Nonprofit Law/executive session

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Question
When a non-profit board goes into executive session, who stays in the meeting?  All the board and no one else? or does the executive director also stay in the room?  Do public stay in the room?

Answer
I have in my profile that this free forum is only for general questions relating to IRS federal exemption issues of 501(c)(3) organizations. Your issue is controlled by state law and states may differ somewhat with how they would treat such issues. Even though this forum is not for such state law issues, I may be able to direct you.

I am assuming that the nonprofit is a Montana Nonprofit Corporation.  The Montana Nonprofit Corporations Code is available at
http://snipr.com/ahnp2 and, specifically, the sections relating to "Part 4. Directors and Officers" is available at
http://data.opi.mt.gov/bills/MCA_toc/35_2_4.htm
and I see nothing related to your specific question.  Although I do not see there a definition of "executive session", the State of Washington has:
--- Start of Excerpt ---
"Executive session" is not expressly defined in the OPMA, but the term is commonly understood to mean that part of a regular or special meeting of the governing body that is closed to the public. A governing body may hold an executive session only for specified purposes, which are identified in RCW 42.30.110(1)(a)-(m), and only during a regular or special meeting.
---End of Excerpt---
http://www.atg.wa.gov/OpenGovernment/InternetManual/Chapter4.aspx

As for your state law on Open Records and Open Meetings, the
Reporter's Committee for Freedom of the Press has links at:
http://www.rcfp.org/montana-open-government-guide
specifically read at "Open Meetings" about 1/2 the way down the
left column at I.C.4 "Nongovernmental bodies receiving public funds
or benefits":
--- Start of Excerpt ---
Nongovernmental bodies receiving public funds or benefits are covered under Mont. Code Ann. 2-3-203(1), which requires that all meetings of public bodies "or organizations or agencies supported in whole or in part by public funds or expending funds must be open to the public."
---End of Excerpt---
If that does not apply to the organization (it does not receive public funds or benefits) and none of the other following  5 sections  (C5-D9) apply to the organization, then the
organization is not subject to the State Open Meetings law and you would then look to the corporations Articles of Incorporation and Bylaws for guidance. If there is nothing there, then the Chairperson of the Board would have the authority to decide who would stay in the meeting but then that decision would be subject to being overruled by a vote of the Board as any other decision of the Chairperson could be overruled.

If, in fact, the organization is one that is subject to the State of Montana Open Meetings Law, you would look to I.E.3 as to "Closed Meetings or Executive Sessions", but most nonprofits would not be subject to the State Open Meetings law so I will not go more into that.

Harvey Mechanic, Attorney at Law -
Harvey108@hotmail.com

P.S. This response is intended to be a general statement of law, should not be relied upon as legal advice and does not create an attorney/client relationship.  

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Harvey Mechanic

Expertise

I am an attorney and I volunteer time to answer general questions about U.S. Federal income tax issues of nonprofit 501(c)(3) public charities only. Those questions could be about establishing and maintaining legal requirements for such non-profit organizations in the United States, including Internal Revenue service filings and requirements. I will not be working on this free forum to answer questions about Nonprofit's possible unrelated or for-profit businesses or how to fill out forms. This forum is only for general questions about federal tax law, not as the law applies to your specific situation. If you do not make your question public then I will not be spending much of my donated time on answers that would not benefit the public. If you have other questions, please contact me at Harvey108@hotmail.com I will reply from my email. In any case, do not reveal confidential information to me until after I have contracted with you to provide personal legal services. My responses on this forum are intended to be general statements of law, should not be relied upon as legal advice, and do not create an attorney/client relationship. For me to consider your individual situation and how the law applies, I would need to gather extensive information about the situation. To search my previous answers you can do a Google search by "site:allexperts.com/q/nonprofit" without the quotes and then add your search terms before hitting enter.

Experience

I have been practicing law and especially the law of nonprofit organizations since 1990 when I was admitted to the New York Bar and I have maintained my status with the Bar since that time.

Education/Credentials

B.S. Columbia University in New York City, 1970

J.D. (Law Degree) Brooklyn Law School, 1990 -- Cum Laude.


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