When is the next council meeting? I have no idea!

  • Tuesday, July 15, 2014

Michaele Duke

If you want to know what’s going on within your government don’t rely on an agenda. The SC Supreme Court recently ruled that public bodies like county councils and school boards do not have to issue agendas for regularly scheduled meetings. The ruling, in my opinion opens the door to all kinds of problems and should concern us all.

The Supreme Court has ruled before that the purpose of the FOIA is to prevent secret government activity. The ruling just handed government Carte blanche to do so. Need I remind them of an “F” grade issued in 2012 from the State Integrity Investigation (a project of the Center for Public Integrity, Global Integrity and Public Radio International), which graded the states on their transparency, accountability and risk for corruption?

The ruling is a reversal of a lawsuit filed by a citizen in Saluda County challenging county council for amending its agenda during a meeting. The Court of Appeals sided with the citizen and the language of the FOIA. But the Supreme Court saw otherwise and reversed the Court of Appeals judgment. The judges, in their infinite wisdom, based their decision on a provision requiring notice of meetings at the beginning of each calendar year, and the posting of an agenda, “if any, for regularly scheduled meetings...”

For instance, if a school board agenda covers the topic of field trips, one might choose not to attend. But what if the agenda includes a controversial topic such as tax increases and the closing of schools? I assume interest would be much higher. But if no one shows up, the issue can be discussed, voted on and passed without the inconvenience of public and media scrutiny.

The Supreme Court noted that the Association of Counties and the Municipal Association argued that a prohibition against adding items to a meeting agenda would in “inconvenient.”

In a June 29, editorial published in The Times and Democrat Jay Bender, counsel to the SC Press Association and visiting professor at the University of South Carolina School of Journalism and Mass Communications, said as a policy matter, convenience should never outweigh the public’s ability to learn in advance of the actions contemplated by public bodies. “After all, the Supreme Court has said in several opinions that the purpose of the FOIA is to prevent secret government activity,” said Bender. “To me adding an item for discussion or action when no one is in attendance at a meeting interested in that topic because there was no advance notice of the topic is the equivalent of secret activity even if the meeting is open.”

Bender went on to say the job of the Supreme Court is to interpret the law, not write it, and that court has consistently interpreted the law in favor of access to meetings and records. “While I would have liked the opinion to have come out the other way, our recourse is legislative.”

The Supreme Court in its conclusion also said the imposition of any additional restrictions in FOIA is a matter for the general assembly. They are certainly correct but for the last two years FOIA-reform legislation has bounced around from the House Judiciary Committee to the House Floor and back to the Judiciary Committee where it remains.

Maybe its time the citizens question our lawmakers as to why the bill won’t pass.

Thinking back to my first reporting of county council meetings, I recall a time when blatant disregard for the law occurred.

Council had passed a motion to add a topic to the agenda that was in turn, voted on and passed. To my recollection the item was of benign consequence to the citizenry but I still challenged council’s action. Someone said, “So sue us.” I should have.

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