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Nonprofit board executive session protocols


Guest John Swann
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Our nonprofit board's new chair asked that an executive session be added as a standing item to all board agendas and, further, that the board "automatically" adjourn into executive session at the conclusion of each meeting "in case the board has anything it wants to discuss privately."  Does RONR or any authoritative source stipulate a board's consideration of an executive session, e.g., adoption of a main motion (with or without stating the proposed executive session topic), etc.? Or does a nonprofit board self-govern in this respect, absent any guidance from the organization's bylaws? 

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By default, only members and necessary staff are permitted to attend meetings of a board, so there should ordinarily not be any need to go into executive session.

In the case where a board customarily permits non-members to attend as spectators, any member of the board can raise a Question of Privilege to permit immediate consideration of a main motion to go into executive session. Like most other main motions, this one is debatable and requires a majority vote for adoption. The main motion should not list the purposes for the executive session, but the merits of the motion may be fully scrutinized during debate.

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4 hours ago, Guest John Swann said:

Our nonprofit board's new chair asked that an executive session be added as a standing item to all board agendas and, further, that the board "automatically" adjourn into executive session at the conclusion of each meeting "in case the board has anything it wants to discuss privately."  Does RONR or any authoritative source stipulate a board's consideration of an executive session, e.g., adoption of a main motion (with or without stating the proposed executive session topic), etc.? Or does a nonprofit board self-govern in this respect, absent any guidance from the organization's bylaws? 

RONR places no limitations on a board’s ability to enter executive session. So far as RONR is concerned, a board is free to enter executive session (with or without a stated topic) at any time it wishes, to establish that a portion of each meeting shall be held in executive session (as the chair suggests), or even to hold all board meetings, in their entirety, in executive session.

An organization may adopt its own rules on this matter if it wishes. Certain organizations (particularly public bodies and HOAs) may also be subject to applicable laws on this subject, often referred to as “open meeting” or “sunshine” laws.

4 hours ago, Rob Elsman said:

By default, only members and necessary staff are permitted to attend meetings of a board, so there should ordinarily not be any need to go into executive session.

In the case where a board customarily permits non-members to attend as spectators, any member of the board can raise a Question of Privilege to permit immediate consideration of a main motion to go into executive session. Like most other main motions, this one is debatable and requires a majority vote for adoption. The main motion should not list the purposes for the executive session, but the merits of the motion may be fully scrutinized during debate.

The purpose of executive session is not only to control who may attend, but also to impose confidentiality on the proceedings. So there may be reasons to enter executive session, even if there is already no one present but members of the board.

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8 hours ago, Rob Elsman said:

By default, only members and necessary staff are permitted to attend meetings of a board, so there should ordinarily not be any need to go into executive session.

While perhaps technically true per the rules in RONR, It has been my experience that it is quite common, perhaps even more common than not, that non-board members such as regular members of the organization are permitted to attend board meetings. Many organizations have bylaw provisions expressly permitting regular members to attend board meetings.

Edited by Richard Brown
Added the phrase “per the rules in RONR”
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8 hours ago, Rob Elsman said:

The main motion should not list the purposes for the executive session, but the merits of the motion may be fully scrutinized during debate.

Are you sure? Do you have a citation for this? I don’t see one.  Organizations subject to open meetings laws are often required to state the reason for the executive session on the record. However, the minutes will not contain the reason for the executive session unless it is included in the motion itself.

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4 hours ago, Rob Elsman said:

See Member Y's motion in RONR (11th ed.), p. 230.

Mr. Brown is correct, however, when Sunshine Laws are involved.  Typically, they will require at least a general category from a list of permissible categories to be mentioned in the motion to go into exec.  There may be other requirements as well, such as stating in the motion whether action (i.e., motion and vote) will be taken in executive session.  These statements included in the motion then limit the action in executive session to those conditions mentioned in the motion.

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On 12/3/2019 at 2:06 PM, Rob Elsman said:

The main motion should not list the purposes for the executive session [emphasis added]

 

21 hours ago, Richard Brown said:

Are you sure? Do you have a citation for this? I don’t see one.

 

9 hours ago, Rob Elsman said:

See Member Y's motion in RONR (11th ed.), p. 230.

I don't see that example as a prohibition or even a suggestion that the motion shouldn't list the purpose(s) for the executive session. In that example, it is not necessary as everyone is aware what will be discussed in the executive session.

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I was just giving Mr. Brown a citation that provides what I believe to be the only example in the book of a motion to go into executive session. It provides a useful pattern, I think, for readers to use when making the motion.

While Mr. Kapur seems to think that everyone knows what will be discussed in the executive session proposed in Member Y's motion, I am not so enlightened. I have no idea what all topics will be considered during the remainder of the meeting. That's the point of having a secret meeting.

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3 hours ago, Rob Elsman said:

While Mr. Kapur seems to think that everyone knows what will be discussed in the executive session proposed in Member Y's motion,

Well, I believe that because Member Y is quoted as saying, "Mr. President, I believe this is a question we should consider in a closed meeting." The question being Member X's resolution. (p. 230, lines 4-5).

In fact, it could be argued that Member Y has clearly stated the purpose for the executive session: to consider Member X's resolution.  Unless I am misunderstanding what you meant by "purposes" when you said

On 12/3/2019 at 2:06 PM, Rob Elsman said:

The main motion should not list the purposes for the executive session

 

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8 hours ago, Atul Kapur said:

Well, I believe that because Member Y is quoted as saying, "Mr. President, I believe this is a question we should consider in a closed meeting." The question being Member X's resolution. (p. 230, lines 4-5).

In fact, it could be argued that Member Y has clearly stated the purpose for the executive session: to consider Member X's resolution.  Unless I am misunderstanding what you meant by "purposes" when you said.

Yes, certainly the pending resolution will be discussed in executive session. There is nothing in RONR, however, preventing the assembly from considering additional motions in the executive session after the pending resolution is disposed of.

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