Pauley, Morgan flip flop on secret ballot

Was Vote for Chair, Vice Chair Legal?

WINNSBORO – Half an hour prior to Fairfield County Council’s regular 6 p.m., Jan. 13 meeting, council members elected a new chair and vice chair by secret ballot, a method that Media Attorney Jay Bender says does not comply with state law.

After three newly elected coun­cil members were sworn into office Monday afternoon and seated at the dais, Clerk to Coun­cil Kimberly Roberts explained that council members would be voting by secret ballot for a coun­cil chair and vice chair.

“Council members, you will find two ballots on your desk – one for the chair and one for the vice chair,” Roberts said. “If you will go ahead and vote on each ballot and fold it in half. I will come by and retrieve those bal­lots from you. Mr. Killian and I will then go to the back, tally the votes, and come back and make the announcement of the chair and vice chair.”

One council member asked if there would be discussion before the vote.

“Typically, there is not any discussion,” County Attorney Tommy Morgan responded. “It’s up to your discretion. If you want to allow that, you can,” he said, addressing then-Chair Douglas Pauley.

Pauley did not respond to Mor­gan’s suggestion.

“This isn’t a motion for a sec­ond and discussion. It’s just a vote provided for in the bylaws,” Morgan said, referencing the county’s current bylaws that call for a secret vote for the chair and vice chair.

Councilwoman Peggy Swear­ingen stated that South Carolina law requires all meetings and votes to be in public.

“I would say that is true,” Morgan said. “The fact that the vote has to be public, it is going to be public when it’s announced what that vote was. Home Rule Act 4-5-10 allows councils to make and enact bylaws to govern themselves. So, this council has enacted provisions to allow for secret ballot vote and, therefore, once that vote’s publicized, the vote is public at that time,” Morgan reasoned. “Council can make specific rules.”

While that seemed to satisfy council members, Attorney Jay Bender, who represents the S.C. Press Association, said the secret vote does not comply with state law.

“Nothing in the Home Rule Act allows a county council to adopt by-laws in conflict with state law,” Bender said. “There was no public vote for council chair, and it is a shame that no member of council requested that the votes by members be included in the minutes as state law allows.

“If even one member of council requests it, the votes by each member must be recorded in the minutes,” Bender said. “Section 30-4-90(A)(3) of the South Carolina Code requires minutes to be kept of all meetings, and at the request of any member, a record, by individual member, of any votes taken.”

The Voice has requested from the county government the opportunity to view the documents on which the votes were cast.

“Those ballots are public records,” Bender said, “and must be made available for inspection and copying.”

Following the secret vote, Roberts announced that Clarence Gilbert was elected chair, and Carl Bell, vice-chair. She did not say how many votes each councilman received, and no one on council asked.

Pauley, Morgan switch sides

But at the 2021 council swearing in of new council members four years ago, it was Pauley and Morgan who favored the public vote. When it became likely that former Councilman Moses Bell could be elected chair of council, Pauley and Morgan fought against the secret ballot, with Morgan using part of the same argument that Bender made concerning the failure of the secret vote to comply with state law.

In 2021, when a secret vote was called for by the then-senior council member Mikel Trapp for the election of chair and vice chair, Councilman Pauley requested that the votes for chair and vice-chair be recorded.

Moses Bell became agitated, saying, “One of the things I did before this meeting, I called to understand the procedure for doing this. As I understand, the bylaws say that it’s a secret ballot,” Bell said. “So, I suggest we follow the by-laws.”

County Attorney Tommy Morgan intervened, taking the opposite tack from the one he took Monday night, advising that while council’s bylaws do allow for the election of chair and vice-chair by secret ballot by a majority vote, he said that South Carolina case law provides that if a council member requests that the vote be recorded, then that becomes a public vote – it (the request) doesn’t have to be in the form of a motion, Morgan said. Morgan did not provide that same information Monday night.

In 2021, Morgan fought further for the public vote, even citing an attorney general’s opinion.

“I’m looking at an attorney general’s opinion that was written March 14, 1989 for…a Laurens County attorney,” Morgan said. “I will quote the pertinent sections…it says, ‘I’m enclosing previous opinion issued by this office to answer your question. In [the previous] opinion No. 84-4 issued on Jan. 17, 1984, this office concluded that if a member of council asks that a vote be recorded, then a secret ballot could not be used in that instance,’” Morgan said.

“In the opinion relied upon, Section 30-4-90, subsection A(3) of the S.C. Freedom of Information Act, it says ‘all public bodies shall keep written minutes of all their meetings, including, but not limited to…the substance of all matters proposed, discussed or decided and at the request of any member, a record by an individual member of any votes taken…,’” Morgan quoted from the statute.

“In essence, ” Morgan said in 2021, “if a member asks that a vote be recorded, that takes it out of secret ballot possibility and moves it into a vote going forward.”

Moses Bell responded.

“I don’t understand why this information was not given to council until now, and I want that to be noted and documented in the minutes,” Bell said.

“Because the councilman [Pauley] has asked that the vote be recorded, it doesn’t even have to go forward with a motion and a second. It’s not a vote that’s necessary to vote for chair and vice-chair. It would be like any other matter of business,” Morgan said. “It would come forward pursuant to a motion, i.e., the motion to nominate an individual to be chair, and then that motion would require a second, and you would go forward with a [public] vote [for chair] like any other ordinance.’”

Moses Bell and the other council members complied with Morgan’s and Pauley’s argument.

Greene moved forward with a motion to nominate Moses Bell for chair. Bell in turn made a motion to nominate Greene for vice-chair. The public vote was 4 – 3 in favor of Bell as chair followed by a 4-3 public vote in favor of Greene as vice-chair. Bell, Trapp, Greene and Roseborough voted ‘for’ both Bell and Greene. Pauley, Gilbert and Robinson voted ‘against’.

But on Monday night, as chair and with the power to call for an open vote, Pauley chose not to. And none of the other six council members called for the vote of every member to be put on the record.

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