Brock v. Town of Mount Pleasant

• Decision Date: 05 November 2014
• Docket Number: No. 5279.,5279.
• Citation: 767 S.E.2d 203,411 S.C. 106
• Court: South Carolina Court of Appeals
• Parties: Stephen George BROCK, Appellant, v. TOWN OF MOUNT PLEASANT, Respondent. Appellate Case No. 2012–208787.

411 S.C. 106
767 S.E.2d 203

Stephen George BROCK, Appellant
v.
TOWN OF MOUNT PLEASANT, Respondent.

Appellate Case No. 2012–208787.

No. 5279.

Court of Appeals of South Carolina.

Heard Sept. 8, 2014.
Decided Nov. 5, 2014.
Rehearing Denied Jan. 23, 2015.
Certiorari Granted Aug. 19, 2015.

767 S.E.2d 204

Robert Clyde Childs, III, of Childs Law Firm, and J. Falkner Wilkes, both of Greenville, for Appellant.

Jessica Sara Jubick and James J. Hinchey, Jr., both of Hinchey Murray & Pagliarini, LLC, of Charleston, for Respondent.

Opinion

CURETON, A.J.

411 S.C. 109

Stephen Brock sued the Town of Mount Pleasant (the Town) under South Carolina's Freedom of Information Act (FOIA) and Public Records Retention Act (RRA), requesting declaratory judgments and injunctive relief relating to how the Town conducted its meetings and kept its records. The trial court granted the requested relief as to some issues and awarded Brock $42,000.00 in attorney's fees and costs. Brock appeals, arguing the trial court erred in failing to: (1) find the Town violated FOIA when it took action on matters without giving the public proper notice; (2) find the Town violated FOIA when its announcements of executive sessions violated FOIA's specific purpose provision; (3) find the Town violated RRA by deleting e-mails; and (4) award the full amount of requested attorney's fees and costs. We affirm in part, reverse in part, and remand.

411 S.C. 110

I. FACTS

In 2007, Mark Mason, an attorney in the Town, owned the “O.K. Tire Store property” (O.K. Tire Store), a large piece of property that included access to Shem Creek. The Town was very interested in obtaining the property and in the summer and fall of 2007, negotiations between the Town's town council (Town Council) and Mason increased. According to Mac Burdette,¹ the Town's administrator, the property was publicly discussed in Town Council's committee and council meetings, the topic “was written about many times in the Post & Courier, as well as [discussed on] television media,” and a proposed six million dollar purchase price was quoted “many times” during the summer and fall of 2007. After Mason rejected Town Council's first offer, the parties commenced litigation.² That litigation, Town Council's eventual purchase of the property for six

767 S.E.2d 205

million dollars, and Brock's position on Town Council's planning commission³ during that time led to the series of meetings at issue in this case.⁴

Town Council's entire “meeting notice” for its November 13, 2007 meeting (November 13 meeting) stated:

I. EXECUTIVE SESSION

A. Legal and Contractual Matters pertaining to properties near Shem Creek

B. Personnel Matters—Appointments to Boards & Commissions

1. Workforce Housing Advisory Committee

2. Pride Committee

3. Accommodations Tax Advisory Committee

411 S.C. 111

Once the mayor called the meeting to order, Burdette “indicated staff would like to ask Council to go into executive session to discuss legal and contractual matters pertaining to properties near Shem Creek and to also discuss personnel matters pertaining to appointments to Boards and Commissions.” Thereafter, Town Council passed “a motion to amend the agenda to add ... legal advice pertaining to an opinion from the Attorney General concerning the Planning Commission” and adjourned into executive session. Upon reconvening, the mayor indicated no actions or votes were taken during the executive session, and Town Council approved the following actions: “to direct the Town Attorney to move forward with the discussions as discussed in executive session pertaining to a piece of property on Shem Creek”; and “to authorize the Mayor and members of Council to obtain their individual attorneys for all lawsuits now and in the future with all fee statements to be reviewed by the Town Attorney.” The Town's attorney clarified item two “relate[d] to all lawsuits related to Town business.”

Town Council's “meeting notice” for its November 16, 2007 meeting (November 16 meeting) only included one item, stating:

I. EXECUTIVE SESSION

A. Legal Advice pertaining to OK Tire property litigation

II. Adjourn

Once the mayor called the meeting to order, Burdette “asked that Council amend the agenda to include personnel matters pertaining to the Clerk of Council.” Town Council passed “a motion to amend the agenda as stated by” Burdette and “a motion to amend the agenda to add personnel matters relating to the Boards and Commissions.” Thereafter, the mayor “indicated a motion was needed to adjourn into executive session regarding legal advice pertaining to the OK Tire property litigation and to discuss other personnel matters as mentioned,” and the Town's attorney “clarified that this was an executive session regarding all three matters mentioned.” Town Council then adjourned into executive session and upon reconvening, the mayor indicated no actions or votes were taken during the executive session. Subsequently, Town

411 S.C. 112

Council approved the following actions: “to adjust the position requirements and compensation for the Clerk of Council as discussed in executive session”; “to reject the offer that was tendered in reference to the Shem Creek property and OK Tire Store property litigation”; and “to authorize the attorney to prepare a letter as discussed in executive session in reference to the personnel actions regarding boards and commissions.”⁵

The “agenda” for the December 5, 2007 meeting (December 5 meeting) stated in pertinent part:

IV. APPROVAL OF AGENDA

...

VII. CORRESPONDENCE AND PUBLIC STATEMENTS ^{[ 6 ]}

767 S.E.2d 206

...

XII. NEW BUSINESS—Council

...

H. EXECUTIVE SESSION

(1) Legal Advice pertaining to Mathis Ferry Road Project (DEPAUL) relative to PBS & J

(2) Legal Advice pertaining to an EEOC complaint relative to a firefighter applicant (Personnel matter)

[ (3) ] Personnel Matters pertaining to (1) Personnel action regarding the Planning Commission; and (2) Appointment to Boards & Commissions

Shortly after the meeting began, Town Council passed motions “to amend the agenda by adding under Item H Executive Session, an item to receive legal advice pertaining to the OK Tire Store Litigation” and “to amend the agenda by deferring item H.3 under Executive Session, until the January Town Council meeting.” During the meeting, after Town Council discussed items I through XII (G), Burdette asked Town Council to adjourn into executive session to discuss

411 S.C. 113

personnel matters pertaining to appointments to boards and commissions and legal advice regarding a road project, an EEOC complaint, and “ the settlement of legal issues and purchase of property know[n] as the OK Tire Store and other properties.” The Town's attorney “clarified that this would be legal advice on OK Tire property litigation.” Town Council adjourned into executive session and upon reconvening, the mayor indicated no actions or votes were taken during the executive session. Thereafter, Town Council approved, among other actions, the following: “to approve the settlement agreement discussed in executive session pertaining to the OK Tire Store property condemnation lawsuits and authorize Mayor Hallman to execute the agreement” and “authorize the Town Administrator to transfer an additional $3 million into the water access property acquisition project for a total project budget amount of $6 million.”

In 2009, Brock filed an amended complaint against the Town arguing, among other things, the Town violated FOIA by: (1) failing to give notice of a proposed action at its December 5 meeting; (2) failing to announce the specific purpose for executive sessions held at its November 13 and November 16 meetings; and (3) participating in illegal communication via e-mail. Additionally, Brock argued the Town violated RRA by routinely destroying and deleting those e-mails. Thereafter, the parties proceeded to trial.

Mason testified he was never informed that any part of the O.K. Tire Store settlement agreement executed on December 6, 2007, was subject to further consideration or ratification by council. Mason maintained he would have given Town Council an additional twenty-four hours to make a decision had Town Council requested an extension. Yet, he admitted he delivered the settlement document to Town Council on December 5,...