Executive Session

[Mark Apodaca, PRP]

I was in a Board Meeting of an organization tonight.  I attended because of the possibility of becoming the organization's parliamentarian and to provide board governance and parliamentary law and procedures.  I have no contract to serve as the organization's parliamentarian until a contract is signed.

The board is very much divided and decided to go into executive session without the President.  I shared with the board that the President runs all meetings including executive session meetings and is the spokesperson of the organization.  The members did not want the President in the meeting and the President accepted the board's request not to attend.

The board was going to discuss emails received from the membership (mostly wanting the President to resign).  The board made a motion to enter executive session and a majority vote was met.  The President did not attend.

After they got out of the executive session, the President was asked to resign.  When he refused, the board said "you are removed".

The bylaws state:

§ 4.11 Executive Session.

The Board shall convene in executive sessions where circumstances warrant, i.e., when discussing matters of sensitive, personnel, or litigious nature.

§ 4.13 Removal from Office.

Elected and appointed Board members may be removed after due process hearing for failure to carry out their duties or for other good and sufficient reason by two thirds (2/3) vote of the Board of Directors present and voting.

I am not the organization's official parliamentarian but what crossed my mind is:

• According to RONR, they would need to vote themselves out of executive session which I doubt happened.
• I do not know whether the motion and vote was made in the executive session but my understanding is that it should have been done when the board was out of executive session.
• Is the removal of the President out-of-order because of the two things above?  Your thoughts as I was not able to pinpoint this in RONR.

Mark

[Mark Apodaca, PRP]

4.13 was met with sufficient reason (according to the board) and 2/3 vote.

[Josh Martin]

1 hour ago, Mark Apodaca said:

The board is very much divided and decided to go into executive session without the President.  I shared with the board that the President runs all meetings including executive session meetings and is the spokesperson of the organization.  The members did not want the President in the meeting and the President accepted the board's request not to attend.

Is the President a member of the board? If not, I don't see a problem. Only members of the board have a right to be present. Being the regular presiding officer does not confer a right to be present. If the President is absent, someone else can preside (and this rule can even be suspended). Being the spokesperson of the organization does not confer a right to be present.

If the President is a member of the board, then he may not be excluded from meetings, although if the President voluntarily stepped out upon request, there is no problem.

1 hour ago, Mark Apodaca said:

According to RONR, they would need to vote themselves out of executive session which I doubt happened.

RONR has no such requirement. An assembly is not required to leave executive session at all (the meeting could be adjourned while in executive session), and even when leaving executive session, this is often done by unanimous consent.

1 hour ago, Mark Apodaca said:

I do not know whether the motion and vote was made in the executive session but my understanding is that it should have been done when the board was out of executive session.

RONR has no such requirement. RONR places no limitations on what business may be conducted in executive session.

1 hour ago, Mark Apodaca said:

Is the removal of the President out-of-order because of the two things above?  Your thoughts as I was not able to pinpoint this in RONR.

No.

It may, however, be out of order on the grounds that the bylaws require "due process hearing." I don't know exactly what that entails, but it strains credulity a bit to suggest the President was given a "due process hearing" when the President was not permitted to be present to speak in his defense. There is the fact that the President stepped out voluntarily upon request, but it's not entirely clear that the President knew at the time that the due process hearing would be occurring during the executive session.

It is ultimately, however, up to the organization to interpret its own bylaws, and apparently the board feels this rule was satisfied. So in order to pursue the matter further, it would be necessary to take it to the membership.

Edited March 8, 2021 at 05:53 AM by Josh Martin

[Mark Apodaca, PRP]

Josh,

I wanted to make myself clear about the comment 

• I do not know whether the motion and vote was made in the executive session but my understanding is that it should have been done when the board was out of executive session.

Can a motion be made and votes to remove the President from the board in executive session or is it required to be made after the board is out of executive session?

 

[Josh Martin]

1 hour ago, Mark Apodaca said:

I wanted to make myself clear about the comment 

• I do not know whether the motion and vote was made in the executive session but my understanding is that it should have been done when the board was out of executive session.

Can a motion be made and votes to remove the President from the board in executive session or is it required to be made after the board is out of executive session?

So far as RONR is concerned, an assembly can do anything in executive session that it could do while it is not in executive session (including making motions and voting). Furthermore, RONR specifically recommends that disciplinary procedures be conducted in executive session (including making motions and voting). So if RONR was all that is controlling, the answer would certainly be a clear "Yes."

The organization appears to have its own rules on this matter, but since those rules provide that "The Board shall convene in executive sessions where circumstances warrant, i.e., when discussing matters of sensitive, personnel, or litigious nature," this seems to still permit an executive session relating to a motion to remove the President.

As a result, I would say the answer is still "Yes," unless there is something else in the organization's rules or applicable law on this subject providing otherwise.

Edited March 8, 2021 at 05:20 PM by Josh Martin

[Mark Apodaca, PRP]

Thank you for sharing your thoughts...

[Richard Brown]

Except for one point, I agree with Mr. Martin‘s analysis of the situation and his answers.

15 hours ago, Josh Martin said:

So in order to pursue the matter further, it would be necessary to take it to the membership.

The one point on which I have a minor quibble with Mr. Martin is that, although pursuing the matter next with the general membership may be the next logical and appropriate step, it may be necessary to hire an attorney and file suit or at least threaten to do so. Based on what we have been told, I do not believe the president has been afforded adequate due process as required by the organization’s own bylaws. Due process requires, at a minimum, adequate notice and an opportunity to be heard and to prepare and present a defense.

[J. J.]

I agree that the "due process hearing" was not properly conducted, unless the president was informed of it and chose not to attend.