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I got a call from a school board member recently asking what to do when her board goes into executive session and then talks about things that cannot legally be discussed there.
“Can I speak out about this without being sanctioned?” she asked.
My response to her was two-fold. Of course she can speak out - and in fact, I think she has an obligation to do so. Public officials do not give up their First Amendment right to free speech when they take office. And a board or council cannot legally sanction a member who does speak out - only the voters can do that.
Secondly, I suggested that when this happens, she should object to the illegal discussion, and if it continues, pull out a hand-held tape recorder, turn it on and put it down in front of her. My bet is that the illegal meeting would end immediately.
I think that if a few right-thinking public officials followed this course of action, illegal executive sessions would come to an end in our state. But the effort to stifle legitimate discussion of what happens in executive session continues to be formalized all across our state.
In Georgetown, the town council is considering an amendment to deal with confidentiality of executive sessions.
The wording being considered for addition to an ordinance states, “except as required by law...it shall be unlawful for a member of council or person in attendance at an executive session of the council to disclose to another person or make public the substance of a matter discussed” in the meeting. Other public bodies have similar policies.
Sorry guys and gals, but a local ordinance doesn’t trump the First Amendment. Let me also say this secret discussion of business that the law says must be done in public is not an isolated problem.
It happens at school boards and government councils across South Carolina every week – especially school boards.
Here’s my challenge to public officials. Stand up for open government. The next time your board or council takes what you perceive to be an action illegal under the Freedom of Information Act (FOIA) in executive session, speak up. If it continues, pull out a tape recorder and put in on the desk in front of you. I almost guarantee the illegal meeting will stop.
Don’t get me wrong. There are certainly many things discussed in executive session that should be kept there. That’s not what I am talking about.
This summer the S.C. Press Association - through its member newspapers - is distributing nearly 6,000 copies of the “Public Officials’ Guide to the Freedom of Information Act” to public officials across our state. So there should be no excuse about not understanding the law about executive session. The book is also available online at www.scpress.org/foia.html.
And don’t be bamboozled by some lawyers who have made a fortune giving bad FOIA advice and then billing the public body to defend the lawsuits that follow.
Public officials have the right to object and speak out about abuse of the FOIA in executive session. I implore them to do so. All that is required to have honest, open government is courage and a $20 tape recorder.
Bill Rogers is executive director of the S.C. Press Association.