Brock v. Town of Mount Pleasant , 415 S.C. 625 ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Stephen George Brock, Petitioner,
v.
Town of Mount Pleasant, Respondent.
Appellate Case No. 2015-000406
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
J.C. Nicholson, Jr., Circuit Court Judge
Opinion No. 27621
Heard February 10, 2016 – Filed April 13, 2016
AFFIRMED AS MODIFIED
Robert Clyde Childs, III, of The Childs Law Firm, and J.
Falkner Wilkes, both of Greenville, for Petitioner.
James J. Hinchey, Jr. and Julia P. Copeland, both of
Hinchey, Murray & Pagliarini, LLC, of Charleston, for
Respondent.
JUSTICE KITTREDGE: We issued a writ of certiorari to review the court of
appeals' decision in Brock v. Town of Mount Pleasant, 411 S.C. 106, 767 S.E.2d
203 (Ct. App. 2014), that the Town of Mount Pleasant (the Town) did not violate
the Freedom of Information Act (FOIA)1 by taking unnoticed action following
executive sessions at special meetings. Having carefully reviewed the record and
law, we agree with Petitioner Stephen George Brock that the Town technically
violated FOIA and that the court of appeals erred in relying on the discussion of
regular meetings in Lambries v. Saluda County Council, 409 S.C. 1, 760 S.E.2d
785 (2014), in resolving the underlying challenge concerning special meetings.
We accordingly modify the decision of the court of appeals. This technical FOIA
violation shall be included in the court of appeals' existing remand to the trial court
as an additional matter in Petitioner's request for attorney's fees.
I.
The facts and procedural history are set forth in the court of appeals' opinion. The
disputed actions occurred during special meetings for which the Town issued
agendas listing an executive session but not indicating Town Council would take
action following the executive session. Petitioner, who was a member of the
Town's Planning Commission and the president and general manager of a local
television station, filed a complaint against the Town alleging numerous violations
of FOIA and seeking declaratory and injunctive relief.2
The trial court granted Petitioner partial relief, but ruled against him on the issue of
"whether a matter added to an agenda for an executive session may be acted on . . .
by a public body upon reconvening to open session." The court of appeals ruled
against Petitioner on the issue as well, concluding that "the Town did not violate
. . . FOIA by acting on items added to special meeting[] agendas upon reconvening
to open session." Brock, 411 S.C. at 124, 767 S.E.2d at 212. We issued a writ of
certiorari to review that portion of the court of appeals' opinion. We note here that
Petitioner does not seek to set aside any of Town Council's actions, but merely
1
S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2015).
2
Petitioner specifically complained about the sufficiency of the notice provided by
the agendas for three meetings. The agenda for one meeting listed only an
executive session, while another indicated Town Council would go into executive
session and then adjourn. The third agenda indicated Town Council would act on
only one of the three items listed for discussion during the executive session.
Petitioner alleged the agendas were insufficient to give the public notice of actions
that were taken following the executive sessions.
seeks a declaration that the Town violated FOIA.3
II.
A.
"The standard of review in a declaratory action is determined by the underlying
issues." Nationwide Mut. Ins. Co. v. Rhoden, 398 S.C. 393, 398, 728 S.E.2d 477,
479 (2012) (citing Felts v. Richland Cnty., 303 S.C. 354, 356, 400 S.E.2d 781, 782
(1991)). "The interpretation of a statute is a question of law." Sparks v. Palmetto
Hardwood, Inc., 406 S.C. 124, 128, 750 S.E.2d 61, 63 (2013) (citing CFRE, L.L.C.
v. Greenville Cnty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011)). This
Court may interpret statutes, and therefore resolve this case, "without any
deference to the court below." CFRE, 395 S.C. at 74, 716 S.E.2d at 881 (citing
City of Rock Hill v. Harris, 391 S.C. 149, 152, 705 S.E.2d 53, 54 (2011)).
B.
"The essential purpose of FOIA is to protect the public from secret government
activity." Lambries, 409 S.C. at 8–9, 760 S.E.2d at 789 (citing Wiedemann v.
Town of Hilton Head Island, 330 S.C. 532, 535 n.4, 500 S.E.2d 783, 785 n.4
(1998)).
In declaring FOIA's purpose, the General Assembly has found
3
We also granted Petitioner's petition for a writ of certiorari to review the court of
appeals' holding that certain issues raised to the trial court, including the effect of
Town Council's subsequent ratification of unnoticed actions, were not preserved
for appellate review. See Brock, 411 S.C. at 118–19, 767 S.E.2d at 209. We agree
with Petitioner that the court of appeals erred, for the issues were properly raised to
and ruled upon by the trial court. See, e.g., Elam v. S.C. Dep't of Transp., 361 S.C.
9, 23, 602 S.E.2d 772, 779–80 (2004) ("Issues and arguments are preserved for
appellate review only when they are raised to and ruled on by the lower court.").
However, because Petitioner does not seek to set aside any of Town Council's
actions, resolution of this issue on the merits is unnecessary and we decline to
address it further. See, e.g., Wallace v. City of York, 276 S.C. 693, 694, 281 S.E.2d
487, 488 (1981) (per curiam) ("The function of appellate courts is not to give
opinions on merely abstract or theoretical matters, but only to decide actual
controversies injuriously affecting the rights of some party to the litigation.").
"that it is vital in a democratic society that public business be
performed in an open and public manner so that citizens shall be
advised of the performance of public officials and of the decisions that
are reached in public activity and in the formulation of public policy."
Id. at 9, 760 S.E.2d at 789 (quoting S.C. Code Ann. § 30-4-15 (2007)). "'Toward
this end, [FOIA's] provisions . . . must be construed so as to make it possible for
citizens, or their representatives, to learn and report fully the activities of their
public officials at a minimum cost or delay to the persons seeking access to public
documents or meetings.'" Id. at 9, 760 S.E.2d at 789 (alterations in original)
(quoting S.C. Code Ann. § 30-4-15).
In 2007, when the meetings at issue in this case occurred, agendas were not
required for regularly scheduled council meetings. See S.C. Code Ann. § 30-4-
80(a) (2007) ("Agenda, if any, for regularly scheduled meetings . . . . (emphasis
added)) (amended 2015); Lambries, 409 S.C. at 16, 760 S.E.2d at 793 ("[N]owhere
in FOIA is there a statement that an agenda is required for regularly scheduled
meetings."). Because no agendas were required for regularly scheduled meetings,
we held in Lambries that FOIA did not prohibit a public body from amending a
posted agenda once a regularly scheduled meeting began. Lambries, 409 S.C. at
18, 760 S.E.2d at 794 ("[W]e decline to judicially impose a restriction on the
amendment of an agenda for a regularly scheduled meeting, especially when it is
clear that no agenda is required at all.").
However, regarding special meetings, FOIA imposed the following requirements:
All public bodies must post . . . public notice for any called, special,
or rescheduled meetings. Such notice must be posted as early as is
practicable but not later than twenty-four hours before the meeting.
The notice must include the agenda, date, time, and place of the
meeting. This requirement does not apply to emergency meetings of
public bodies.4
S.C. Code Ann. § 30-4-80(a), amended by Act of June 8, 2015, No. 70, 2015 S.C.
4
Although this case is governed by the previous version of the statute, FOIA now
requires agendas for regularly scheduled meetings and sets forth a specific
procedure for amending agendas during meetings. S.C. Code Ann. § 30-4-80(A)
(Supp. 2015).
Acts 320 (codified at S.C. Code Ann. § 30-4-80 (Supp. 2015)).
FOIA defines a "meeting" as "the convening of a quorum of the constituent
membership of a public body . . . to discuss or act upon a matter over which the
public body has supervision, control, jurisdiction[,] or advisory power." S.C. Code
Ann. § 30-4-20(d) (2007). FOIA does not contain a definition of "special
meeting." See Lambries, 409 S.C. at 14, 760 S.E.2d at 791. However, in
Lambries, this Court described special meetings as "meeting[s] called for a special
purpose and at which nothing can be done beyond the objects specified for the
call." Id. at 15, 760 S.E.2d at 792 (citing Barile v. City Comptroller, 288 N.Y.S.2d
191, 196 (Sup. Ct. 1968)). It is undisputed the challenged meetings were special
meetings.
During an open meeting, public bodies may vote to close the meeting and go into
an executive session for certain enumerated purposes. S.C. Code Ann. § 30-4-
70(a)–(b) (2007) (allowing executive sessions for the discussion of sensitive topics,
including employment matters, negotiations dealing with the purchase of property,
and the receipt of legal advice). Importantly, "[n]o action may be taken in
executive session except to (a) adjourn or (b) return to public session." Id. § 30-4-
70(b). Therefore, "[FOIA] does not require that an agenda for an executive session
be posted or that the news media be notified of the agenda of an executive
session." Herald Publ'g Co. v. Barnwell, 291 S.C. 4, 11, 351 S.E.2d 878, 883 (Ct.
App. 1986).
III.
A.
In relying on this Court's ruling in Lambries that FOIA imposed no restrictions on
amending discretionary agendas, the court of appeals failed to distinguish between
regular meetings and special meetings. See Brock, 411 S.C. at 117, 767 S.E.2d at
208 (quoting Lambries, 409 S.C. at 18, 760 S.E.2d at 794). The court of appeals
noted that, like regularly scheduled meetings at that time, "FOIA does not mandate
an agenda for executive sessions." Id. at 120, 767 S.E.2d at 210. Therefore, the
court of appeals held that once an agenda was amended to allow discussion of
additional items during the executive session, "Town Council could certainly act
on the agenda items upon reconvening to public session." Id. at 120, 767 S.E.2d at
210. Importantly, the court of appeals concluded that by issuing an agenda for a
special meeting listing an executive session, which could thereafter be freely
amended, the public not only "had notice Town Council desired to confer . . . in
closed session regarding certain matters," but also that Town Council "may take
some action upon reconvening to open session." Id. at 119–20, 767 S.E.2d at 209–
10.
B.
The court of appeals erred in failing to recognize the distinction between regularly
scheduled meetings and special meetings. See Lambries, 409 S.C. at 16, 760
S.E.2d at 792 (stating that by requiring agendas for regularly scheduled meetings
and prohibiting amendments to those agendas, the court of appeals had "treat[ed] a
regularly scheduled meeting as a called, special, or rescheduled meeting"). Thus,
the court of appeals' holding that Town Council could take any action on any item
that was properly discussed during an executive session is in conflict with
Lambries, wherein we noted that in special meetings, "nothing can be done beyond
the objects specified for the call." Id. at 15, 760 S.E.2d at 792 (citing Barile, 288
N.Y.S.2d at 196). The court of appeals erred in concluding that an agenda giving
notice of discussion during an executive session necessarily implies action
following that discussion.
We recognize, and Petitioner does not dispute, that unnoticed items may be added
to an executive session discussion at the time of a meeting. See Brock, 411 S.C. at
120 & n.11, 767 S.E.2d at 210 & n.11. However, after the executive session
concludes and the public body reconvenes in open session, any action taken or
decision made must be properly noticed and, in the case of special meetings, such
items may not exceed the scope of the purpose for which the meeting was called.
In so ruling, we do not suggest that an agenda must specifically state the action to
be taken; rather, it is sufficient for the agenda to reflect that, upon returning to open
session, action may be taken on the items discussed during the executive session.
C.
Although we conclude the Town committed technical violations of FOIA, we are
not unsympathetic to the Town's position. We, like the trial court and court of
appeals, recognize that unforeseen events often occur and Town Council may "not
have known what action it would take—to include on an agenda—prior to
discussing the relative legal issues and personnel matters during executive
session." Id. at 119, 767 S.E.2d at 209. Thus, our holding does not require the
Town to list with specificity the actions it plans to take following an executive
session; it only requires the Town give notice that some action may be taken. This
gives Town Council the flexibility to act as may be discovered appropriate during
executive sessions while ensuring the public receives notice Town Council may
take such action.
IV.
For the reasons discussed above, we modify the court of appeals' opinion by
holding that the Town did violate FOIA by taking unnoticed action at special
meetings following executive sessions. As this case is already being remanded to
the trial court for a redetermination of attorney's fees, see id. at 124, 767 S.E.2d at
212, the trial court is instructed to add this ruling to its consideration of Petitioner's
request for attorney's fees.
AFFIRMED AS MODIFIED.
PLEICONES, C.J., BEATTY, HEARN, JJ., and Acting Justice Tanya A.
Gee, concur.