffected members vent. Nevertheless, the motion that refers the matter to the Committee Of The Whole is handled like any other matter referred to a committee. The committee is not allowed to discuss matters that was not referred to it. If the closed session route is the only one the assembly is willing to engage in, then the motion to go into closed session may instruct the session to consider only the question or questions specifically mentioned. In the assembly the best method to keep things focused is to not allow extraneous debate or comments but to allow debate only on motions that are actually pending. Allowing comments that have nothing to do with any pending business is what on many occasions leads to indecorum.

1 hour ago, Alex M. said:

What matters should be considered when drawing up the list?

I would not draw up any such list. Eventually arguments will swill around whether one issue fits the list and a fight will ensue over that. Just have your presiding officer review the rules concerning decorum and maintaining the comments germane to the pending question. If anyone has some beef then let them introduce a motion. Get the disaffected members into the habit of introducing motions and then debating the question under proper rules of debate. This way the assembly deals with these questions in a dignified manner and the disaffected members will have a feeling that at the minimum their concerns have a chance of being heard.

[Josh Martin]

6 hours ago, Alex M. said:

What are good ways to keep a closed session on its original topic?

I suggest moving to postpone the motion to the next meeting.

7 hours ago, Alex M. said:

How can we discourage board members from bringing up topics in closed session that allow them to blow off steam but could ultimately do damage to the organization?

Try persuading your fellow board members. Alternatively, the organization could adopt rules on this matter. Or it could elect board members more committed to transparency.

7 hours ago, Alex M. said:

This is what public bodies do, but is this a good idea for the board of an ordinary society?

That is at the society’s discretion.

7 hours ago, Alex M. said:

What matters should be considered when drawing up the list?

Such rules generally include legal and personnel matters. Examples might include consultations with an attorney, discussions regarding a contract, or hiring, firing, or otherwise evaluating an employee.

5 hours ago, Guest Zev said:

If the closed session route is the only one the assembly is willing to engage in, then the motion to go into closed session may instruct the session to consider only the question or questions specifically mentioned.

The assembly could, however, choose to amend this decision at any time.

5 hours ago, Guest Zev said:

In the assembly the best method to keep things focused is to not allow extraneous debate or comments but to allow debate only on motions that are actually pending.

If the assembly is using the small board rules, discussion without a pending motion is permitted.

[Alex Meed]

Our board uses the small board rules (also known as the "nobody on our board knows or cares about Robert's Rules except me" rules, but that's another matter for another time).

Referring to Zev's suggestion, the board isn't expressly empowered by the bylaws to make committees of itself, though perhaps Robert's Rules confers that power on its own. But our members are allergic to what they perceive as excessive formality; last time I proposed that we refer a (much less polemical) matter to a committee, it was shot down almost immediately.

I understand that it's up to the society whether to put a list of acceptable closed-session topics in the bylaws. In our bylaws committee, I and others argued that we should not have such a list, because it could omit some important topic. But after this episode, I'm wondering if I should reconsider my opposition.

I just want to make sure that if we do include a list, we do it right. In reference to Mr. Martin's suggestions, we don't have an attorney (yet), contracts, or employees, so those matters wouldn't necessarily apply to us. But if we make a list, I'd still want to include at least the attorney provision as well as disciplinary matters.

But I'm not sure what else to include. I guess that's a question for the organization. The original intent of the executive session, before it went on the controversial tangent, was focused on a relatively unusual topic that is unfortunately still confidential, but I'm not sure we would have had the foresight to include it on any list we would have drawn up in advance. I just want to strike a balance between preserving accountability and giving the board the latitude it needs.

In the absence of a list or the ability to create committees, I suppose the board's bulwark against runaway closed sessions is persuading them not to veer in a potentially unsavory direction, as well as moving to postpone definitely.

[Josh Martin]

50 minutes ago, Alex M. said:

Referring to Zev's suggestion, the board isn't expressly empowered by the bylaws to make committees of itself, though perhaps Robert's Rules confers that power on its own.

It does.

“As a general principle, a board cannot delegate its authority—that is, it cannot empower a subordinate group to act independently in its name—except as may be authorized by the bylaws (of the society) or other instrument under which the board is constituted; but any board can appoint committees to work under its supervision or according to its specific instructions. Such committees of the board always report to the board.” (RONR, 11th ed., pgs. 484-485)

50 minutes ago, Alex M. said:

I just want to make sure that if we do include a list, we do it right. In reference to Mr. Martin's suggestions, we don't have an attorney (yet), contracts, or employees, so those matters wouldn't necessarily apply to us. But if we make a list, I'd still want to include at least the attorney provision as well as disciplinary matters.

Assuming the board has the authority to consider disciplinary matters, I quite agree that disciplinary matters should be included as a permissible subject for executive session if such a rule is adopted.

50 minutes ago, Alex M. said:

But I'm not sure what else to include. I guess that's a question for the organization. The original intent of the executive session, before it went on the controversial tangent, was focused on a relatively unusual topic that is unfortunately still confidential, but I'm not sure we would have had the foresight to include it on any list we would have drawn up in advance. I just want to strike a balance between preserving accountability and giving the board the latitude it needs.

I concur that what items should ultimately be included on the list, if such a rule is to be adopted, is ultimately a question for the organization to decide.

50 minutes ago, Alex M. said:

In the absence of a list or the ability to create committees, I suppose the board's bulwark against runaway closed sessions is persuading them not to veer in a potentially unsavory direction, as well as moving to postpone definitely.

Agreed.

Edited November 19, 2019 at 11:05 PM by Josh Martin

[Richard Brown]

1 hour ago, Alex M. said:

I understand that it's up to the society whether to put a list of acceptable closed-session topics in the bylaws. In our bylaws committee, I and others argued that we should not have such a list, because it could omit some important topic. 

Agreeing with the comments above by Mr. Martin, you have another option for hopefully limiting executive sessions to those situations which actually require one:  Requiring a super-majority vote of two-thirds or even higher to go into executive session.  The open meetings laws (sunshine laws) in some states provide for such a super majority vote of public bodies in order to go into executive session.  Another option, which may have its downsides, is to require that the particular matter to be discussed in executive session be stated in the motion to go into executive session and that only the matter(s) specifically named may be discussed.   Theoretically, at least, a point of order that the discussion has moved to something not authorized in the motion to go into executive session would result in a favorable ruling from the chair and he would prohibit further discussion of that topic.

[Alex Meed]

3 hours ago, Josh Martin said:

It does.

“As a general principle, a board cannot delegate its authority—that is, it cannot empower a subordinate group to act independently in its name—except as may be authorized by the bylaws (of the society) or other instrument under which the board is constituted; but any board can appoint committees to work under its supervision or according to its specific instructions. Such committees of the board always report to the board.” (RONR, 11th ed., pgs. 484-485)

Thanks. Still, a motion to commit would be a tough sell in this board, speaking from experience.

3 hours ago, Josh Martin said:

Assuming the board has the authority to consider disciplinary matters, I quite agree that disciplinary matters should be included as a permissible subject for executive session if such a rule is adopted.

It expressly does have that authority, and in fact under our proposed bylaws revision is required to consider disciplinary matters in closed session with previous notice to the full membership of the society.

3 hours ago, Josh Martin said:

 

 

2 hours ago, Richard Brown said:

Agreeing with the comments above by Mr. Martin, you have another option for hopefully limiting executive sessions to those situations which actually require one:  Requiring a super-majority vote of two-thirds or even higher to go into executive session.  The open meetings laws (sunshine laws) in some states provide for such a super majority vote of public bodies in order to go into executive session.  Another option, which may have its downsides, is to require that the particular matter to be discussed in executive session be stated in the motion to go into executive session and that only the matter(s) specifically named may be discussed.   Theoretically, at least, a point of order that the discussion has moved to something not authorized in the motion to go into executive session would result in a favorable ruling from the chair and he would prohibit further discussion of that topic.

This organization tends to enjoy putting supermajority requirements in its bylaws, so that could work.

I'malso quite partial to requiring executive session to stay on a publicly stated topic. It's already our board's practice to prepare an agenda for meetings, though we do not adopt the agenda or require the meeting to stick to it. But requiring executive session to be on a stated topic would synergize well with that practice. The downside is that officers could simply prescribe broad, uninformative topics for executive session, but hopefully electoral influence and the other board members will prevent that.