executive session minutes

[Mom]

The board called an executive session (no one voted on this) and decided to sue a member for reasons unknown to the general membership.  The Board President frequently demonstrates his personal animosity of that member with ridicule and hostility.

The minutes of the executive session reported that the board discussed legal action (the member's name was not disclosed), did not report that the board decided to sue and did not indicate how the vote went.  Knowing that the discussion was confidential, how are members supposed to know what happened?  Members are now told that we are required to pay the legal tab on behalf of the President's personal vendetta. There is an election coming up and many of us do not want to vote for directors who voted for the suit.

Are the minutes of the executive session supposed to record the votes and the general decision?  And is general membership allowed to view the minutes of the executive session?

[Josh Martin]

On 2/17/2022 at 10:38 PM, Mom said:

The minutes of the executive session reported that the board discussed legal action (the member's name was not disclosed), did not report that the board decided to sue and did not indicate how the vote went.

This is the exact opposite of what the minutes should include. The information about the discussion should not be included. The motion adopted by the board and the result of that motion should be included.

Unless your rules provide otherwise, however, only board members have a right to view the board's minutes (especially minutes of an executive session). The membership could order that a particular set of minutes be read to the membership. This requires a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice. Since this involves minutes of an executive session, the membership should enter executive session in order to do this, so that the information at least stays within the organization.

On 2/17/2022 at 10:38 PM, Mom said:

Knowing that the discussion was confidential, how are members supposed to know what happened?

Just to be clear, everything that happens in an executive session is confidential, except the information the assembly has chosen to disclose, or if disclosing the information is necessary to carry it out. It's not just the discussion that's confidential.

To answer your question - they aren't supposed to know what happened. That's the point of executive session. The membership could, however, order the minutes to be read (as noted above).

On 2/17/2022 at 10:38 PM, Mom said:

There is an election coming up and many of us do not want to vote for directors who voted for the suit.

The only way to ensure that may be to not vote for any of the current directors. It would be highly unusual for the minutes of an executive session to record how individual directors voted.

On 2/17/2022 at 10:38 PM, Mom said:

Are the minutes of the executive session supposed to record the votes and the general decision?

Yes, the minutes should record the exact wording of the motion. In regard to the vote, normally all that is recorded is whether the motion was adopted or lost. If a counted vote was taken, then the number of votes on each side would be recorded. How each individual director voted is not recorded unless a roll call vote is ordered. Since the purpose of a roll call vote is to force members to go on record, there would seem to be no purpose in ordering a roll call vote if the assembly is in executive session.

On 2/17/2022 at 10:38 PM, Mom said:

And is general membership allowed to view the minutes of the executive session?

No. As noted above, however, the membership may order the minutes to be shared with the membership.

Edited February 18, 2022 at 11:34 AM by Josh Martin

[Joshua Katz]

On 2/17/2022 at 11:38 PM, Mom said:

The board called an executive session (no one voted on this)

Then, it seems to me, the board did not call an executive session. At least, that is a possibility. How did the board wind up in executive session, exactly?

[Mom]

Joshua,

The board goes into its executive sessions by the president simply saying that they are, with no motion made or vote taken, then he dismisses all non-director members from the meeting.

When the meetings were held by Zoom, non-directors were disconnected.  We non-directors did not know when the executive session ended and when and if the rest of the meeting continued. If we tried to "re-enter" Zoom, members were selectively re-connected or ignored.

When the meetings were in-person, the board secretary would invite all members still in the vicinity and let us know that the executive session was over.

 

[Joshua Katz]

On 2/18/2022 at 6:27 PM, Mom said:

The board goes into its executive sessions by the president simply saying that they are, with no motion made or vote taken, then he dismisses all non-director members from the meeting.

 

This, as I'm sure you know, is also not proper. I'm not convinced a board member is bound to confidentiality by an executive session the body has never decided to enter.

[Josh Martin]

On 2/18/2022 at 5:27 PM, Mom said:

The board goes into its executive sessions by the president simply saying that they are, with no motion made or vote taken, then he dismisses all non-director members from the meeting.

In the future, there should either a motion and vote to enter executive session. Alternately, the President could ask if there is any objection to entering executive session. If there is none, the assembly could enter executive session by unanimous consent. In any event, the President cannot unilaterally decide the assembly enters executive session.

On 2/18/2022 at 5:27 PM, Mom said:

When the meetings were held by Zoom, non-directors were disconnected.  We non-directors did not know when the executive session ended and when and if the rest of the meeting continued. If we tried to "re-enter" Zoom, members were selectively re-connected or ignored.

When the meetings were in-person, the board secretary would invite all members still in the vicinity and let us know that the executive session was over.

None of this violates any rule in RONR. Only board members have a right to attend (or even be notified) of board meetings. If the organization's rules or customs (or applicable law) provide otherwise on this matter, that may change things.

On 2/18/2022 at 5:47 PM, Joshua Katz said:

This, as I'm sure you know, is also not proper. I'm not convinced a board member is bound to confidentiality by an executive session the body has never decided to enter.

I don't think it would be prudent for a board member to act unilaterally in disclosing information from the meeting in question. It would seem to me if there is disagreement on this matter, the board should discuss this matter and adopt a motion to resolve it.

[Joshua Katz]

On 2/19/2022 at 10:49 AM, Josh Martin said:

I don't think it would be prudent for a board member to act unilaterally in disclosing information from the meeting in question. It would seem to me if there is disagreement on this matter, the board should discuss this matter and adopt a motion to resolve it.

The problem here is that some of the board feels justified in trying to unilaterally impose confidentiality on others. I don't know how to resolve that through parliamentary procedure.

[Josh Martin]

On 2/19/2022 at 10:00 AM, Joshua Katz said:

The problem here is that some of the board feels justified in trying to unilaterally impose confidentiality on others. I don't know how to resolve that through parliamentary procedure.

If what it is desired to resolve is whether the matters discussed at the particular meeting should remain confidential, the way to resolve that is through the board adopting a motion on the subject.

If what is desired to resolve is to prevent this issue from reoccurring in the future, the way to resolve that is through educating the President on the proper procedures, or if the President still persists in the prior course of action notwithstanding knowing the proper procedure, then the next step is likely getting a new President.

[Joshua Katz]

Very well. Sometimes, though, reality conflicts. "I move that [something about confidentiality]." (I'm not entirely sure what motion to make if you want it to not be confidential, given that there was never a motion to enter executive session, but I'll assume you make an appropriate one.) "Damn it, OP, you know full well that was in executive session. The motion is pointless and out of order."

[Josh Martin]

On 2/19/2022 at 10:58 AM, Joshua Katz said:

Very well. Sometimes, though, reality conflicts. "I move that [something about confidentiality]." (I'm not entirely sure what motion to make if you want it to not be confidential, given that there was never a motion to enter executive session, but I'll assume you make an appropriate one.) "Damn it, OP, you know full well that was in executive session. The motion is pointless and out of order."

If the chair rules the motion out of order, then the next step is to appeal from the decision of the chair.

Certainly there are all sorts of things that may go wrong. I still think, however, that if the board was under the impression that a meeting for a sensitive legal matter was held in executive session (even although the chair acted improperly in making such a declaration unilaterally), it is not prudent for a member to start disclosing the details on their own initiative. It may well be that a majority of the board agrees with the chair that the information should remain confidential.

[Tomm]

On 2/18/2022 at 4:31 AM, Josh Martin said:

As noted above, however, the membership may order the minutes to be shared with the membership.

Am I understanding you correctly that during the General Annual Membership Meeting the Members, with either a 2/3rd's vote of those in attendance, a majority vote with previous notice, or majority vote of the entire membership can request to see the minutes of an Executive Session that was held by the Board, providing of course, the General Membership Meeting goes into Executive Session itself?

[Josh Martin]

On 2/25/2022 at 2:56 PM, Tomm said:

Am I understanding you correctly that during the General Annual Membership Meeting the Members, with either a 2/3rd's vote of those in attendance, a majority vote with previous notice, or majority vote of the entire membership can request to see the minutes of an Executive Session that was held by the Board, providing of course, the General Membership Meeting goes into Executive Session itself?

Yes, this is correct.

I would clarify that it is not technically required for the membership to enter executive session to do this, but I think it would be advisable to do so.

[Tomm]

On 2/25/2022 at 5:21 PM, Josh Martin said:

Yes, this is correct.

Is this process clearly articulated somewhere in RONR? I find that VERY interesting!

[Gary Novosielski]

On 2/25/2022 at 3:56 PM, Tomm said:

Am I understanding you correctly that during the General Annual Membership Meeting the Members, with either a 2/3rd's vote of those in attendance, a majority vote with previous notice, or majority vote of the entire membership can request to see the minutes of an Executive Session that was held by the Board, providing of course, the General Membership Meeting goes into Executive Session itself?

Yes, emphasizing that it would, as you said, be a two-thirds vote, [by] those in attendance, and not a vote of two-thirds of those in attendance.

[Tomm]

On 2/25/2022 at 6:11 PM, Gary Novosielski said:

Yes, emphasizing that it would, as you said, be a two-thirds vote, [by] those in attendance, and not a vote of two-thirds of those in attendance.

I'm sorry but I fail to see the difference? What am I missing?

[Josh Martin]

On 2/25/2022 at 6:26 PM, Tomm said:

Is this process clearly articulated somewhere in RONR? I find that VERY interesting!

"The board can order that any specified person(s)—including, for example, all members of the society—be permitted to view, or be furnished with copies of, board minutes. A motion to do so is an incidental main motion, which can be adopted by a majority vote if the minutes are not protected by executive-session secrecy. If they are protected by such secrecy, the motion requires a two-thirds vote, the vote of a majority of the entire membership of the board, or a majority vote if previous notice has been given.

Whether or not board minutes are protected by the secrecy of an executive session, the assembly of the society can adopt a motion granting such permission, or can order that the board’s minutes be produced and read at a meeting of the assembly, by a two-thirds vote, the vote of a majority of the entire membership of the assembly, or a majority vote if previous notice has been given." RONR (12th ed.) 49:18-19

I should caution that I recall your society has numerous customized rules in its bylaws and applicable law, and such rules will take precedence over RONR.

On 2/25/2022 at 8:52 PM, Tomm said:

I'm sorry but I fail to see the difference? What am I missing?

I believe what Mr. Novosielski is getting at is that saying "2/3rd's vote of those in attendance" sounds like you're saying the requirement is two-third of the members present, when in fact the requirement is two-thirds of the members present and voting. In other words, abstentions are not included in determining whether the motion is adopted.

[Guest Zev]

Hey, guys! What about the legal charges from this event? Can the assembly adopt a motion directing the board or the president to reimburse the organization? I get the impression the president is stirring up trouble and making the society pay for his rampage through the court system, if true, I would not let him get away with it.

[Atul Kapur]

If the board adopted a motion to take legal action, and such a motion was within the powers assigned to the board, then I don't believe the board or president could be required to reimburse the organization for charges already expended. 

The society could adopt a motion to stop any further activity on the legal action by rescinding the board's motion.

[Josh Martin]

On 2/26/2022 at 5:28 PM, Guest Zev said:

Hey, guys! What about the legal charges from this event? Can the assembly adopt a motion directing the board or the president to reimburse the organization? I get the impression the president is stirring up trouble and making the society pay for his rampage through the court system, if true, I would not let him get away with it.

Based upon the facts presented here, it appears that the legal action in question was approved by the society's board, and my understanding is that the board was acting within its authority in doing so. As a result, I see no parliamentary recourse to require the board or the President to reimburse the organization for these expenses, unless the organization's bylaws authorize fines as a penalty. Fines may not be levied as a disciplinary penalty unless authorized in the bylaws. RONR does provide that officers who spend funds they were not authorized to spend may be ordered to reimburse the organization, but that doesn't appear to be the situation here.

"Punishments that a society can impose generally fall under the headings of censure, fine (if authorized in the bylaws), suspension, or expulsion. The extreme penalty that an organization or society can impose on a member is expulsion." RONR (12th ed.) 61:2

"The usual possible penalties for an officer are censure or removal from office, although in special circumstances others may be appropriate (for example, to repay into the society’s treasury funds that the officer has been found guilty of misappropriating, perhaps with an added fine)." RONR (12th ed.) 63:33

There may or may not be legal recourse available against the board or the President in this matter, but that is a question for an attorney.

Edited February 27, 2022 at 05:08 PM by Josh Martin

[Guest Zev]

From what OP Mom has told us, I get the impression that the real reason for the executive session is an attempt to hide from the assembly what was done and to saddle the organization with the expense for having performed this act. What I really dislike about this incident is the lack of transparency by the members of the board and their recalcitrance to be open to the members of their own organization even if the board had the authority to do what they did. Nevertheless, once a member gets a copy of the court document(s) things will be clarified fairly quickly.

[Gary Novosielski]

On 2/25/2022 at 9:52 PM, Tomm said:

I'm sorry but I fail to see the difference? What am I missing?

 

On 2/26/2022 at 6:44 AM, Josh Martin said:

I believe what Mr. Novosielski is getting at is that saying "2/3rd's vote of those in attendance" sounds like you're saying the requirement is two-third of the members present, when in fact the requirement is two-thirds of the members present and voting. In other words, abstentions are not included in determining whether the motion is adopted.

That is indeed what Mr. Novosielski was getting at.  Thanks!