Restrictions on Meeting and Continuing Breach

[mmpullen]

I have been reading with interest your comments on Restrictions on a Committee, but thought it best to post a new topic. Our organization has a standing rule that says "All meetings of the membership, Board of Directors, Executive Committee and committees are generally open. However, any of the organization's bodies may meet in closed session at its discretion." In over 40 years experience as a member with this organization, there has only been one meeting in which any of the bodies met in closed session and that was some years ago when the Executive Committee (XC) met in closed session for the purpose of discussing how to deal with a very personal and sensitive issue in which one of the newly elected XC members was charged with criminal offenses which occurred outside of the organization but affected the member's eligibility to serve.

The XC recently decided that they were going to have a totally closed meeting to deal with a number of fairly routine business matters, none of which were personal or sensitive in nature and are typical of the topics in which open meetings are held. The XC said they could do so because according to the rule they had the discretion to meet in closed session, despite the fact that our custom points to the intent of the rule is to exercise that discretion more judiciously.

Questions: Can a point of order be raised at the next Board of Directors meeting after the closed meeting is held or does a continuing breach not apply after the meeting is over? If a continuing breach does not apply after the fact, how can the organization hold the XC to account? If actions are taken at the meeting that are of the nature of a continuing breach are those actions then null and void?

 

 

[Josh Martin]

On 3/16/2023 at 10:51 AM, mmpullen said:

Can a point of order be raised at the next Board of Directors meeting after the closed meeting is held or does a continuing breach not apply after the meeting is over?

If the rule did in fact prohibit the Executive Committee from meeting in closed session, I believe this would create a continuing breach which would apply even after the meeting is over, at least for the purposes of determining that a violation has occurred, using this as evidence for any future disciplinary action, and for ensuring the rule is followed in the future.

Because the rule provides, however, that "All meetings of the membership, Board of Directors, Executive Committee and committees are generally open. However, any of the organization's bodies may meet in closed session at its discretion." my view is that in this instance, there is no violation of the rule at all, let alone a violation which would constitute a continuing breach. So if a Point of Order is raised regarding this matter, I believe the point should be ruled not well taken.

If the organization wishes to amend this rule in the future to limit the circumstances under which the Executive Committee may meet in executive session, it is free to do so.

On 3/16/2023 at 10:51 AM, mmpullen said:

If a continuing breach does not apply after the fact, how can the organization hold the XC to account?

A continuing breach does apply after the fact. That's what makes it a continuing breach. Other means by which an organization can enforce its rules would be, for instance, to pursue disciplinary procedures against the members of the Executive Committee, such as removing them from office.

Based upon the actual language of the rule, however, I do not think there is any violation of the rule at all, continuing breach or otherwise. The rule merely provides that meetings are generally open, and permits any of the bodies to "meet in closed session at its discretion."

On 3/16/2023 at 10:51 AM, mmpullen said:

If actions are taken at the meeting that are of the nature of a continuing breach are those actions then null and void?

In the circumstances described here, my view is that violating a rule of this nature generally would not cause actions taken at the meeting to be null and void, even if there was a continuing breach.

Further, my view is that the rule in question has not been violated at all, continuing breach or otherwise.

Edited March 16, 2023 at 04:53 PM by Josh Martin

[Dan Honemann]

On 3/16/2023 at 12:40 PM, Josh Martin said:

In the circumstances described here, my view is that violating a rule of this nature generally would not cause actions taken at the meeting to be null and void, even if there was a continuing breach.

I'm not sure I know what you mean by this.

[Josh Martin]

On 3/16/2023 at 1:13 PM, Dan Honemann said:

I'm not sure I know what you mean by this.

Supposing that the rule in question did, in fact, prohibit the board or executive committee from meeting in executive session, and the board or executive committee nonetheless met in executive session, my view is that the business conducted at the meeting would remain valid.

[Shmuel Gerber]

On 3/16/2023 at 2:45 PM, Josh Martin said:

Supposing that the rule in question did, in fact, prohibit the board or executive committee from meeting in executive session, and the board or executive committee nonetheless met in executive session, my view is that the business conducted at the meeting would remain valid.

It might be worth noting that the rule posted in this topic refers to "closed session" and not "executive session". There may be a question whether these closed sessions are supposed to be secret.

[Dan Honemann]

On 3/16/2023 at 2:45 PM, Josh Martin said:

Supposing that the rule in question did, in fact, prohibit the board or executive committee from meeting in executive session, and the board or executive committee nonetheless met in executive session, my view is that the business conducted at the meeting would remain valid.

But does this then mean that the rule has no teeth other than giving rise to the possibility of disciplinary action?

[Josh Martin]

On 3/16/2023 at 1:50 PM, Shmuel Gerber said:

It might be worth noting that the rule posted in this topic refers to "closed session" and not "executive session". There may be a question whether these closed sessions are supposed to be secret.

Agreed. Thank you for the clarification.

On 3/16/2023 at 1:53 PM, Dan Honemann said:

But does this then mean that the rule has no teeth other than giving rise to the possibility of disciplinary action?

Yes.

Edited March 16, 2023 at 07:08 PM by Josh Martin

[Dan Honemann]

On 3/16/2023 at 2:53 PM, Dan Honemann said:

But does this then mean that the rule has no teeth other than giving rise to the possibility of disciplinary action?

 

On 3/16/2023 at 3:08 PM, Josh Martin said:

Yes.

I suppose the answer depends upon whether a committee meeting held in direct violation of a rule imposed upon it by its parent body is a properly called meeting.

[mmpullen]

On 3/16/2023 at 3:08 PM, Josh Martin said:

On 3/16/2023 at 3:08 PM, Josh Martin said:

On 3/16/2023 at 2:50 PM, Shmuel Gerber said:

It might be worth noting that the rule posted in this topic refers to "closed session" and not "executive session". There may be a question whether these closed sessions are supposed to be secret.

The XC is not considering this an "executive session" and has not used that terminology. They have indicated that minutes will be taken and shared at the Board of Directors' meeting. I believe the members who are most upset may be conflating executive session and closed session to be one and the same. However, the rule does state "closed session".

 

 

[Gary Novosielski]

Well, since the rule (which I think should be a Special Rule of Order rather than a Standing Rule) provides that any of these bodies can go into closed session at its discretion, there is no apparent breach of any duration, other than a failure to observe custom.

If the society wants to place this custom on firm ground, it will need to amend the rule.

[Dan Honemann]

On 3/17/2023 at 1:41 AM, Gary Novosielski said:

Well, since the rule (which I think should be a Special Rule of Order rather than a Standing Rule) provides that any of these bodies can go into closed session at its discretion, there is no apparent breach of any duration, other than a failure to observe custom.

If the society wants to place this custom on firm ground, it will need to amend the rule.

The "rule" referred to here provides that: "All meetings of the membership, Board of Directors, Executive Committee and committees are generally open. However, any of the organization's bodies may meet in closed session at its discretion."

By my standards, this is not actually a "rule" because it mandates nothing.  It appears to be more like a statement of the way meetings should be held, with explicit permission to do otherwise.  But if it were a rule mandating that meetings be open, or that they be closed, or that they be held in executive session, it would be a standing rule and not a special rule of order.  It would not be a rule relating to "the orderly transaction of business in meetings" or "to the duties of officers in that connection."  

In answering the questions originally asked, Mr. Martin was entirely correct when he said that, if the Executive Committee were to hold a closed meeting, there would be "no violation of the rule at all, let alone a violation which would constitute a continuing breach. So if a Point of Order is raised regarding this matter, I believe the point should be ruled not well taken."  The ensuing discussion was based upon a "what if", together with a recognition of the difference between a "closed session" and an "executive session" (RONR, 12th ed., 9:25, 9:28). 

As to this latter point, we have been told that, during the (apparently) 40 years that this "rule" has been in existence, "there has only been one meeting in which any of the bodies met in closed session and that was some years ago when the Executive Committee (XC) met in closed session for the purpose of discussing how to deal with a very personal and sensitive issue in which one of the newly elected XC members was charged with criminal offenses which occurred outside of the organization but affected the member's eligibility to serve."  In my mind, this raises a question as to whether this "rule", although referring to "closed session", was previously understood and interpreted to mean "executive session", which may be the reason why some members are upset about what the Executive Committee now intends to do. 

[J. J.]

On 3/16/2023 at 12:40 PM, Josh Martin said:

 

Because the rule provides, however, that "All meetings of the membership, Board of Directors, Executive Committee and committees are generally open. However, any of the organization's bodies may meet in closed session at its discretion." my view is that in this instance, there is no violation of the rule at all, let alone a violation which would constitute a continuing breach. So if a Point of Order is raised regarding this matter, I believe the point should be ruled not well taken.

In this case, I am in complete agreement. 

 

On 3/16/2023 at 12:40 PM, Josh Martin said:

In the circumstances described here, my view is that violating a rule of this nature generally would not cause actions taken at the meeting to be null and void, even if there was a continuing breach.

I would say that violating hypothetical rule that provided for sessions of committees or boards to be open to members of the society would create a breach of a continuing nature.  That rule creates a right for those members. 

[Dan Honemann]

On 3/16/2023 at 12:40 PM, Josh Martin said:

In the circumstances described here, my view is that violating a rule of this nature generally would not cause actions taken at the meeting to be null and void, even if there was a continuing breach.

 

On 3/17/2023 at 9:18 AM, J. J. said:

I would say that violating hypothetical rule that provided for sessions of committees or boards to be open to members of the society would create a breach of a continuing nature.  That rule creates a right for those members. 

OK.  Mr. Martin did not say otherwise.