Executive Session Secrecy

[Guest glfrdh]

Hold tight, this may be long but I'd like to understand more.

I had a slight concern a recent Facebook post made by a school board member in the district I live in.  In it they made the following statement regarding a request that was known publicly prior to the Executive Session.

"Last night, in executive session, the entire board voted that I could review the unredacted bills."

I was under the impression that EVERYTHING in Executive session is totally, completely private.  I know someone who was a school board member in another district and I have heard them say over and over things in an Executive session stay in an Executive session.  I feel that is the way Robert's Rules reads. 

When I messaged my concern to the school board member, they stated

"It was not vote, rather a “poll”….. and that is not something that would be covered by executive session…. If that makes sense? It should have been done in open public. But thank you for clarifying! I need to change my wording on that."          ??????

Last night, I was able to read the Board Protocol packet which had a section titled 'Closed Session Meetings',

"We will, at all times, respect the confidentiality of privileged information and will not divulge conversations, discussions, or deliberations that take place during a closed session meeting.

We understand that to divulge closed session information damages the relationship of the team and has the potential for far reaching consequences which may impact future District operations.

2:80 Board Member Oath and Conduct"

I messaged the board member back for clarification and they stated,

"Only certain items are covered under executive session so if it’s not covered it should be out in public. The board president still doesn’t understand this. The whole “vote on legal bills” which she called a “survey” was to avoid having to have a vote in public so people could see what she was doing. I use the threshold I use as a lawyer for discovery materials… basically, if it can be produced in discovery/ FOIA, I’m sharing it."

Can anyone enlighten me on these certain items if that is the case?

Thank you for any clarification ☺️

[J. J.]

If this is a public board, there may be limitations on voting in closed sections. 

[Joshua Katz]

And limitations on what may be discussed in closed sessions as well.

Which is a fair question - if the board vots to go into executive session improperly, or conducts improper business or discussion in executive session, it violates the law, but is it still confidential? The answer will likely vary by state because it is a legal issue, not a parliamentary one.

As to calling a vote a survey, RONR prohibits straw polls, and if you're taking action based on a "survey" it was clearly a vote.

[Josh Martin]

On 3/31/2024 at 11:29 AM, Guest glfrdh said:

I was under the impression that EVERYTHING in Executive session is totally, completely private.

Your impression is mistaken. This is what RONR actually says on this subject.

"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

That is, while the general rule is that what happens in executive session is "completely private" and may not be divulged to nonmembers (except any permitted to attend the executive session), the text provides two exceptions to this rule.

First, action taken in executive session may be divulged to the extent necessary to carry it out. Depending on the action taken, for example, it may well be necessary to discuss this with attorneys, accountants, other staff, and so forth. Certain actions may well even become fully public. Suppose, for example, the board hires a new Superintendent. While many of the details would likely remain confidential, the fact that so and so is the school district's new superintendent may well be publicly announced.

Second, the assembly may further lift the secrecy of executive session, if it wishes to do so. So at least so far as RONR is concerned, the board could vote to disclose the "unredacted bills" to a person who is not a board member, if the board so chooses. (It seems there is some perhaps some dispute as to whether the board did choose to do so, but that is a separate question.)

I would note, however, that it may well be there are also applicable laws governing the confidentiality of certain information. Since this a public body, there also are quite likely limitations on what the board is permitted to discuss in executive session, and/or rules providing that certain information must be publicly available. Questions regarding such matters should be directed to an attorney.

On 3/31/2024 at 11:29 AM, Guest glfrdh said:

When I messaged my concern to the school board member, they stated

"It was not vote, rather a “poll”….. and that is not something that would be covered by executive session…. If that makes sense? It should have been done in open public. But thank you for clarifying! I need to change my wording on that."

A board is free to do conduct whatever business it wishes in executive session, so far as RONR is concerned. But public bodies are quite frequently governed by applicable law limiting the subjects that a public body may discuss in executive session. Such laws are frequently known as "Sunshine Laws" or "Open Meeting Laws." It sounds to me that is what the board member is referring to in regard to the statement "and that is not something that would be covered by executive session." Questions concerning such laws should be directed to an attorney.

Also, while this somewhat unrelated to your question, RONR prohibits the use of straw polls.

"A motion to take an informal straw poll to “test the water” is not in order because it neither adopts nor rejects a measure and hence is meaningless and dilatory. If the assembly wishes to discuss and take a vote on a matter without the vote constituting final action by the assembly, it may instead vote to go into a committee of the whole or a quasi committee of the whole (52). Under these procedures, the assembly considers the matter as would a committee, and its vote while in committee of the whole (or quasi committee of the whole) serves only as a recommendation to the assembly, which the assembly is free to reject just as would be the case with regard to the report of any ordinary committee." RONR (12th ed.) 45:72

On 3/31/2024 at 11:29 AM, Guest glfrdh said:

Last night, I was able to read the Board Protocol packet which had a section titled 'Closed Session Meetings',

"We will, at all times, respect the confidentiality of privileged information and will not divulge conversations, discussions, or deliberations that take place during a closed session meeting.

It is ultimately up to the board to interpret its own rules, but I think it might quite reasonably be argued that "unredacted bills" does not fall under "conversations, discussions, or deliberations."

On 3/31/2024 at 11:29 AM, Guest glfrdh said:

I messaged the board member back for clarification and they stated,

"Only certain items are covered under executive session so if it’s not covered it should be out in public. The board president still doesn’t understand this. The whole “vote on legal bills” which she called a “survey” was to avoid having to have a vote in public so people could see what she was doing. I use the threshold I use as a lawyer for discovery materials… basically, if it can be produced in discovery/ FOIA, I’m sharing it."

Can anyone enlighten me on these certain items if that is the case?

Ultimately, I believe this is a question concerning your state's Open Meeting Law (or equivalent) and Data Practices Act (or equivalent) (and to a lesser extent, the board's own rules, although certainly the law will take precedence in the event of a conflict), not a question concerning RONR. I would advise that you seek legal counsel if you wish to pursue this matter further. I imagine the board has attorneys to advise the board on such matters.

Edited March 31, 2024 at 05:03 PM by Josh Martin

[Richard Brown]

Agreeing with my colleagues, if this is a public school board, different rules regarding executive sessions likely apply.  Many state (and local) open meeting laws (also known as sunshine laws) restrict what can be discussed and done in an executive session.  For example, many open meeting laws that permit executive sessions also prohibit any votes from being taken in executive sessions.  The body must come out of the executive session and go back into a public, open session to take a vote on what was discussed in the executive session.  So, it might be that disclosing what the board voted to do is completely legitimate and not violative of any rule regarding executive sessions.

[Rob Elsman]

Agreeing with Mr. Brown, I think the assistance of an attorney familiar with the relevant law in the particular state might be necessary to determine whether there might, or might not, have been a violation.  The school board member with whom the matter was raised might be right, or he might be full of baloney.

[Gary Novosielski]

On 3/31/2024 at 12:29 PM, Guest glfrdh said:

Hold tight, this may be long but I'd like to understand more.

I had a slight concern a recent Facebook post made by a school board member in the district I live in.  In it they made the following statement regarding a request that was known publicly prior to the Executive Session.

"Last night, in executive session, the entire board voted that I could review the unredacted bills."

I was under the impression that EVERYTHING in Executive session is totally, completely private.  I know someone who was a school board member in another district and I have heard them say over and over things in an Executive session stay in an Executive session.  I feel that is the way Robert's Rules reads. 

When I messaged my concern to the school board member, they stated

"It was not vote, rather a “poll”….. and that is not something that would be covered by executive session…. If that makes sense? It should have been done in open public. But thank you for clarifying! I need to change my wording on that."          ??????

Last night, I was able to read the Board Protocol packet which had a section titled 'Closed Session Meetings',

"We will, at all times, respect the confidentiality of privileged information and will not divulge conversations, discussions, or deliberations that take place during a closed session meeting.

We understand that to divulge closed session information damages the relationship of the team and has the potential for far reaching consequences which may impact future District operations.

2:80 Board Member Oath and Conduct"

I messaged the board member back for clarification and they stated,

"Only certain items are covered under executive session so if it’s not covered it should be out in public. The board president still doesn’t understand this. The whole “vote on legal bills” which she called a “survey” was to avoid having to have a vote in public so people could see what she was doing. I use the threshold I use as a lawyer for discovery materials… basically, if it can be produced in discovery/ FOIA, I’m sharing it."

Can anyone enlighten me on these certain items if that is the case?

Thank you for any clarification ☺️

If this school board is a public elected body, it will be subject to Sunshine Laws that limit the purposes and actions that are allowed in executive session and what facts must be publicly stated in the motion to go into executive session.  Those rules are considered quite serious by the agencies that administer them.

However, the secrecy of what happens in executive session is not absolute.  The body may vote to waive the confidentiality of all or part of what happens in its executive session.  In fact, some Sunshine Laws require that the minutes of executive sessions be made public if and when the need for secrecy no longer exists.  Check to see what yours say, or ask a lawyer familiar with school board law.

But straw polls, including those disguised as "surveys" are not in order.  [See RONR (12th ed.) 45:72]