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Cahn: Getting executive sessions right

Posted: June 25, 2015 4:10 p.m.
Updated: June 26, 2015 1:00 a.m.

Listen up, local public bodies: the S.C. Supreme Court recently ruled in a North Augusta case which I hope will make clearer -- if not settle once and for all -- how you enter executive sessions.

For years, I’ve lamented governing bodies’ proclivity for going into executive sessions by simply claiming “personnel (or employment) matters” or “contractual matters.” Very recently, I also lamented the S.C. Freedom of Information Act’s (FOIA) lack of clarity on the issue. That was despite the S.C. General Assembly’s recent passage of a bill unequivocally updating the FOIA to require public bodies to issue agendas no less than 24 hours prior to a meeting and not amend them without a two-thirds majority vote.

I’m going to let S.C. Press Association Jay Bender “speak” on this matter via portions of a write up he provided editors and publishers this week. According to Bender, on June 17, the S.C. Supreme Court ruled the city of North Augusta violated the FOIA between January and September 2013 -- nine months -- by failing to state the specific purpose of executive sessions.

The lawsuit, Donohue v. City of North Augusta, was not brought forward by a newspaper or TV station. Local citizen Stephen P. Donohue did.

Here’s what happened, based on reading the actual ruling, also supplied by Bender:

North Augusta City Council voted to go into executive sessions for the purpose of “discussion of negotiations incident to 1 proposed contractual matter.”

As Bender points out, the words “contractual matter” do not actually appear in the section of FOIA allowing for certain matters to be discussed in executive session. What it does is allow for the discussion of negotiations incident to proposed contractual arrangements and not the more general “contractual matter,” which is too broad.

Donohue v. City of North Augusta concerns a redevelopment plan. Donohue argued the city used “contractual matters” to secretly discuss amendments to an ordinance concerning the redevelopment plan. The problem wasn’t so much what council was discussing (although Bender argues it went beyond what would have been considered privileged) it was how they went into executive session to have the discussion.

The S.C. FOIA allows executive sessions to discuss “employment matters” (not “personnel” ones) and “matters related to the proposed location, expansion, or the provision of services encouraging the location or expansion of industries or other business in the area served by the public body.” North Augusta claimed neither of those specific exemptions, just “contractual matter.”

North Augusta did this 11 separate times.

As Bender quotes from the FOIA, “‘specific purpose’ means a description (my emphasis) of the matter to be discussed.”

Well, what does that mean?

Bender suggests the following: If a public body is going into executive session to discuss contract negotiations, the motion (or the chairman’s or mayor’s explanation of the purpose) should say something like, “We are going into executive session to discuss negotiations incident to a contract to supply photocopy paper.” Seems mundane, I know, but it satisfies the public’s right to know without tipping with whom the contract might be or even how much paper the public body is thinking of purchasing.

If a public body is discussing an employment matter, Bender suggests something along the lines of, “We are going into executive session to discuss the discipline of an employee.” You haven’t given away the identity of the to-be-disciplined party or even the alleged infraction.

As I said at the beginning, this is something I’ve been speaking out about for years. Too often, several of our public bodies have used vague or incomplete statements to claim executive privilege. They’ve also hidden behind what was often seen as the S.C. FOIA’s “permissive” nature -- public bodies were not required to disclose certain things, but had “permission” to do so if they wished.

Let’s make clear exactly what a public body “may, but is not required to exempt from disclosure,” as given by the S.C. FOIA:

1) Discussion of employment, appointment, compensation, promotion, demotion, discipline or release of an employee, student or a person regulated by a public body, or the appointment of a person to a public body.

2) The “discussion of negotiations related to contract negotiation” clause. This section also includes the receipt of legal advice related to specific situations.

3) Discussion regarding the development of security personnel or devices.

4) Investigative proceedings regarding allegations of criminal misconduct.

5) The clause regarding matters relating to the proposed location, expansion, etc., of services or businesses.

For local bodies, that’s it. Those are the only five reasons to go into executive session. And now the state Supreme Court’s made it pretty clear how you should state the specific purposes of your executive sessions.

Please comply; I’d hate to have to write a story about how you’re ignoring the state’s top court.


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