Exclusion of Board member from a called meeting

[Guest Alyson Casper]

Can a board member be excluded from a board meeting that has been called if the issue is about them, without being notified in any manner?

[Richard Brown]

20 minutes ago, Guest Alyson Casper said:

Can a board member be excluded from a board meeting that has been called if the issue is about them, without being notified in any manner?

No, at least not from an official board meeting at which any type of official action might be taken.  If it’s an official meeting, all members must be notified and have the right to attend.

However, there is nothing that prohibits a few members from getting together Informally among themselves and discussing anything they want to as long as they realize they cannot take any official action.

[rayan08]

Yes, you can, and it is more ethical to have a formal session, with all the other directors if possible, than to hold the meeting in a parking lot. However, there are some restrictions and some cautions.

Normally, there are two ways to ask a director to leave a board meeting, and both methods involve declaring a conflict of interest. If you have a conflict of interest policy (and you definitely should have one), it likely says that a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board.

If the person does not realize they are in a conflict of interest position, another director can make a motion to declare them to be in conflict, and the board can make a decision. If the board decides there is a conflict situation, the policy can then be applied. Lacking a policy, the board can set a precedent.

I very strongly recommend that the meeting, or the portion of the meeting dealing with this individual, be held in camera, that is, board members only, or board plus legal counsel. At most, you might include the executive director but no other staff members or outsiders. The minutes should be kept separate from the regular minutes. They would only reference that an in camera session was held and that the person in question was excused.

 

 

 

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Edited September 3, 2020 at 03:59 AM by rayan08

[Gary Novosielski]

16 minutes ago, rayan08 said:

Yes, you can, and it is more ethical to have a formal session, with all the other directors if possible, than to hold the meeting in a parking lot. However, there are some restrictions and some cautions.

Normally, there are two ways to ask a director to leave a board meeting, and both methods involve declaring a conflict of interest. If you have a conflict of interest policy (and you definitely should have one), it likely says that a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board.

If the person does not realize they are in a conflict of interest position, another director can make a motion to declare them to be in conflict, and the board can make a decision. If the board decides there is a conflict situation, the policy can then be applied. Lacking a policy, the board can set a precedent.

I very strongly recommend that the meeting, or the portion of the meeting dealing with this individual, be held in camera, that is, board members only, or board plus legal counsel. At most, you might include the executive director but no other staff members or outsiders. The minutes should be kept separate from the regular minutes. They would only reference that an in camera session was held and that the person in question was excused.

None of this comports with the rules in RONR, which is what responses in this forum are intended to do.  RONR does not have any procedure to declare other members in conflict and remove their rights.  Lacking a bylaws provision to that effect, the board cannot "set a precedent".

Excluding a member from a meeting, or notice of a meeting, except as provided in the bylaws or the rules in RONR, would cause the meeting to be null and void.  So your strong recommendation could well cause multiple problems for this organization, whose bylaws we have not read.  

It is my strong recommendation that no organization should rely on your answer.

 

[Atul Kapur]

1 hour ago, rayan08 said:

Lacking a policy, the board can set a precedent.

"the board has only such power as is delegated to it by the bylaws or by vote of the society’s assembly referring individual matters to it." RONR (12th ed.) 49:5

If you can find "the board can set a precedent" in the bylaws, then the board has that power.
Otherwise it doesn't.

[Richard Brown]

@rayan08  I agree with the answers above by Mr. Novosielski  and Dr. Kapur. All three of us have provided the same answer. Our answers are based on the rules in RONR, which is the way we are supposed to answer questions in this forum. To date, your answers have not been from RONR and actually conflict with its provisions. 

[Josh Martin]

12 hours ago, rayan08 said:

Yes, you can, and it is more ethical to have a formal session, with all the other directors if possible, than to hold the meeting in a parking lot. However, there are some restrictions and some cautions.

Normally, there are two ways to ask a director to leave a board meeting, and both methods involve declaring a conflict of interest. If you have a conflict of interest policy (and you definitely should have one), it likely says that a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board.

If the person does not realize they are in a conflict of interest position, another director can make a motion to declare them to be in conflict, and the board can make a decision. If the board decides there is a conflict situation, the policy can then be applied. Lacking a policy, the board can set a precedent.

I very strongly recommend that the meeting, or the portion of the meeting dealing with this individual, be held in camera, that is, board members only, or board plus legal counsel. At most, you might include the executive director but no other staff members or outsiders. The minutes should be kept separate from the regular minutes. They would only reference that an in camera session was held and that the person in question was excused.

A board member cannot be excluded from a board meeting unless the bylaws or applicable law so provide. It may well be that the boards you are familiar with have a "conflict of interest" policy in their bylaws or applicable law which requires that "a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board." In the absence of such a policy in the bylaws or applicable law, however, the board absolutely cannot force a member of the board to leave a board meeting. The board could ask a member to leave, but would be unable to force the issue.

It is not correct that "Lacking a policy, the board can set a precedent" which requires that "a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board." Only a rule at least on the level of the bylaws is sufficient to deprive a member of the rights of membership. I am not entirely certain whether you actually mean a custom (which is the way that something is traditionally done in an assembly despite the lack of a written rule on the matter) or if you do in fact mean a precedent (which is created by the ruling of the chair on a question of order and any subsequent appeal), but neither of these is sufficient to create a rule of this nature.