In a board of directors, an executive session is a block within a public meeting that happens in secrecy to discuss confidential information, without staff or outside participants and observers.
Because executive sessions are held away from the public eye, meeting minutes become especially important — they’re the only way to prove what is deliberated if the governing body decides to meet privately. However, the taking of executive session minutes also brings up other issues, such as how they are stored, who can have access to them, and how to approve them.
In this post, we’ll take a closer look at the proper procedures for noting executive session in minutes and why they’re important.
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What defines an executive session?
Originally, an “executive session” was a closed-doors Senate meeting to discuss important, but sensitive matters introduced by the President (hence the name “executive”.) But for a long time now, the term has been used to describe any meeting held in secrecy — including board meetings of large corporations, nonprofits, state entities and governmental bodies, or school boards, as well as HOA, or executive committee meetings.
Although specific rules vary according to local legislation, such as state statutes, and the company’s bylaws, there are a few common points to any executive session or closed meeting:
- Only board members can take part in the executive session; staff and outside participants must retire during the session, unless otherwise approved by the board.
- Board members are bound not to divulge the topics or details discussed in executive session.
- No formal or binding decisions can be taken during executive proceedings.
- A meeting cannot be held entirely in executive session. The executive session must always start and end within an open meeting.
- Going into closed sessions requires a majority vote of the entire membership of the board
- Executive sessions, or closed meetings, can only be called to discuss certain sensitive topics, including litigation or negotiation strategies, security arrangements, matters that require attorney-client privilege, and personnel matters (such as compensation packages or mental well-being that prevents a board member from fulfilling their role.)
- In remote, online board meetings, members can be required to state for their record that they’re alone in the room before entering executive session.
- The matter discussed in executive session should be generally noted in the minutes of the immediately following meeting, once open session is again resumed.
- A good practice is adding executive sessions to the board meeting schedule, so the governing body is aware of it beforehand.
Are executive session minutes confidential?
Topics discussed in board meetings under executive session are confidential, which means so are executive session minutes. As a rule, executive session minutes are not open to the public and can only be consulted by members who participated in the executive session, on request to the secretary.
In a public or non-profit organization, the penalty for violating the confidentiality of executive sessions can range from a simple censure to disciplinary action or even termination of a member’s employment; in official state bodies, this violation can lead to regulatory proceedings and even court action against the infringing person.
How executive session minutes differ from normal minutes
Although the process of taking minutes is similar between regular board meetings and executive session minutes, there are a few important differences in the way minutes are stored, approved, and shared or disclosed. Importantly, the release of executive session minutes can only happen through a special board vote.
Another difference is who takes the minutes. While in public sessions this task is usually assigned to a staff member, closed session minutes will usually be assigned to the Board Secretary or another board director. Similarly, executive session board meeting minutes are stored in a private format. If your company uses a board room for minute storage, that will usually mean having a separate folder with restricted access for the storage of executive session materials.
Check out the below comparison between board minutes executive session and open session differences.
|Open board meeting minutes||Executive session minutes|
|Recording||May be taken by non-director staff member||Must be taken by a board director, usually the Secretary|
|Access||Open folder; any board member/other company stakeholders||Restricted folder; only board members who participated in the session, unless executive session secrecy is lifted or the board votes to give access to other parties|
|Distribution||Detailed minutes are widely distributed and can be reviewed by all relevant stakeholders||Minutes are stored and kept confidential; reading of minutes can only happen in executive session|
|Approval||Approval happens in the next (open) board meeting||Approval must only happen in executive session, if at all|
What is the required process for approval of executive session minutes?
To avoid disclosing the sensitive topics discussed, board of directors executive session minutes can only be approved in another executive session. However, this can create an infinite loop: an executive session is entered to approve a previous executive session in minutes, which in turn would generate its own minutes and require another session for approval, and so on.
This situation is usually dealt with in one of two ways:
- Executive session minutes are simply deemed, in the company’s by-laws, not to require approval in a future meeting.
- A second executive session is called with the sole purpose of approving the brief minutes of the previous one, but then the minutes for this new session are approved or assumed to be approved in that same meeting. This is the practice recommended in Robert’s Rules of Order.
How to write minutes of executive session motions?
The guidelines for meeting minutes executive session taking are similar to the normal minute-taking one. The main thing to keep in mind is that you don’t need to record everything that was said — rather, focus on writing down motions and votes.
Other tips for writing executive session minutes:
- Be concise and adopt proper meeting terminology.
- Record the name of the board director who called the executive session.
- Write down the time at which the executive session was initiated and ended.
- Record who is in the room and who left upon the start of the executive session.
- Record the meeting agenda item or items (in the proper order).
- Record all of the motions taken during the session, as well as how the board voted on them.
- Name and store the executive session minutes separately from the open session minutes.
- Follow a template to ensure consistency regardless of who takes the minutes.
- Store the minutes in a secure software for board of directors or similar space.
Sample executive session minutes
Below you can see an executive session minutes example where the session is called in order to discuss a matter of executive compensation.
Executive session minutes are an essential record of what is discussed and voted on during a closed-doors meeting. Because of their sensitive nature, members who access them incur a range of legal and ethical obligations to protect and not reveal their content.
Keeping executive minutes in a private and secure space in our digital age is often easier said than done. That is why board portals and virtual data rooms have become a key tool for organizations looking to ensure sensitive proceedings are kept away from prying eyes.
Top board portals such as iDeals also provide plenty of other features to make your life easier, including minute builders, agenda, board meeting schedules, and minute templates, and varying levels of access control over their platform. Want to improve your company’s digital hygiene? Give it a go today with a free 30-day trial.
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Can executive session minutes be shared with absent board members?
No. Executive session minutes can only be accessed by the directors who took part in the executive session, or during a future executive session held for that purpose.
Do executive session notes get entered into official minutes?
No. Executive session notes are not open to the public and are therefore stored separately, and with restricted access, from the open meeting minutes.
Are minutes taken during an executive session?
Yes, most organizations choose to record executive session minutes. These are taken separately from the open meeting minutes and are not distributed or shared with non-members.
How do I take executive session minutes for nonprofit boards?
Executive session minutes follow a format similar to that of normal meeting minutes. Check our tips for taking closed session minutes above.