Right of non-voting members during Executive Session

[Guest Emily Capo]

We've had a lot of discussion recently on the rights of non-voting members on our board in regards to Executive Sessions.  We have 4 appointed officers who are named as non-voting members of the Executive Committee in our organization's policies, but not in the bylaws.  This was used as a justification for a motion to not allow any non-voting members to speak during Executive Session, though they were allowed to be present.  Is this motion in order?  Does the members being named in the Policies versus the Bylaws have any affect on their rights as members of the Executive Committee?

[Josh Martin]

28 minutes ago, Guest Emily Capo said:

We've had a lot of discussion recently on the rights of non-voting members on our board in regards to Executive Sessions.  We have 4 appointed officers who are named as non-voting members of the Executive Committee in our organization's policies, but not in the bylaws.  This was used as a justification for a motion to not allow any non-voting members to speak during Executive Session, though they were allowed to be present.  Is this motion in order?

For starters, as explained below, I have serious doubts regarding whether this rule is valid. Nonetheless, I'll answer this question anyway, since it's conceivable the organization will properly adopt such a rule in the future.

So far as RONR is concerned, someone is either a member or they're not. It provides no guidance regarding the rights of "non-voting members." If an organization decides to create "non-voting members," it's up to the organization to define what that means.

In the long run, your rules should be amended to clarify this matter. In the interim, the organization will have to interpret its rules as best as it can. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

28 minutes ago, Guest Emily Capo said:

Does the members being named in the Policies versus the Bylaws have any affect on their rights as members of the Executive Committee?

It most likely means that the rule making these persons "non-voting members" is invalid to begin with. The society's other rules may not conflict with the bylaws. If the bylaws provide that these persons are members of the Executive Committee, then these persons are full members of the Executive Committee. This includes all rights of membership, including the right to speak in debate (even in executive session) and the right to vote. A lower-level rule cannot deprive the members of the right to vote. If your society wishes to make these persons non-voting members, it is necessary to specify this in the bylaws. It would also be best to define exactly what this means, as RONR does not define it.

On the other hand, if the bylaws define the members of the Executive Committee (and do not include these members), the society's other rules may not add additional members. In that event, these persons are not members of the Executive Committee at all, and have no rights whatsoever. The Executive Committee could permit them to attend meetings or even to speak in debate, but it is not obligated to do so, and the Executive Committee would be free to adjust this decision on a case by case basis (such as permitting them to speak except during meetings held in executive session). If the organization wishes to make these persons members of the Executive Committee, it will be necessary to amend the bylaws. If the organization also wishes to limit their rights, it should clearly state what rights they do (and do not) retain.

Edited April 28, 2020 at 02:29 PM by Josh Martin

[J. J.]

What do the bylaws say about the officers being on the board?

[Guest Emily Capo]

1 hour ago, J. J. said:

What do the bylaws say about the officers being on the board?

These officers are only in the policies and not in the bylaws.

[Weldon Merritt]

1 minute ago, Guest Emily Capo said:

These officers are only in the policies and not in the bylaws.

Then they are not board members at all and have no rights at a board meeting. As Mr. Martin has pointed out, the board may allow them to attend the meetings, and even allow them to speak (but not to vote). 

[Josh Martin]

4 minutes ago, Guest Emily Capo said:

These officers are only in the policies and not in the bylaws.

In that event, these persons are not members of the Executive Committee at all, and have no rights whatsoever. The Executive Committee could permit them to attend meetings or even to speak in debate, but it is not obligated to do so, and the Executive Committee would be free to adjust this decision on a case by case basis (such as permitting them to speak except during meetings held in executive session). If the organization wishes to make these persons members of the Executive Committee, it will be necessary to amend the bylaws. If the organization also wishes to limit their rights, it should clearly state what rights they do (and do not) retain.

[Bruce Lages]

3 hours ago, Guest Emily Capo said:

These officers are only in the policies and not in the bylaws.

Depending on what this statement actually means, and whether there are other offices that are defined in the bylaws, these persons may not be officers at all. If your bylaws define certain offices, then other offices can not be created except by amending the bylaws. Do you mean that the offices these persons hold are defined in the bylaws but their executive committee status is set out in  your policies, or that these offices themselves are only defined in the policies?

[Joshua Katz]

It seems to me that these people are not officers, and of course may not vote, but, depending on the wording of the policy, the executive committee has, in effect (assuming it adopted the policy) granted permission to attend and speak, which it has the right to do. If the membership adopted the policy, even more so. That is unlikely to answer the question of whether or not they may attend executive sessions, though.