MOUNT PLEASANT -- The question of whether Town Council conducts public business by e-mail in violation of the state Freedom of Information Act is a key issue in a lawsuit brought by former Planning Commission Chairman Steve Brock.
The suit is expected to be heard next week in Charleston County Court of Common Pleas. It alleges that a majority of council members frequently communicate with one another by e-mail on public matters. In its response to the suit, the town denies the allegation.
"He can rule me out on that, without question," said Councilwoman Thomasena Stokes-Marshall. She communicates with town staff by e-mail, but 99.9 percent of the time does not respond to an e-mail from a council member, she said.
Brock's suit was filed in 2008, when Joe Bustos was a town councilman.
"I think his quest for transparency is good. Do I think anyone intentionally hid anything? No," Bustos said.
Bustos, who gave a deposition for the suit, said the town saves e-mails between council members and town staff. He did not save copies of e-mails between himself and another council member.
"Then you're saying you can't talk about town business if the two of you are standing in the hallway," he said.
A quorum of Town Council is five members, which is necessary for official business to occur in a public meeting. If a quorum is present for a private discussion, then it could be considered an illegal meeting, officials said.
"I never saw a situation where an e-mail was going back and forth between five or more people in a discussion-type thing. I don't believe that you can really conduct a meeting by e-mail," Bustos said.
That sort of thing might happen on a conference call, he said.
Jay Bender, attorney for the South Carolina Press Association, said electronic communication may not be used to circumvent the FOIA.
E-mails between two council members on private computers probably would not be considered public record, he said, but e-mail from a council member to town staff is considered public and the town is required to save it, he said.
A quorum of council meeting in private by way of electronic communication, such as a chat room, to discuss public business would be illegal under the FOIA, he said.
Brock's allegations against the town date to 2007, including his assertion in court documents that Town Council illegally changed an agenda at the last minute, met without proper notice to the public and misrepresented the purpose of an executive session.
"Mr. Brock has filed a suit. He has every right to do that," said Town Attorney Allen Young. "We believe we made every effort to follow all legal procedure."
Brock and his attorney, Tom Tisdale, declined comment.
Brock's suit asks a judge to declare that the Town Council violated the FOIA in certain instances described in the litigation, including the council vote on Dec. 5, 2007, to buy Shem Creek property for $6 million.
The suit also asks a judge to issue an injunction preventing future conduct by Town Council that violates the FOIA.
Brock and the late Mayor Harry Hallman clashed over what Hallman described in a 2007 letter to Brock as his "disrespectful and confrontational attitude" toward Town Council.
In the letter, Hallman suggested that it might be time for Brock to consider whether it would be best for him to resign. Brock responded that he is assertive, not disrespectful.
Council appointed Brock to the commission in 2005. Midway through his four-year term, commission members elected him chairman. Brock said in 2009 that he was not reappointed to another term by council because he had questioned the legality of some council actions.
"Going back to 2007, council attacked me for asking the S.C. attorney general if the town violated the law by approving the Central Mt. Pleasant development without Planning Commission approval. According to the AG, they did violate it," he said at the time.
"Council reacted to the AG opinion by secretively crafting a letter requesting I resign, for 'lack of respect' in requesting the opinion, and then leaked that letter to the press before I received it. That was a punitive action, as the Freedom of Information Act suit I filed states. The decision not to reappoint me is more of the same," he said.