Reality Check: When does a Beaufort Council email exchange become a public meeting?

A South Carolina law designed to create increased openness and transparency in government is being applied by the Beaufort County Council in a way that has the opposite effect and several members are not happy about it.

The issue came to light during the exchange of emails among all the council people after a review of the county’s purchasing and procurement policies by a third-party law firm. The representative of the firm delivered only a verbal report to the council and made no mention of any written report to follow. The oral presentation stated that there was “laxity within Beaufort County government; that resulted in “flagrant violations of the procurement code.” Several on the council emailed each other about why there wasn’t a written report.

After the first pair of email exchanges, council chairman Joe Passiment sent a follow-up, partially all-caps email individually to each council member stating, “You received and (sic) email last night regarding the HSB investigation. DO NOT REPLY TO THIS EMAIL OR ANY OTHER EMAIL REGARDING THIS MATTER. Any reply, especially reply all will constitute an electronic meeting and be subject to FOIA.”

According to Taylor Smith, attorney for the South Carolina Press Association, Passiment was correct in his understanding of what constitutes a public meeting and an email with all council members on it qualifies as one and must be treated like all other public meetings. Smith’s expert opinion is, “Assuming that we’re discussing something over which their public body has supervision control, or some kind of power otherwise, then yes, that is definitely a meeting for purposes of the South Carolina Freedom of Information Act.”

Curtailing the dialogue has people wondering what’s going on

All of this leads to an increasing divide between the Beaufort County citizens and the open government they were promised. Shutting down dialogue in any forum to avoid letting the public know the details of the shoddy purchasing and procurement practices runs against the promise the county made after its strategic vision planning session, “Beaufort County Government remains dedicated to transparency, community engagement, and fostering positive outcomes for the local community.”

After nearly a year, the public knows very little about the any misconduct or wrongdoing in Beaufort County’s administrative level. But some council members are beginning to fight back against what they called the “cloak of secrecy.”

One member said he’s had enough with the push to keep things private, mostly through the use of behind-closed-doors meetings known as “executive sessions.”

“Everything I do should be subject to people,” Council Member Tom Reitz told the Island Packet and Beaufort Gazette “If they want it, they should get it and they should get it in a timely fashion.”

The county’s audit

In March a presentation was given to the county council in a public session that gave the public some insight into the purchase and contract audit the county council commissioned last year. The Greenville-based law firm, Haynesworth Sinkler Boyd, only made mention of major issues already known by the public (e.g. the weighted blankets, playground equipment, and the contract awarded to the consulting firm).

It has been previously reported that an email shared among the county council voiced concerns over the lack of a written report regarding the audit of county purchases and contracts. Now, after obtaining the email and responses to it through a Freedom of Information Act request, a clearer picture emerges of the council’s internal debate over what the public should and shouldn’t know.

Outcry for more open government from within

The email, written by Council Member David Bartholomew, states “If there is in fact a written report that has been generated by HSB (Haynsworth Sinkler Boyd), then I believe it is imperative that we, as council, received the written report. I understand that it would need to be submitted via executive session given the fact that it will most likely contain specific employee information which should remain confidential but nonetheless, we should have access to it without redactions or modifications. HSB was hired by us, the Council, and as such they have a fiduciary responsibility to us as their client. We are entitled to review any reports generated by them without redactions or modifications.”

Bartholomew concludes the email restating his push for additional transparency.

“Furthermore, I believe that we owe it to the people of this County to waive the attorney-client privilege and make any written report publicly available (with any necessary redactions of course). A large portion of our population has lost confidence in the government at every level and I believe that ultimately making any written report available to the public will help restore some level of trust with the people that put their faith in us to represent them,” he wrote.

In response to Bartholomew’s email, District 11 Councilman Thomas Reitz replied thanking his fellow council member for writing the email and supporting his sentiments.

“With the findings HSB presented 3.25.24, (the presenting attorney) regurgitated what we handed to HSB (blankets and playground equipment). So, in addition to what David is describing below, we paid a legal firm to provide us with what the public already knew,” Reitz wrote to all of the council. “Colleagues, I respectfully submit, this may not be something we should hang our hats on.”

“I agree with you as well, we waive attorney-client privilege and provide to our constituents/everyone, the real report(s) and everything (with any necessary redactions of course) we can surrounding this so that we start the process of restoring our constituents faith back in County Council,” Reitz concluded.

It was after this pair of email exchanges that Passiment told each member to stop circulating this council-wide email.

Directly in response to Reitz Council Member Tab Tabernik wrote “We have been advised many times not to use ‘reply all’ as it may constitute an ‘electronic meeting,’” before reiterating Passiment’s order. “All of our attorneys continue to give this same advice and it is important we adhere to it.”

Reitz fought back at the idea.

“Thank you for your concern,” he wrote. “There is no correspondence between any council members that I feel we should hide from any of our constituents. Other than employment issues, please let me know what you think we shouldn’t be transparent about with our constituents. I made a promise in my campaign, that I intend to keep that I will be fully transparent and honest in all my duties as a Council member. There’s no reason to operate under a cloak of secrecy if we are doing everything in the best interests of our constituents.”

“I can’t just sit there and guess ‘Okay, let me copy this group or not that group or reply all to this one but not reply all to that. I don’t get it,” Reitz said. “So when I get hammered by people like Tab saying, ‘you shouldn’t reply all,’ what the hell does that mean? Explain it to me. Why can’t the people get what we work on?”

Tabernik defended her position stating that if all 11 council members are corresponding through an email chain, then that is considered a meeting of county council. Her interpretation is also in line with Attorney Smith’s analysis of the FOIA law. Tabernik said avoiding using the reply all feature wasn’t an attempt to avoid transparency, but the opposite.

“If you’re going to have a conversation, it should be in a meeting,” she said. “If it involves various council members, it should be in a public meeting.”

“Because if you are going to go bantering back and forth among council members, you are violating the rule of having a public meeting,” she said.

Another FOIA request for any submitted documents from Haynesworth Sinkler Boyd resulted in multiple completely redacted files.