Beaufort board's attempt to go 'off record' raises concerns

February 14, 2014 

The mayor, city manager and city attorney agree it should not have happened.

And a lawyer who is an authority on South Carolina's open meeting laws says it was illegal.

A member of the city of Beaufort's Historic District Review Board interrupted a meeting Wednesday and asked to speak off the record. The chairman adjourned the meeting, the recording secretary stopped taking notes, and although a quorum was still present, members continued to discuss board business.

"We are taking steps to make sure that type of scenario doesn't play out again," city attorney Bill Harvey said.

The state's Freedom of Information Act, which applies to meetings of public bodies such as the Historic District Review Board, says a meeting is taking place whenever discussion or votes are conducted with a majority of members present, whether in person or electronically. Such bodies can conduct closed sessions, but only after voting to do so and only for reasons narrowly defined by law.

"There is no such thing as 'off the record' when you have a convened meeting of a public body," S.C. Press Association attorney Jay Bender said.

The Historic District Review Board attempted to go off the record while discussing best practices and a complaint that it conducted an improper vote during a meeting in January.

Board member Michael Rainey asked if the conversation could be off the record. Four of the five members were in attendance.

"Can we end the meeting?" chairman Joel Newman asked. "Is there any reason we can't?"

"Yeah, we're just going to talk," Rainey said.

"The meeting is adjourned," Newman said.

The conversation continued with remarks about a site visit and vote the board took Jan. 17 at a Greene Street home, where members discussed unpermitted renovations that had started there.

When the discussion Wednesday continued after Newman adjourned the meeting, a Beaufort Gazette reporter informed the board it was violating the Freedom of Information Act and asked that a recording secretary resume taking minutes.

"I wanted to express my opinion, and I didn't think it was anybody else's business," Rainey replied. "Although you are welcome to sit in, it didn't need to go into the minutes of the meeting."

The meeting continued for another 25 minutes before only two board members remained at the table and the board no longer had a quorum.

"All Mike Rainey was trying to do was to have a conversation about how that other meeting went," Newman said. "... I don't care if it was on the record or not; I would say the same things either way."

But Mayor Billy Keyserling, who did not attend Wednesday's meeting, said, "That's just not legal. ... And they certainly shouldn't adjourn with the impression they can have an off-the-record conversation if a quorum is in the room."

David Tedder, who has served on a number of local-government boards and practices municipal law, agreed the law is clear. "If you adjourn the meeting, you should not be in a discussion with a quorum present of committee business," he said.

The city does not formally train volunteer board members in open-meeting and open-records laws, Harvey said. Instead, he speaks with board members to gauge their knowledge and educates them as he believes appropriate.

That might need to change, city manager Scott Dadson said. He said more formal training may be needed for all board members to make sure they are aware of legal requirements. It's something Keyserling wants to consider, as well.

"They are volunteers, but when they assume the responsibility to serve on boards, they have responsibilities as public representatives," Keyserling said. "They should be trained, they should have procedures, and they should follow procedures."

Follow reporter Erin Moody at

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