Editor's note: In 2015, the SC Supreme Court issued a decision that brings changes to executive session practices.
What is an executive session?
An executive session is a portion of a council meeting that is closed to the public. Occasionally, councils may find they need to meet in executive session for the overall public good. Executive sessions must comply with state law and be used only when absolutely necessary.
What are the circumstances that allow an executive session?
The SC Freedom of Information Act limits municipal executive sessions to four open meeting exceptions (Section 30-4-70):
- discussion of employment, appointment, compensation, promotion, demotion, discipline or release of an employee, or an appointment to a public body;
- 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 about development of security personnel or devices;
- investigative proceedings or allegations of criminal misconduct; and
- discussion of matters concerning the proposed location, expansion or provision of services encouraging location or expansion of industries or other businesses in the area served by the public body.
How does a council properly enter executive session?
Before going into executive session, the council must vote, in open session, to enter executive session and state the specific purpose and open meeting exception for the closed door meeting. Councils must be as specific as possible without compromising the issue. The motion to enter executive session should be specific, such as "to go into executive session to discuss applications for employment within [a specific department]" or "to discuss negotiation of a contract and receipt of legal advice related to a building project."
Can votes be taken in executive session?
Votes and informal polling of members may not take place in an executive session. The only action that can be taken in an executive session is to adjourn or return to public session. Section 30-4-70 (b)
What are the consequences of misusing executive sessions?
Convening an unauthorized executive session, discussing items not eligible for executive session or not disclosed as part of the motion to enter executive session, or voting on an item in executive session are violations of state law which may result in prosecution. Additionally, improper and overuse of executive sessions erodes public trust in government.
The Freedom of Information Act in SC is one of the topics for the May 15 session of the Municipal Elected Officials Institute of Government.