Retroactive executive session

[Guest Anon]

If a board has decided something in open session, and then later (at another meeting) decides it wants to keep secret the minutes of that session, can someone move that some portion of a previous meeting was held in executive session "retroactively?" 

[Josh Martin]

On 11/17/2023 at 9:44 AM, Guest Anon said:

If a board has decided something in open session, and then later (at another meeting) decides it wants to keep secret the minutes of that session, can someone move that some portion of a previous meeting was held in executive session "retroactively?" 

Strictly speaking, no, I do not think it is possible to "retroactively" hold a meeting (or a portion thereof) in executive session. The portion of the meeting was either held in executive session or it was not. That is simply a historical fact that cannot be changed.

I believe it is in order, however, for the board to accomplish essentially the same objective, by adopting a motion of the following nature (assuming, of course, that this motion does not conflict with anything in the organization's rules). I would note that nothing in RONR requires the board to permit any of its minutes to be shared with anyone who is not a board member, which is what makes the below strategy permissible. If the organization has its own rules, or applicable law, on this subject, that may change things.

"I move that the portion of the board meeting on [Date] from [some description of what is being referred to] shall be confidential, that the portion of the minutes covering that portion of the board meeting shall be redacted from the public copies of the minutes and kept only in the minutes accessible only to board members, and that members of the board shall not discuss what transpired during that period with persons who are not members of the board or [add other authorized persons, if desired], except to the extent necessary to carry out those actions or as otherwise authorized by the board."

This motion essentially grants the same protections to that portion of the meeting on a going forward basis, as if that portion of the meeting had been held in executive session.

I would also further note that if the board is properly keeping its minutes in accordance with RONR, the minutes should only contain what was done and not what was said. If that advice is followed, these sorts of issues should be much less of a problem.

The membership may ultimately, if it wishes, order the board to release the complete minutes of the meeting in question. Such a motion would require for its adoption a 2/3 vote or a vote of a majority of the entire membership.

Edited November 17, 2023 at 04:40 PM by Josh Martin

[Guest Anon]

The bylaws say that board minutes are available to society members. But in another place they also say that the board may enter executive session for sensitive matters. So I am not sure if for this society even the executive session minutes can be kept from members?

But say we interpret the executive session section to mean that executive meeting minutes are secret. Does your strategy work in that case? 

[Josh Martin]

On 11/17/2023 at 11:22 AM, Guest Anon said:

The bylaws say that board minutes are available to society members. But in another place they also say that the board may enter executive session for sensitive matters. So I am not sure if for this society even the executive session minutes can be kept from members?

If this is all that is said on this matter, it would seem to me that all minutes, even those taken in executive session, must be made available to society members. (Although I caution that I have not seen the exact wording of the rules in question.) As a result, I believe that the motion I suggested above would be out of order, as it would conflict with the bylaws.

This makes it even more critical that the minutes contain only a record of what was done, not what was said, to ensure that confidential information remains confidential. In the long run, it may also be advisable to amend the bylaws to provide an exception for minutes of meetings held in executive session.

On 11/17/2023 at 11:22 AM, Guest Anon said:

But say we interpret the executive session section to mean that executive meeting minutes are secret. Does your strategy work in that case? 

Supposing for the sake of argument that the bylaws provided that all minutes of board meetings are available to the members, except for meetings (or portions thereof) are held in executive session, I believe the motion I suggested above would not be in order, as it would conflict with the bylaws.

Edited November 17, 2023 at 06:23 PM by Josh Martin

[Guest Zev]

If the minutes for what the board believes to be an executive session are still published then the sentence to the effect that "...board may enter executive session for sensitive matters" is absolute nonsense.

[Josh Martin]

On 11/18/2023 at 1:36 PM, Guest Zev said:

If the minutes for what the board believes to be an executive session are still published then the sentence to the effect that "...board may enter executive session for sensitive matters" is absolute nonsense.

I disagree completely. The minutes, if taken properly, are simply a record of what was done, not what was said. Even if the minutes are published, entering executive session still restricts who may attend the meeting and maintains secrecy for everything that happened at the meeting beyond what is included in the minutes.

There are certainly pros and cons to this approach, but it's a perfectly reasonable approach for an organization to take, and not at all "absolute nonsense."

Edited November 18, 2023 at 07:48 PM by Josh Martin

[Gary Novosielski]

On 11/18/2023 at 2:36 PM, Guest Zev said:

If the minutes for what the board believes to be an executive session are still published then the sentence to the effect that "...board may enter executive session for sensitive matters" is absolute nonsense.

That conclusion makes no sense to me. 

Whether the board was or was not in executive session is not a matter of faith, but of fact.  The minutes will record a motion to go into executive session, and whether it was adopted.  What the board "believes" beyond that point is not at issue.

If minutes of a true executive session are improperly made public then that might be nonfeasance on the part of the person whose duty it was to keep them secret, and this can be dealt with through due process,  but I fail to see how that affects the validity of the rule in the slightest, much less turning it into nonsense.

[Guest Zev]

I will make an appeal to Guest Anon to present these two sentences he referenced to the assembly, describing its apparent contradiction and requesting that the assembly decide what it means, whether executive session minutes are to be published or not. And if he should decide this course of action, to tell us what happened.

[Guest Anon]

On 11/19/2023 at 3:48 AM, Guest Zev said:

I will make an appeal to Guest Anon to present these two sentences he referenced to the assembly, describing its apparent contradiction and requesting that the assembly decide what it means, whether executive session minutes are to be published or not. And if he should decide this course of action, to tell us what happened.

Well, we are not required to publish the minutes, only to make them available on request. I do not anticipate anyone will request them. But I am trying to be proactive and avoid a situation where a member requests minutes containing confidential information and be bound to provide them (and it is an action the board took, which should not be divulged until a transaction is consummated, so removing what was said vs. done does not help, though I appreciate this advice). 

I could ask the board to decide what the bylaws mean, but it seems they cannot mean that non-executive session minutes can be kept secret (the action was not done in executive session), and Josh Martin has said that we cannot "retroactively" go into executive session to protect the minutes under the interpretation that executive session minutes are secret. It seems we are in a bind and should change our bylaws.

[Dan Honemann]

On 11/17/2023 at 12:22 PM, Guest Anon said:

The bylaws say that board minutes are available to society members. But in another place they also say that the board may enter executive session for sensitive matters. So I am not sure if for this society even the executive session minutes can be kept from members?

But say we interpret the executive session section to mean that executive meeting minutes are secret. Does your strategy work in that case? 

What, exactly, do your bylaws say about board minutes being available to society members?

[Guest Anon]

On 11/20/2023 at 8:49 AM, Dan Honemann said:

What, exactly, do your bylaws say about board minutes being available to society members?

 

Quote

Approved meeting minutes are maintained at the office of record and available electronically to Association members.

The quote above is in a section on meetings of the board, so it seems clear that board minutes are in view.

[Josh Martin]

On 11/20/2023 at 8:20 AM, Guest Anon said:

Well, we are not required to publish the minutes, only to make them available on request. I do not anticipate anyone will request them. But I am trying to be proactive and avoid a situation where a member requests minutes containing confidential information and be bound to provide them (and it is an action the board took, which should not be divulged until a transaction is consummated, so removing what was said vs. done does not help, though I appreciate this advice). 

I could ask the board to decide what the bylaws mean, but it seems they cannot mean that non-executive session minutes can be kept secret (the action was not done in executive session), and Josh Martin has said that we cannot "retroactively" go into executive session to protect the minutes under the interpretation that executive session minutes are secret. It seems we are in a bind and should change our bylaws.

 

On 11/20/2023 at 9:36 AM, Guest Anon said:

"Approved meeting minutes are maintained at the office of record and available electronically to Association members."

The quote above is in a section on meetings of the board, so it seems clear that board minutes are in view.

Well, I agree you are in a bit of a bind, and that the ultimate solution to this is to change the bylaws, but I think that may be easier said than done. The simplest solution would be to amend the bylaws to exempt meetings (or portions thereof) held in executive session from this rule. But the entire issue which gave rise to this is that the board forgot to enter executive session to discuss a confidential matter. So that wouldn't seem to fully resolve the issue.

I suppose the bylaws could be amended to say that "Approved meeting minutes are maintained at the office of record. The minutes shall be available electronically to Association members, unless otherwise ordered by the board." But I imagine members might be fairly suspicious of an amendment which would give the board the right to hide the minutes from members whenever they please, even after the fact. So members might not be inclined to adopt such an amendment. Presumably, this rule was adopted for a reason, and modifications to it will need to be considered carefully.

It might be advisable for the board to also seek legal advice on this matter.

Edited November 20, 2023 at 05:49 PM by Josh Martin

[Richard Brown]

On 11/17/2023 at 11:22 AM, Guest Anon said:

The bylaws say that board minutes are available to society members. But in another place they also say that the board may enter executive session for sensitive matters. So I am not sure if for this society even the executive session minutes can be kept from members?

 

On 11/17/2023 at 12:22 PM, Josh Martin said:

If this is all that is said on this matter, it would seem to me that all minutes, even those taken in executive session, must be made available to society members.

I have a bit of a different take on this.  It appears that the bylaws contain conflicting provisions and are therefore ambiguous and must be interpreted. One provision says that executive sessions of the board for sensitive matters are permitted.  Another provision says that minutes of board meetings are to be made available to all members of the society. Those sections appear to conflict because, by definition, executive sessions are held in secret and, with certain exceptions, non-board members are not entitled to know what was said or done in an executive session.  To require that non-board members have access to the minutes of executive sessions defeats the whole purpose of executive sessions.  I agree with Guest Zev on that point.

When the bylaws are ambiguous or contain conflicting provisions, it is up to the society itself to interpret them.  Using the principles of interpretation in section 56:68 of RONR (12th ed.), particularly subsections (or bullet points) (1), (2) and (3), it seems to me that the two provisions appear to conflict and must be construed, if possible, in harmony with each other and to give effect to both conflicting provisions if possible. In addition, subsection (3) is clear that if a general provision and a specific provision conflict, the general statement or provision yields to the specific provision.

In my opinion, the provision stating that "Approved meeting minutes are maintained at the office of record and available electronically to Association members" is the more general provision and must yield to the specific provision that permits the board to hold secret executive sessions to consider sensitive matters.  I think the minutes of an executive session are an exception to the provision that the minutes of board meetings are available to members.  To say otherwise renders the provision permitting executive sessions for consideration of sensitive matters meaningless because it would permit disclosure of the proceedings.  But, to construe the two provisions as requiring minutes of all meetings except executive sessions gives effect to both provisions and permits them to be read in harmony.

In my opinion, that is the correct interpretation.  However, regardless of whether it is the correct interpretation or the one the society would agree with or one my colleagues agree with, I submit that it is certainly a reasonable interpretation of the conflicting provisions.  Ultimately, the issue can be resolved by a point of order and/or a ruling of the chair that executive session minutes are confidential.  The chair's ruling, of course, is subject to an appeal, in which case the membership would decide.

 

[Josh Martin]

On 11/20/2023 at 1:46 PM, Richard Brown said:

In my opinion, the provision stating that "Approved meeting minutes are maintained at the office of record and available electronically to Association members" is the more general provision and must yield to the specific provision that permits the board to hold secret executive sessions to consider sensitive matters.  I think the minutes of an executive session are an exception to the provision that the minutes of board meetings are available to members.  To say otherwise renders the provision permitting executive sessions for consideration of sensitive matters meaningless because it would permit disclosure of the proceedings.  But, to construe the two provisions as requiring minutes of all meetings except executive sessions gives effect to both provisions and permits them to be read in harmony.

I do not agree that this "renders meaningless" the provision permitting executive sessions because, as I have noted previously, there is a great deal more information beyond what is in the minutes that would remain confidential. I nonetheless agree that an interpretation that executive sessions are already exempted from the rule would be reasonable.

Not that it matters for the current case, because the board did not enter executive session in this instance.

[Richard Brown]

@Guest Anon:  I made reference in my comment above to the "Principles of Interpretation" of bylaws (and other rules) in section 56:68 of RONR (12th ed.) which might be helpful to you.  I don't know if you have a copy of RONR, so I am going to quote here the three provisions I referred to with the hope that you might find this information helpful.  The paperback version of the 12th edition is only about $15 and the Kindle version is about $22 on Amazon.  I think you may find it useful to purchase a copy.  In the meantime, here is the text of 56:68 (1), (2) and (3).  There are an additional five subsections that I am not quoting because they are not particularly relevant to this situation:

Some Principles of Interpretation

56: 68 In preparing bylaws and interpreting them, the following principles of interpretation— which have equal application to other rules and documents adopted by an organization— may be of assistance.

1) Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable.

2) When a provision of the bylaws is susceptible to two meanings, one of which conflicts with or renders absurd another bylaw provision, and the other meaning does not, the latter must be taken as the true meaning. For example, assume the bylaws define the officers as “a president, a vice-president, a secretary, a treasurer, and five other members, all of whom shall serve as members of the Board…” Assume also that elsewhere the bylaws speak of “Directors” being board members. A suggestion that the “Directors” are not officers and are additional members of the board would create a conflict within the bylaws and cannot be taken as the true meaning. The “other members” are the same as the “Directors.”

3) A general statement or rule is always of less authority than a specific statement or rule and yields to it. It is not practical to state a rule in its full detail every time it is referred to. General statements of rules are seldom strictly correct in every possible application. The specific statement of the rule that gives the details applying to the particular case must always be examined. For instance: in the Sample Bylaws, Article III, Section 2 (56: 61), it is provided that any “adult resident” shall, by a two-thirds vote, be elected to membership. This is a general statement which yields to the proviso stated in Section 1 of the same article that restricts membership to two hundred. Thus, the Society is not empowered to elect a two-hundred-and-first member by a two-thirds vote. No one has a right to quote a general statement as of authority against a specific statement.

 

[Gary Novosielski]

I agree with @Richard Brown that the provision that minutes are available to members, and the provision that executive sessions can be held, can be viewed as an instance of the general v. the specific, and interpreted as such.

[Guest Anon]

Thank you everyone, very helpful