It is for Trustees to agree a) whether they wish to experiment with closed sessions at all and b) how they wish to handle them, if they do.

This note sets out some thoughts about closed sessions for Trustee meetings (ie Council meetings), and about to manage them in a way which is most likely to help Trustees discharge their first legal duty of achieving the charity’s purposes for the public benefit.

In order to deliver charitable purposes for the public benefit, Trustees sometimes need time to speak freely to each other, with no restrictions or fear about saying “the wrong thing” in front of staff. To make this possible, many charities regularly hold a “closed session” as part of a Council meeting (or even as a whole Council meeting) where no staff at all are present, even the CEO.

There are at least five good reasons for doing this:

1. To discuss issues which would not be appropriate to share with staff at that point. These could include:

a. preparing feedback as part of the performance management of the CEO

b. initial conversations about possible concerns Trustees have about particular members of staff

c. early thoughts about strategy which might have a significant effect on staff

d. discussions where, if staff were present, there would be a conflict of interest

2. To resolve any inter-personal issues between Trustees, or to discuss the results of any Trustee performance evaluations

3. To allow Trustees to ask questions or express where, for some reason, they do not wish to do this with staff present (for example, they may worry that their question shows a lack of understanding, or they wish to reflect in private on a Strategy Day)

4. To discuss issues where privacy has been imposed externally, for example, a donation where the donor wishes to remain anonymous to everyone but the Trustees

5. To discuss the results of the audit with the auditors

Trustees may think of other reasons to add to this list, and there is no intention that all these topics will always be discussed during a closed session of the meeting. For clarity, Trustees can discuss happy/positive ideas during closed sessions – they don’t have to be focused on concerns.

As with many elements of discharging Trustees’ legal duties, there is often a need to balance competing objectives. For example, Trustees have a duty to seek advice on how to ensure that the charity delivers its charitable purposes for the public benefit. The CEO and their team are often the people in the prime position to do this, so closed sessions should be limited in terms of time and frequency, and any topics where staff can advise Trustees should be opened up as soon as possible.

An early, private conversation about difficult or potentially controversial ideas is sensible – a situation where Trustees are afraid to be open and honest when staff are present indicates a significant problem in Trustee/staff relationships. If this is the case, it is incumbent on Trustees to be part of resolving the situation.

Trustees also have a duty to manage resources responsibly. In this duty, “resources” include the charity’s staff. Closed sessions should be held in a way which is respectful to staff, and which does not undermine them.

Frequency

If Council does wish to start a practice of closed sessions, it will probably be easier for staff if most of these sessions are scheduled, rather than ad hoc. Ad hoc closed sessions can give the impression that there is suddenly a crisis which must be kept secret from staff. Trustees could set aside ten minutes at the beginning or end of every Council meeting, for example. Then it becomes normal and unthreatening. Trustees do not have to fill the time if there is nothing to say!

What to discuss? And should there be an agenda?

It is up to Council what they wish to discuss – but they must bear in mind their duty to seek and consider advice. Closed sessions discussing topics where staff are likely to be able to advise Trustees should be as short as possible.

There is no legal requirement for a formal agenda even for the whole Council meeting, although Charity Commission Guidance 48 says there should be one, and of course this is the Society’s practice anyway. There is certainly no guidance requiring a separate agenda for a closed business item within that meeting. Trustees can just raise issues at the meeting, or they can email the other Trustees ahead of the meeting if they wish Trustees to think about something in advance.

Minutes

This can be tricky.

The Society’s Bye-laws (Bye-law 20) states that “The Council shall cause Minutes of its proceedings to be taken during the meetings and entered into the Minute-book.”.

However, there is very little regulation or law on the standard of minute-taking (eg the level of detail, whether to link names to comments etc). There is no agreed standard, and various practices come in and out of fashion over the years. What goes into the minutes is always a judgement call, where those present have to balance the amount of detail needed to make the minutes useful later, with the risk of very detailed minutes being accidentally shared.

There is some Charity Commission guidance about the quality and detail of minutes, but it’s still open to interpretation (eg para 57 of CC48, 3.5 of CC27)

It’s really up to you. I think. If you just have a chat, and don’t make any decisions, and there is a full minute of the main meeting, I don’t think you need a separate meeting minute for a closed session tacked on to the end. At the other end of the scale, if you convene a separate meeting of Trustees to discuss something significant, eg redundancies, and at that meeting you decide to make half the staff redundant – that meeting should be properly minuted. In the middle of the scale… if you thought that the main meeting had raised some serious issues that you wanted to discuss with the CEO, you could note something like “Directors noted concerns about XYZ and agreed that the President should discuss these with the CEO.”

Storage

There is a slight awkwardness about storing these minutes, even if they are very very short – I used to print out the one line / short paragraph onto a separate piece of paper and store it in a sealed envelope in the charity’s office, but this seems very old-fashioned now. If you have a shared online area that is private to the Trustees, I would use that.

Should minutes (if any) of a closed session be shared with anyone?

I haven’t found any specific guidance saying that minutes for the closed business item should be shared with the CEO. But the Charities Act places a wide duty on Trustees to further the charitable objectives. It would be hard to do this without the CEO having the information they need, and feeling trusted. I think this is only likely to be a problem if there are long and frequent closed meetings, making the CEO feel left out.

Trustees should also be aware that they may have to release what is written about anyone mentioned in the meeting, if that person submits a Subject Access Request. This is unlikely, and (as mentioned earlier) would indicate a serious underlying issue of lack of trust between Trustees and staff.

Handling

It is important for Trustees to remember that a late-running closed session may be uncomfortable for staff, as it might give the impression that there is suddenly a significant problem.

session is running late, and if the meeting is in real life, staff should have somewhere comfortable to wait, where they can get on with work. If the closed session is running very late, Trustees should either reschedule a longer time to continue the discussion, or agree to postpone other items on the main Board agenda.