Going Behind Closed Doors

Keep Out signEven when the leadership of an organization has vowed to engage transparently in everything the organization does, occasionally circumstances will require that a discussion be held behind closed doors.

Because Creating the Future is doing its best to engage openly in all its decisions and actions, this is a very real issue for us!

At our April board meeting, therefore, an agenda item posed the following questions:

  • Given our desire to be as deeply and publicly engaged as possible, under what circumstances will the board go into executive session?
  • Given our decision to invite guests to fully participate in our meetings, under what circumstances will the board go into executive session?
  • While not the desired norm, there will likely be times when it will be necessary to close the doors. Under what circumstances will that occur?

The board’s discussion was (as it always is) rich and multi-layered. We noted that boards traditionally go off the record – into Executive Session – when issues relate to compensation, disciplinary actions, legal issues, privacy issues. The tone changes in those sessions, stemming from the assumption that something formal needs to be discussed in that private session.

That led to the question: If Executive Session is about protecting privacy, whose privacy? Which led to these observations:

Individual privacy
We talked about the issue of privacy being personal, i.e. that it should be up to the person involved to determine whether they want their privacy protected.

We also noted that sometimes it is important to have privacy to test a new relationship – that being “on the record” inhibits conversation, making it far easier to get to know someone when the conversation is private. This is of particular importance to us as we seek relationships with partners, funders, demonstration projects, etc. If both of us will be more willing to be frank if the conversation is off the record, maybe that is an appropriate time to go into executive session?

Organizational privacy
Two issues arose in this part of the discussion. The first is the observation that there will be times when discussing an issue publicly would hamper our ability to perform our mission (e.g. contract negotiations).

The second was a show-stopper – an observation about Creating the Future’s core values, and how we put those into action:

“In most organizations, the assumption is, ‘It’s all private, unless it’s not.’ For us, the assumption will be that it’s all PUBLIC, unless it’s not.”

The board then drafted an outline of a policy, with the decision to

a) Place that draft into a Google doc (you will find that here)

b) Invite discussion. Under what circumstances should Creating the Future’s board (or any board, for that matter) go off the record, behind closed doors – into Executive Session.

At the core of that outline is this intent:

“The Board of Creating the Future seeks to weigh the balance between protecting the legal obligations of the organization, honoring the privacy of individuals, and instilling trust by engaging transparently. The board further acknowledges that we hold dear the value of risk-taking through creative conversation and exploration.”

With that in mind, please take a look at the draft policy we created, and PLEASE add your thoughts there. Hopefully this will be something all of us can use, in our various efforts to create a healthy, humane world!

Photo Credit: CMEarnest on Wikimedia Commons 

20 Responses to Going Behind Closed Doors
  1. Jane Garthson
    May 20, 2012 | 8:45 pm

    I wish every board would adopt the basic principle of it’s public unless it’s not!

    Re point four, I believe there are times when an employee wants a situation made public but it would be inappropriate for a board to discuss it in public, e.g., a complaint of discrimination or harassment. I think it is better to declare all HR Management issues involving specific named employees or volunteers private. That way it also isn’t necessary to determine whether or not privacy laws apply. The individual can still make the result public once they are informed, and the board can invite them to the discussion when appropriate. Note that I’ve expanded this to volunteers.

    • Hildy Gottlieb
      May 20, 2012 | 9:36 pm

      Thank you so much for this, Jane. Not speaking for the rest of the board, I personally hadn’t thought about the opposite – where the employee DOES want it public, and that isn’t appropriate. Which begs the question, “What is meant by appropriate? Appropriate for whom?”

      Which then seems to beg a whole ‘nother set of questions – such as “In that particular circumstance, what’s the worst that can happen if it’s public – and worst for whom? And what’s the worst that can happen if it’s NOT public, and for whom?”

      Much to think about, to be sure we are reaching for what is possible rather than reacting to what feels unfamiliar… Thank you for that!!
      HG

  2. Nancy Iannone
    May 21, 2012 | 1:21 am

    I also applaud your stance on having your meetings be as open as possible. Serving on a body (school board) that is bound by the open meeting laws has raised some important questions for us about transparency. Would we choose to hold all of the difficult public conversations that we do, if we weren’t required to? The consensus this far has been that as leaders representing our community, we owe that community the opportunity to understand the issues and engage.

    What does the board of a Community Benefit organization owe to the community it represents and seeks to impact?

    As I read your policy I wondered about item #2 regarding conversations that will seriously hamper the work of CTF. While I certainly understand the intent, and generally like to leave policies broad, I had the following thought, “If this policy is to guide not only this board, but the CTF boards of the future, are there guidelines for determining what constitutes seriously hampering the work of CTF?”

    Looking forward to seeing the rest of the discussion here!

  3. Gene Takagi
    May 21, 2012 | 4:05 am

    Great experiment but I’d have serious concerns about recommending it widely as a good governance practice. With respect to privacy, there are the more obvious concerns (what is legally required to be private) and the more subtle ones (what should be private for appropriate risk management – e.g., executive evaluations). With respect to oversight, open meetings can create greater exposure for directors to admit failures and chill such discussions and the lessons that might be learned. With respect to planning, open meetings can stifle directors from making crazy, but possibly brilliant, suggestions that can lead to major positive changes. For these reasons, mandatory open meetings can also limit those willing to serve on the board.

    Public participation can be great, but it can also be a time and resource drain. Sometimes public participants who have no fiduciary duties can make demands on boards that make a difficult job exponentially more difficult, and sometimes, those demands make no sense. While allies from the public can do much to create greater support for an organization, it may only take one vigorous critic to do great harm.

    I do think an open meeting system is a worthy experiment and on rare occasion a beneficial structure. However, as a general recommendation, I would caution boards to always reserve and use a portion of every meeting for executive/closed discussion.

    Respectfully,
    Gene

    • Renata Rafferty
      May 21, 2012 | 11:38 pm

      I agree with Gene for all the reasons he mentioned. If Creating the Future succeeds in achieving its wildest dreams, there could come a time when SO many members of the public are present and engaged in the discussion that the Board — the ones with the fiduciary and ethical responsibility for the organization — won’t be able to get their business completed.

      Ditto on his observation re: the chill factor.

      Lastly, the worst that could happen (legal pitfalls aside)if a personnel matter is openly discussed in a public forum is that personal reputations can be sullied before any facts have been determined. I’d hate to be Patsy Ramsey (RIP) or the alleged-and-later-cleared Atlanta bombing suspect. Maybe I have been involved in too many board-employee actions/disputes/allegations/lawsuits, but everybody can be unnecessarily hurt — personally, professionally, and organizationally — when personnel matters are laid out publicly before any facts have been collected.

      As for open board meetings, I have counseled donors in the past that I would not recommend a major gift to a charity without the opportunity to be an unscheduled “fly on the wall” at a board meeting, and agree with you that, in general, unless there is a reason for something to be private, there is no good reason for board meetings not to be public. But, for practicality, I’d urge some structure to how/how much spectators can actively participate.

      Peace…
      Renata

  4. Tony Silbert
    May 21, 2012 | 4:35 am

    I agree with Nancy that point #2 is pretty vague, and I could see it being a catchall any time you want to go into ES – which may not be bad. Also, I agree with Gene that public meetings can do as much to inhibit conversation as to expand it.

    The board of my organization has never had an Executive Session in our 11 year history. (In our case, this means no staff; we do not invite the public to our meetings, though I don’t think we would have any problem with anyone being there.) What has happened is that rather than say uncomfortable things in meetings, a bunch of private, side conversations have emerged. It is a problem and we will probably have our first ES next meeting. Politeness can be a killer.

    Is there a policy that will ensure the board is fearless in their discussions?

    Tony

  5. Hildy Gottlieb
    May 22, 2012 | 3:45 am

    This analysis is immensely helpful, guys. Thank you for all of it!

    Gayle Valeriote posted the following at the document itself, which I am copying here to continue the conversation:

    “I believe that the policy would also benefit from adding another assumption: We make the assumption that everyone is doing their best, and hold the best interests of the broad community and CTF participants in mind as they participate in *or observe* CTF board meetings.

    For me, it’s a given that the board is observing all legal requirements for privacy. What I find interesting about the rest of this approach is the stated desire to be inclusive, rather than exclusive. Welcoming input rather than being afraid of criticism and judgement. Being willing to listen and learn in partnership, rather than hiding behind the fear that someone might figure out that the board isn’t all-knowing and all-seeing.

    To me, it is a statement of hope, and one to be regarded as precious.”

    Thanks for this, Gayle!

  6. Judy Hansen
    May 22, 2012 | 4:20 pm

    There must be something in the air! Executive Sessions (or In-Camera Sessions as we call them in Canada from the Latin “in a chamber” ) have lately been a hot topic in my world. Hildy, if you are interested, I recently wrote an article on the subject. It is still in draft form. Let me know if you want a copy.

    A big sticking point is how your keep minutes for the Executive Session. There are many alternatives and many considerations. For example, the Board could come out of the session to pass a motion that would be recorded with the normal minutes. Sometimes that doesn’t work (e.g. if the Board is discussing a sensitive item of negotations, perhaps a final dollar amount they will pay). The Board has a right to expect to be informed of the decision and writing the decision down clarifies the decision made. So how do you distribute these minutes? Email can be accidentally forwarded onwards, etc. How sensitive is the matter being discussed? This could change from time to time.

    Some Boards hold in-camera session after each Board meeting. This gives the Board a chance to develop as a team and avoids becoming a rubber stamp Board in the case of a very controlling ED. I think this technique is sometimes used by Boards who have been burnt in some way. Personally, Executive Sessions after every Board meeting seem a bit much to me!

    I am very interested in this topic!

  7. Hildy Gottlieb
    May 22, 2012 | 5:53 pm

    Here’s another comment from the docuemnt – from another Gayle – Gayle Giffords (something about the brilliance of Gayles today!!). She raises a really interesting question to consider:

    I like it. I do think there might be a time when it might be “legally prudent” for lack of a better phrase, to have a discussion in private. And, I wonder, how does this relate to committees? For example, I can see the Governance Committee perhaps wishing to have some conversations in private about potential board candidates.

  8. Ellis Carter
    May 22, 2012 | 8:28 pm

    The sector is so diverse, some organizations will require much greater privacy than others. (e.g., groups subject to HIPPA or FERPA) For those that do not have a special need for privacy – the following are common reasons to meet privately:
    1. Personnel matters
    2. Confidential Records
    3. Obtain legal advice
    4. Collective Bargaining
    5. Purchase, Sale, or lease of Real Property
    6. Discussion of anonymous gifts/donors

    I also have some clients that worry speech will be chilled if the at least some portion of the meeting is not private. In those cases, the board will have a brief executive session at the end of every meeting.

    Best,

    Ellis

  9. Judy Hansen
    May 22, 2012 | 10:36 pm

    This discussion is now going beyond Creating the Future.

    I think we may have 2 definitions of Executive Sessions in this thread:
    1. Public attendance at a regular Board meeting and the presence of uninvited guests. Often the bylaws will say whether uninvited guests can attend.

    2. A private meeting, or Executive Session, often after the regular Board meeting with just the Board and specifically invited guests (e.g. the auditor or the person negotiating the land deal). This is a private meeting with no minutes or the minutes going to the attendees only. My list of the potential reason for Executive Sessions is pretty much the same as those listed by Ellis Carter.

    If Executive Sessions are called because a Board member is uncomfortable in speaking, then I suggest that there are some other issues, perhaps unspoken. How can these concerns be addressed? What is happening to make that person afraid to speak up?

    A committee can have an Executive session. The example of the Governance Committee wanting to privately review qualifications of board candidates falls under the category of personnel isues.

    I’m interested in Gene’s comment that every board should hold an executive session after every meeting. Can you say more?

    Very interested in all the comments!

    Judy

  10. Hildy Gottlieb
    May 23, 2012 | 6:17 pm

    And in the interest of trying to wrangle all this great conversation into one central place, these comments came from Alice Korngold via Twitter:

    “Board mtgs should almost always b confidential. Dealing w proprietary info in a competitive market. #corpgov”

    “There R many reasons 4 board mtgs 2B confidential including that they function better. But that doesn’t preclude sharing.”

    And in response to Gene Takagi’s comments above,

    “@GTak Nicely stated comments in response 2 @hildygottlieb’s Q. Having consulted 2 school boards that R open, I’ve seen the hazards”

  11. Kim
    May 23, 2012 | 9:22 pm

    Hildy,

    Maybe it depends where the org is on that continuum you have been developing and the social context in which it is situated. For our local public schools right now, tensions are so high and distrust so rampant that the BOE can really only reflect those conflicts, not work them through (since there are other laws that limit how much they can discuss with each other without violating other sunshine laws).

    Openness and transparency happens in a specific social context, so how open a meeting can be isn’t just about the topic.

    One thing that a colleague of mine has experimented with in larger public meetings is to use text voting, but not just to aggregate preferences, but to actually measure learning and consensus. She does a “pre-vote” at the beginning: “Do you think we should do option A, B, C, or D?” Then she leads discussion, particularly to ground it in the values choices people are making about economic development. Then they do a re-vote on the options. She says more often than not, a very clear majority preference will emerge. Then she shows people the pre-vote results to compare. Then they have a discussion about the differences between the pre vote and the vote and what they notice about that process. The reason I bring this all up is because if what you are aiming for is a higher *quality* of discussion that might be achieved through transparency, then first you have to give people the experience of the value of discussion in the first place. We are accustomed to voting and aggregating preferences, not seeing and experiencing how discussion can make that a better experience overall. This is something that can begin to build trust again, especially in the public arena.

  12. Judy Hansen
    May 24, 2012 | 7:27 pm

    School board scenarios, municipal meetings and organizations regulated by heavy legislative rules are a completely different kettle of fish from the informal org with a budget of less than $2 million!

    Or are they?

  13. Hildy Gottlieb
    May 29, 2012 | 5:08 pm

    Another thought, this one from Harry Tucci, Jr. at LinkedIn:

    Looks like the start if a good framework. I’ve worked with non profits that make National Security and Fort Knox seem like sieves compared to the secrecy they crave. Then there is the opposite extreme of organizations that want to be so open they NEVER go inti Executive Session. So balancing the two extremes is important to effective governance.

  14. Mark Riffey
    May 29, 2012 | 8:58 pm

    When there are legal requirements to close a session, such as the obvious cases Ellis mentioned, then any coherent board (even one nutty enough to include me) is going to follow the “rule of law” (spoken using the voice of James Earl Jones).

    Tony asked “Is there a policy that will ensure the board is fearless in their discussions?”

    Absolutely but before I get into that, I want to address the fear thing.

    For the record, I don’t *care* who reads/sees/hears the CTF board’s proceedings. If I cared about someone’s reaction to my being on the board (or to my actions on its behalf), I would have declined to join.

    “AHA! That’s exactly the scenario we warned about!”, you say. Yes and in my view, it’s exactly what an organization wants.

    In addition to wondering if people might decline board membership over this transparency thing, several folks wondered if public sessions would “chill” discussion.

    Of course they will…if the wrong people are on the board.

    The “wrong people”, no matter how right minded (whatever that means), wont say what they feel/think, wont do what they should or wont defend that which is difficult to defend in public.

    If there’s no “chill”, is that org actually doing anything meaningful? I think it’s possible, but still worth pondering.

    Back to the fear: If you are ashamed of your position on that board, why would that org want you? If you are concerned that your opinion on board matters would become public knowledge, why would that org want you? If you would keep your opinion on board matters to yourself during an org’s public meeting, why would that org want you?

    If you feel strongly enough about an org’s cause to be on their board, yet you can’t be 100% transparent about it, are you sure you’re the right person for that board? Are you sure you’re a champion of that cause? Isn’t that part of your job as a board member?

    I realize that there may be board members (and/or an ED) in place at an existing org and they might have an issue with an org’s decision to become fearless, and not just in the conference room where it’s easy, but also in public – where it might not be so easy. It’s understandable until you decide what’s more important – the cause you care about or the opinion of (whoever).

    You would be right to say “But Mark, our decision to become more transparent has to take the existing board members into consideration.” Exactly right. That decision also means it is time to ask each member if they feel strongly enough about the cause to be 100% transparent about it, being clear to explain that 79, 82 or 99 and 64/100ths % transparency are no longer enough to be a board member.

    For those who choose to move on, thank them and recognize them as you would any departing board member. They served you well under the conditions that were in place when they joined. That these conditions no longer exist is simply a fact of life.

    And then there’s CTF, the org in Pollyanna’s plastic bubble.

    CTF is fortunate (in some ways) since it somewhat recently started its board from scratch and those board members hail from all over rather than from one community. While any one of us might have community members who think we’re grossly misguided or (insert trendy term for “bad person” here), having board members scattered all the place means it is unlikely that any localized group of community members would expend the energy to somehow hassle a board member 1000 miles away simply for having the nerve to express their deepest opinions about a cause.

    You might think that’s a luxury benefiting CTF and no one else, but the fact is, it’s the CTF model (IMO) and it speaks to the policy Tony asked for:

    1) Recruit people to your board who care more about your cause than they do about the reaction they might get from random members of the public that result from their involvement or actions on behalf of the board/org.

    2) Don’t recruit people to your board if their job, business or relatives could be impacted as a result of their being on your board or as a result of the positions they might take as a board member.

    3) Be insanely good about recruiting board members. Not just good, but much better than any other group you’ve seen. Perhaps so good that some people think you’re nuts. Imagine if we elected politicians with that same care…

    When leadership operates in private *but only when legally required*, there’s a massive mindset switch vs. leadership who operates in public *but only when legally required*. I’m sure you can think of examples.

    When leaders no longer have to cater to fear (even legitimate fear), there is none. That’s my stance as a board member. If necessary, the CTF board can go into executive session and fire me over it 🙂

  15. Trae Ashlie-Garen
    May 30, 2012 | 1:11 am

    At risk of sounding like I’m talking through my hat, because I’m neither a governance specialist, nor someone who understands all the legalities of this…

    I am though, intimately acquainted with what it means on a couple of different levels, to be part of a group of people who, even though they call themselves a community, are only really giving lip-service to what that means.

    It’s kind of like the group of people who “say” they are all about concensus, when really what they are doing is “softening” an underlying leaning to majority rule, because it’s quicker and easier…

    And please hear me, it’s not out of any desire they have to be manipulative, or secretive, or anything of the sort. In fact they truly DO love the “idea” of community, and treasure it.

    In my experience so far though, they just have never really learned the tools to talk through what being a “community” really means, and how to give expression to that, and enact it out in the most life-affirming way possible. To truly express it – as individuals, and to own their unique piece, collectively within the larger puzzle.

    While I value “transparency”, and the sentiments behind being “fearless” and having a “balance”, I question the words we’re using to express what we’re talking about, and the automatic – almost knee-jerk reaction (and I am choosing that word very intentionally) it creates… in other words, the automatic associations those words automatically conjure up, that are counter to what we’re creating from the onset?

    I agree with Kim that this is ultimately about Context. If we are going to really shift HOW we do things, may I pose the question to this group as gently as I can, that instead of using words that conjure up the old way we are trying to steer away from, that we look at finding new words for the Context we are creating, and then build policy (IF in fact the word is “policy” – yet another word to consider) from there?

    I get that we still are called to operate within the current system. We still have to file and pay taxes under existing rules… but if we begin to create our own language around this, and then translate that into the system that we have to conform to, for now…

    I wonder if that might be something for us to ponder, instead of trying to work a new way of doing things around a language or the individual words – not just bigger concepts or procedures, or policies, that don’t lead us where we want any longer, either?

    In Gratitude to be a part of a Community where we can share and grow together,
    In Spirit,
    Trae Ashlie-Garen

    • Hildy Gottlieb
      May 30, 2012 | 1:45 am

      Trae:
      Can you share words / language changes that you think would move closer to our purpose?
      HG

  16. Jane Garthson
    May 30, 2012 | 12:45 pm

    What a wonderful discussion! I fully agree that the balance must be to transparency, with narrow rationale for going into Executive Session, such as personal privacy. And I agree with Mark that this is the kind of board member we need for the future.

    However, I would be a little more gentle in moving existing board members who bring needed passion, skills and connections towards that approach rather than a quick good-bye. They need to experience transparency, and may never had in their careers.

    One of my boards has traditionally attracted some members from the defense and security (i.e., spy) sectors. It’s a struggle for a military officer to “get” openness over secrecy. But it usually happens, with patience. The exceptions can be moved out. I find a first step of posting approved board minutes and/or strategic plans on the web site makes some people nervous. Then they see that not only did nothing bad happen, but new supporters and board candidates emerged. Then I can focus on making the finances more transparent, and so on.

    With the CTF Governance Lab, we can model transparency from the start, but most organizations don’t have that luxury.

  17. Kevin Monroe
    May 30, 2012 | 1:15 pm

    Very interesting thread with many great insights and comments. Like others in the thread, I applaud Creating the Future’s commitment to accountability and to model transparency. It’s laudable!

    I agree that point 2 is a bit broad and vague, perhaps intentionally so — not sure how to interpret “seriously hamper”.

    Why does point 4 exclude existing relationships?

    Does “individual” in point 5 include any individual or institutional funder that might have interest in funding the launch or expansion of a project, but desires anonymity for their gift/investment?


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