The Nonprofit FAQ

How should the board handle something confidential?
Nathan Garber has posted this advice on the website at http://garberconsulting.com and given his permission to reprint it here:

When a board of directors must discuss matters of a confidential nature, such as personnel or property issues, it may do so in a private session called an executive session or "in camera" (from the Latin legal term meaning "in chambers"). A typical procedure for convening an executive session is as follows:

    A board member moves that the board go into executive session. If the motion is adopted by a majority of members, all present who are not members, or essential to the matter to be considered, may be excluded from the meeting.

    The secretary records in the minutes that the motion was carried. Some minutes include the time and the names of the members present.

    The board conducts its confidential business. Anyone not a board member must be invited by the board to attend. In a board that is highly polarized, the question of who gets to attend the executive session may be a contentious issue. Therefore, it is a good idea to be prepared with a bylaw or policy specifying the procedure for inviting a non-member into an executive session. The policy may give the Chairperson the power to invite non-members or it might require a separate vote on who will be invited.

    Minutes of the executive session are taken and kept separate from the public minutes. In some organizations, these minutes are taken and kept by the organization's lawyer and protected by lawyer-client privilege.

    Executive session minutes should be reviewed approved at the next executive session. If only one copy is kept, the secretary should read the minutes aloud. If multiple copies are distributed, they should be collected before the end of the executive session.

    When the executive session is adjourned, the "public" minutes should record that the executive session has concluded. Some organizations record the motion that ends the executive session.

    If, while in executive session, you have decided that secrecy should be lifted from a decision, the secretary records the decision in the "public" minutes. Otherwise, all directors are bound to respect the confidentiality of the session.




Posted 11/4/03 -- PB