By Don Moniak
December 11, 2023

Closed-door Executive Sessions are allowed by the South Carolina Freedom of Information Act’s (SC FOIA) Open Meetings provisions. A key word in the law is “may:”

“A public body may hold a meeting closed to the public for one or more of the following reasons…” SC-30-4-70(a).

There is no “must” or “shall” in the language, but the implication in many exemptions can be interpreted as “should.”

Attorney General Alan Wilson is on the record endorsing public bodies to err on the side of openness:

“The Attorney General’s Office uses and recommends the following FOlA guidelines:
• When in doubt, disclose the public record.
• When in doubt, post the time, place, and purpose of the meeting.
• When in doubt, open the meetings to the public.”
(South Carolina Press Association’s Public Official’s Guide to Compliance with the S.C. Freedom of Information Act.

Tonight, December 11, 2023, Aiken City Council is scheduled to hold an Executive Session that likely involves little to no doubt about closing the meeting. In contrast, an Executive Session held on September 11, 2023, appears to have involved tremendous doubt as to the legitimacy of closing that meeting.

The December 11, 2023 Executive Session

Aiken City Council announced on Thursday, December 7th, that it will enter into a closed-door Executive Session prior to its regularly scheduled, open public meeting at 7 pm on December 11th. The exact subject to be discussed is unknown, but the general subject and purpose is identified in the notification.

The South Carolina Freedom of Information Act (SC 30-4) has two key mandates before public bodies can enter into a closed-door Executive Session:

1. The exemptions listed under SC 30-4-70 that allow closed meetings must be identified.
2. The purpose of the closed meeting must be specified.

The December 11th Open Meetings Exemptions

The Executive Session notification lists Exemptions 1 and 2 of SC FOIA Open Meetings law.

Exemption 1 involves:

“Discussion of employment, appointment, compensation, promotion, demotion, discipline, or release of an employee, a student, or a person regulated by a public body or the appointment of a person to a public body; however, if an adversary hearing involving the employee or client is held, the employee or client has the right to demand that the hearing be conducted publicly. Nothing contained in this item shall prevent the public body, in its discretion, from deleting the names of the other employees or clients whose records are submitted for use at the hearing.”

Exemption #2, as it pertains to this Executive Sesssion, involves:

“…the receipt of legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege, settlement of legal claims, or the position of the public agency in other adversary situations involving the assertion against the agency of a claim.”

Specific Purpose

In 2015, the South Carolina Supreme Court, in the case of Stephen Donahue vs The City of North Augusta et al ruled in favor of Mr. Donahue in regard to an alleged SC FOIA Open Meetings violation, writing that:

“FOIA is clear in its mandate that the ‘specific purpose’ of the session ‘shall be announced.’ (emphasis added in original opinion). Therefore, FOIA is not satisfied merely because citizens have some idea of what a public body might discuss in private….the statute clearly mandates the specific purpose of the session must be announced.”

In its notification, Aiken City Council has already specified the purpose for this Executive Session:

“Specifically, the City Council will receive legal advice regarding the possible settlement of a threatened claim against the City.“

This closed meeting involves an employee or client matter and a threatened claim being made by an employee or client against the city. Unless an employee or client demands the discussion be conducted in the open, the matter can be rightfully closed, and should be closed. However, City Council is not restricted from sharing a summary of the proceedings that protects the rights of the employee or client.

The September 11, 2023 Executive Session

On September 11, 2023, Aiken City Council held a two-part Executive Session. Exemption #2 was cited for both agenda items, “negotiations incident to proposed contractual arrangements and the proposed sale or purchase of property.”

The second agenda item involved the “purchase, sale, and leasing” of property for the Savannah River National Laboratory (SRNL).”

No representatives from SRNL were identified as attendees at the meeting.

The Aiken Corporation has a $250,000 no-bid contract with the City of Aiken for predevelopment work on the SRNL/“Mixed Use” project that includes lease negotiations with third parties. Six members of the Aiken Corporation’s Board of Directors were present at the meeting, but the their attorney who is charged with lease negotiations with SRNL and other third parties was, like SRNL, not listed as an attendee. (Figure 2).

Present at the meeting were two members of the Aiken Corporation’s subcontractor McMillan Pazdan and Smith (MPS), whose contract does not involve lease negotiations.

According to a September 14th email (Figure 3), from K.J. Jacobs to Tracey Turner of Turner Development, MPS presented a “progress report” to City Council on September 11th.(1)

The meeting minutes from the regular meeting do not identify MPS as present during the regular meeting, therefore the “progress report” was made in Executive Session instead of being offered during presentation portion of the open, regular meeting.

How a progress report from a subcontractor, who is contractually uninvolved in lease negotiations, qualified under SC FOIA for a closed-door meeting involving leases, is a subject for City Council and the City Attorney to explain.

Footnote

(1) As reported in The Devil is in the Details and The Bomb Plant Reveal Bombs, MPS presented its “Feasibility Study” to the general public on Thursday, September 14th. Did Aiken City Council merely have a sneak preview of that presentation on September 11th? If so, what prevented Council from placing the MPS presentation on the public agenda that very day; instead of having a private meeting with six Aiken Corporation Board members and its subcontractor?