QUESTION:
Who is included when the MEC meets in executive session?  Just members?  Just voting members?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
There is not a universal definition of the term “executive session.”  With respect to organizations/bodies that are subject to an Open Meetings Act, an “executive session” is often defined by law as a meeting that excludes members of the public.  For other organizations/bodies (not dealing with an Open Meetings Act), the term “executive session” might be used to refer to a meeting that excludes guests, while including all members.  Alternatively, some organizations use “executive session” to refer to meetings that exclude all guests and non-voting members (thus including only voting members).  Some Medical Staffs have historically used the term to refer to meetings that include only physicians or that include only those individuals invited to participate by the presiding officer, though it is not always clear that those organizations are operating as per their Bylaws/policies.

In the absence of Bylaw/policy language authorizing and/or defining executive sessions, it’s always a good idea to check state law to determine whether it might govern the composition and activities of committees.  Some nonprofit corporation codes provide basic rules for how meetings and such should be held (e.g., whether action can occur by ballot in lieu of meeting, whether participants can be present via electronic or telephonic connection).  It is possible that these statutory or regulatory schemes may address the issue of executive sessions.  In most cases, it has been our observation that the general rule is that anyone who is a “member” of a committee (or other body, such as a department or Board) would be entitled to notice of meetings and entitled to attend meetings.  Further, if any Bylaw/policy document gave an individual the right to attend as a guest, that individual would be entitled to notice and to attend (but not necessarily to exercise other duties of membership, such as voting or deliberation).

Whenever the law does not specifically define the concept of executive sessions, it is up to the individual organization to use its discretion in defining the term (and/or deciding whether to use executive sessions at all).  What’s most important is that if you wish to use executive sessions to discuss certain topics (e.g., confidential peer review information), that should be authorized in the Medical Staff Bylaws and related governance documents.  And, in most cases, you would probably want to provide the chairperson/presiding officer with the authority to commence an executive session and have final authority for applying rules regarding who may be present at such sessions.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.