Executive Session Controversy

[Guest Kip]

Our nonprofit follows our bylaws & Robert's Rules - the bylaws say nothing about executive session. At our meeting in June, one board member asked for an executive session after the rest of the meeting. No formal vote was taken but there was general agreement to have it. At the executive session, this board member demanded that the president, parliamentarian, one other board member, and the executive director leave. They were discussing a problem with the president that might/might not exist, and agreed that 2 board members would look into the matter.

In July, the first vice president called an executive session to find out the results of the investigation. This time the board members voted to go into executive session, and the president was allowed to be there. The first vice president said the president asked him to have the meeting. The board voted on several motions (one of which that passed was to ask the president to resign because he overstepped his authority in dealing with one of our outreach chapters).

Now, one of the board members says that neither meeting was legitimate because neither was chaired by the president, and that the decisions made in them should be ignored.

Were the meetings legit?

 

 

[Joshua Katz]

On 8/7/2023 at 1:22 PM, Guest Kip said:

Now, one of the board members says that neither meeting was legitimate because neither was chaired by the president, and that the decisions made in them should be ignored.

 

There is no rule that a meeting not chaired by the president is "[il]legitimate" or that "decisions made in them should be ignored." I am a bit stuck on the first meeting, where the issue is not who chaired, but that the president was told he may not be there, a clear violation of his rights of membership. (Maybe. Or maybe a loud member just said they should leave, and they did.) Such a meeting is, in fact, illegitimate, and its decisions null and void. But someone would have to raise a point of order to that effect, not just ignore them, and I don't see anything from the first executive session that remains in effect now in any case.

The second session seems clearly legitimate, and the only things in effect now seem to come from that meeting. So in practice I don't see anything that can be nullified.

Your board apparently uses some loose practice, sometimes proceeding by consensus without a formal vote, etc. While I'd suggest never doing that, I would say it's particularly important to be careful in following procedure, along with documenting it well, on particularly contentious issues like this one.

 

[Josh Martin]

On 8/7/2023 at 1:22 PM, Guest Kip said:

At the executive session, this board member demanded that the president, parliamentarian, one other board member, and the executive director leave.

For future reference, the board member has no authority to demand these things. All board members have a right to be present at all board meetings, including board meetings held in executive session. Board members may be asked to leave, but if they refuse to do so, they cannot be forced to leave.

Persons who are not members of the board may be required to leave, however, this matter is at the discretion of the board as a whole, not the demands of a single member. The board, by majority vote, could permit certain non-members to remain if desired.

On 8/7/2023 at 1:22 PM, Guest Kip said:

Now, one of the board members says that neither meeting was legitimate because neither was chaired by the president, and that the decisions made in them should be ignored.

Were the meetings legit?

Based upon the facts presented, I do not see any reason to question the validity of the meetings or the business conducted therein. The fact that the meetings were not chaired by the President does not undermine the validity of the meetings. There do appear to have been some errors in regard to the first meeting, however, those errors will not cause the meeting or the business conducted therein to be invalid at this time. I do not see any errors with the second meeting.

On 8/7/2023 at 1:31 PM, Joshua Katz said:

I am a bit stuck on the first meeting, where the issue is not who chaired, but that the president was told he may not be there, a clear violation of his rights of membership. (Maybe. Or maybe a loud member just said they should leave, and they did.) Such a meeting is, in fact, illegitimate, and its decisions null and void. But someone would have to raise a point of order to that effect, not just ignore them, and I don't see anything from the first executive session that remains in effect now in any case.

For starters, it is unclear to me whether the President and the one other board member were actually forced to leave or if they simply (unwisely) acquiesced to the one member's demands.

Even to the extent these members were required to leave, I am not certain this makes the remainder of the meeting "illegitimate." It seems comparable to a situation in which one or more members is denied the right to vote.

But as you say, it doesn't seem to matter in any event, as it doesn't seem that anything of consequence was decided at the first meeting anyway. There was simply an informal agreement that "2 board members would look into the matter."

Edited August 7, 2023 at 06:57 PM by Josh Martin

[Joshua Katz]

On 8/7/2023 at 1:56 PM, Josh Martin said:

Even to the extent these members were required to leave, I am not certain this makes the remainder of the meeting "illegitimate." It seems comparable to a situation in which one or more members is denied the right to vote.

 

It strikes me as more like a meeting where a member is not given notice. But we can discuss further when the facts present themselves such that it matters.

[Guest Thank you]

Thank you both. We are going to have another board meeting tonight and this will be brought up. I have no idea now how the board will work back to unity. It is far away from it at this point! I appreciate you both.

Kip

[Gary Novosielski]

I agree with my colleagues that the process at the first meeting was very sketchy but that there's nothing to suggest that either meeting was "illegitimate".

My only additional remark would be with respect to the first meeting, where it seems as though a member with no authority to do so demanded that members leave, and perhaps they were unwise enough to comply.  If their departure caused a loss of quorum (were there only two members left?) then anything decided after that point would be a problem, but if I'm reading it right, nothing actually was.

[Atul Kapur]

On 8/7/2023 at 1:00 PM, Joshua Katz said:

It strikes me as more like a meeting where a member is not given notice

Not sure how you get from

On 8/7/2023 at 12:22 PM, Guest Kip said:

this board member demanded that the president, parliamentarian, one other board member, and the executive director leave

to them not having been given notice.

They were present (a prerequisite to leaving) and would have been aware of the "demand."

Please show the steps that connect these two.

[Joshua Katz]

I said more like, not identical. There's no rule for when a member is at a meeting and is forced to leave, so it seems we need to find a parallel. Mr. Martin suggested being prevented from voting. I suggested not receiving notice. 

[Shmuel Gerber]

"23:7 Remedy for Violation of the Right to Vote. If one or more members have been denied the right to vote, or the right to attend all or part of a regular or properly called meeting during which a vote was taken while a quorum was present, a point of order concerning the action taken in denying the basic rights of the individual members can be raised so long as the decision arrived at as a result of the vote has continuing force and effect. If there is any possibility that the members’ vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained. If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair’s announcement of the vote. If the vote was such that the number of members excluded from participating would not have affected the outcome, a member may wish, in the appropriate circumstances, to move to Rescind or Amend Something Previously Adopted (35), to move to Reconsider (37), or to renew a motion (38), arguing that comments in debate by the excluded members could have led to a different result; but the action resulting from the vote is not invalidated by a ruling in response to a point of order raised at a later time." (emphasis added)

[J. J.]

On 8/7/2023 at 9:41 PM, Shmuel Gerber said:

"23:7 Remedy for Violation of the Right to Vote. If one or more members have been denied the right to vote, or the right to attend all or part of a regular or properly called meeting during which a vote was taken while a quorum was present, a point of order concerning the action taken in denying the basic rights of the individual members can be raised so long as the decision arrived at as a result of the vote has continuing force and effect. If there is any possibility that the members’ vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained. If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair’s announcement of the vote. If the vote was such that the number of members excluded from participating would not have affected the outcome, a member may wish, in the appropriate circumstances, to move to Rescind or Amend Something Previously Adopted (35), to move to Reconsider (37), or to renew a motion (38), arguing that comments in debate by the excluded members could have led to a different result; but the action resulting from the vote is not invalidated by a ruling in response to a point of order raised at a later time." (emphasis added)

I would question the applicability of this, if they left voluntarily.  Unless they were physically escorted from the room, I would not say that the members were denied that right.  They could have said no. 

[Shmuel Gerber]

On 8/7/2023 at 10:04 PM, J. J. said:

I would question the applicability of this, if they left voluntarily.  Unless they were physically escorted from the room, I would not say that the members were denied that right.  They could have said no. 

I was responding to this:

On 8/7/2023 at 8:23 PM, Joshua Katz said:

There's no rule for when a member is at a meeting and is forced to leave, so it seems we need to find a parallel. Mr. Martin suggested being prevented from voting. I suggested not receiving notice. 

 

[J. J.]

On 8/7/2023 at 10:06 PM, Shmuel Gerber said:

I was responding to this:

 

Got it.  I do agree in that case. 

[Joshua Katz]

On 8/7/2023 at 8:41 PM, Shmuel Gerber said:

23:7 Remedy for Violation of the Right to Vote.

Point taken. I remain confused on a few points, though.

On 8/7/2023 at 8:41 PM, Shmuel Gerber said:

If there is any possibility that the members’ vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained.

 

On 8/7/2023 at 8:41 PM, Shmuel Gerber said:

If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair’s announcement of the vote.

Who will raise this point of order? Maybe someone else, but you've removed the person most likely to do so.

 

On 8/7/2023 at 8:41 PM, Shmuel Gerber said:

If the vote was such that the number of members excluded from participating would not have affected the outcome, a member may wish, in the appropriate circumstances, to move to Rescind or Amend Something Previously Adopted (35), to move to Reconsider (37), or to renew a motion (38), arguing that comments in debate by the excluded members could have led to a different result; but the action resulting from the vote is not invalidated by a ruling in response to a point of order raised at a later time.

The rule here is very clear, but why? I am puzzled why that is a good rule, particularly in light of the voting threshold for rescind/amend, and the impossibility of a member removed from a meeting moving to reconsider.

[Shmuel Gerber]

On 8/8/2023 at 9:52 AM, Joshua Katz said:

Who will raise this point of order? Maybe someone else, but you've removed the person most likely to do so.

The person who was removed can raise a point of order at another meeting, but it will not affect the outcome of the motion(s) in question because the one vote would not have yielded a different result. But even while the member is improperly excluded, there may well be other members present who think the member must be given an opportunity to vote even though they didn't initially raise a point of order over the member's exclusion. 

[Shmuel Gerber]

On 8/8/2023 at 9:52 AM, Joshua Katz said:

The rule here is very clear, but why? I am puzzled why that is a good rule, particularly in light of the voting threshold for rescind/amend, and the impossibility of a member removed from a meeting moving to reconsider.

These are merely suggestions as to how the member can seek to change the outcome after the fact. I think the rationale for the rule is quite clear as well, in that the assembly does not nullify a vote after the fact (after time has passed) simply to vindicate an individual's right to have participated in the vote, where the outcome would not have been different.

You could say it is the flip side of the rule that a vote is not nullified after the fact if an inconsequential number of nonmembers were allowed to vote. 

[Joshua Katz]

On 8/8/2023 at 9:21 AM, Shmuel Gerber said:

These are merely suggestions as to how the member can seek to change the outcome after the fact. I think the rationale for the rule is quite clear as well, in that the assembly does not nullify a vote after the fact (after time has passed) simply to vindicate an individual's right to have participated in the vote, where the outcome would not have been different.

 

I would agree that this makes sense if the denial were only of the right to vote. But my point is that a denial of participation in debate is different. We have no way of knowing if that would have impacted the outcome. (In a weaker sense, the same might sometimes be true of voting - if I am a popular or powerful figure, people may look at me for guidance as to how to vote, but the case for debate is, I think, stronger.) 

[Rob Elsman]

The fact of the matter is that the member who made the demand that some of the orderly, peaceable members leave the room was both impermissible and, frankly, rude.  If the demander has a problem being in the same room as these other members, it is he who should retire from the meeting hall.  He has agency over himself, not the other members who are exercising their basic right of membership to attend meetings.

[J. J.]

On 8/8/2023 at 10:45 AM, Rob Elsman said:

The fact of the matter is that the member who made the demand that some of the orderly, peaceable members leave the room was both impermissible and, frankly, rude.  If the demander has a problem being in the same room as these other members, it is he who should retire from the meeting hall.  He has agency over himself, not the other members who are exercising their basic right of membership to attend meetings.

Rude, possibly.

Impermissible, no.  A member or group of members may make a request on a different member.  The different member is free to say no. 

[Rob Elsman]

Were I in the chair, the "different member" would not have to bother to say "no", because I would call the demander to order long before the "different member" had the chance to open his mouth.  What is really happening here is that the demander is dealing in harsh personalities.  In order to keep the meeting peaceable and productive, the chair should be attentive to even subtle attempts to "throw grenades" at other members.  That is just not what the meeting is for.

[Gary Novosielski]

On 8/8/2023 at 10:55 AM, Rob Elsman said:

Were I in the chair, the "different member" would not have to bother to say "no", because I would call the demander to order long before the "different member" had the chance to open his mouth.  What is really happening here is that the demander is dealing in harsh personalities.  In order to keep the meeting peaceable and productive, the chair should be attentive to even subtle attempts to "throw grenades" at other members.  That is just not what the meeting is for.

I agree.  I think that if a single member "demands" that several others be excluded, the chair should step in and correct the demander, even if the chair is one of those named for exclusion.  How sharp the correction should be depends on just how demanding the member is. 

If he truly believes that the rules require exclusion, then a Parliamentary Inquiry or even a Point of Order would be a more decorous way of suggesting that a member does not have a right to remain.  He'd still be wrong, but would come across as less of an <expletive>.