SC Court Rules on County Executive Sessions

S.C. Supreme Court Rules on Executive Sessions

From The Post Courier: Jun 29 2015

For years, numerous public bodies have been excluding people from meetings without clear and lawful reasons to do so. They use executive sessions to discuss things absent outside scrutiny.

A recent S.C. Supreme Court decision should change that. It says public bodies must give the public a clear idea about why it wants to go into executive session. And that reason must be among those set out in the state’s Freedom of Information Act.

This is how it’s been working: A school board, city council or other public body votes to excuse the public so members can discuss “contractual matters” or “personnel matters.”

That’s like telling someone to pack his bags because you’re taking him “somewhere.” He needs to know whether to take black tie or a bathing suit, but you’re not telling.

South Carolina law does allow for public bodies to discuss some things in private. Even with this recent Supreme Court ruling, a body can vote to go into executive session to discuss the discipline of an employee, for example. But it must be clear that is what will be considered. The individual does not have to be named.

Or those officials can close the doors to discuss contractual negotiations. But the public must be told more, say, the negotiations are related to the purchase of cleaning supplies.
In other words, the access that the public has will not in any way get in the way of a public body going about its duties.

An agency can discuss the purchase or sale of property behind closed doors, and receive legal advice relating to matters covered by the attorney-client privilege, settlement of legal claims, or the agency’s position in other adversary situations.

But the extra information the Supreme Court said bodies must provide could be helpful to the public’s understanding of the public’s business. People might have helpful information to share with their elected representatives. And people might just pick up on an impropriety.

For example, a council member who sells cleaning supplies should probably not be part of discussions about a cleaning supply contract.

Jay Bender, attorney for the S.C. Press Association, described the abuse of executive session as “one of the most pervasive violations of the FOIA.”

The lawsuit against the City of North Augusta contended that the city violated the FOIA by failing to state the specific purpose of executive sessions between January and September 2013.

For example, on Aug. 15 of that year, North Augusta City Council voted to go into executive session “for the purpose of discussion of negotiations incident to one proposed contractual matter.”

But during that session members talked about adopting an amendment to an ordinance extending the life of a redevelopment plan and increasing the allowable indebtedness to support the plan.

Clearly Council was too vague about its reasons to go into executive session.

What is also clear is that the public would have a legitimate interest in hearing debate about increasing the amount of indebtedness allowed the city.

Councils and public boards need the opportunity to handle some sensitive matters in private.

But many have been misusing that caveat of the state’s Freedom of Information Act to keep the public out of the discussion.

The Supreme Court’s ruling should stop that practice — and shine some needed sunshine on the public’s business.


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