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Dean R. Zakos

Dean Zakos’s Answers

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  • Can the minutes in executive session be changed at anytime

    executive minutes have been held from me in violation . I am fearing that they can be changed at a later date prior to their release to me.Is this legal

    Dean’s Answer

    Can minutes be changed at any time? The simple answer is "No." Minutes can be changed up to the time that they are formally approved. Once approved, the appropriate procedure would be to place a corrected copy of the minutes in front of the participants who approved the original minutes, and have the participants approve the correction. That can be done at any time.

    I am assuming you are referring to draft minutes of a corporate board meeting, and specfically of an "executive session," e.g., a sub-set of a board of directors that likely does not include any managment participants.

    The purpose of any minutes is to accurately record and reflect (1) who attended a meeting and by what means (in person, by telephone conference, etc.,); (2) what action(s) took place or what decisions were made; and (3) what the principle reasons were for such actions or decisions.

    An executive session is often used to discuss more sensitive issues or issues directly regarding management, compensation, termination, etc. Often, because of sensitivity or other reasons, the minutes of executive sessions may be much shorter and much less detailed.

    Generally, draft minutes may be changed or altered at any time prior to the draft being formally approved by the participants who attended the meeting. Draft minutes often go through several iterations before being formally approved, so as to accurately and appropriately make the official record.

    Once draft minutes are approved by participants by vote or waiver, is it highly unusual for any changes to occur. That is why review and approval of minutes is one of the essential elements on any board meeting agenda. One common exception is obvious typographical errors that do not change the substance of the minutes. Almost any other change would require a correction of the minutes, with such correction to be formally approved by the same meeting participants who previously approved the underlying draft of the minutes.

    It is also important that all participants in the meeting see and approve the same draft and see the same corrections. The process of approving minutes would be fatally flawed if participants did not all see and all approve the same draft or the same corrections.

    Changing approved minutes without a vote or waiver by the participants may be problematic. At a minimum, it clearly would call into question the validity and authenticity of the minutes. A few years ago, several public companies were investigated by the SEC regarding backdating of stock options. It became clear that these companies often routinely "created" minutes for fictitious meetings or "changed" approved minutes to reflect certain dates or other substantive details . Even if the intent was innocent, or the changes arguably consistent with the substantive matters approved and discussed, it creates a strong appearance of impropriety, unless the changes are placed in front of the meeting participants for approval.

    Note: The information provided is of a general nature. It is not intended as legal advice or opinion. Additional facts and information or future developments may affect the subject addressed in this answer. You should consult with your own lawyer about your particular circumstances before acting on any of this information.

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