Question: A question arose in today’s board meeting which I was hoping you might have insight into. What, if any, are the rules or guidelines for under what circumstances would it be okay (or expected) for an Executive Director to be in attendance for a boards executive session? Is it a generally accepted practice that the ED attend except in situations discussing the EDs performance evaluation and compensation? Or are there other scenarios where the ED should not be present?We are working hard to establish proper protocols and policy where current gaps exist. As a newly elected interim Board president I am honored and excited at the opportunity to provide leadership in this area. Thanks.
Reply: The answer isn’t straightforward because there are a number of factors to consider. This is not addressed in the federal law and regulations that we must follow.
- The first consideration is whether, in your state, your Center is required to follow the open meeting/Sunshine laws. Typically, the SILC is required to follow them, but not the CIL. If you are required to follow the open meetings laws then you must refer to those laws for guidance because they vary greatly from state to state.
- If you are not required to follow the open meetings laws, you must still follow employment law, which again can vary from state to state. I recommend you run your questions by an attorney specializing in employment law to make sure that you stay on track there. I worked with an organization whose state laws required that the employee whose performance was being discussed must be allowed to attend the executive session.
- Then you must look to your own policies and procedures for the organization. Some policies and procedures state specifically that, even though the center is not bound by the open meetings laws they choose to apply them — which takes you back to that first consideration.
If none of these items apply or answer your questions, then you must make the decision as a board and I suggest put it into policy at your first opportunity. Now the practical side of your questions.Here are some good practices around Executive Sessions:
- Executive sessions are typically held for the discussion of employee issues, including performance, complaints, rate of pay, etc. The Executive Director may bring a matter to the board for consideration in executive session, such as a pay scale or a potential employee lawsuit. In those cases the Executive Director would be a participant in the executive session.
- When the board is discussing the performance of the Executive Director in executive session, the Executive Director attends only those portions of the discussion that the board wishes her/him to attend. I feel it is good practice to have the Executive Director conduct and present a self-evaluation, in addition to the performance evaluation developed by the board. This would be done in executive session with the Executive Director attending and presenting that self-evaluation. I feel this is helpful because of the unique relationship between the board and the ED, where the ED is expected to take the initiative in the day to day operations of the Center, so the board may not always be aware of all the ED does. It is useful to solicit this before the board begins to prepare the performance evaluation.
- Capturing the board’s evaluation of the ED’s performance is typically done in executive session without the ED present, although I strongly urge you to do this in a single meeting if possible. Too many boards draw this out into many meetings that turn into gripe sessions and delay the actual assessment of the ED’s performance. If your board cannot be focused on this you may want an individual or a committee to draft the assessment, using the instrument chosen by the board and taking the ED’s self-evaluation into consideration. Then the discussion and finalizing of the performance appraisal can usually be completed in one executive session.
- The board typically will present this performance assessment to the ED in one of two ways. It is possible, and sometimes more workable, for the board President to meet with the ED individually and present what the board decided. It is also possible, though a bit cumbersome, for the board President to present this in an Executive Session of the board, with the rest of the board present as “backup”. If the board has granted a raise based on performance, or is requiring some action to improve performance, that would also be discussed at this time.
The technical rules around how to go into executive session, how to record it and how to come out of executive session are also important. To go into executive session there must be a motion, second and vote to do so. You are not required to keep minutes of the executive session, but you must end the session with a motion/second/vote to go back into general session. Once you are back in general session, you must have a motion/second/vote on any matter resolved in the executive session. For example, the motion might be that the ED be presented with copies of her/his evaluation and that a copy be placed in the personnel file. Then it is clear than an evaluation took place, and the open meeting records that in the minutes.
Typically the ED should be present in executive sessions unless the purpose is a discussion of matters relating to the ED that the board needs to discuss before calling the ED into the meeting. These may include complaints, evaluations, salary, changes in job description, etc.
<!– HTML Credit Code for Can Stock Photo–>
<a href=”http://www.canstockphoto.com”>(c) Can Stock Photo</a>
When should the Executive Director attend an Executive Session of the board?