Managing executive sessions
Monday, December 14, 2020
Just before adjourning, the elected president said, “I’m going to ask everyone except board members to leave so we can meet in executive session.”
An executive session is a closed-door meeting when guests and staff are excused. The intent is to give the board space to handle sensitive or confidential issues. In Canada it is referenced as an in-camera meeting.
The similarity of the phrases executive session and executive committee often creates volunteer confusion.
Executive Committee: A subgroup of the board made up of the officers. They meet to address urgent issues when the full board cannot be convened in a timely manner.
Bylaws authorize and limit the existence of an executive committee. If the bylaws do not recognize an executive committee, then it does not have authority to act.
A common plaint of the board is an executive committee that meets too frequently, making decisions without transparency and seeming to exceed their authority. The officers should not appear to be a pre-determined voting bloc.
Executive Session: A meeting of the board without guests or staff present is an executive session. Though it is a governing tool, it should be used prudently.
Discussion in executive session should be narrowly focused and not allowed to wander. The most common reasons for a closed-door meeting would be limited to a CEO performance review, a highly confidential contract or government position, or a serious member grievance or ethics violation.
Making executive session a part of every board meeting is an alarming protocol. I’ve seen board agendas that always include “executive session” as the last item of business.
Excluding the executive director, who serves as a partner in advancing the mission, is deflating. Unless it is a confidential discussion of CEO performance, the executive director should be in the room to participate and offer information.
Mistakenly, when the board is alone, there may be directors who think it is the time to talk about anything. For instance, while the meeting might be for the purpose of a member grievance, you can imagine the director who offers a quick question, “Are any of you guys using this supplier? What are they charging you?” Too easily the topic drifts from grievance to anti-competition action.
Minutes of an executive session are always a concern. Who takes the minutes and are they accurate, recognizing no staff are in the room? Where are they retained should the board be questioned years later?
An association CEO explained her board often went into executive session. When she asked about minutes they said, “We did make decisions, but we didn’t take any minutes, I guess you’ll hear about the motions another time.”
Without accurate meeting minutes, it would be hard to explain the actions of the board years later if a legal challenge arose.
Another reason to insist on minutes. IRS Form 990 queries, “Did the organization contemporaneously document the meetings held or written actions undertaken during the year (including) each committee with authority to act on behalf of the governing body?”
Ideally, when the chair announces the board will go into executive session, actions can be taken by the executive director to protect the board and organization. The question of the chair should be, “What issue should I note in the minutes that the board is going into executive session?”
Assuming the board is still in session, let the minutes note the times the session started and ended, and the subject to be discussed. If decisions or motions were made that are not highly sensitive, let the meeting minutes reflect the outcome of the executive session. For example, “At 2:45 p.m. the board went into executive to discuss renewal of the lobbyist contract. The session adjourned at 3:10 p.m.”
To instill smart practices for executive sessions, create a policy. Clarify the purpose, topics and guidelines for closed-door meetings, and the process for keeping minutes.
Jeffrey Tenenbaum of Tenenbaum Law Group offers good counsel.
The same basic rules apply to executive sessions of the board (or committees). There is no different legal construct. Quorum and approval thresholds are the same, the same rules re: attorney-client privilege apply, and meeting minutes should be kept.
Perhaps the only difference is that the level of detail of executive session meeting minutes is usually far less, for confidentiality purposes. Some associations also have different protocols for who archives such minutes, but a bad practice is to have them maintained by volunteers only (no staff).
DaVina Lara, CEO at the Bridge Association of REALTORS® helps summarize, “Discourage closed meetings, asking your executive director to leave. Doing this regularly sets a pattern for anxiety, mistrust, and conflict. Keep executive sessions to a minimum and be very transparent as to the reason behind the session.”
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