Berkeley County Councilman Josh Whitley (copy)

Berkeley County Councilman Josh Whitley. File

Berkeley County residents in unincorporated areas will not vote Nov. 6 on raising taxes for recreation programs after all. 

County Council violated the state's Freedom of Information Act when it amended its agenda to vote on the issue, according to an opinion Wednesday from the state Attorney General’s Office.

Although such opinions do not carry the weight of law, the council voted Aug. 27 to make the outcome of the review binding, so the question will not appear on the ballot, Councilman Josh Whitley said Thursday.

Meeting agendas for public bodies have to be posted at least 24 hours in advance of the meeting, according to FOIA. But at the Aug. 13 meeting, the council used a loophole that allows agendas to be amended for emergencies, citing the fact that the deadline to have the referendum on the ballot was two days later.

Councilman Steve Davis said he had asked to have the issue on the agenda and it was left off.

Whitley, the lone dissenting vote, questioned the action because council had been discussing the recreation referendum since Jan. 6, 2017. 

“By that logic, they could wait until the last minute on anything,” Bill Rogers, executive director of the S.C. Press Association, told The Post and Courier. 

The council agreed Aug. 27 to seek the opinion.

The attorney general agreed with Whitley that the issue did not meet the “emergency” or “exigent circumstance” exemption because the Aug. 15 deadline — a state law — had been there all along. 

“FOIA must be read broadly or liberally, and exceptions thereto narrowly, so that ‘public business is performed in an open and public manner,' and the public is properly informed of government activity,” according to the letter from Solicitor General Robert Cook to County Attorney John O. Williams. 

"FOIA was designed for the protection of the public, and the agenda of a regularly scheduled meeting is to advise the public as to the issues to be considered at that meeting."

Residents complained that amending the agenda at the last minute denied them an opportunity to weigh in on the topic. 

“My objection has never been my fellow councilmen’s intent; rather, it is an objection of process and lack of planning,” Whitley wrote on Facebook Wednesday.

The measure would have asked voters in unincorporated areas if they wanted to create a special tax district to fund recreation facilities and programs. If passed, it would have added about $40 to the annual property tax bill of a $250,000 owner-occupied home, bringing in about $700,000 annually for the county.

There will still be a referendum on the ballot. Residents county-wide will be asked Nov. 6 if they want to change their form of government from an elected supervisor to a hired administrator and add a ninth council member.

The referendum could come up again at the next general election, Williams said.

Reach Brenda Rindge at 843-937-5713. Follow her on Twitter @brindge.