Could one Allendale town council member inspect personnel, town-paid phone, and contract records without a council vote?

Plain-English summary

Allendale's town attorney asked in 2014 whether a single council member could inspect town employee personnel files, town-paid cell phone records, and professional contracts without first obtaining a majority vote. The South Carolina Attorney General said a council member needed access to records to perform the elected role and could review personnel and financial documents to gather information, even though a municipal council generally made decisions as a body.

The opinion drew a clear limit for attorney-client privileged material. It cited a state supreme court decision saying a single council member could not review such documents unless the entire council waived the privilege. It also said an administrator could not deny access to financial records but need not provide them in a particular manner. Access to information did not give one member independent authority to act for the council.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was a council vote needed before one member could see town personnel files?
A: The opinion said no for information gathering; it viewed access to personnel records as part of a council member's work.

Q: Were town-paid phone bills and professional contracts included?
A: Yes. The office treated those as financial documents a council member should be able to review.

Q: Could one member demand privileged legal advice?
A: No. The opinion said the full council had to waive attorney-client privilege before an individual member could review privileged documents.

Q: Could the member direct town action alone after reviewing records?
A: The opinion distinguished record access from acting for council, which generally had to act as a body.

Background and legal framework

The opinion drew on prior AG advice about local legislators' access to government records and a South Carolina Supreme Court decision involving county council documents. It applied those principles to a town under the council form of government.

Citations and references

The opinion discussed South Carolina's Freedom of Information Act and the state supreme court's analysis of council member access to financial and privileged records.

Official title

Regarding whether an individual member of a town council in a council form of government, without prior vote of a majority of council, has authority to independently review employee personnel files, cell phone records which are paid for by the town, and professional contract documents.

Requester

J. Martin Harvey, Esq., Allendale Town Attorney.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-16-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/10/Harvey-M.-OS-9813-Final-Opinion-10-16-2014-00469837xD2C78.pdf

Original opinion text

°i% 13

^'^OUTtt0^
Alan Wilson
attorney General

October 16, 2014

J. Martin Harvey, Esq.
Allendale Town Attorney
PO Box 705
Barnwell, SC 29812

Dear Mr. Harvey:

This Office received your request for an opinion as to whether an individual member of a town council in a council form of government, without prior vote of a majority of council, has authority to independently review employee personnel files, cell phone records which are paid for by the town, and professional

contract documents.
LAW/ANALYSIS:

An individual council member cannot act independently of a town council unless such authority is provided for by law.

Instead, a municipal council can generally only act as a body.

See Ojt S.C. Atlv.

Gen.. September 13, 2007 (2007 WL 4284633); Op. S.C. Attv. Gen.. Op. No. 84-1 1 1. September 6, 1984 (1984 WL 159918).

However, a city council member has legislative duties, which include the gathering of information.

We

have formerly stated:
Courts have recognized that the scope of performance of a legislator's duties is not limited to those acts in a legislative assembly meeting. . . In addition, courts have concluded that other acts of a legislator, including informal as well as formal information gathering, are part of his or her legislative duties.

In

Williams v. Johnson. 597

F.Supp.2d

107,114

(D.D.C. 2009), the Court, per Kollar-Kotelly, J. stated as follows:
... the Supreme Court has never addressed whether the

[Speech or Debate] Clause covers informal, as well as
formal, information gathering by a legislator, and lower
courts are divided on the question. See Jewish War
Veterans fv. Gates). 506 F.Supp. 30. 54 (D.D.C. 2007).
The
-

Court,

however,

agrees

with

the

well-reasoned

decision by Judge John D. Bates in Jewish War Veterans
in which Judge Bates concluded that investigation and
information gathering by a legislator - whether formally
or informally conducted - is protected by the Speech or

RembertC. Dennis Building

.

post Office Box 11549

. Columbia, SC 292 1 1-1549

• Telephone 803-734-3970

. Facsimile 803-253-6283

J. Martin Harvey, Esq.

Page 2

October 16, 2014

Debate Clause "so long as the information is acquired in

connection with or in aid of an activity that qualified as
'legislative' in nature." 506 F.Supp.2d at 57. That is, the

Court is persuaded that, regardless of whether conducted
formally or informally, "the acquiring of information [is]
an activity that is a 'necessary concomitant of legislative

conduct and thus should be within the ambit of the
privilege so that [legislators] are able to discharge their
duties properly.'" Dominion Cogen rD.C. Inc. v. District

of Columbial. 878 F.Supp. 258 (D.D.C. 1995) at 263;
see also Alliance for Global Justice fv. District of
Columbial. 437 F.Supp.2d 32 (D.D.C. 2006) at 36.

Op. S.C. Attv. Gen.. June 19, 2013 (2013 WL 3362070).
Furthermore, we have concluded in prior opinions that a member of a municipal or county council has the ability to access records. "It is also worth noting that this Office has long been of the opinion that each member of a county or city council should be given access to all records of the county or city (whichever is applicable)." ]d. In a prior opinion, we determined that a county council member who was conducting

his own investigation and who sought to obtain personnel records of county employees directly from the personnel office instead of going through the County Administrator had the right to access the personnel

records. Op. S.C. Attv. Gen.. August 18, 1983 (1983 WL 181974).

In another opinion, we concluded that a mayor could not stop members of a town council from obtaining minutes of the meetings and copies of contracts.

Our reasoning was that "[a] member of a governing

body of an entity needs access to the records of such entity to be able to do the job he or she was elected to do." We also reasoned that minutes of all proceedings of public bodies, except for those closed to the

public, as well as information in contracts dealing with receipt or expenditure of public funds by public bodies are public information under the Freedom of Information Act, S.C. Code Ann. § 30-4-10 et seq. Op. S.C. Attv. Gen.. September 23, 1 997 (1 997 WL 665446).

Our State Supreme Court clarified the documents which could be reviewed by council members in Wilson v. Preston. 378 S.C. 348, 662 S.E.2d 580 (2008). The Court held that an "Administrator cannot deny a council member access to county financial documents" but that "the law does not require the Administrator to give the documents to a single council member in any particular manner." However,

the Court found that an individual council member cannot review attorney-client privileged documents

unless the entire council waives the attorney-client privilege.

CONCLUSION

As a result of the aforesaid, we believe that a council member, regardless of the form of city or county government, should have access to personnel records and financial documents, such as cell phone records which are paid for by the town and professional contract documents, in order to gather information.

J. Martin Harvey, Esq.
PageS
October 16, 2014

Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General