SC court ruling not serving public well
Sunday, June 22, 2014 12:00 AM
If public officials’ meetings in this state become less public -- with regard to the public knowing what will take place in those meetings -- don’t blame the state Supreme Court and its ruling this past week.
The court issued a ruling that seems to slam the door on the public’s right to know what public bodies are going to discuss when conducting their meetings. The justices’ interpretation of Section 30-4-80 of the state’s Freedom of Information Act is dismaying, unless you’re a member of a public body that prefers a bit of cloaking as opposed to full transparency. And we know plenty of those exist.
The ruling last week came about as a result of a lawsuit filed by Dennis Lambries against Saluda County Council regarding a 2008 meeting conducted by that council. During the meeting, the agenda, as was released to the public, was amended and an action item was passed in a vote by the council. Lambries contended that under state law the agenda had to be established 24 hours before the meeting; thus, any amendment to it and subsequent vote on any amended action items should have been null and void.
Lambries’ case seemed to be well founded, but two relatively simple and seemingly innocuous words within the code of law derailed his case.
Here is the the portion of Section 30-4-80 of the Freedom of Information Act at issue:
All public bodies, except as provided in subsections (b) and (c) of this section, must give written public notice of their regular meetings at the beginning of each calendar year. The notice must include the dates, times, and places of such meetings. Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty four hours prior to such meetings. All public bodies must post on such bulletin board public notice for any called, special, or rescheduled meetings. Such notice must be posted as early as is practicable but not later than twenty four hours before the meeting. The notice must include the agenda, date, time, and place of the meeting. This requirement does not apply to emergency meetings of public bodies.
In reading the law, it seems apparent public bodies are supposed to give the public notice of their meetings, complete with an agenda of what is to be discussed and acted upon. Any reasonable person who has ever served on a nonprofit or for-profit board would likely come to the same conclusion. Any reasonable taxpayer would and should come to the same conclusion with respect to those controlling the taxpayers’ purse strings. But on closer reading, as performed first by a circuit court and then the state’s high court, two words have the potential to put the public’s knowledge about what governmental bodies are doing to or for them in the dark. Those words are “if any.”
“We conclude FOIA’s notice statute does not require an agenda to be issued for a regularly scheduled meeting, and FOIA contains no prohibition on the amendment of an agenda for a regularly scheduled meeting,” James Moore wrote in the court opinion.
The Index-Journal has routinely published detailed listings of upcoming meetings conducted by public bodies. In general, city and county councils, school boards and other public bodies have been forthright in providing detailed agendas for their meetings. We hope they continue to do so, but the court ruling gives public bodies plenty of leeway to become stealth bombers, if it stands.
Imagine this scenario: A county council has what it knows will likely be a contentious matter to vote on. The council already has a calendar of when it will conduct its meetings, but now it knows it can simply publicize its meeting dates, times and locations one time at the beginning of the year. Or the council opts only to publicize its meeting time and location 24 hours ahead of the meeting, and with absolutely no agenda. Or, it employs the option of publicizing the meeting date, time and location, along with a couple of regular agenda items, knowing full well it can and will amend that agenda after the meeting starts. In any case, the council would seemingly be within the law to add the contentious item to the agenda and cast its vote, with little or no protest because the public -- the very people the council represents, the very people they affect by what they do -- was afforded no prior knowledge regarding what business would be conducted, what matters would come before council for a vote.
However, another portion of Section 30-4-80, states “All pubic bodies shall notify persons or organizations, local news media, or such other news media as may request notification of the times, dates, places and agenda of all public meetings, whether scheduled, rescheduled, or called, ...” That strong language -- “shall notify” -- coupled with the absence of the two key words the high court relied on in its ruling -- “if any” -- would seem to negate the opinion. That portion appears to uphold the idea that not only will the public have notice of meetings, but also such meetings would be spelled out with a publicized agenda. But that remains to be seen, in the event the case is appealed.
The S.C. Municipal Association is siding with the public when it comes to meetings, however, and offers some good advice:
“We agree with the ruling of the Supreme Court based on state law; however, we believe the best practice for cities is to have an agenda for all meetings posted a minimum of 24 hours in advance of the meeting,” said Miriam Hair, the Municipal Association’s executive director. “This practice helps councils efficiently and effectively handle the public’s business.
“Public notice of the agenda is also an effective way to keep the public informed as to what the council will discuss at its next meeting. However, we acknowledge that there may be unusual circumstances when a council may need to amend an agenda at the time of the meeting to address a critical and unanticipated situation,” she said.
We wholeheartedly agree, but urge caution regarding amending agendas as that can be a crack that is easily turned into a chasm. And it’s not just city councils that need to heed this advice. All public bodies should do so, if they want to maintain any semblance of the public’s trust. The spirit and intent of the law as it applies to the public’s business needs to be reinforced and upheld, not further thwarted.