Confidentiality of roll call vote in executive session

[smb]

A board votes in executive session to approve or reject a contract.  The vote is taken by roll call. Is the record of the roll call itself confidential or may members disclose how they voted? [Without disclosing anything other than the contract was approved or rejected.] Can they disclose how others voted?

[smb]

I should add that they have a special rule that the "action taken" be disclosed.  The only question is whether confidentiality of what occurred during the debate also extends to the record of the vote.

[J. J.]

On 8/30/2021 at 9:16 PM, smb said:

I should add that they have a special rule that the "action taken" be disclosed.  The only question is whether confidentiality of what occurred during the debate also extends to the record of the vote.

I think that this would still come under the heading of executive session and be secret in general.  It would be recorded in the minutes, but the minutes of an executive session are not publicly disclosed.

If the action is public, and it is publicly known that the board took the action, the member could disclose his own vote.

[Josh Martin]

On 8/30/2021 at 8:02 PM, smb said:

Is the record of the roll call itself confidential or may members disclose how they voted?... Can they disclose how others voted?

Yes, the record of the roll call itself is confidential, unless the board voted to disclose that information. Members may not disclose how others voted, or even how they voted themselves.

EVERYTHING that happens in executive session is confidential, except the information the board has voted to disclose, or has been ordered to disclose by the general membership of the society. RONR also provides that action taken may be divulged to the extent necessary to carry it out, but I see no reason why how individual members voted would be necessary for that purpose.

"The general rule is that anything that occurs in executive session may not be divulged to nonmembers (except any entitled to attend). However, action taken, as distinct from that which was said in debate, may be divulged to the extent - and only to the extent - necessary to carry it out. For example, if during executive session a member is expelled or an officer is removed from office, that fact may be disclosed to the extent described in 63:3. If the assembly wishes to further lift the secrecy of action taken in an executive session, it may adopt a motion to do so, which is a motion to Amend Something Previously Adopted (35). In making or debating such a motion, the members must be careful, if the assembly is not in executive session, to preserve the existing secrecy." RONR (12th ed.) 9:26 

Of course, this kind of defeats the point of taking a roll call vote. For this reason, if I were in the chair and a member moved that a roll call vote be taken in executive session, I would probably ask whether the member also wishes to order that the roll call vote be disclosed, and I'd probably rule the motion for a roll call vote out of order as dilatory if the member responded in the negative.

If the organization wishes to permit members to disclose only their own votes, that is also permissible, but that doesn't really seem like a "roll call vote" in the sense that term is ordinarily used.

On 8/30/2021 at 8:16 PM, smb said:

I should add that they have a special rule that the "action taken" be disclosed.  The only question is whether confidentiality of what occurred during the debate also extends to the record of the vote.

Yes. As previously noted, the confidentiality extends to everything that occurs in executive session, except that which the assembly (or its parent assembly) has ordered to be disclosed. Additionally, action taken may be disclosed to the extent necessary to carry it out.

If the organization has a special rule that the action taken be disclosed, then that information must be disclosed, but in my view, that does not extend to how individual members voted.

On 8/31/2021 at 1:52 AM, J. J. said:

If the action is public, and it is publicly known that the board took the action, the member could disclose his own vote.

I disagree. The action and the individual votes taken on the action are separate and distinct. The member cannot disclose anything that has occurred during executive session except that which the board has agreed to disclose, or has been ordered to disclose, or which is necessary to carry out the action. There is no exception in RONR for a member's own votes.

[Rob Elsman]

On 8/31/2021 at 6:28 AM, Josh Martin said:

Of course, this kind of defeats the point of taking a roll call vote. For this reason, if I were in the chair and a member moved that a roll call vote be taken in executive session, I would probably ask whether the member also wishes to order that the roll call vote be disclosed, and I'd probably rule the motion for a roll call vote out of order as dilatory if the member responded in the negative.

I agree with Mr. Martin on this.  Unless the roll is to be disclosed to interested outside persons, there is little point to it.  It just burns time for the sake of burning ime.

[smb]

Thx for the input.  Pretty much as I had surmised, but good to get second opinions.  For the viewers following this thread, here is a bit more context.    For many public bodies covered by open meeting laws, the record of votes taken is made public even when taken in closed session. Of course, that is typically a statutory requirement -- not RONR.  But it did raise the question in my mind whether the purpose of such disclosures is to ensure the transparency of representative bodies or whether they might simply reflect a belief that the record of a vote itself is not considered to be confidential. While the quoted section of RONR (9:26) appears clear, it would prevent members from verifying that their convention delegates who were instructed to vote a certain way satisfied their duty to do so. (See RONR (12th ed.) 58:18)  So perhaps an issue to consider for the 13th edition is whether "the general rule" in 9:26 should yield if in conflict with 58:18, or similar representative circumstances.   

I like Mr. Martin's suggestion that a motion calling for a roll-call vote could be deemed dilatory if it is not to be made public. The meeting that raised this issue for me was a Zoom meeting [properly authorized] so we just used the raise hands feature and made a record of it.

[Weldon Merritt]

On 8/31/2021 at 11:52 AM, smb said:

While the quoted section of RONR (9:26) appears clear, it would prevent members from verifying that their convention delegates who were instructed to vote a certain way satisfied their duty to do so. (See RONR (12th ed.) 58:18)  So perhaps an issue to consider for the 13th edition is whether "the general rule" in 9:26 should yield if in conflict with 58:18, or similar representative circumstances.  

I have a hard time imagining what motions for which a delegate is instructed to vote a specific way would be considered in executive session. I suppose it might be possible, but it seems pretty unlikely in most circumstances.

[smb]

Weldon; doesn't happen often -- but when you work union conventions it does occur now and then.  And, needless to say, RONR is filled with special rules for things that are pretty unlikely to occur so what's one more?  🙂

[Weldon Merritt]

On 8/31/2021 at 12:36 PM, smb said:

Weldon; doesn't happen often -- but when you work union conventions it does occur now and then.  And, needless to say, RONR is filled with special rules for things that are pretty unlikely to occur so what's one more?  🙂

You have a point. But on the other hand, any organization that believes the rule is necessary could adopt its own rule on the issue. Off the top of my head, I'm not sure of that would need to be a bylaws level rule or if a special rule of order would suffice.

[J. J.]

On 8/31/2021 at 7:28 AM, Josh Martin said:

I disagree. The action and the individual votes taken on the action are separate and distinct. The member cannot disclose anything that has occurred during executive session except that which the board has agreed to disclose, or has been ordered to disclose, or which is necessary to carry out the action. There is no exception in RONR for a member's own votes.

I think a member can indicate his opinion on an action that is known to have taken place. i.e. the board took this action and Member Smith saying he was opposed to it.  There would be no way to verify if Member Smith was telling the truth or not, so long as the roll call results remain in executive session. 

[Josh Martin]

On 8/31/2021 at 9:51 PM, J. J. said:

I think a member can indicate his opinion on an action that is known to have taken place. i.e. the board took this action and Member Smith saying he was opposed to it.  There would be no way to verify if Member Smith was telling the truth or not, so long as the roll call results remain in executive session. 

Yeah, I thought about that loophole as well and I agree. A member could state their opinion on an issue (assuming the action itself is public) without directly saying how they voted, and that would then not technically violate the confidentiality of the executive session.

[J. J.]

On 9/1/2021 at 6:51 AM, Josh Martin said:

Yeah, I thought about that loophole as well and I agree. A member could state their opinion on an issue (assuming the action itself is public) without directly saying how they voted, and that would then not technically violate the confidentiality of the executive session.

I don't believe that the method of voting would make a difference.