BC-SC--FOIA-Audit, Adv13,1280
For release Sunday, Nov. 13
Audit shows weakness, strength in following secret meeting laws
Eds: For the first day of a three-day FOIA series
With BC-FOIA-Audit-Quotes, BC-FOIA-Methodology, BC-FOIA-Saying No, BC-FOIA-Saying No-Glance
AP Photos SCCHA101-104, XGRV101, SCMYR201, SCCOL203
AP Graphic planned
By JIM DAVENPORT
Associated Press Writer
COLUMBIA, S.C. (AP) _ A quarter of elected officials in a statewide survey say they've broken state law by letting their closed-door session stray beyond what they promised the public they would discuss while out of sight and earshot.
But public officials were agreeable to a solution that may keep them from breaking that promise in the future: signing sworn statements that they don't stray when the public isn't there to hold them accountable.
Those are two key findings of an audit of board and council practices by The Associated Press, South Carolina Press Association and newspapers.
Nearly 200 county council and school board members responded to the 13-question survey. The survey is not a poll or a scientific sampling that would suggest what the typical public official would do, but it does reflect how participants say they handle the privilege state law grants them to discuss some of the public's business in private.
Executive sessions are puzzling enough to citizens trying to observe how their elected officials handle taxpayers' business.
Last month, Cindy and Doug Myers went to their first Abbeville County Council meeting as they tried to prevent rezoning of property across the street from their home. They found themselves waiting in the hall while the council went into executive session to discuss personnel and economic development issues.
"Anything that needs to be said should be said in public," Doug Myers said. "They're discussing public things, things that involve the public. I don't see why they should have a closed-door session at all."
In Abbeville, just asking the questions about executive sessions produced blank stares and flat refusals.
Two county council members agreed to take the survey. One did but a reporter was later told to destroy the responses. Given a second chance a couple of weeks later, all the members refused after the county's lawyer warned them to be careful about their answers.
In Newberry County, 20-year county council veteran Henry Summer said the survey's questions would force him to compromise discussions shielded from the public. "It's kind of like saying you're committing adultery on your wife," Summer told a reporter. "It's not a 'yes' or 'no' question."
The law, however, is straightforward. It allows executive sessions for very limited purposes, such as discussing why a specific employee lost a job or how to lure an economic development project. The law also says public bodies have to vote in open session on the specific reason they're going behind closed doors. Any other voting they do has to wait until they return to public view.
No matter. Public bodies routinely usher out taxpayers by merely saying they're going to discuss "personnel issues" or a "legal matter," offering no details underlying those broad labels.
State Attorney General Henry McMaster said public bodies must be specific. The public needs "to know the issues that are being handled in executive session," McMaster said. It's part of building and keeping citizens' trust, he said. If officials break that trust, "the public loses all confidence in the public body," McMaster said.
The public may have reason to be less than confident. Survey results show a quarter of the school board and county council members have participated in an executive session where a topic other than the one specified was discussed.
"Often we move to go into executive session for legal matters but, once in, will take up personnel matters or economic development matters," said George H. "Smokey" Davis, a Lexington County Council member for nine years.
Sandra Engelman, with two years on the Charleston County School Board, said she's seen her board stray, too.
"The school board has a tendency to start talking about issues and items not listed on the agenda," she said. "The board doesn't get time to discuss such issues during a regular meeting, and they come up during executive sessions."
"Sometimes it is human nature to get off the subject, but we get back on it," said Jerry Oakley, who has been on Georgetown County Council for more than two years.
Mike Cone, executive director of the South Carolina Association of Counties, says he doesn't think officials are deliberately breaking the law. It's sometimes difficult to keep people on topic, he said.
Paul Krohne, executive director of the South Carolina School Boards Association, said he's been in executive sessions when the conversation strayed and has seen leaders pull the discussion back on track. It's never a deliberate attempt to talk about areas outside of the announced reason for an executive session, it's just the "nature of conversation," he said.
"The law, doesn't have an exception for the 'nature of conversation,'" McMaster said. "Compliance with the law requires some precision and discipline and determination."
In Georgia, legislators have added another element: accountability. Public officials there must sign affidavits swearing they didn't break the law in closed-door sessions by taking up undisclosed topics. In South Carolina, more than two-thirds of the surveyed board and council members said they would not object to signing that type of statement.
"I don't see the need to have them sign an affidavit to that effect," Cone said. Broad support for the notion probably is "indicative of the fact that they are not abusing executive sessions," he said.
"I don't know if that's a really good way to function as a public body," Krohne said.
School boards and county councils took starkly different views on another accountability concept: Should audio recordings be made of executive sessions so a judge could later deal with challenges that might arise about what was discussed? Among school board members, 71 percent disagreed with that idea. Among county council members, 54 percent disagreed.
That idea is the "greatest thing I have ever heard," said Clyde Livingston, a 10-year veteran of Orangeburg County Council.
Cheryl Mushrush, in her third year on the Dorchester District Four school board, disagreed.
"People have a tendency not to express themselves as openly or candidly when they know they're being taped, even if you tell them only a judge will hear it," she said.
McMaster maintains that the public meeting room is the place for candor. If officials don't have enough confidence in their positions to talk about them openly in public, "it's probably a pretty sorry position," he said.
Cone says there are concerns about how audio recordings would be secured. "Once you tape, it can easily get into other hands _ and it has," he said.
Public bodies don't keep minutes in closed-door sessions because decisions aren't made there, Krohne said. He wondered what good a tape would do. It is "almost as if you're assuming things are going on," he said.
That's actually what often happens, according to the survey. Forty percent of the school board members and a third of the council members said they thought their counterparts on other panels made decisions in secret.
"Ultimately, the public has to believe their elected officials aren't breaking the law in executive session," McMaster said.
But if they are "determined to retreat to some smoke-filled back room, there's very little we can do _ short of voting them out of office _ to protect ourselves," the attorney general said.
Cone agrees. "If the public feels they've been let down," he said, "the resolution to that is the ballot box at the next election."
BC-SC--FOIA-Audit-Quotes, Adv13,310
For release Sunday, Nov. 13
FOI audit responses in their own words
Eds: For the first day of a three-day FOIA series
With BC-FOIA-Methodology, BC-FOIA-Audit
AP Photo SCORA101
By The Associated Press
School board and county council members, police personnel and others had different perspectives on what the state's Freedom of Information Act requires them to do.
On whether school board or county council members stray from subjects they agreed to before entering executive session:
"The school board has a tendency to start talking about issues and items not listed on the agenda. The board doesn't get time to discuss such issues during a regular meeting, and they come up during executive sessions." _ Sandra Engelman, 2 years, Charleston County School Board.
"We tried that once or twice in my term, but the lawyers always say you can't discuss that. When you think about council being a part-time job, it's easy to forget the rules and regulations, but we get called on it when we do." _ Richard Rosebrock, 13 years, Dorchester County Council.
"That's not legal." _ David Summers, 27 years, Calhoun County Council.
"Sometimes it is human nature to get off the subject, but we get back on it." _ Jerry Oakley, 2 1/2 years, Georgetown County Council.
On whether board or council members objected to recording executive sessions so a judge might later be able deal with legal questions that arise:
"Greatest thing I have ever heard." _ Clyde Livingston, 10 years, Orangeburg County Council.
"It's in executive session, so there's no use having executive session if you're recording it." _ Larry Greer, 7 years, Anderson County Council.
"It inhibits candor." Jerry Oakley, 2 1/2 years, Georgetown County Council.
"People have a tendency not to express themselves as openly or candidly when they know they're being taped, even if you tell them only a judge will hear it." _ Cheryl Mushrush, 3 years, Dorchester School District 4 board.
BC-SC--FOIA-Methodology, Adv13,220
For release Sunday, Nov. 13
How information was gathered for the FOIA series
Eds: For the first day of a three-day FOIA series
With BC-FOIA-Audit
By The Associated Press
COLUMBIA, S.C. (AP) _ The Associated Press, South Carolina Press Association and newspapers across the state worked together on a project that gauged how school boards, county councils and law enforcement agencies handled different aspects of the state's Freedom of Information Act.
Reporters and editors asked county council and school board members about the state's laws on executive sessions, the closed-door meetings the law allows in extremely limited circumstances. Members of each of the state's 46 county councils were asked to participate, as were school board members in every county.
The responses are not a scientific poll that could predict how all county council or school board members would respond. They do reflect the positions of about 30 percent of the state's county council members and 15 percent of school board members on the 13-question survey.
To determine how police agencies handle requests from citizens seeking routine crime information, journalists visited 62 sheriff's offices and police departments to request crime incident reports. The journalists did not identify themselves as reporters or editors unless asked. They noted whether they were given access to the documents, how much they cost and whether they were asked for identification.