Yes, you take minutes in executive session, and the rules governing them are stricter than for an open meeting. Executive session minutes record what the board decided and the procedural mechanics around that decision, not what anyone said. Robert’s Rules of Order treats them as required for any formal meeting, and most state open meeting laws impose their own documentation requirements on public bodies that close their doors. Getting the balance right protects the organization legally while preserving the confidentiality that justified the closed session in the first place.
What Belongs in Executive Session Minutes
Robert’s Rules has long held that minutes should contain “mainly a record of what was done at the meeting, not what was said by the members.” That principle carries extra weight in executive session, where the whole point is to keep deliberation private. The secretary records mechanics, not substance.
A complete set of executive session minutes typically includes the date, time, and location; the names of members present and absent, plus any non-members invited to remain (such as legal counsel or the executive director); the specific legal basis that authorized closing the session, such as pending litigation or a personnel matter; the exact wording of any motion, who proposed it, and the vote count; and the time of adjournment.
State open meeting laws reinforce these basics. Arizona’s statute requires executive session minutes to include the date, time, and place, the members recorded as present or absent, and an accurate description of all legal actions proposed, discussed, or taken along with the names of members who proposed each motion.1The Reporters Committee for Freedom of the Press. Minutes – Closed Meetings or Executive Sessions The secretary should also confirm that the discussion stayed within the scope of the original motion to enter executive session. If the board strayed into a topic not covered by the stated exemption, catch it before the minutes are finalized.
Executive sessions themselves are only valid for a narrow set of topics: litigation strategy with counsel, specific personnel matters, real estate negotiations, labor bargaining, public safety, and the personal finances of third parties. Strategic planning, marketing, and general contract discussions are not valid grounds, no matter how sensitive they feel. If the underlying session wasn’t proper, no amount of careful minute-taking will save the decisions made in it.
What to Leave Out
Knowing what not to write down matters as much as knowing what to include. Minutes that are too detailed create the very risks the closed session was meant to prevent.
The biggest trap involves attorney-client privilege. When counsel provides legal advice during executive session, the minutes should note that the board received legal advice on a particular topic and stop there. They should never summarize what the advice was. Recording the substance of counsel’s recommendations can waive the privilege, meaning an opposing party in litigation could later force disclosure of the very strategy the board was trying to protect. If counsel wants to keep privileged legal notes, those should be prepared separately and maintained outside the regular minute book.
The same logic applies to negotiating positions. If the board is deciding what to offer in a real estate deal or a labor negotiation, writing down the specific dollar figures and fallback positions creates a roadmap for the other side should those minutes ever surface in discovery. A better approach is to note that the board discussed negotiation strategy and directed its representatives accordingly, without recording the numbers.
As a general rule, if a piece of information would be harmful to the organization in an opposing party’s hands, it doesn’t belong in the minutes. Executive session minutes should be a record of decisions, not a transcript of the reasoning behind them.
Entering Executive Session the Right Way
The minutes only work if the session itself is procedurally clean. A board cannot simply decide mid-meeting that the conversation should go private. A member moves to enter executive session, another seconds, the board can discuss the motion, and a majority vote decides.2BoardEffect. Open Meetings, Closed Sessions: Executive Session as a Tool The motion must state the specific legal reason. “Sensitive matters” won’t cut it. Public bodies subject to open meeting laws typically must announce the specific statutory exemption being invoked, and that announcement becomes part of the open meeting record.
Once the board enters executive session, only members and specifically invited individuals may remain. Under Robert’s Rules, board meetings are open by right only to board members and any staff or advisers the board chooses to invite.3Jurassic Parliament. Executive Session in Nonprofit Board Meetings A nonprofit with an executive director would normally include that person unless the session concerns their compensation or performance. Guests or staff who weren’t specifically invited must leave before the session begins.
Approving and Storing the Minutes
Under Robert’s Rules, reading and approval of executive session minutes must take place in executive session, unless the content is no longer secret.4The Official RONR Q & A Forums. Minutes in Executive Session When a board holds an executive session solely to approve a prior session’s minutes, the brief minutes of that approval meeting are assumed to be approved by the meeting itself. That prevents an infinite loop of executive sessions needed to approve executive sessions.
Practice varies. Some boards send each member a confidential copy of the draft in advance and then vote to approve in open session without discussing content. If a member wants to propose a change that would require discussing substance, the board goes into executive session for that conversation. Neither method is universally required; the right one depends on the organization’s governing documents and any applicable open meeting statute.
Once approved, executive session minutes should be stored separately from regular meeting records. Physical copies belong in sealed envelopes inside a locked cabinet or safe. Digital copies should be encrypted and access-controlled with an audit trail showing who opened the file and when. The goal is to make sure someone with routine access to the organization’s files cannot stumble into confidential records. Retention should generally be permanent. These records may be needed years or decades later if a past decision is challenged, and the risk of destroying them almost always outweighs the storage cost.
Who Can Access the Minutes Later
Access is tightly restricted. Current board members have the right to review executive session minutes as part of their fiduciary duties. The general public, rank-and-file members of an organization, and even former board members are ordinarily barred from viewing them.
That confidentiality has limits. Executive session minutes can be subpoenaed in litigation, and courts can order what’s called an in camera review, where a judge privately reads the minutes to decide whether they contain evidence relevant to a case. Arizona’s statute spells this out: in a challenge to an executive session’s validity, a court may review the minutes in camera and, if it determines the minutes are relevant and justice demands it, may disclose part or all of them to the parties.1The Reporters Committee for Freedom of the Press. Minutes – Closed Meetings or Executive Sessions Even then, the court must protect privileged information.
When a board is served with a subpoena or discovery request, the first step is to consult counsel before producing anything. Counsel can assert applicable privileges and, if necessary, file a motion to quash or limit the scope of production. Boards that kept their minutes lean and privilege-free are in a much stronger position at this stage than boards whose secretary wrote down everything counsel said.
The Nonprofit Compensation Exception
Nonprofits face a specific situation where the usual advice to keep minutes minimal does not fully apply. IRS Form 990, Part VI asks whether the organization contemporaneously documented meetings of its governing body and committees. “Contemporaneous” means the documentation must exist by the later of the next meeting or 60 days after the action. Answering “no” doesn’t trigger a penalty on its own, but it signals governance weakness that invites scrutiny.
The stakes rise sharply when the executive session is used to set compensation for an insider. A nonprofit that pays excessive compensation to an insider can face excise taxes of 25 percent of the excess benefit on the individual who received it, plus an additional 10 percent tax (up to $20,000) on any organization manager who knowingly approved the transaction.5Office of the Law Revision Counsel. 26 USC 4958 – Taxes on Excess Benefit Transactions If the excess benefit isn’t corrected, the tax on the individual jumps to 200 percent.
The board’s best shield is the “rebuttable presumption of reasonableness,” which shifts the burden of proof to the IRS. Three conditions must be met: the compensation was approved by an independent body with no conflicts of interest, that body obtained and relied on comparable salary data before deciding, and it documented the basis for its determination at the time of the decision.6eCFR. 26 CFR 53.4958-6 – Rebuttable Presumption That a Transaction Is Not an Excess Benefit Transaction The documentation must include the terms approved and the date, who was present and who voted, the comparability data relied on and how it was obtained, and any recusals by conflicted members. It must be prepared before the later of the next meeting or 60 days after the final action, then reviewed and approved by the body as reasonable, accurate, and complete.
For these decisions, minutes have to be detailed enough to show the board followed each step. A one-line entry that “the board approved the CEO’s salary” won’t establish the presumption. The minutes need to show the board reviewed comparable data, identify the sources, and reflect a deliberate process.
What Goes Wrong Without Proper Minutes
Skipping or mishandling executive session documentation carries real consequences. The absence of minutes can be treated as evidence that proper procedures weren’t followed, which can invalidate the decisions made during the session. Courts take a dim view of boards that claim they discussed a matter properly but have no record to prove it.
For public bodies subject to open meeting laws, penalties vary widely by state. Fines for individual members range from as little as $100 per violation to $2,500 or more for repeat or knowing violations. Iowa is on the higher end: between $500 and $2,500 per member for standard violations, and between $5,000 and $12,500 for members who knowingly participated.7The Reporters Committee for Freedom of the Press. Sanctions for Noncompliance Several states tier penalties so repeat violations within a set window carry progressively higher fines, and some authorize removal from office for willful violations.
Private boards and nonprofits face a different set of risks. Without proper minutes, board members lose the protection that documented decision-making provides in breach-of-fiduciary-duty suits. For nonprofits, the inability to establish the rebuttable presumption on compensation can result in the excise taxes above.
A few procedural errors show up again and again, and each one can undermine the minutes even when they are carefully written. Scope creep is the most common: the board enters executive session for pending litigation and drifts into an unrelated performance review, tainting whatever comes out of it. Vague motions to enter are another: without a specific statutory exemption or bylaw provision cited, the motion is invalid on its face under most open meeting laws. Some jurisdictions and many governing documents also prohibit binding votes in executive session, requiring the formal vote to occur in open meeting; boards that don’t check their own rules risk having their decisions overturned.8The Official RONR Q & A Forums. Votes Taken by a Board During an Executive Meeting Leaving guests or uninvited staff in the room can compromise confidentiality and, for public bodies, violate the open meeting law.
A five-minute refresher with counsel before the first executive session of the year prevents most of these problems. The minutes, done right, are the board’s best evidence that it acted carefully and within its authority. Done wrong, they are the opposing party’s best exhibit.