If an agenda for a special city council meeting doesn’t say that members will vote on something, are they allowed to vote anyway?
It’s a question that South Carolina’s highest court will answer in the coming weeks as part of one man’s bid to show that the Mount Pleasant Town Council skirted open-government laws in 2008 by hiding contentious decisions behind incomplete agendas. In a series of special meetings that included executive sessions on the topic, town leaders pushed through a Shem Creek land deal that cost taxpayers $6 million for a tract worth half that.
A ruling in favor of Steve Brock, the former TV station executive and planning commission member who sued the town, could further define the S.C. Freedom of Information Act by saying that governing bodies statewide must give advance notice of all anticipated actions at special meetings, even when they occur after executive sessions.
Such sessions often spawn suspicions that boards are governing in secret. Under the FOIA, governments must tell the public what’s slated to be discussed during the closed-door proceedings in which council members are barred from voting.
Brock’s lawyers contend that governments also must reveal any actions that will occur after the sessions. Most people wouldn’t bother going to a meeting if no action is slated, the attorneys argued. The law already requires an agenda 24 hours before special meetings and restricts how officials can add to it.
Though the Mount Pleasant issues unfolded seven years ago, the S.C. Supreme Court considers the lawsuit significant, drawing attention to it as the “case of the month.”
The town has made changes, though its agendas still lack some specifics. An agenda for a special meeting earlier this month included only a chance that the council would act after an executive session on another Shem Creek issue. Elsewhere, Medical University of South Carolina trustees also declared in a recent agenda the possibility of a vote on how to deal with protesting workers.
A ruling could ensure accountability in future meetings on divisive topics. Supreme Court Justice John Kittredge said during oral arguments Feb. 10 that he understood Brock’s stance that a complete agenda would give members of the public a better “heads-up.”
“They could show up ... and wait to see if any action would be taken,” he said. “But without that additional notice, they are sort of ... hoodwinked.”
The question is one of many that Brock and his attorneys have posed amid a long-running battle with the town over FOIA issues. Parts of past decisions fell in Brock’s favor, including a 2014 Court of Appeals opinion declaring the town violated the FOIA because council members didn’t properly say why they were going into executive session.
The question now pending at the Supreme Court first arose in 2008, when the town released agendas ahead of several special meetings. The agendas included references to executive sessions, usually for seeking legal advice or discussing a contract to buy land known as the OK Tire property, which later became Shem Creek Park. None said the council would vote after emerging from the sessions.
Development of the Shem Creek area has long been a hot topic dividing the town.
Before a meeting that December, officials reached a deal setting the land’s price tag at $6 million. The council was set to discuss it during an executive session at the end of an hours-long meeting.
Without knowing from the agenda that a deal would be announced and finalized that night, people were unlikely to attend because they’re not allowed to be there for executive sessions, said Falkner Wilkes, an attorney for Brock. The Court of Appeals, in its 2014 decision, didn’t agree and said it should be common sense for people know that something like that could take place.
“Think of all the multitude of things that go on in ... a small government,” Wilkes said during the oral arguments in Columbia. “Not every person cares ... to witness every meeting just to be sure they don’t miss something.”
Officials signed the deal the day after the meeting.
Jim Hinchey, an attorney for the town, argued that the council cannot be expected to know of an executive session’s possible outcome until the proceeding happens.
“You may vote ‘yes,’” he said during oral arguments. “You may vote ‘no.’ ... You may have (the issue) withdrawn. There’s no way to adequately anticipate that.”
Reach Andrew Knapp at 843-937-5414 or twitter.com/offlede.