Restrictions on moving into executive session

[Guest Danielle]

We are a nonprofit with no mention of executive sessions in our bylaws (and otherwise we follow Robert's Rules). Are there any restrictions on going into executive session if the majority of the board approves the motion? Our ability to go into executive session is being challenged by a non-board member because we are discussing a contract, but from what I can tell we can go into executive session if the vote passes. Some confirmation (or not!) of my interpretation would be appreciated.

[Dan Honemann]

On 11/3/2023 at 7:12 PM, Guest Danielle said:

We are a nonprofit with no mention of executive sessions in our bylaws (and otherwise we follow Robert's Rules). Are there any restrictions on going into executive session if the majority of the board approves the motion? Our ability to go into executive session is being challenged by a non-board member because we are discussing a contract, but from what I can tell we can go into executive session if the vote passes. Some confirmation (or not!) of my interpretation would be appreciated.

Nothing in Robert's Rules imposes any restrictions on going into executive session if your board adopts a motion to do so, no matter what it is that is proposed to be discussed.

There may be applicable law concerning the matter, but that is beyond the scope of this forum.

[Gary Novosielski]

On 11/3/2023 at 7:12 PM, Guest Danielle said:

We are a nonprofit with no mention of executive sessions in our bylaws (and otherwise we follow Robert's Rules). Are there any restrictions on going into executive session if the majority of the board approves the motion? Our ability to go into executive session is being challenged by a non-board member because we are discussing a contract, but from what I can tell we can go into executive session if the vote passes. Some confirmation (or not!) of my interpretation would be appreciated.

There is no rule in RONR that would prevent this, given that majority vote.

As noted, in public bodies this can be affected by local Sunshine Laws which, among other things, limit the topics that can be discussed in executive session (a topic on which competent legal advice would be necessary). 

But I would add that discussion of the details of a proposed contract would be exactly the sort of business for which executive session would be desirable (--and permissible, if my non-attorney experience counts for anything, which it absolutely does not).

[Guest Danielle]

Thanks for the feedback! I am Secretary but was unable to attend the meeting, so I am just reading the minutes. The meeting guest who challenged executive session also made a friendly amendment to a motion related to this - from my understanding they aren't even allowed to make the amendment to the motion as a non-member, is that correct? 

So the correct procedure would have have been a motion to go to executive session, allowing discussion and recognizing the guest to make their point, then having a vote. Is that right?

[Gary Novosielski]

I think the correct procedure would have been a motion to go into executive session, debate if needed, and a vote.

As far as RONR is concerned, a guest may not be recognized to speak in debate without a non-debatable motion and two-thirds vote to Suspend the Rules and permit it.  So under usual rules, a guest would not be in a position to challenge any decision.

[Josh Martin]

On 11/3/2023 at 8:45 PM, Guest Danielle said:

Thanks for the feedback! I am Secretary but was unable to attend the meeting, so I am just reading the minutes. The meeting guest who challenged executive session also made a friendly amendment to a motion related to this - from my understanding they aren't even allowed to make the amendment to the motion as a non-member, is that correct? 

Yes, it's certainly correct that nonmembers may not make motions. Or speak in debate, for that matter.

I would also add clarification regarding the term "friendly amendment."

"The term “friendly amendment” is often used to describe an amendment offered by someone who is in sympathy with the purposes of the main motion, in the belief that the amendment will either improve the statement or effect of the main motion, presumably to the satisfaction of its maker, or will increase the chances of the main motion's adoption. Regardless of whether or not the maker of the main motion “accepts” the amendment, it must be opened to debate and voted on formally (unless adopted by unanimous consent) and is handled under the same rules as amendments generally (see 33:11–19)." RONR (12th ed.) 12:91

[Guest Danielle]

On 11/3/2023 at 10:16 PM, Gary Novosielski said:

I think the correct procedure would have been a motion to go into executive session, debate if needed, and a vote.

As far as RONR is concerned, a guest may not be recognized to speak in debate without a non-debatable motion and two-thirds vote to Suspend the Rules and permit it.  So under usual rules, a guest would not be in a position to challenge any decision.

Could someone point me to the section in Roberts Rules about this? This guest is interfering in our board business and tries to use Roberts Rules to do so (although he is often wrong but most of our board doesn't know the rules so it seems like my word against his). So if I can refer to specific sections that would help. I haven't been able to find the right terms to look up in the index.

[Josh Martin]

On 12/2/2023 at 7:15 PM, Guest Danielle said:

Could someone point me to the section in Roberts Rules about this? This guest is interfering in our board business and tries to use Roberts Rules to do so (although he is often wrong but most of our board doesn't know the rules so it seems like my word against his). So if I can refer to specific sections that would help. I haven't been able to find the right terms to look up in the index.

"Whenever a meeting is being held in executive session, only members of the body that is meeting, special invitees, and such employees or staff members as the body or its rules may determine to be necessary are allowed to remain in the hall. Thus, in the case of a board or committee meeting being held in executive session, all persons—whether or not they are members of the organization—who are not members of the board or committee (and who are not otherwise specifically invited or entitled to attend) are excluded from the meeting. When it is desired to similarly restrict attendance at a particular meeting without imposing any obligation of secrecy (or to remove a previously imposed restriction on attendance), this may also be done by majority vote (see also 61:6–7)." RONR (12th ed.) 9:25

"A deliberative assembly or committee is normally entitled to determine whether nonmembers may attend or be excluded from its meetings (even when not in executive session). Many public and semipublic bodies, however, are governed by sunshine laws—that is, their meetings must be open to the public. Normally, such laws have no application to private, nongovernmental bodies.

In meetings of many public bodies, such as school boards, the public may attend. Similarly, in some private organizations such as church councils, parishioners may be permitted to attend. These attendees are not members of the meeting body and ordinarily have no right to participate. Some bodies, especially public ones, may invite nonmembers to express their views, but this is done under the control of the presiding officer subject to any relevant rules adopted by the body and subject to appeal by a member. Often, by rule or practice, time limits are placed on speakers and relevance is closely monitored." RONR (12th ed.) 9:28-29, emphasis added

"A society has the right to determine who may be present at its meetings and to control its hall while meetings are in progress; but all members have the right to attend except in cases where the bylaws provide for the automatic suspension of members who fall in arrears in payment of their dues, or where the society has, by vote and as a penalty imposed for a specific offense, forbidden attendance.

Nonmembers, on the other hand—or a particular nonmember or group of nonmembers—can be excluded at any time from part or all of a meeting of a society, or from all of its meetings. Such exclusion can be effected by a ruling of the chair in cases of disorder, or by the adoption of a rule on the subject, or by an appropriate motion as the need arises—a motion of the latter nature being a question of privilege (see 9:25; 9:28–29; and 19)." RONR (12th ed.) 61:6-7

"Any nonmembers allowed in the hall during a meeting, as guests of the organization, have no rights with reference to the proceedings (61:6–8). An assembly has the right to protect itself from annoyance by nonmembers, and its full authority in this regard—as distinguished from cases involving disorderly members—can be exercised by the chair acting alone. The chair has the power to require nonmembers to leave the hall, or to order their removal, at any time during the meeting; and the nonmembers have no right of appeal from such an order of the presiding officer. However, such an order may be appealed by a member. That appeal is undebatable (see 24:3(5)(a)). At a mass meeting (53), any person who attempts to disrupt the proceedings in a manner obviously hostile to the announced purpose of the meeting can be treated as a nonmember under the provisions of this paragraph." RONR (12th ed.) 61:19, emphasis added

"Rules which embody fundamental principles of parliamentary law, such as the rule that allows only one question to be considered at a time (5:4), cannot be suspended, even by a unanimous vote. Thus, since it is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting (45:56), the rules cannot be suspended so as to give the right to vote to a nonmember, 7 or to authorize absentee voting (45:56ff.). Likewise, since it is a fundamental principle that each member of a deliberative assembly is entitled to one—and only one—vote on a question, the rules may not be suspended so as to authorize cumulative voting (46:43).

7. In contrast, the rules may be suspended to allow a nonmember to speak in debate." RONR (12th ed.) 25:9, 25:9n7

[Guest Danielle]

Wow, thank you so much - I see I needed to be thinking more holistically about this. I so appreciate the relevant sections to study.

[Guest Danielle]

Just reviewing a bit more - I am trying to find where to differentiate a guest speaking when there is not a motion on the floor, versus requiring suspending the rules when a motion is on the floor. Basically, what makes the fact that there is a motion on the floor different than general discussion that might happen before a motion is on the table. I guess ideally there is no discussion until a motion is on the floor, but traditionally we have often ruled by consensus and we haven't needed to use formal rules (how naive we were!). Our board is not large, which is probably why we got away with informality for so long, but we need to regain control of our board meetings. TIA!

[Josh Martin]

On 12/3/2023 at 12:34 PM, Guest Danielle said:

Just reviewing a bit more - I am trying to find where to differentiate a guest speaking when there is not a motion on the floor, versus requiring suspending the rules when a motion is on the floor. Basically, what makes the fact that there is a motion on the floor different than general discussion that might happen before a motion is on the table. I guess ideally there is no discussion until a motion is on the floor, but traditionally we have often ruled by consensus and we haven't needed to use formal rules (how naive we were!). Our board is not large, which is probably why we got away with informality for so long, but we need to regain control of our board meetings. TIA!

I appreciate the opportunity to clarify. I don't think it really is that formal discussion on a motion on the floor is different "than general discussion that might happen before a motion is on the table." As you note, in a large assembly, "there is no discussion until a motion is on the floor." Under the small board rules, however, "Informal discussion of a subject is permitted while no motion is pending." RONR (12th ed.) 49:21

In my view, in a board which permits informal discussion of this nature, permitting a nonmember to participate in such discussions would require a 2/3 vote, just the same as it would to permit a nonmember to participate in formal debate. Such informal discussions are similar in kind to debate.

I think the real key is suppose that, for example, it is desired to invite a guest speaker to make a presentation to the board on a subject of interest to the board. Generally, I do not think such a presentation is in the nature of debate, and a majority vote is sufficient to permit such a presentation. No suspension of the rules is needed.

In any event, however, it is always the case that nonmembers of the board have no right to speak at board meetings, and they may speak only with the board's permission, either by unanimous consent or by vote. The only difference is what vote is required to grant such permission, in the event there is disagreement.

Edited December 3, 2023 at 06:48 PM by Josh Martin

[Richard Brown]

Guest Danielle, something for you to keep in mind that has not yet been said is that although the guest may not have had the right to make the motion proposing his amendment, if he in fact made the motion anyway and nobody raised a timely point of order and the motion (amendment) got adopted, it is too late to complain about it.  A timely point of order raised at the time the guest made the motion would have been required.  If no timely point of order was raised at the time and the motion got adopted, the only way to challenge it is for a member to make (and for the assembly to adopt) a motion to rescind (or amend) something previously adopted at a future meeting.