It wasn’t a huge surprise that Charleston County officials weren’t willing to explain the secret payment made to former county attorney Joe Dawson just because one of the newest council members asked them to.
After all, some if not all council members knew in advance about the $216,000 payment — half a year’s pay for the since-confirmed U.S. District Court judge — and if they had wanted the public to know about it, they would have taken steps to make it public, rather than forcing The Post and Courier’s David Slade to ferret it out. Which, thank goodness, he did.
But surely no one could have predicted the response freshman Councilman Kylon Middleton got when he asked at Thursday’s County Council meeting who had drafted the contract.
Chairman Teddie Pryor calmly assured Rev. Middleton that he could get an answer, but said, “I think that’ll be an executive session item that we can discuss on Tuesday.”
State law allows governing boards to discuss more of the public’s business in secret executive sessions than we consider appropriate — but not nearly as much as many governing boards insist it does.
It allows public bodies to meet in secret to discuss “employment, appointment, compensation, promotion, demotion, discipline, or release of an employee,” but the contract in question deals with future work as “an independent contractor,” so that wouldn’t apply. It allows secret meetings to discuss “negotiations incident to proposed contractual arrangements,” but since the contract has already been signed — and another part of the law makes it clear that the exemption for proposed contracts expires once a contract is signed — that wouldn’t apply either.
The contract promises Mr. Dawson $216,000 in taxpayer money as "an inducement" for him to provide his “institutional and historical knowledge and insight on proceedings related to services performed or required to be performed, or non-legal advice on matters where he possesses pertinent knowledge” during 2021. That's pretty steep, and it raises judicial ethics questions, but it's not uncommon for government agencies to keep a top official on the payroll during a transitionary period, in order to benefit from his institutional knowledge.
What's uncommon is doing it so secretly. Uncommon too is promising a contingency fee — 1.5% on any recovery the county receives from an opioid lawsuit he helped file — for work he did as county attorney and that, according to Rev. Middleton, his previous contracts made no provision for.
Maybe there’s something about the relationship between Mr. Dawson and the county that would allow a discussion about it to be held in a secret executive session — if he had threatened to sue the county, perhaps, although that seems far-fetched. But there’s nothing in the law that would require — or even allow — the council to meet in secret to discuss:
• Who drafted the contract that the county administrator signed without a vote of the County Council.
• Whose idea it was to enter into the contract.
• Who if anyone on the council knew about the contract before it was signed.
• Whether the contract was discussed in an executive session (not what was discussed, simply whether it was discussed) — and if so, how that secret discussion was described on the council’s agenda.
• What precisely the services are that are going to be performed in return for the money. (This is a question mainly because Mr. Pryor said the $216,000 was actually a severance payment.)
• What if any public accounting will be given of the services rendered.
• Who suggested that a gag clause be included in the contract.
• Whether gag clauses are routinely included in all contracts the county enters into.
• Whose idea it was to include the 1.5% contingency fee, and why that was included.
• Whether Mr. Dawson had threatened to sue the county, which we don’t think is likely but which someone ought to answer, since that’s often the reason for gag clauses. (And yes, the council is allowed to discuss possible litigation in secret, but a question about whether such a threat exists certainly can be answered in public.)
Now, the unfortunate fact is that while the S.C. Freedom of Information Act requires governing bodies to hold most discussions in public and requires them to turn over most documents that people know to request, it doesn’t actually require anybody to explain their actions or answer questions — from members of the public or even from each other.
If elected officials refuse to answer our questions, our primary recourse is to vote them out of office.
But when public officials refuse to answer questions about how they’re spending our tax money, it’s usually because they have something to hide. So we can and should demand to see more of the contracts they’re entering into, and watch more closely for suggestions of illegal closed-door discussions that, if necessary, can be challenged in court.
Of course, that’s not a good way to have to deal with our elected officials, and we hope that his fellow council members will be inspired by Rev. Middleton’s declaration that the Charleston County Council discusses too many things in secret session that can (or should) be discussed in public. We hope they'll start looking for reasons to have those discussions in public, rather than looking for cover to have them in private. This evening’s discussion about Mr. Dawson’s contract would be a good place to start.