THE SENATE ONCE kicked out the public so it could debate the state budget in private. Another time, senators discussed reapportionment behind closed doors. I don’t know that senators have done anything that egregious in years, but they could if they wanted to: Nothing in the constitution or the law or Senate rules limits what they can do in private. Well, short of assault and battery.
This summer, a unanimous state Supreme Court reminded the city of North Augusta that it is not the South Carolina Senate.
It was an important reminder, because there are few things that city and county councils and school boards in this state enjoy more than hiding public information from the public. And their favorite blind behind which to hide the public’s business is the Freedom of Information Act.
The Freedom of Information Act almost never tells governmental bodies that they must hide information from the public. But where it allows them to hide information, elected officials insist that it requires said secrecy. And where the law does not allow secrecy, they insist that it does.
Because, hey, who’s gonna challenge them?
Stephen Donohue, that’s who.
It seems that Mr. Donohue was not happy that the North Augusta City Council wanted to extend the life of a tax increment finance district by 32 years and $41 million. I don’t blame him. I think those districts are generally a bad idea, particularly when they’re extended beyond their original life, because they require that all new tax revenue generated within the district must be spent within the district, thus stripping elected officials of their responsibility to make spending decisions.
Mr. Donohue became even more annoyed when he noticed that the City Council kept going into executive session to discuss a “proposed contractual matter.” Since the council gave no clue as to what those secret discussions were about, he figured they must be about extending the TIF. So when he filed suit alleging that the city did not follow the proper procedure to extend the TIF, he threw in those executive sessions as well.
In June, the court said he was wrong about the TIF (it was extended legally) and wrong to think the executive sessions had to do with the TIF. But the justices said he was right to think the secret sessions were illegal.
The court noted that state law requires public bodies to announce the “specific purpose” of a secret session before kicking out the public, and defines “specific purpose” as “a description of the matter to be discussed as identified in” one of the categories spelled out in the statute.
In other words, it’s not enough just to name one of the categories — the purchase or sale of property, contract negotiations or criminal investigations, for example. Governments have to say which property they’re talking about buying or selling — you know, like prime lakefront property whose purchase price might have been ridiculously high and whose use still is unclear — or which contract they’re discussing. They don’t have to name the specific employee they’re talking about, but they can’t kick the public out to discuss “personnel matters” — a favorite term of local bodies that does not even appear in the law; they have to announce whether they’re discussing a disciplinary matter, or an employee’s salary, or a promotion, or whatever.
The court didn’t break any ground in Donohue v. City of North Augusta — half of the Freedom of Information section quotes a 2001 Supreme Court order — but it is nonetheless significant simply because the law is so grossly violated.
I’m sure a lot of that disobedience is willful, but I think there’s also a lot of ignorance, despite the fact that every public body that goes into executive session has access to a government attorney, often its own. And that attorney’s job is not, as too many of them seem to think, to tell the body what it wants to hear; it’s to advise the body on what the law requires — even, perhaps especially, when that means saying it can’t legally kick out the public.
In a newsletter for reporters and editors, S.C. Press Association attorney Jay Bender suggested that reporters hand a copy of the ruling to the chairman when a government body agrees to go into executive session to discuss “personnel matters” or “contractual matters” or some other non-specific topic, “and be prepared to report that the council ignored the clear instruction of the Supreme Court to keep citizens in the dark about what was being discussed.”
It’s a good idea, and not just for reporters, since most government meetings occur in the absence of reporters. If you’re going to a meeting of a city or county council or school board or any other governmental body, print a copy of the ruling yourself, and highlight this sentence under “FOIA VIOLATIONS”:
“The circuit court held (that) an announcement that the purpose of the executive session was the discussion of a ‘proposed contractual matter’ satisfied the specific purpose requirement. We agree with appellant that the FOIA was violated.”
If the chair doesn’t understand what that means, ask him to show it to the attorney. And remind them both that as a taxpayer, you’re paying that attorney’s salary, and that attorney’s job is to make sure the body obeys the law — or at least understands what the law requires when it makes a deliberate decision to violate it.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter @CindiScoppe.