When it is ethical to have ‘in camera’ sessions of the board, and what are the guidelines around tracking and communicating decisions made at them?

First, just so everyone understands, ‘in camera’ and ‘executive session’ appear to be interchangeable terms that both mean a session restricted to board members or to board members and explicitly invited guests. The most common invited guest is the CEO or executive director, if that person is not also a board member. Even if they are, they are normally excluded from an in camera session unless invited. The board can also choose to exclude a specific board member, though that is much less common and should likely be limited to discussing an area in which that board member has declared a conflict of interest or is perceived to have a conflict.

As far as I can tell, ‘executive session’ is an American term that is only recently being used in Canada in place of in camera, and it comes from the corporate world.

Second, many governance consultants recommend regular in camera sessions. Adding such sessions to every board meeting is now being described as a wise practice, where a few years ago the recommendation might have been for one or two sessions a year. Board members should have a regular chance to talk among themselves without any staff members observing who said what. Executive directors should welcome such discussions, as concerns aired early are much more likely to be resolvable than concerns that fester. The latter are more likely to end in termination of the ED.

An in camera session was held about me when I was an executive director. I was really worried, since back then they were rare, but the discussion turned out to be about what size bonus to give me!

And if staff members regularly attend board meetings, even just one employee taking minutes, the ED may need private time with the board. The time is needed to inform directors of planned changes to human resources policies, compensation, benefits and organization structure, as well as planned changes involving specific individuals on the senior management team or with duties that relate to board members. While these decisions may be within the ED’s delegated authority, the reaction of board members may provide guidance that the ED chooses to take into account. The ED can also reassure the board that any planned reassignments or terminations are being handled in a way that minimizes liability. The board is responsible for protecting assets and has a right to such knowledge. The frequency of such in camera sessions on HR issues will depend on the size of the organization and the level of change needed or happening.

If the organization occasionally buys and sells property, that may also require some in camera time, as information leaks could drastically change the price of the land. In small organizations oriented to land deals, such as land trusts, everyone should understand this and be cautious.

Since these sessions are private, a board member (preferably the secretary if that person is a board member) should actually take, write up and distribute the minutes in a confidential way. The regular board minutes would just say “Item 7 – in camera session of board and executive director” or the like. The confidential minutes are approved at the next in camera session, and are not distributed outside the board members.

If there is a legal reason that all your minutes must be distributed outside the organization, such as to a regulator or government office, you might choose to have an in camera session of the Committee of the Whole [the full board under a different name] or other such creative terminology. The external requirement would not likely extend to committee minutes. Documents sent to a government office or to the next level of a multi-tier organization, even if stamped confidential, may pass through many hands. If your auditor asks about in camera sessions noted within regular minutes, the senior member of the audit team could be shown those minutes in confidence. The auditor needs to know if any new liabilities need be noted on the financial statements.

So the in camera minutes are fully confidential, and so is “who said what”. But they are not just ranting sessions meant to lead nowhere. Results must still be communicated in confidence to those who need to know. Any discussion about ED performance must be promptly related to the ED. If possible, call the ED back in immediately; if not, quickly schedule a conversation with the chair or a group of officers. How else can the ED address any dissatisfaction, or take pride in being praised? Do not let him or her wonder and worry overnight if you can avoid it.

Similarly, if a board member is excluded, they have a right to quickly hear an explanation of what was decided about them, without knowing the source of each comment.

The method of communication after in camera meetings should be agreed upon, and no other communication should take place to those not present. Give an oral update to any board member who missed the session; the minutes will likely not give enough detail. Again, that communication is usually done by the chair or another board member designated by the chair.

Good organizations usually encourage communication among board members between meetings, so issues get resolved or narrowed to save time at board meetings. Inevitably, such communications among board members will include contentious issues discussed at in camera sessions. Such discussions must be limited to those who had the right to attend the in camera session. Oral discussions must be held where no one else can hear, and electronic discussions have to stay confidential. If, for example, a board member has an e-mail address through the organization domain, it cannot be used as staff people will have systems administrator privileges and may be able to read it. Do not print such an e-mail on an office printer where others could pick it up, or have a washroom chat without knowing who is in the next cubicle!

Equally importantly, if such off-site discussions come up with important clarifications or solutions, another in camera session should be scheduled so every director hears them and can comment. Since most in camera sessions are short, they can be done through teleconference calls between regular board meetings if that is easier in your organization.

Remember that all of the above is general, not legal guidance. Check your bylaws and comply with them. If your bylaws say you have adopted particular rules of procedure or formal meeting processes, comply with those too, with the bylaws having precedence. If you use a Parliamentarian, listen to the advice you have paid for! If there are approved board policies for how the board operates, comply with those too, at least until you get them amended.

The books I have on nonprofit board meetings appear to offer little guidance around in camera sessions, but they also do not contradict my comments above. For general guidance, I recommend The Guide to Better Meetings for Directors of Non-Profit Organizations, by Eli Mina (www.csae.com) and Roberta’s Rules of Order by Alice Collier Cochran, published by Jossey-Bass.

Good luck with fruitful in camera sessions in your organization. Remember to stick to issues that require that level of privacy in such sessions. Everything else should stay open and transparent.

Since 1992, Jane Garthson has dedicated her consulting and training business to creating better futures for our communities and organizations through values-based leadership. She is a respected international voice on governance, strategic thinking and ethics. Jane can be reached at jane@garthsonleadership.ca.

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Disclaimer: Advice and recommendations are based on limited information provided and should be used as a guideline only. Neither the author nor CharityVillage.com make any warranty, express or implied, or assume any legal liability for accuracy, completeness, or usefulness of any information provided in whole or in part within this article.