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Executive Session FAQ

Q. What is the purpose of an  executive session?  

Occasionally, city and town councils may find that they need to use an executive session — a portion of their meeting that is closed to the public — for a purpose defined by the SC Freedom of Information Act, described by SC Code Section 30-4-70. Executive sessions need to carefully follow state law and be used only when absolutely necessary.

FOIA allows four reasons for executive session to allow for confidentiality that promotes the overall public good: 

  1. discussion of employment, appointment, compensation, promotion, demotion, discipline or release of an employee, or an appointment to a public body;
  2. 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;
  3. investigative proceedings or allegations of criminal misconduct; and
  4. 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.

Q. 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. They should cite the particular portion of FOIA, including a description of the reason why they are entering executive session, as required by SC Code Section 30-4-70(b).

The motion to enter executive session should be as specific as possible without compromising the issue. For example, the motion could be "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."

Q. Who determines whether council can enter executive session? 

The full council votes on entering executive session. Because the sessions are typically listed on the meeting agenda, councilmembers will often motion to enter executive session at the specified point in the agenda.

Q. Once in executive session, can the council discuss any topic?

Since FOIA requires that the council vote on entering executive session only to discuss a specifically identified matter, the council must confine its executive session discussion to that matter only. Some councils will place a motion on the agenda to verify that only those items stated in the motion to enter executive session were discussed during the executive session. 

Q. 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. 

As noted in SC Code Section 30-4-70(b), councilmembers "may not commit the public body to a course of action by a polling of members during executive session." SC Code Section 30-4-70(c) specifically states that "no chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of" the SC Freedom of Information Act.

Q. Can a council vote to enter executive session without an item appearing on the

The council can vote to enter executive session this way. However, SC Code Section 30-4-80 places restrictions on the council’s ability to add action items to the agenda after the 24-hour public notice period required by FOIA, and in most cases, agenda items cannot be added. 

Because of this, a council that enters executive session without the session and the subsequent action items listed on the agenda would not be able to take action afterward during the meeting. Councils with an executive session listed on the agenda can indicate on the agenda that when they return to open session, the council may take action on the matters discussed in executive session. 

Q. Who may be allowed into an executive session?

Only the elected or appointed members of the public body meeting in executive session have the right to attend to executive the session. But the public body may, by majority vote or consent, allow additional participants to join the members in executive session. For example, the public body may allow human resources staff to join an executive session on a personnel matter, or attorney to join an executive session on a legal matter. Council may choose to allow the clerk to join the session, but if so, the clerk should not take minutes.

Q. 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. These actions can result in injunctive relief, civil fines, awards of attorney's fees and invalidation of official actions related to the violation. 

Beyond the legal consequences, improper use or overuse of executive session can greatly erode public trust in government. If residents see their councilmembers frequently entering into executive session, they are likely to assume that their elected officials are aiming to hide their actions. In cases where councilmembers feel that an executive session discussion should have taken place in open session, they should share their concerns with the rest of council and ask for the municipal attorney’s advice before sharing any information.

Learn more about executive session in the Public Official's Guide to Compliance with the S.C. Freedom of Information Act online.