Judge Gives Solicitor 15 Days to Prosecute or Drop JWC Case

The clock is now officially ticking on criminal proceedings against the individual members of the Jenkinsville Water Company Board of Directors for willful violation of the S.C. Freedom of Information Act. Monday morning, Judge Kirby D. Shealy, a Richland County Magistrate Court Judge assigned by the S.C. Supreme Court to hear the case, ruled that 6th Circuit Solicitor Doug Barfield had 15 days to begin prosecution of the case or the case would be dismissed.

The ruling came after E. Crosby Lewis, attorney for the defendants, filed a motion to dismiss for failure to prosecute and for failure to comply with Rule 5 (disclosure).

“A defendant is entitled the opportunity to confront the evidence against him,” Lewis told the court in reference to Rule 5.

Lewis also noted that no representative from the Solicitor’s Office was present at Monday morning’s hearing, and that both the Solicitor’s Office and the S.C. State Attorney General’s Office had indicated to him that neither intended to prosecute the case.

Jay Bender, an attorney speaking on behalf of the complainant (James Denton), said the Solicitor had told him otherwise.

“Why didn’t you serve the Solicitor with a notice of this hearing?” Bender asked. “All of the evidence was turned over to the Solicitor and my last conversation with the Solicitor indicated that he would, although not enthusiastically, prosecute the case.”

Lewis said the reason he did not serve the Solicitor notice was because the Solicitor had told him he would not prosecute.

“The short answer is, if the Solicitor is not going to prosecute, that’s the end of the case,” Shealy said. “But we need a definitive answer on that.”

Shealy then asked Lewis to prepare an order notifying the Solicitor of the 15-day deadline.

Reached for comment Tuesday morning, Barfield said he had not yet received the order and that he had not agreed to prosecute the case.

Courtesy summonses were served against the individual members of the JWC Board (Tangee Brice Jacobs, Tim Roseborough, Joseph McBride, Aquilla O’Neal, Lori Smith and Gregrey D. Ginyard) in November of 2011 after the Board refused to comply with numerous FOIA requests by Denton and Jill Cincotta while both were with The Herald Independent newspaper. The Board’s refusal to comply came after an opinion issued Aug. 8, 2011, from the S.C. Attorney General’s Office confirmed that the JWC Board was a public body and therefore subject to the S.C. Freedom of Information Act. Cincotta later provided each Board member with a copy of the S.C. FOIA and indicated to each member where the law applied to the JWC Board.

Lewis told the court Monday that an attorney serving the JWC Board during that time told Board members that he did not agree with the Attorney General’s opinion, that the Jenkinsville Water Company was a private company and therefore not subject to the S.C. FOIA. The actions of his clients, Lewis said, were therefore not willful, as they were acting on advice from their attorney.

The Public Service Commission, which regulates rates for private utility companies, told The Voice Monday that they do not regulate rates for the Jenkinsville Water Company, indicating that they are, in fact, public.

“Although a misdemeanor, this is an important case to citizens across our state who can’t afford to sue to get public documents released,” said Bill Rogers, executive director of the S.C. Press Association, an advocate for open government.  “‘Let’s hope the solicitor steps up and addresses what we think is an obvious violation of the law.  You can’t violate the law because your attorney tells you it’s OK.”