"for breaching confidentiality in executive session."
And so, one Libertarian asked . . .
I think this phrase has been perhaps the biggest touchstone for a lot of the problems that have occurred.
So perhaps we need to simplify this a bit.
When, precisely, is confidentiality a part of the executive session, or is the entire session confidential?
What is the purpose of the confidentiality?
What mechanisms are in play to prevent confidentiality from becoming misused, as a way to hide misdeeds?
Do the minutes truly reflect sessions (and who are minutes available to?) or are they “sanitized” to hide stuff?
I hear from the “confidentiality is important” crowd some important points. For example, we would not want to reveal too much strategy as this could leave us vulnerable to being undercut by others. We might want to be careful about some details that might compromise privacy for another example.
I hear from the “sunshine/accountability” camp some equally important points. For example, some feel that confidentiality is misused to hide misdeeds or sloppy accounting. I might add that out here in CA, our governmental agencies have sunshine laws now, and a whole lot of them balk at having to divulge much even when required to do so. I do NOT want to see the LP in a position where we are not divulging enough information to ensure that our money and our activism is being used wisely.
(I’m trying to be even-handed here although I confess to being in the sunshine camp, probably because I do worry about misdeeds.)
Perhaps the most constructive thing that could possibly happen with all of this is a really sound policy on confidentiality, one that is crystal clear to everyone. If confidentiality is used wisely and is not used to hide bad actions, if it is used judiciously and not for entire sessions, and if everyone is clear on when confidentiality is being invoked, and when recording/blogging/transmittal of the session would be inappropriate, perhaps this whole thing will have been good after all.
Rachel replies . . .
Bylaws, ARTICLE 8: NATIONAL COMMITTEE
1. The National Committee shall have control and management of all the affairs, properties and funds of the Party consistent with these Bylaws. The Libertarian National Committee shall establish and oversee an organizational structure to implement the purposes of the Party as stated in Article 3. The National Committee shall adopt rules of procedure for the conduct of its meetings and the carrying out of its duties and responsibilities. The National Committee may delegate its authority in any manner it deems necessary.
LNC Manual . . .
F. EXECUTIVE SESSIONS
1. LIMITATION OF USE OF EXECUTIVE SESSIONS
The LNC may enter into Executive Session only in compliance with this policy.
2. PREREQUISITES TO ENTERING EXECUTIVE SESSION
Prior to entering into Executive Session, a motion must be made, seconded, and passed. The motion to enter Executive Session must list all reasons for doing so. If the list of reasons is solely comprised of the identified topics listed below, a majority of LNC members voting is required for passage. If any topic other than those listed below is given, a two-thirds vote of LNC members voting shall be required for passage.
3. IDENTIFIED TOPICS FOR DISCUSSION IN EXECUTIVE SESSION
Identified topics for entering into an Executive Session shall include:
i. Legal matters (potential, pending, or past)
ii. Regulatory and compliance matters (potential, pending, or past)
iii. Contractual compliance
iv. Personnel matters (including evaluation, compensation, hiring, or dismissal)
v. Board self-evaluation
vi. Strategic issues (only those requiring confidentiality)
vii. Negotiations (potential, pending, or past)
4. LIMITATION ON ACTION WHILE IN EXECUTIVE SESSION
No action can be taken while in Executive Session. Discussion of action which may be taken in Open Session can occur.
5. MINUTES AND RECORDING OF EXECUTIVE SESSIONS
i. With regard to Executive Sessions relating to topics i, ii, iii, iv, and v above, no recording shall be made and no minutes shall be taken.
ii. With regard to Executive Sessions relating to topics vi and vii above, recordings shall be made and minutes shall be taken, however, those recordings and minutes shall be only be made available to members of the LNC until such time as the LNC – by a vote of two-thirds of those LNC members present – votes to incorporate those recordings and minutes into its public records. Nothing in this section shall require the LNC to ever make these records public.
iii. With regard to Executive Sessions relating to topics not enumerated above, recordings shall be made and minutes shall be taken. Immediately upon return to Open Session, the LNC may either – by majority vote – treat those recordings and minutes consistent with i (destroy them) or to treat those recordings and minutes consistent with ii (to maintain them as non-public records subject to possible future release upon a vote of two-thirds of those LNC members present at a future meeting).
Without exception, LNC members are obligated to maintain complete confidentiality regarding what transpires in any Executive Session whose recordings and minutes have not been made public. The only information that may be communicated by any LNC member regarding any such Executive Session is the time it began, the time it ended, the text of the motion to go into Executive Session, and any publicly available details of the debate and voting on the motion to go into Executive Session. Any LNC member who is unwilling to commit to adhering to this policy regarding any particular Executive Session is obligated to excuse himself or herself from the entire Executive Session and to request that the Secretary notes his or her absence from the Executive Session in the minutes of the meeting.
7. BREACH OF CONFIDENTIALITY
Breach of this requirement of confidentiality shall be grounds of disciplinary action by the LNC without limitation except as provided for in the Bylaws. These restrictions shall not be deemed to prohibit any participant in an Executive Session from publicly disclosing information discussed in Executive Session, if: (1) compelled by legal process to do so; or (2) the same information is publicly available from other sources, not as the result of a participant's misconduct, and the participant does not reveal that it was discussed in Executive Session; or (3) the LNC, and all the participants in the Executive Session, first consent to its release.
8. LIABILITY FOR BREACH OF CONFIDENTIALITY
Notwithstanding the provisions of Article V, Section 3 A, should a breach of confidentiality by an LNC member result in a liability on the part of the Party, its officers, employees, agents, or other members of the LNC, the provisions of Article V, Section 3 A shall not preclude the Party, officer, employee, agent, or member of the LNC from seeking to hold the breaching LNC member liable.
Note from Rachel . . .
First, while I have only been to two meetings, these rules have been scrupulously followed. I will, to the best of my ability, ALWAYS make sure that is the case. I like sunshine.
And I also recognize that some sensitive matters must be confidential until we're ready to act. For instance, something else that actually took up most of time in Exec Session on Sat was the Alan Gura discussion of BCRA lawsuit. We discussed it for some time. We came out of Exec., and moved to act. Voted. Yes. We are going to file lawsuit, with Gura (he was the Heller lawyer) as our attorney. This was one of the substantive decisions of the weekend, and since the motion was made, seconded and passed (in open session, as required), it is NO LONGER CONFIDENTIAL, and I can share it.
The meeting binders always include the Manual and the Bylaws, so we have easy access to them. Remember that I said earlier that we were flipping through Bylaws and Manual furiously during Exec? I checked every damn citation. Citations were added to motions. You can check things yourselves, but please hear me: the rules were scrupulously followed. And I wasn't the only one. At one point, in the heat of the Gura discussion (I was excited about it!) I did try to make a motion. I was immediately shot down.
Basically, you need to be sure that we have some people on the LNC - (be they Officers, Regional Reps or At-Large) that you trust to follow the rules, and to object otherwise. People who have the courage of their convictions, and the cojones/ovarios to object within the rules when the rules are not followed.
BTW - my Hugs serves on a school board, and their Exec Session policy is almost exactly the same. And we are a state with Public Open Meeting Act.