Does announcing a vague 'employment matter' satisfy South Carolina's FOIA before a public body goes into executive session?

Official title

Opinion on whether the Charleston County School District complied with FOIA requirements during its September 25, 2023 meeting.

Requester

Requested by The Honorable Marvin R. Pendarvis, Member, South Carolina House of Representatives.

Plain-English summary

A state representative asked whether the Charleston County School District (CCSD) complied with South Carolina's Freedom of Information Act (FOIA) at its September 25, 2023 meeting. At that meeting the school board went into executive session to discuss an "employment matter," then came back and voted to place the superintendent on paid administrative leave pending an investigation. The district's interim general counsel had concluded the board followed FOIA.

The Attorney General's office began with an important limit on its role: it cannot decide in an advisory opinion whether FOIA was actually violated at a particular meeting. Only a court that has all the facts can do that. What the office can do is state the law and predict how a court would likely rule.

On that basis, the office concluded a court would probably find FOIA's requirements for going into executive session were not met. FOIA lets a public body close a meeting to discuss employment of an individual, but Section 30-4-70(b) requires the body to announce the "specific purpose" of the executive session first. The office and the South Carolina courts have long held that a generalized label like "personnel matters" or "contractual matters" is not specific enough. The office treated "employment matter" the same way, so it concluded the board's announcement likely fell short.

What this means for you

School boards and other public bodies: The opinion reads Section 30-4-70(b) to require more than a generic label before an executive session. Under the prior opinions and cases it cites (notably Donohue v. City of North Augusta), announcing only "employment matter," "personnel matters," or "contractual matters" likely fails the "specific purpose" requirement, and the South Carolina Supreme Court has said such a failure is not a mere "technical violation."

Board attorneys and clerks: The opinion's stated advice is to consult the Attorney General's prior FOIA opinions and the Supreme Court's decisions and follow them, rather than announcing an executive session by catchphrase. Its long-standing watchword is "when in doubt, disclose."

Journalists and members of the public: The opinion frames FOIA as designed to protect the public from secret government activity, to be liberally construed (Campbell v. Marion County Hosp. Dist.). Under this opinion, the public is entitled to know more about why a body is meeting privately than a generic phrase conveys.

Common questions

Can a South Carolina public body close a meeting to discuss an employee?
Yes. The opinion notes FOIA (Section 30-4-70(a)(1)) allows a closed executive session to discuss the employment, discipline, or release of an employee. The issue here was not whether the board could close the meeting, but how it announced the reason.

Why wasn't announcing an "employment matter" enough?
Because Section 30-4-70(b) requires the body to state the "specific purpose" of the executive session. The opinion explains that the office and the courts have treated generic labels like "personnel matters" and "contractual matters" as too vague, and it placed "employment matter" in that same category.

Did the AG rule that the school board broke the law?
No. The opinion is explicit that the office cannot adjudicate whether FOIA was violated, that only a court can. It predicted that a court would probably find the executive-session requirements were not met.

What does the "specific purpose" requirement actually demand?
Drawing on a 1988 opinion and case law, the opinion describes "specific" as precise, definite, and explicit, the opposite of general. In Donohue v. City of North Augusta, the South Carolina Supreme Court held that announcing a "proposed contractual matter" did not satisfy the requirement and that FOIA was violated.

Background and statutory framework

South Carolina's FOIA declares (S.C. Code Ann. § 30-4-15) that public business should be conducted openly so citizens can learn what their officials are doing. The courts have read the Act as remedial, to be construed liberally to protect the public from secret government activity (Campbell v. Marion County Hosp. Dist., 354 S.C. 274, 580 S.E.2d 163 (2003)).

FOIA permits closed executive sessions for limited reasons, including discussion of the employment or discipline of an individual employee under Section 30-4-70(a)(1). But Section 30-4-70(b) requires the body to vote in public to go into executive session and to announce the "specific purpose" of that session. The opinion traces a consistent line of authority that a generic announcement is not enough: a 1988 AG opinion rejected "personnel matters" as compliant; Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862 (2001), held FOIA prohibits formal action in executive session and called a specific-purpose failure more than a technical violation; and Donohue v. City of North Augusta, 412 S.C. 526, 773 S.E.2d 140 (2015), held that announcing a "proposed contractual matter" violated the requirement. The opinion also cites Miramonti v. Richland School Dist. One, 438 S.C. 612, 885 S.E.2d 406 (Ct. App. 2023), and Brock v. Town of Mt. Pleasant, 411 S.C. 106, 767 S.E.2d 203 (Ct. App. 2014), on what announcements are and are not sufficient. The opinion separately notes Section 30-4-80(A)'s 24-hour notice rule for adding agenda items, which counsel said the district satisfied.

Citations

Statutes: S.C. Code Ann. § 30-4-15; Section 30-4-70, including 30-4-70(a)(1) and 30-4-70(b); Section 30-4-80(A); Act No. 118 of 1987.

Cases: Campbell v. Marion County Hosp. Dist., 354 S.C. 274, 580 S.E.2d 163 (2003); Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862 (2001); Donohue v. City of North Augusta, 412 S.C. 526, 773 S.E.2d 140 (2015); Miramonti v. Richland School Dist. One, 438 S.C. 612, 885 S.E.2d 406 (Ct. App. 2023); Brock v. Town of Mt. Pleasant, 411 S.C. 106, 767 S.E.2d 203 (Ct. App. 2014).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-the-charleston-county-school-district-complied-with-foia-requirements-during-its-september-25-2023-meeting/
• Original PDF: https://www.scag.gov/media/wfbjehss/03409255.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

October 9, 2023

The Honorable Marvin R. Pendarvis, Member
South Carolina House of Representatives
328-A Blatt Building

Columbia, SC 29201

Dear Representative Pendarvis:

You seek our opinion regarding “whether the Charleston County School District
complied with FOIA requirements during its September 25, 2023 meeting.” At that meeting, as
we understand it, the School Board went into executive session to discuss an “employment
matter” and, upon returning, voted 5-4 to place the Superintendent on paid administrative leave,
pending the outcome of an investigation of his actions.
attached the memorandum of Alice Paylor, Interim General Counsel, Charleston County School
District, dated October 4, 2023. Ms. Paylor is of the opinion that the Board “complied with the

requirements of FOIA... .” Her memorandum states as follows:

ROBERT C. DENNIS BUILDING • POST OFFICE BOX 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970

. . . LyJou have requested that I provide you with a legal opinion concerning the
CCSD Board of Trustees’ compliance with FOIA at its September 25, 2023, meeting.
I was present at the meeting, and, in my legal opinion, the Board complied with the
requirements of FOIA as set forth below.

Section 30-4-80(A), SC Code, provides in pertinent part: “Once an agenda for a
regular, called, special, or rescheduled meeting is posted pursuant to this subsection,
no items may be added to the agenda without an additional twenty-four hours notice
to the public, which must be made in the same manner as the original posting.”

The District complied with this section when the agenda was changed on September
22, 2023, and the posting was updated to reflect that change.

Section 30-4-70 provides when meetings of a public body may be closed and states in
pertinent part:

“(a) A public body may hold a meeting closed to the public for one or more of the
following reasons:

(1) Discussion of employment, ... discipline or release of an employee ... by a
public body...

By way of background you have

FACSIMILE 803-253-6283

The Honorable Marvin R. Pendarvis
Page 2
October 9, 2023

“(b) Before going into executive session the public agency shall vote in public on the
question and when the vote is favorable, the presiding officer shall announce the
specific purpose of the executive session. As used in this subsection, ‘specific
purpose’ means a description of the matter to be discussed as identified in items (1)
through (5) of subsection (a) of this section. However, when the executive session is
held pursuant to Sections 30-4-70(a)(1) ..., the identity of the individual ... being
discussed is not required to be disclosed to satisfy the requirement that the specific
purpose of the executive session be stated. No action may be taken in executive
session except to (a) adjourn or (b) to return to public session. The members of a
public body may not commit the public body to a course of action by a polling of
members in executive session.”

At the September 25, 2023 regular meeting of the CCSD Board of Trustees, the
agenda reflected that there was an item to be discussed in executive session
concerning an employment matter, as allowed by 30-4-70(a)(1). During the
executive session, the Board members discussed placing the Superintendent on paid
administrative leave. There was no polling of the members. Executive session was
properly adjourned, and the Board returned to the public setting. As the items came
up on the agenda, the Board voted unanimously to authorize an investigation into a
complaint against the superintendent, and a majority of the Board voted to place the
superintendent on administrative leave with pay pending the outcome of the
investigation. All requirements of FOIA were met.

According to Ms. Paylor, prior to going into executive session, the Board informed the public
that in executive session, the Board would discuss “an employment matter.” Thus, the question
is whether such announcement meets the requirements of FOIA.

Law/Analysis

Of course, this Office is unable, in its advisory opinion, to adjudicate whether FOIA was
violated in a given instance. Only a court, in possession of all the facts, and with the authority to
resolve cases or controversies, may do so. As we previously stated, your questions relate to “the
legality of meetings [which concern] factual determinations which this Office [cannot make] in
this situation.” Op. S.C. Att’y Gen., 2015 WL 4497735 (July 6, 2015). Here, we have only Ms.
Paylor’s memorandum and her conclusion that FOIA requirements were met. However, as we
advised in our 2015 opinion, “[w]hat we can do is recite the law regarding . . . concerns about the
meeting that took place.” Based upon our prior opinions, and the decisions of our courts, we
believe a court would likely conclude that FOIA’s requirements for convening in executive
session were not met.

In interpreting South Carolina’s Freedom of Information Act (“FOIA”), we must keep in
mind the purpose of the Act as set forth by the General Assembly:

The Honorable Marvin R. Pendarvis
Page 3
October 9, 2023

[t]he General Assembly finds that it is vital in a democratic society that public
business be performed in an open and public manner so that citizens shall be advised
of the performance of public officials and of the decisions that are reached in public
activity and in the formulation of public policy. Toward this end, provisions of this
chapter must be construed so as to make it possible for citizens, or their
representatives, to learn and report fully the activities of their public officials at a
minimum cost or delay to the persons seeking access to public documents or
meetings.

S.C. Code Ann. § 30-4-15. Based upon this intent of the General Assembly, our courts have
determined that “[t]he essential purpose of the FOIA is to protect the public from secret
government activity. South Carolina’s FOIA was designed to guarantee the public reasonable
access to certain activities of the government. The FOIA is remedial in nature and should be
liberally construed to carry out the purpose mandated by the legislature.” Campbell v. Marion
County Hosp. Dist., 354 S.C. 274, 280-81, 580 S.E.2d 163, 166 (2003) (citations and quotations
omitted).

FOIA authorizes a public body to enter executive sessions in certain limited
circumstances. For example, Section 30-4-70(a) provides that:

(a) A public body may hold a meeting closed to the public for one or more of the
following reasons:

(1) 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 any 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.

This Office has consistently advised “that executive sessions should be used sparingly and that
the FOIA does not require that they be employed at all should the public body choose not to do
so.” Op. S.C. Att’y Gen., 2016 WL 963697 (February 11, 2016). It appears that the foregoing
reason for the executive session referenced above is applicable here. Further, Subsection (b) of §
30-4-70 provides the proper procedure for entering executive session. Such provision requires:

[bJefore going into executive session the public agency shall vote in public on the
question and when the vote is favorable, the presiding officer shall announce the
specific purpose of the executive session. As used in this subsection, “specific
purpose” means a description of the matter to be discussed_as identified in items (1)
through (5) of subsection (a) of this section. However, when the executive session is
held pursuant to Sections 30-4-70(a)(1) or 30-4-70(a)(5), the identity of the
individual or entity being discussed is not required to be disclosed to satisfy the
requirement that the specific purpose of the executive session be stated. No action

The Honorable Marvin R. Pendarvis
Page 4
October 9, 2023

may be taken in executive session except to (a) adjourn or (b) return to public
session. The members of a public body may not commit the public body to a course
of action by a polling of members in executive session.

(emphasis added). See Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 165, 547
S.E.2d 862, 866 (2001) (“FOIA prohibits any formal action to be taken in executive session.”).

We have considered the meaning of the “specific purpose” provision of § 30-4-70(b) in
prior opinions. In Op. S.C. Att’y Gen., 1988 WL 383492 (Op. No. 88-9) (January 26, 1988), for
example, we commented upon the appropriateness of convening in executive session pursuant to
§ 30-4-70(a)(1) by announcing in public that the public body sought to discuss “personnel
matters.” There, we advised:

Additionally, this Office was asked about the appropriateness of requesting an
executive session to discuss personnel matters without stating the specific action to
be discussed. As noted above, Section 30-4-70(a)(6) now requires that ‘the specific
purpose of the executive session’ be announced. The word ‘specific’ was added by
Act No. 118 of 1987 and means ‘precise,’ ‘definite,’ ‘explicit,’ Robert Bosch
Corporation v. United States, 305 F.Supp. 921, 924 (U.S. Cust. Ct. 1969); more than
perfunctory or general, Ed Hall Drilling Company v. Profitt, 424 §.W.2d 403 (Ky.

Ct. App. 1968); the very opposite of ‘general.’ State ex rel. State Railway
Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 ( 1949).

Because the General Assembly has mandated that the specific purpose of an
executive session be announced prior to so convening, we do not deem an
announcement that ‘personnel matters’ will be deemed to be in compliance with
Section 30-4-70(a)(6).

(emphasis added).

Likewise, in Donohue v. City of North Augusta, 412 S.C. 526, 773 S.E.2d 140 (2015),
the Supreme Court of South Carolina concluded that announcement of the purpose of an
executive session — the discussion of a “proposed contractual matter” — did not satisfy the
“specific purpose” requirement of § 30-4-70(a) and thus “FOIA was violated.” 773 S.E.2d at
142. Quoting Quality Towing, supra, the Donohue Court explained that

FOIA is clear in its mandate that the “specific purpose” of the [executive] session
“shall be announced.” .... Therefore, FOIA is not satisfied merely because citizens
have some idea of what a public body might discuss in private.

Moreover, the Donohue Court noted that in Quality Towing, the Court had rejected the argument
that a violation of the “specific purpose” requirement was merely a “technical violation.”
According to the Court, “given the history and purpose of FOIA, this was more than a ‘technical
violation.’ The statute clearly mandates the specific purpose of the session must be announced.”
412 S.C. at 532, 773 S.E.2d at 143 (quoting Quality Towing, 345 S.C. at 164, 547 S.E.2d at 866).

The Honorable Marvin R. Pendarvis
Page 5
October 9, 2023

See also Miramonti v. Richland School Dist. One, 438 S.C. 612, 616, 885 S.E.2d 406, 408 (Ct.
App. 2023) [“. . . a public body is forbidden from entering executive session without complying
with Section 30-4-70(b) of the South Carolina Code. ...”].

Likewise, in Brock v. Town of Mt. Pleasant, 411 S.C. 106, 767 S.E.2d 203 (Ct. App.
2014), aff'd as modified, 415 S.C. 625, 785 S.E.2d 198 (2016), the Court of Appeals addressed
the ‘specific purpose” provision of FOIA in several respects. The Court upheld the Town
Council’s notice of purpose of an executive session in two particulars — “legal advice pertaining
to O.K. Tire Store” and “personnel matters related to the clerk of council.” On the other hand,
the Court found insufficient the Town Council’s announcement of purpose at another meeting,
noting that “[a]nnouncing it would discuss ‘legal matters’ or obtain ‘legal advice’ on a particular
issue was an insufficient announcement when Town Council obtained individual attorneys for
‘all lawsuits now and in the future as a result of the executive session discussion.” 411 S.C. at
122, 767 S.E.2d at 211.

It is our understanding that Mr. Jay Bender, a leading expert on the First Amendment and
South Carolina’s FOIA, has advised the Charleston Legislative Delegation that the School
Board’s announcement prior to entering executive session was legally flawed and violative of
FOIA. Mr. Bender concluded:

[t]he statement of the purpose of the executive session failed to satisfy the specificity
requirement of the law. Numerous opinions by the Attorney General have concluded
that the statements of “personnel matters” or “contractual matters” does not comport
with the law. Additionally, the Supreme Court of South Carolina held in Donohue v.
City of North Augusta, 412 S.C. 526, 773 S.E.2d 140 (2015) that the statements of
the purpose of an executive session to discuss negotiations incident to a proposed
contractual matter was insufficient as a matter of law.

Thus, it is well established that announcement of an “employment matter” does not meet FOIA’s
“specific purpose” requirement for going into executive session.

Conclusion

Of course, this Office may not adjudicate the validity of an action of a public body, such
as the Charleston County School Board, under FOIA. Only a court with the authority to
determine facts and to resolve cases or controversies may do so. However, our advisory
opinions provide the applicable law and typically attempt to predict how a court may rule. The
watchword of our FOIA opinions for decades has been “when in doubt, disclose.” Based upon
our prior opinions and the decisions of the South Carolina Supreme Court, we are of the opinion,
with the information before us, that a court would probably find that the requirements of FOIA
regarding a public body convening in executive session were here not met.

Our opinions have long concluded that announcement of an executive session through a
generalized purpose such as “personnel matters” or “employment matters,” (as apparently was

The Honorable Marvin R. Pendarvis
Page 6
October 9, 2023

the case here to discuss placing the Superintendent on administrative leave) are not in
compliance with FOIA’s requirement that the “specific purpose” of the executive session must
be announced. As we advised thirty-five years ago in Op. S.C. Att’y Gen., 1988 WL 383492
(January 26, 1988), “. . . we do not deem an announcement that ‘personnel matters’ [or other
generalized catch phrases] will be deemed in compliance with [FOIA].” We have reiterated this
interpretation ever since. The public, in our view, has a right to know more about the purpose of
an executive session than such generalized reasons.

Our Supreme Court agrees with this principle. In Donohue v. City of North Augusta, 412
S.C. 526, 773 S.E.2d 140 (2015), the Supreme Court found that a generalized announcement of
an executive session (“proposed contractual matter”) violated FOIA’s “specific purpose”
requirement for convening in executive session. The Court in Donohue concluded that “FOIA is
not satisfied merely because citizens have some idea of what a public body might discuss in
private.” Further, Donohue found that violation of the “specific purpose” requirement was not
merely a “technical violation,” but was one which required reversal of the circuit court’s
decision.

Finally, we note that Mr. Jay Bender, South Carolina’s foremost FOIA expert, has
advised that FOIA was violated in this instance. Mr. Bender observed, as we do here, that
“[nJumerous opinions by the Attorney General have concluded that the statements of ‘personnel
matters’ or ‘contractual matters’ [do] not comport with the law.” He also referenced Donohue as
supportive of that principle.

In short, our advice to the Board would have been to consult these opinions of the
Attorney General and to follow these decisions of the Supreme Court instead of announcing the
. executive session by mere catchphrase. The purpose of FOIA is to provide the public with as
much information as possible in the interest of transparency. As we have previously stated,
“[e]ven though executive sessions should be used infrequently, they nevertheless may be
employed for the authorized reasons set forth in the statute, provided the statutory procedure is
met.” Op. S.C. Att’y Gen., 1996 WL 679433 (October 8, 1996) (emphasis added). A court
could well conclude such procedure was not met here.

Sincergly,

Robert D. Cook Cm

Solicitor General