Lambries v. Saluda County Council

PIEPER, J.,

dissenting.

I respectfully dissent. The majority opinion is well-reasoned and compelling. However, I am reluctant to reverse the denial of temporary injunctive relief by the trial court because the statute is completely silent as to whether a public body can amend an agenda that is not required for a regularly scheduled meeting. “A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.” Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006). “[I]t 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....” S.C.Code Ann. § 30-4-15 (2007). FOIA must be construed to make it possible for citizens to learn and report fully the activities of public officials. Id. Section 30-4-80 of the South Carolina Code provides the following:

(a) All public bodies, except as provided in subsections (b) and (c) of this section, must give written public notice of their regular meetings at the beginning of each calendar year. The notice must include the dates, times, and places of such meetings. Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings. All public *507bodies must post on such bulletin board 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.

S.C.Code Ann. § 30-4-80 (2007).

Section 30-4-80 is completely silent as to whether an amendment to a published agenda for a regularly scheduled meeting is permitted. What is clear is that an agenda is not required for a regularly scheduled meeting, as indicated by the “if any” language in the statute. See S.C.Code Ann. § 30-4-80 (2007) (“Agenda, if any, for regularly scheduled meetings”). Because an agenda is not required for a regularly scheduled meeting, it is difficult to conclude that the statute’s silence clearly demonstrates legislative intent to prohibit a public body from amending a discretionary agenda. Additionally, Council’s amendment of the agenda did not violate FOIA’s purpose of providing the public access to a public body’s actions behind closed doors. Council’s amendment of the agenda did not infringe on Lambries’ ability to learn and report fully on the activities of the public officials. While the public was not informed of the amendment to the agenda, the meeting was performed in an open and public manner, and the public was advised of both the meeting and the decisions reached at the meeting.

Moreover, because a FOIA violation can be criminal in nature, the law should be clear as to what is proscribed; otherwise, unintended prosecutions could be threatened. See S.C.Code Ann. § 30-4-110 (2007) (“Any person or group of persons who willfully violates the provisions of this chapter shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or imprisoned for not more than thirty days for the first offense.... ”). Until the legislature resolves this issue, I would not judicially impose requirements that would have the effect of creating new and potentially unintended criminal liability. Furthermore, in light of the admitted lack of legislative clarity on this issue, I would alternatively affirm the trial court’s denial of Lambries’ temporary injunction, as the decision to grant or *508deny an injunction is within the discretion of the trial court. See Strategic Res. Co. v. BCS Life Ins. Co., 367 S.C. 540, 544, 627 S.E.2d 687, 689 (2006) (“An order granting or denying an injunction is reviewed for abuse of discretion.”). Based on the foregoing reasons, I would affirm the order of the trial court.