Amending the agenda
By Jay Bender
I was in Mount Pleasant recently. It had been years since I had driven north of Shem Creek on Coleman Boulevard. My drive north in search of lunch put into context the Save Shem Creek movement and the desire of many residents to slow development in the town.
My drive was educational. Low rise, lower density development had been replaced by high rise buildings at street’s edge and strip mall sprawl. I could have been in Myrtle Beach except for the absence of T-shirt shops.
The conflict between development and preservation came to a head in a suit filed against the Town by a developer. The suit named as defendants the Town of Mount Pleasant and members of town council in their individual capacities. Council members were apparently told by town attorneys that they faced potential personal liability from the suit. Court-required mediation resulted in the development of a settlement agreement that, upon approval by town council, would give the developer the right to higher density construction than might otherwise have been available.
The settlement agreement was on the town council agenda in July last year for an executive session discussion and possible approval. As is often the case, the appearance of a controversial development agreement on the agenda drew a crowd. The matter was on the published agenda under item XI.C.1. entitled “Executive Session.”
At the outset of the meeting a member of council moved to amend the agenda to move the settlement agreement Executive Session item, XI.C.l.a., to an earlier position on the agenda. The motion to amend the agenda was adopted unanimously. The motion to enter executive session for the settlement agreement discussion failed on a 4-4 vote. One member, citing the potential for personal liability withdrew from the meeting. Another member citing potential personal liability recused himself from the discussion. A public discussion was then held on the settlement agreement and the potential for personal liability of council members. A second motion for executive session on the item was adopted on a 4-3 vote. Two additional council members elected not to participate in the executive session. Five members of council participated. Upon reconvening from executive session at 10:09 p.m. the Chair stated that no action had been taken and no votes had been taken in executive session. No motions were made in open session with respect to the proposed settlement agreement. Many of the citizens interested in the settlement agreement discussion and vote left the meeting. Council moved on to the next items on the agenda. At 11:36 p.m. the Chair stated the need to enter executive session to consider the remaining agenda items, excluding the settlement agreement item which had been moved by the amended agenda to the beginning of the meeting. The vote to enter executive session to consider the executive session items other than the settlement agreement was unanimous. Upon reconvening in public the Chair announced that no votes had been taken in executive session. The next agenda item was XI.D. labeled “Post Executive Session” with the entry “Council may take action upon reconvening from Executive Session.” Under that agenda item a motion to approve the settlement agreement discussed earlier in the meeting was approved 4-3. Opponents of the settlement agreement were unhappy, and their unhappiness may have been a significant factor in a subsequent town election which resulted in the defeat of the incumbent mayor and the seating of four new council members. The new mayor, Will Haynie, sought an opinion from the Attorney General on the potential for personal liability for council members and the validity under the FOIA of the action to approve the settlement agreement after the second executive session which did not identify the agreement as a subject of discussion in the second session.
As has been the tradition of the Office of the Attorney General for more than 40 years, the opinion, written by Solicitor General Robert D. Cook, concluded that the General Assembly in adopting the FOIA directed the courts to apply the law to maximize opportunities for the public to be advised of governmental actions. The opinion also concluded that following the directive of the General Assembly, the courts would apply the law to find the action to approve the settlement agreement absent a second two-thirds vote by council to amend the agenda to again take up the settlement agreement was in violation of the FOIA. The opinion also stated that individual council members would not have personal liability for their quasi-legislative actions. City, county and school board attorneys around the state should take notice of the opinion’s characterization of the vote on the silently resurrected settlement agreement, “A court could conclude that council played ‘musical chairs’ with the public.” Since it is baseball season I would liken the action to the classic “Hidden Ball Trick.” Given the division on council, it seems unlikely that a motion to amend the agenda a second time to bring the settlement agreement for a vote could have obtained the necessary two-thirds vote. Since the options were to approve the settlement or continue the litigation, no emergency was presented requiring immediate action for which no notice could be given.
Those who believe in open government in South Carolina should say thanks to Mr. Cook for this thoughtful and well-reasoned opinion. To those who want government to be by the few for the well-connected, please curse under your breath.
Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.