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Editorial: Freedom of information
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Two weeks ago, we said Kershaw County Council needed to do a better job of conducting its meetings in order to make sure that a) procedure was being followed and b) that the public knew exactly what was being discussed in executive session and then voted on.

At the end of Tuesday’s meeting, Chairman Julian Burns spent several minutes responding to criticism of council’s Feb. 26 meeting. Burns characterized the meeting as “messy” -- something he took responsibility for -- but “vital.” “Yeah, we got Robert’s Rules of Order, but you can have all the rules in the world if the spirit ain’t right, so the process should not get in the way of a good product,” Burns said. He went on to criticize any obstruction to that as creating difficulty to get to the “right result.” He also acknowledged that there can be both healthy and unhealthy “tension” while getting things done, but that “revisiting items long ago decided is often very unhelpful” and added that while the minority must be heard, it must also yield to the majority so as not to be obstructive. He later had County Attorney Ken DuBose enter into the record a three-page memorandum defending council’s actions based on his and Assistant County Attorney Thomas Morgan’s interpretations of the S.C. Freedom of Information Act (FOIA).

After further discussion with S.C. Press Association attorney and recently retired University of South Carolina law professor Jay Bender, one of the state’s foremost experts on the S.C. FOIA, we have better clarification on some important aspects of what happened -- and what should have happened -- during council’s Feb. 26 meeting, and at every meeting going forward.

First, in our story on the Feb. 26 meeting, we reported on how Burns asked Councilman Jimmy Jones for an exigent, or emergency, circumstance when Jones moved to delete “approval” from an agenda item concerning the Central South Carolina MegaSite. Bender confirmed Wednesday that exigent circumstances are not necessary in such cases.

“A finding of ‘exigent circumstances’ is necessary only when an item is added to the agenda and action is required prior to the time required to give 24 hours advance notice,” Bender said. “And procrastination doesn’t constitute an exigent circumstance.”

Second, in our March 1 editorial, we opined that Burns should have asked for a vote to move an executive session from the end of the meeting to the MegaSite item. Bender said that what Burns did was actually “OK,” and we defer to his expertise. Bender did say that a vote might have been preferable, but that it was not necessary.

Third, we noted in both our story and editorial that Jones wanted to remove “approval” from the MegaSite agenda item because there were no supporting materials in the agenda for council or the public explaining what the item entailed. Our editorial never said this was a violation, but merely that Jones was correct -- there was no documentation -- and that we would have preferred something, even a brief memo, be included to explain what was going to be discussed, especially considering the possible expenditure of a large sum of public funds. Bender agreed: it was not necessary, but would have been preferable.

Fourth, and most importantly, we offered the opinion that -- while the purpose was very clear ahead of time -- council did not strictly follow procedure as outlined in the S.C. FOIA to go into executive session to discuss the MegaSite.

Bender clarified that the specific purpose does need to be stated, but not necessarily as part of a motion to go into executive session. As it turns out, no matter what else happens, the presiding officer -- in this case the chairman -- must state the purpose of the executive session after a favorable vote has taken place but before actually going behind closed doors.

“A public body may exclude the public from a portion of a meeting by having an affirmative vote on a motion to enter executive session. The law requires the chair to announce the specific purpose of the closed session. If the motion to enter executive session states the specific purpose of the closed session, the chair can satisfy the law by stating after the vote that there will be a closed session for the purpose stated in the motion. Or the chair could restate the purpose in the motion,” Bender said.

With all this clarified by Bender, we would like to end by praising the entire council for two things:

1. We recognize that council is very good about stating what the purpose of an executive session is, even if it has not necessarily been done in the proper order. There are many public bodies that try to hide their business altogether; we are very thankful Kershaw County Council does not.

2. Council conducted this week’s meeting in a much better manner than on Feb. 26. Despite some confusion -- and even disagreements -- over amendments to amendments to the so-called “shipping container” ordinance, council conducted itself in a manner befitting its status, carefully navigating its way through a series of votes, and thanking each other for and helping each other come up with solutions to problems.

As we’ve said before, we’re not looking for “yes” men or women, nor do we expect for every meeting to be completely harmonious. We -- and the public -- expect and deserve professionalism, however, and that’s what we got Tuesday night. It wasn’t perfect, but it was a better job, and for that, we are grateful.