The subject of Town Council meetings has come up frequently when trying to look into the workings of local government. What has been discovered is a tool occasionally used to hide actions from the public or gag officials to prevent them from relating secret conversations conducted by elected members of government. It’s called “executive session.”
Executive Session is a closed meeting in which Council members and select staffers discuss issues considered to be too delicate to discuss or debate in the public eye. There are specific topics that are mandated by state law for executive session to protect certain individual privacies or details of sensitive contract negotiations, proprietary information, etc.
State law is very specific about what can be discussed in executive sessions and the procedures for initiating them. The South Carolina State Code of Laws governing these meetings is Title 30. Public Records, Chapter 4: Freedom of Information Act. Section 30-4-40 states: “A public body may but is not required to exempt from disclosure the following information:” [emphasis added] The statute then outlines the types of information that would not require disclosure if the council were to implement such regulations.
The Town of Lexington, as do many municipalities in the state, refers to the Municipal Association of South Carolina guide How to Conduct Effective Meetings. The section regarding executive session (Page 8) is taken from the above referenced state law. In Appendix B: Sample Rules of Order; Ordinance Adopting Rules Of Order For Council Meetings And Enactment Of Ordinances, Section 5, Executive Sessions includes the following:
It shall be unlawful for a member of council or person in attendance at an executive session to disclose to another person or make public the substance of a matter discussed.
Note: Suggested as a possible local rule. This provision should be regarded as a rule governing conduct of members of council. It does not conflict with the FOIA. It may be defended as a limitation on the freedom of speech for an overriding public interest in having government business conducted properly.
The annotation (Note) is critical. The prohibition on disclosure is a recommendation for localities to consider as “local rule.” It further states that should such a law be enacted by local government, it would not infringe upon a member’s right of freedom of speech or the public’s right to know.
I spoke with Mr. Tigerron Wells, an attorney at the Municipal Association of South Carolina (MASC) about executive session. He confirmed that there is no state law prohibiting an attendee at/in an executive session from disclosing anything said in that meeting. It would be up to the municipality, he said, to impose such a restriction.
To find out if the Town of Lexington had such a restriction, I contacted Mr. Brad Cunningham and requested “the Town’s rules, regulations, laws or ordinances regarding town council conduct in and/or procedures for closed or ‘executive sessions.’” Mr. Cunningham responded by forwarding a copy of The Rules of Procedure: Lexington Town Council. He specifically referred to paragraph 8 which reads as follows:
The Council may, by majority vote, meet in EXECUTIVE SESSION at any time, but only in compliance with South Carolina law. Attendance at such sessions shall be limited only to Council members, the Town Administrator, Town Attorney and the Municipal Clerk, plus such invitees as may meet the unanimous approval of the Council. If an Executive Session is conducted, the Chair shall announce the specific purpose(s) for the session and upon return from Executive Session shall report publicly the topics discussed. Remote connection to an Executive Session shall not be authorized.
I also learned that state law Title 30, Chapter 4 specifies that “Council may not take any vote or action in executive session except to adjourn or to return to public session.”
“No action may be taken in executive session except to (a) adjourn or (b) return to public session. The members of a public body may not commit the public body to a course of action by a polling of members in executive session.” Therefore, it would be illegal for a body (council) to vote, poll or make operative decisions in executive session. Mr. Wells, MASC attorney said that any action so instituted cannot legally take effect as it would be “action without the force of law.”
So, as I understand the law – with assistance from attorneys Wells and Cunningham – the Lexington Town Council – within specific parameters dictated by state law – cannot bar a council member from discussing anything exchanged in “executive session” and no actionable vote can be taken in such a session.
It is probable that at some time in its history, Lexington Town Council has imposed unnecessary restrictions based on the notation in the MASC guidelines discussed above. If one doesn’t carefully read the note about prohibiting discussion, (s)he would conclude that such a prohibition is law. Tradition is also a factor as is simple caution and discretion.
For an unknown number of years, the Town of Lexington – and other municipalities across the state — has been conducting executive sessions and prohibiting members from discussing what transpired during those meetings. For the most part, that’s OK, particularly regarding sensitive matters or those in which publicity could jeopardize complicated negotiations. Although we’ve become a society in which we think we have to know everything, that hyper-curiosity cannot and should not always be accommodated.
As a 35 year intelligence professional, I am very much aware of the particulars of confidential/classified information and the need to protect it. That includes “over classification” and the legal and ethical dangers of using information suppression to avoid legitimate scrutiny.
Confidentiality in government is necessary when appropriately and honestly practiced. However, if and when it is used as a means to gag Council members or withhold information that would be embarrassing, or worse, then it becomes a weapon against the public.