The SC Freedom of Information Act names some exceptions to the requirement that the meetings of public bodies be open to the public, allowing them to enter executive session only when necessary and only for stated reasons. They must return to open session to take any vote, and the actions they take at that point raise a question — how do they publicly address a matter that they had initially discussed confidentially?
A public statement will depend on what kind of action was taken. SC Code Section 30-40-70 gives the available reasons for executive session, which should be announced and described specifically during the motion to enter executive session:
- Discussion of employment, appointment, compensation, promotion, demotion, discipline or release of an employee, or an appointment to a public body. There is no requirement to name the person or entity being discussed.
- Discussion of negotiations incident to proposed contractual arrangements, discussions of a proposed sale or purchase of property, receipt of legal advice, settlement of legal claims or discussions of the public agency's position in adversary situations.
- Discussion regarding the development of security personnel or devices.
- Investigative proceedings or allegations of criminal misconduct.
- Discussion of matters concerning the proposed location, expansion or provision of services encouraging the location or expansion of industries or other businesses in the area served by the public body.
Council action following some of these are more likely to generate interest among residents and the news media. Consider, for example, an executive session to discuss incentives for an economic development project. The council then votes to approve the incentives in open session. SC Code Section 30-4-40(a)(9) allows the body to withhold information about the project until the industry accepts the incentives and the project is announced. During or after these steps, news outlets will often give it significant coverage, publicizing the businesses to open, or the jobs to be created.
Other types of executive session — like a firing or disciplinary action for an employee who reports to the council, or criminal misconduct — may make the council more reluctant to address the issue publicly. Council should remember that silence on a major news item can undermine public trust, and should be prepared to provide an appropriate statement.
A recent example of how much attention can come from these actions came in November 2022, when the newly elected board of the Berkeley County School District terminated its superintendent. Significant and at times heated news coverage of the decision, focusing on the question of the reason for the terminations, unfolded. Eight days later the board issued a 39- page statement on the issue.
Here are some points to consider:
- Consult the city or town’s attorney. Councilmember statements in a legal matter can create liability for the municipality, and so they should be aware of how to address the issue carefully and appropriately.
- Provide a statement about the action. Speculation thrives in the absence of an official statement, and while the statement should be carefully developed, it still needs to happen. It can be a relatively simple statement — in the case of a termination, it could simply be providing the written separation agreement.
Learn more about executive session in the Public Official's Guide to Compliance with the S.C. Freedom of Information Act.