By Andrew Egri, Lawyer

Governing boards of not-for-profit organisations deliberate on a range of issues, from the mundane to highly sensitive and contentious matters. Many Boards regularly invite senior management and others to attend meetings, perhaps to give a report or to provide a presentation on a particular issue, so that the Board can make a better informed decision.

As a way of managing potentially prickly issues, some Boards conduct the discussion of these issues in camera. However, unless the Board has a clear understanding of the purpose of in camera meetings, these meetings can be harmful to the interests of the organisation.

What are in camera meetings?                      

Also known as “executive sessions”, in camera meetings are meetings of the Board held behind closed doors, without executive directors or staff being present. In-camera meetings can provide the Board with an opportunity to allow for matters of potential conflict to be identified and resolved proactively.

Whether scheduled, or impromptu, in camera meetings are viewed as legitimate board meetings in the eyes of the law, so long as other usual requirements are met, such as those relating to the quorum and notice of meeting.

Purpose

Generally, Boards will hold meetings in camera in order to have the opportunity to discuss confidential matters.

Boards may decide to hold a meeting in camera for many purposes, including:

1. discussing particularly sensitive matters within its jurisdiction (such as litigation, employee relations, Board succession planning or management performance);
2. discussing sensitive internal governance problems;
3. reviewing the performance and compensation of the CEO or other members of the executive; or
4. in the case of auditors, to safeguard the independence of those officers by providing direct access to the Board without management in attendance.

Risks

In camera meetings must be used judiciously. Regrettably, some perceive there to be a stigma of secrecy attached to in camera meetings. This stigma is, in many cases, attributable to the fact that:

1. impromptu in camera meetings are usually only called when an important issues arises; and
2. nobody, other than those permitted to attend (ie. the Board members), knows what is being discussed during the in camera This can create a concern within the organisation, that there may be a looming issue or crisis.

Further, not having senior management, and other related parties, in the Board meeting may mean that the Board will not have access to the information it requires in order for it to make the best decision.

Therefore, the improper use of in camera meetings may not only lead to the perception that a culture of secrecy exists, but also limit the ability of the Board to make optimal decisions in the interests of the organisation.

Tips

When deciding to hold a meeting in camera or otherwise, the most important question for the Board is: do we have the information necessary to make an informed decision? Will excluding someone from deliberations compromise the information, expertise or perspective available to the Board?

As a matter of good governance, Boards might consider regularly allocating time for an in camera discussion at a certain point during each of their meetings, rather than conducting full Board meetings in camera.

Although in camera discussions may be listed on the agenda for each Board meeting, this does not mean that Boards must or should hold in camera discussions each time. Rather, the practice is intended to provide the Board with the opportunity, as required, to discuss those confidential matters where disclosure to executive directors, staff or any other person who is not a member of the Board might be seen as prejudicial to an individual or the organisation.

By regularly including in camera discussions as an agenda item at each meeting of the Board, such discussions are less likely to create doubt and mistrust within senior management and other staff.

Boards should consider whether it is appropriate to adopt an in camera meeting policy. A policy will typically contain information such as:

1. the purpose of holding in camera meetings;
2. the matters that should be discussed at such meetings; and
3. the preparation of the agenda and procedural rules to be followed, including how minutes will be taken and kept.

The increased level of transparency often alleviates concerns surrounding the motives behind in camera meetings.

This article originally appeared in Third Dimension – Winter 2016.