Texting and communicating with other Board members and outside individuals during a closed electronic meeting

[Dendra Best]

I know if this was a municipal governmental meeting this is not permitted at any time - but what about a 501(c)4?

Is this a breach of trust and ethics?

[Joshua Katz]

Assuming this is a meeting of the board, and according to RONR, board members who are not present have the right to know what happens in executive session. Outside individuals do not. Legal questions are beyond the scope of this forum, but as a parliamentary matter, you may share information from executive session with board members not in attendance, and not with anyone else.

[Rob Elsman]

The use of electronic gadgets in a meeting hall or room is subject to any standing rules the assembly may have adopted.  If this board is concerned about the leakage of sensitive information to unauthorized persons, it may adopt such a standing rule prohibiting the use of electronic communication devices during a meeting or any specified portion thereof.  Such a standing rule can be suspended by majority vote if it becomes advantageous, on a particular occasion, for a member to make a phone call or send a text message.

[Dendra Best]

Thank you both - an issue I suspect all entities dealing with electronic meetings will have to take a close look at their Codes of Conduct, Bylaws and Rules to address 😞 It does breach our current code in relation to disclosing legal discussions to an unauthorized person.

[J. J.]

I know of no rule that says a municipal government members cannot text during a meeting.   It does not exist in RONR.  There be some rule applicable to some governmental bodies specific to those bodies. 

While there are rules regarding executive prohibit disclosure of what happened in executive session, they do not prevent communication with others outside of of an executive session.  A member could text a question, e.g. "Can the meeting take a 15 minute recess," from a meeting, for example. 

[Dendra Best]

The point here is this was a closed session for legal issues with all Directors present - no one outside of the Board should have been able to see, or hear what was being discussed.

[Dendra Best]

see https://firstamendmentcoalition.org/2013/05/aa-councilmembers-texting-during-meeting-a-brown-act-violation/

 

[Rob Elsman]

If you are asking a question about statutory law, you will need to seek legal counsel.  As we are fond of saying, we don't do legal here.

[Dendra Best]

 

On 4/26/2022 at 12:53 PM, Rob Elsman said:

If you are asking a question about statutory law, you will need to seek legal counsel.  As we are fond of saying, we don't do legal here.

No if this was a municipal issue that would be different - but under RR a closed session is a closed session? No one should be live streaming that out to the general membership or what was the point of going into closed session in the first place right?

[Rob Elsman]

Okay.  I will stand by my previous answer as a matter of the common parliamentary law.  If the California Brown Act is controlling, however, you will need to get some legal help.

[Joshua Katz]

On 4/26/2022 at 7:10 PM, Dendra Best said:

No one should be live streaming that out to the general membership or what was the point of going into closed session in the first place right?

If we're talking about an executive session, I agree. Since no one may (with certain exceptions) share what was said in executive session with those not permitted to attend, that will include live streaming out what is said to the general membership. That's not the same as simply using a phone, and there are even certain things they could share, but live streaming everything that is said is certainly not permitted.

[Richard Brown]

On 4/26/2022 at 6:29 PM, Joshua Katz said:

If we're talking about an executive session, I agree. Since no one may (with certain exceptions) share what was said in executive session with those not permitted to attend, that will include live streaming out what is said to the general membership. That's not the same as simply using a phone, and there are even certain things they could share, but live streaming everything that is said is certainly not permitted.

I am in almost total agreement with your answer, but will quibble with just the last few words which I have bolded.  I agree that live streaming an executive session to someone who is not a member of the board which is meeting would not be proper and would violate the secrecy of an executive session, but I believe live streaming the meeting to an absent member of the board might well be permissible.  Such a member is entitled to be present and I don't see it as much (if any) different from permitting the absent member from joining in with a meeting via telephone or  video conference, even if he is not permitted to vote due to not being present. 

[Gary Novosielski]

On 4/26/2022 at 6:37 PM, Dendra Best said:

The point here is this was a closed session for legal issues with all Directors present - no one outside of the Board should have been able to see, or hear what was being discussed.

Do you know for a fact that the person texting was revealing what was being discussed.

[Joshua Katz]

On 4/26/2022 at 9:34 PM, Richard Brown said:

I agree that live streaming an executive session to someone who is not a member of the board which is meeting would not be proper and would violate the secrecy of an executive session, but I believe live streaming the meeting to an absent member of the board might well be permissible.

I agree.

[Josh Martin]

On 4/17/2022 at 11:10 PM, Dendra Best said:

Texting and communicating with other Board members and outside individuals during a closed electronic meeting

I know if this was a municipal governmental meeting this is not permitted at any time - but what about a 501(c)4?

Is this a breach of trust and ethics?

 

On 4/18/2022 at 1:56 PM, Dendra Best said:

Thank you both - an issue I suspect all entities dealing with electronic meetings will have to take a close look at their Codes of Conduct, Bylaws and Rules to address 😞 It does breach our current code in relation to disclosing legal discussions to an unauthorized person.

On 4/26/2022 at 5:37 PM, Dendra Best said:

The point here is this was a closed session for legal issues with all Directors present - no one outside of the Board should have been able to see, or hear what was being discussed.

On 4/26/2022 at 6:10 PM, Dendra Best said:

No if this was a municipal issue that would be different - but under RR a closed session is a closed session? No one should be live streaming that out to the general membership or what was the point of going into closed session in the first place right?

It must be understood that what was originally asked and what is being asked now are two very different questions, which is why you are getting different answers. The original question asked whether it is prohibited, as a general matter, for members to text and communicate with other board members and outside individuals during a closed meeting. The original question does not make clear what the contents of the communications are regarding. So no, there is no general prohibition against board members texting or communicating with others during a closed meeting. The assembly is, however, free to adopt its own rules on this matter if it wishes to do so.

Follow-up posts clarify that the question is regarding communications with persons who are not board members and which relate to the issues discussed in the executive session, and later asks whether members may "live stream" the conduct of a closed meeting to the general membership. These actions are certainly prohibited.

"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, emphasis added

So in short, communications with persons who are not board members are prohibited if they relate to the executive session (with the exceptions noted above). If the communications do not relate to the executive session, they are not prohibited.

Finally, the original question referred to communications with board members as well. Communications with other board members are permissible, even if those communications relate to the executive session.

Once again, the assembly is also free to adopt its own rules to supplement RONR's rules on this matter if it wishes.

Edited April 27, 2022 at 12:02 PM by Josh Martin

[Drake Savory]

Suppose the texting is about the motion to other directors in the meeting.  Thinks like "This is a good idea.  I'm voting for it." or "OMG they are an idiot, this will cost us thousands of dollars."  Would that be considered debate?  

[Atul Kapur]

It's the electronic version of whispering some comment to the person beside you, which I would also not classify as debate.

Edited April 30, 2022 at 02:56 PM by Atul Kapur

[Gary Novosielski]

On 4/30/2022 at 9:41 AM, Drake Savory said:

Suppose the texting is about the motion to other directors in the meeting.  Thinks like "This is a good idea.  I'm voting for it." or "OMG they are an idiot, this will cost us thousands of dollars."  Would that be considered debate?  

It's not debate unless all the members present can hear it.

But it does not seem to violate any requirements of secrecy.