Leadership Letter
March 2022
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.
What is appropriate to discuss in a private executive session?
As a general rule, ASCE Board of Direction meetings are open for attendance by any interested member (indeed, recently ASCE has experimented with streaming portions of Board meetings that are believed to be of interest to a wider audience). ASCE also encourages the boards of its Regions, Sections, Branches, and other organizational entities to consider a similar open-door policy. However, even for an organization that places great value in transparency, there may still be circumstances where members of a board feel the need to discuss a matter in private. In such cases, Robert’s Rules provides for the board to move into “executive session.”
Executive sessions are typically appropriate for situations where the Board has a legitimate interest in restricting access to a discussion. For example, the Board may wish to hold an executive discussion for discussions that may involve sensitive commentary about a particular individual; e.g., debate over selection of a recipient for awards, advancement, or other recognition; or discussion of concerns related to a volunteer’s performance. Or, a Board may wish to preserve confidentiality of a discussion that may involve significant business or legal implications; e.g., a decision to terminate a vendor contract, or a discussion of a forthcoming corporate opportunity. It goes without saying that an executive session should not be used as an opportunity to hold discussions that violate ethical or legal standards; e.g., discussion of market allocation or improper use of Society funds.
An executive session can be specifically listed on a meeting agenda, or it can be proposed spontaneously—either way, a decision to enter executive session requires a motion, a second, and a majority vote. (Motions to leave executive session are handled the same way.) Executive sessions are by default open only to the current members of the Board, but the Board is authorized to invite other participants (e.g., a staff member, an accountant or legal counsel, or another person with knowledge or expertise in the subject under discussion) or to direct a Board member to recuse him/herself (in cases of a conflict of interest).
Discussion and actions taken in executive session must remain confidential unless and to the extent that the Board permits disclosure; e.g., once the Board has announced the winner of an award, other Board members can also disclose that information freely—but it would not be appropriate for individual members to describe why the discussion in executive session favored one candidate over another. Minutes for executive session should be taken, but they must also be kept and maintained as confidential documents.
Anyone with questions about conducting discussions in executive session is welcome to contact ASCE for assistance. ..