Herald Pub. Co., Inc. v. Barnwell, 0835

• Decision Date: 22 October 1986
• Docket Number: No. 0835,0835
• Citation: 351 S.E.2d 878,291 S.C. 4
• Court: South Carolina Court of Appeals
• Parties: HERALD PUBLISHING COMPANY, INC., and Carolina Newspapers, Inc., d/b/a Yorkville Enquirer, Appellants-Respondents, v. Eugene L. BARNWELL, in his capacity as Mayor, Tommy Benfield, Gerald Kemp, Jr., William Miller, Craig Reed, Heyward Reid, and Roddey Connolly in their capacity as Members of the City Council, Respondents-Appellants. . Heard

Page 878

351 S.E.2d 878

291 S.C. 4

HERALD PUBLISHING COMPANY, INC., and Carolina Newspapers, Inc., d/b/a Yorkville Enquirer, Appellants-Respondents, v. Eugene L. BARNWELL, in his capacity as Mayor, Tommy

Benfield, Gerald Kemp, Jr., William Miller, Craig Reed,

Heyward Reid, and Roddey Connolly in their capacity as

Members of the City Council, Respondents-Appellants.

No. 0835.

Court of Appeals of South Carolina.

Heard Oct. 22, 1986.

Decided Dec. 15, 1986.

James M. Brailsford, III, and Patricia B. Kinard, of Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford, Columbia, and J. Buford Grier, Rock Hill, for appellants-respondents.

William M. Brice, Jr., York, and E.N. Zeigler, of Zeigler, McEachin & Graham, Florence, for respondents-appellants.

Jay Bender, of Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, for amici curiae South Carolina Press Ass'n and Associated Press.

SANDERS, Chief Judge.

Herald Publishing Company, Inc., the owner of the The Evening Herald newspaper, and Carolina Newspapers, Inc., d/b/a the Yorkville Enquirer newspaper, brought this action against the members of the York City Council alleging that the Council had violated the South Carolina Freedom of Information Act by discussing subjects not permitted by the Act in an executive session and by holding the executive session without following the procedure mandated by the Act. The newspapers sought an order restraining the Council from further violations. The Council denied the alleged violations and counterclaimed, alleging that the newspapers had violated the Act by eavesdropping on the executive session. The Council sought an order declaring the actions of the newspapers to be a nuisance and restraining the newspapers from further eavesdropping on its executive sessions. After hearing the case without a jury, the trial judge denied the relief sought by both the newspapers and the Council. They both appeal. We affirm.

On November 16, 1984, the mayor of York, Eugene L. Barnwell, sent a memorandum to the other members of city council, the city manager and members of the news media announcing that the Council would meet in executive session on November 26, 1984 for four stated purposes.

Following receipt of this memorandum, the executive editor of the Herald prepared a statement to the Council to the effect that the discussion in executive session of three of the items would violate the Act. Peter Judge, a reporter for the Herald, appeared at the November 26 meeting and presented this statement to the Council. Also present from the news media was Gene Graham, a reporter for the Enquirer.

In response to the statement presented by Mr. Judge and on the advice of the city attorney, Mayor Barnwell announced that the three challenged items would not be discussed. The Council then voted to go into executive session. Mayor Barnwell announced that while in executive session the Council would discuss the employment of a person for the development of a training session for the Council, hear a legal presentation by attorneys for the city and receive a report from consultants on the proposed water treatment plant.

To fully understand what occurred at the November 26 meeting, some background information is helpful. The city of York had experienced ongoing problems with its waste water treatment plant which resulted in both actual and anticipated litigation. A lawsuit by the city against the contractor and engineer for the plant went to trial in November, 1983 and was settled after nearly two weeks of testimony. By the terms of the settlement, the city did not release the contractor and engineer from liability for latent defects. A leak in the wall of the filter chamber was discovered in the fall of 1984, several months prior to the November 26 council meeting. The Environmental Protection Agency had decertified the structure earlier that year.

York was being represented in its continuing problems with the waste water treatment plant by attorneys from the office of the South Carolina Attorney General. Victor Evans, one of the attorneys from that office representing the city, had met with EPA officials in Atlanta on November 21, the Wednesday before the November 26 meeting. Following his meeting with the EPA officials in Atlanta, Mr. Evans requested that he be allowed to make a presentation to the Council.

At the executive session, Mr. Evans and another attorney from the office of the Attorney General briefed council members concerning certain contractual problems with EPA in connection with the waste water treatment plant, the need for funding for the anticipated litigation and the hiring of a consulting engineering firm to determine exactly what was wrong with the wall at the waste water treatment plant and how it could be fixed.

At the same time that the Council was struggling with problems at the waste water treatment plant, it was also studying various options for the development of an alternative water supply for the city.

The three alternatives being considered were the purchase of water directly from the city of Rock Hill, the purchase of water from the city of Rock Hill, with the York County Council acting as intermediary and the construction of its own water treatment plant on Lake Wylie.

In October, 1984, the York County Council had given the city of York sixty days to decide whether the city would be part of a countywide water system.

The Council had previously hired a consulting engineering firm to study the alternatives. Two representatives of that firm presented a preliminary report to the Council at the November 26 meeting.

Mayor Barnwell testified that he did not know that the consultants would be at the November 26 meeting until either the Wednesday or Friday before the meeting and he did not know that the attorneys wanted to brief the Council until the day of the meeting. The Thursday before the meeting was Thanksgiving. No amended agenda was ever sent out.

During the executive session, Mr. Judge, the Herald reporter, waited outside the meeting room. While the attorneys were making their presentation, the two consultants waited outside with him. After the consultants went into the meeting, Mr. Judge realized that he could hear everything that was going on through a gap between the doors and he began to take notes. He was joined shortly thereafter by Jeff Cowart, the city editor of the Herald, who also took notes.

Following the executive session, the Council went back into open session and voted unanimously to hire the firm of Wilbur Smith and Associates to study the problems with the wall at the waste water treatment plant.

The formal report of the consulting firm hired in connection with the water system was received by the Council in open session at its regularly scheduled meeting on December 5, 1984. At that time the Council voted to proceed with the construction of its own water treatment plant.

An article by Mr. Judge and Mr. Cowart about the Council meeting appeared in the following edition of the Herald. It recounts the presentation by the Charlotte consultants, at times directly quoting Mayor Barnwell from statements he made in the executive session. The article also discussed the earlier presentation by the attorneys, although in a more indirect fashion.

I. THE NEWSPAPERS' APPEAL

The trial judge found that there was no violation of the Act proven by the newspapers and that discussions by the Council of the water treatment plant fell under the exemption in the Act for discussions "incident to proposed contractual arrangements." He further found that the evidence showed that the Council had displayed a continuing good faith effort to comply with both the letter and the spirit of the Act.

The South Carolina Freedom of Information Act is codified as Section 30-4-10 to -110, Code of Laws of South Carolina, 1976, as amended. Our research reveals that the legislature of every state as well as the Congress of the United States has enacted open meeting laws, or freedom of information acts, in some form or another. Because no two acts are the same, however, and because each case differs factually from others, cases from other states construing their statutes are of little assistance to us in our analysis. Marsh v. Richmond Newspapers, Inc., 223 Va. 245, 288 S.E.2d 415 (1982). ¹

A

The newspapers first argue that the topics discussed by the Council in executive session did not fall under any of the specific exemptions recognized by the Act. We reject this argument.

The guiding principle of South Carolina's Freedom of Information Act, enacted in 1978, is that "every meeting of all public bodies shall be open to the public." Section 30-4-60. However, under the Act closed sessions are allowed for a number of purposes. Section 30-4-70(a)(2) permits a public body to meet in executive session for "discussion of negotiations...