Public Loses in Agenda Ruling

In an opinion filed June 18 in the case of Lambries v. Saluda County Council, the Supreme Court of South Carolina ruled that a public body is not constrained by the FOIA from adding items to the agenda of meetings and discussing and acting upon those items without prior notice to the public.

In reaching its decision the Supreme Court did not discuss language in the FOIA requiring public bodies to give notice to local news media and person or organizations who have requested notice of all public meetings.
This notice is to include “the times, dates, places, and agenda of all public meetings, whether scheduled, rescheduled, or called….”

The court relied instead 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….”

The Saluda County Council was supported in its appeal to the Supreme Court by the South Carolina Association of Counties and the Municipal Association of South Carolina. The surprise is that the School Boards Association wasn’t also in the mix. As noted in the Court’s opinion, the Association of Counties and the Municipal Association “extensively argued” that a prohibition against adding items to a meeting agenda would be “inconvenient.”

I used to joke that Charleston City Council would post an innocuous agenda signifying no controversial topics for action and then at the meeting would vote to add “annexation of Savannah” to avoid any opponents of such discussion from appearing. Of course local government officials always seem to believe that opposition to their schemes is inconvenient.
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. 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.

I don’t know if Lambries will seek a rehearing to raise the issue of agenda being required in the notice given to local news media and others requesting notice, but even a favorable ruling on that point may be futile if there is no constraint on amending an agenda to add items without advance notice.

City and county councils and school boards are authorized to set their own rules and order of business. These government bodies should be encouraged to adopt rules to preclude the amendment of an agenda to add an item for discussion or action without at least 24-hour advance notice.

One holding public office should have the courage to act when the public has notice of the contemplated action.
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.

All groups, including the S.C. Press Association, that believe in open government should have as a top priority in the 2015 legislative session the enactment of a constraint on adding items to meeting agenda.
Of course opposition will come from those who find doing the public’s business in public an inconvenience.