Berkeley school board bans comments on investigation, breaks FOIA law
The Berkeley County School Board doesn’t want to hear any more about a state investigation into the district’s $198 million bond campaign.
So, at a meeting this week, they cut off a former board member when he tried to talk about it.
In doing so, they violated the First and 14th amendments’ rights of free speech and the state Freedom of Information Act, S.C. Press Association lawyer Jay Bender said.
“The board seems to have committed an error in two ways,” he said. “One, by adopting a policy secretly, and two, by attempting to suppress speech which the board has decided it does not like.”
At Tuesday’s board meeting, former board member Terry Hardesty wanted to speak during the “Citizen Comments” time about the State Law Enforcement Division’s investigation into charges that district employees misused time and resources when working on November’s Yes 4 School referendum.
When he was handed the required “Request to Speak Before the Board” card, he was warned by district public information officer Susan Haire that he should read the back of it.
That was when he noted an addition to guidelines banning comments on the investigation because it “is ongoing and confidential, and because matters connected to the investigation may come before the Board for action.”
On Tuesday, Board Chairman Kent Murray called Hardesty “out of order” when Hardesty mentioned the referendum.
Three people had spoken about the investigation at the board meeting May 14, and two of them spoke again May 28. Hardesty was the only person who wanted to address the issue Tuesday, when he planned to outline several reasons he is “disappointed and appalled” by actions of the board and district employees in connection with the campaign.
As he walked up to the lectern, he also had another question: “When was the action taken in this board room to change the back of that card?” he asked. “To my knowledge, it was not. There’s been a change on it, but it was not changed by this board.”
Amending the policy on the card has not been discussed in public session at a board meeting.
“It could not have been lawfully decided if it was not acted upon in a public meeting,” Bender said.
On Wednesday, Murray said he was the one who added the restriction to the cards.
In a written statement, he said, “As Board Chair, I added the statement ... in order to protect the integrity of the Board’s decision-making process and ensure the ability to provide due process to our employees in the event that matters relating to or arising out of the investigation come before the Board for action.”
He said the district’s lawyers advised that the decision was “within my discretion and is consistent with District policy and law.”
District lawyer Kathy Mahoney of Childs & Halligan said Murray’s statement refers to the policy, “Public Participation in Board Meetings,” adopted July 13, 2010, which outlines the same procedures on the back of the card.
The policy gives the chairman the authority to “terminate the remarks of any individual when he/she does not adhere to the procedures established above.”
Hardesty maintains that his comments met district guidelines.
“They were issue-oriented and I didn’t name any employees,” he said.
While he was not allowed to mention the referendum, Hardesty was allowed to express disapproval of the board’s May 28 vote to issue $53 million in special obligation bonds for “equipment,” such as heating and air-conditioning units, kitchen equipment and technology, to furnish the $198 million in new and renovated schools generated by the referendum.
On Wednesday, Hardesty said the board’s actions “are another one of my ‘appalleds.’ ”
“Now you cannot go speak and show your concern about things that they are doing,” he said. “They are supposed to represent the district. I don’t think it’s in the district’s best interest to shut down criticism.”
Reach Brenda Rindge at 937-5713 or facebook.com/brindge.