Smile! You're In Camera.

I’m sure you’ve seen it happen. The board decides to hold an in camera session – or as it’s known in the US, an executive session - clearing the boardroom of all staff.

Outside the closed door, staff perceive it as a signal that something ominous is about to happen. They start to speculate about what’s going on. Is the CEO in trouble? Has something scandalous occurred? Is the company threatened?

Inside the boardroom, the questions are less earth-shaking. How should we proceed? Do we need minutes? If so, who will record them? And what will we do with them?

And then what happens?

“Time and again I hear that [in camera sessions] become useless bitch sessions about staff and nothing actionable or productive comes from them. Worse still, the CEO sits outside, assumes that it is a bitch session and wonders what nasty things are being said that he/she is not being given the opportunity to defend or address.” – Joan Garry, author of Joan Garry’s Guide to Nonprofit Leadership

And yet, there’s a growing consensus that in camera sessions are a governance best practice.

“In Canada it is totally a best practice to have the in-camera as part of the board and committee meetings." - Anne Archibald, President, DSA Corporate Services

What gives? As it turns out, when used properly, in camera sessions can help a board to function more effectively. But, when used improperly, they can destroy trust, damage the board’s relationship with senior management, and threaten the integrity of the board’s decision-making.

Let’s explore.

What are in camera sessions – and why have them?

In camera is a Latin term which literally means ‘in chambers.’ In a board governance context it refers to a private session - a confidential meeting, or part of a meeting, with only board members present. You might see them called ‘board only sessions', ‘closed sessions’ or ‘executive sessions.’

They’re designed to handle sensitive issues that can’t be discussed publicly, such as personnel matters impacting the CEO, disciplinary matters involving directors, or certain legal issues.

Usually they exclude the CEO, senior staff, consultants, commentators, observers, advisors, lawyers and auditors. But the board may, and often does, invite specific people to join for all or part of a session, depending on the issues being discussed.

Typically, these sessions are a time for the board to handle matters that the board considers confidential or delicate. Viewed more broadly, they provide an opportunity for board members to talk freely, which strengthens trust and communication, enables directors to relate to one another, encourages greater honesty, and strengthens the board’s independence from management.

When should a board hold an in camera session?

It’s generally considered good practice for an in camera session to be a standing item on every board meeting agenda, and often for board committees as well. Doing so makes it a habitual part of the board’s business and signals to directors there will always be an opportunity to raise sensitive issues with fellow board members. This means they are less likely to ‘take an issue offline,’ which can negatively affect the relationship with management.

Regular in camera sessions help reduce management anxiety and mistrust and remove some of the drama. It means the board isn’t hiding the fact that private sessions occur as a matter of course and that they don’t necessarily signal trouble.

When’s the best time to schedule an in camera session? At the beginning of the meeting or at the end? Since both have their uses, some boards have taken to regularly holding one session at the beginning and another one at the end of each meeting.

Sessions at the beginning of the meeting tend to be mostly administrative. They give directors an opportunity to regroup from the previous meeting, ask for time on the agenda, clarify items before management arrives, or declare a conflict of interest.

Sessions at the end of the meeting are typically less structured and more wide-ranging. They allow directors to raise concerns and reflect on the meeting, asking themselves ‘How did we do today?’

Who should be there?

The purpose dictates who should attend. It’s up to the discretion of the board or committee, but it should be determined and communicated in advance to avoid awkward moments. There are lots of occasions where it makes sense for the CEO, senior staff, or an advisor to be included.

One approach is to conduct an in camera session in two parts - first with the CEO and then without. The first part gives directors the opportunity to ask the CEO open-ended questions like ‘What keeps you awake at night?’ and the CEO the opportunity to bring up matters they didn’t want to share with staff in the room. These conversations help to build trust between the board and the CEO. The second part, without the CEO, can include discussions ranging from CEO performance and compensation to director conduct and many other matters.

Some boards consider having the corporate secretary attend in camera sessions to take minutes, but experts advise against it.

“Having the corporate secretary there can be bad from the directors’ perspective because it might impede the discussion, but it’s also tough for the corporate secretary because he or she then becomes privy to these discussions that management would be interested in knowing about. As he or she … is bound not to say anything about the discussions, it puts corporate secretaries in quite an awkward position.” – Sylvia Groves, President, Governance Studio

What about records?

There’s no real consensus about how to record what happens at in camera sessions and what is done with those records. It seems that many boards are a bit casual about it, although there’s agreement that some kind of written record should be kept.

Sometimes that written record consists of informal notes kept by the board chair. If that’s the case, it’s very important that any resolutions passed at the in camera session are reflected in the formal meeting minutes. The board chair usually ensures this by passing along the pertinent information to the corporate secretary.

“Typically what I like to see is the chair and the corporate secretary having a little debrief after the in-camera session. The chair can simply advise the corporate secretary [whether] … anything was talked about that needs to go in the minutes … . In cases where an in-camera meeting is held to pass a resolution, like approving CEO pay, make sure you get the resolution passed and then give the corporate secretary the details so they can be included in the minutes.” – Sylvia Groves

Other times, formal minutes are kept that include the date and start time, the persons present, the text of resolutions, the results of votes, formal objections, and the time of adjournment.

The minutes are confidential of course. They are filed separately from other records – often they are retained by the board chair and passed along to the next chair. If distributed at all, it should be to a restricted list.

Records of in camera sessions may not be as private as directors think. The Resources section below has an interesting article, In Camera Board Meetings May Not Always be Private, that discusses a Supreme Court of Canada decision to the effect that what happens at in camera meetings may not stay at in camera meetings.

What’s appropriate to discuss in camera – and what isn’t?

So far, nothing about in camera sessions sounds controversial. So why is there any concern or discomfort about the practice?

One reason is, quite simply, what gets talked about. The mention of in camera sessions makes some senior managers anxious. No one likes to think that someone is talking about them behind closed doors.

For this reason, it’s important to ensure that in camera sessions are held for their proper purpose. After that, the session should end. Appropriate topics include:

• The board’s own functioning.
• CEO evaluation and compensation.
• Questioning a CEO decision away from staff.
• Executive performance, compensation and succession planning.
• Personnel and employment/labor matters such as collective bargaining.
• Conflict of interest situations or personal matters.
• Government policies and their implications.
• Legal advice and litigation.
• Proposed or pending transactions.
• Commercial business and confidentiality agreements with third parties.

To ensure transparency and accountability, in camera sessions should not be used for the regular work of the board.

Let me repeat that. In camera sessions should not be used for the regular work of the board.

If a matter should be heard with the CEO or management present, then it should not be heard in camera. An in camera session is not an appropriate forum to:

• Rehash decisions or resume earlier discussions.
• Get a head start on items that will be discussed at a future meeting.
• Micromanage operational issues within the CEO’s purview.
• Deal with issues that the board should have the courage to deal with in regular meetings.
• Draw conclusions without providing management the opportunity to respond.

“I must confess that, with the exception of an annual review discussion … I have never participated in an executive session in which a single bit of conversation could have or should have happened without the CEO present.” – Joan Garry

Communicating back to the CEO

Another reason for concern is the lack of feedback to the CEO, which turns in camera sessions into ‘secret meetings.’

To alleviate this concern, the board chair should make it a practice to share with the CEO (without attributing comments to individuals) a brief summary of what was discussed, alert them to any issues, and request follow-up where needed. Giving the CEO a bit of reassurance that everything is fine goes a long way.

“The success of executive sessions often depends upon the trust relationship between the Chair and the CEO – where there is a healthy, trusting relationship, the CEO will have confidence that the Chair will ensure a fair and honest discussion and will bring back all the issues to the CEO.” – BoardWorks Consulting Inc.

For the Savvy Director

In camera sessions are an important tool in board governance when they are used carefully and with intention. That’s why it’s a good idea for the board to establish a policy. The transparency of a formal policy can alleviate concerns by providing clear direction on the purpose, what can be discussed, attendance, record-keeping and distribution, and communication of decisions.

So, is your board using in camera sessions with intention?

• Does your board treat them as a normal part of its work?
• Does your board chair share key points with the CEO following each session?
• Does your board include the CEO in the first part of in camera sessions?
• Do they focus on current issues or are they just a rehash of ancient history and chronic pet peeves?
• Do they allow sufficient discussion to dispel concerns or develop next steps?

And as an individual director, try ‘walking a mile in the CEO’s shoes’ before you decide to bring something up in camera. Ask yourself these questions:

• Why couldn’t I just say this when the CEO is here?
• Shouldn’t the CEO hear this directly from me?
• Does excluding the CEO from deliberations compromise the information, expertise or perspective available to the board?

Your takeaways:

• When used carefully and with intention, in camera sessions are a useful tool for boards.
• Holding an in camera session as a regular part of every board meeting helps dispel some of the mystery and anxiety.
• It’s important to keep written records of any decisions or important discussions that happen at in camera sessions.
• In camera sessions should not be used for the regular work of the board.

Resources:

• Executive Sessions. BoardSource. April 2019.
• Should your board be using in-camera sessions? Dr Ann-Maree Moodie, FAICD. Australian Institute of Company Directors. December 2018.
• What is an in camera session? How to maintain confidentiality in the Boardroom without generating fear. Conscious Governance.
• In Camera Board Meetings May Not Always be Private. Gillian Tuck Kutarna. Miller Thomson. October 2016.

Leave a comment below to get in on the conversation.

Thank you.

Scott

Scott Baldwin is a certified corporate director (ICD.D) and co-founder of DirectorPrep.com – an online membership with practical tools for board directors who choose a growth mindset.

Originally published July 4, 2021

Share Your Insight: How do you decide that topics discussed in camera are appropriate?