Could two friends on the same South Carolina council committee socialize without holding a public meeting?

Official title

Regarding “Simpsonville has just implemented Standing Committees with three council members on each committee. Two friends that have always gone to lunch and on day trips together happen to be on a committee together. Since the two now present a quorum, does this mean they will no longer be able to socialize?”

Requester

The Honorable Geneva Lawrence, Mayor pro tempore, Simpsonville City Hall

Plain-English summary

Simpsonville's mayor pro tempore asked whether two friends who served on the same three-member standing committee could still have lunch or take day trips together. Two members formed a quorum. The Attorney General said a court would likely treat a purely social gathering as outside the open-meetings requirement if they did not discuss or act on matters within the committee's authority.

The opinion stressed that calling a gathering “social” did not settle the issue. It depended on what the members actually discussed or did, and the Freedom of Information Act prohibited using a social meeting to evade its requirements. The office framed its answer as a prediction of how a court would apply the law to the facts.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did lunch together automatically become a public committee meeting? A: The AG said no. A quorum's social gathering was likely outside the meeting rule if no committee business was discussed or acted upon.

Q: Did calling the outing social make the meeting law inapplicable? A: No. The opinion said the substance of the gathering, rather than its label, controlled.

Q: Could committee members use a social gathering to decide committee business? A: The opinion quoted the statute's prohibition on using social meetings to circumvent open-meetings requirements.

Background and statutory framework

The opinion described the committee as a public body under South Carolina's Freedom of Information Act. Two members of a three-member committee were a quorum, but the statutory definition of a meeting also required discussion or action on a matter within the body's authority. The office emphasized the law's openness purpose while distinguishing a gathering with no such discussion or action.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-5-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/08/Lawrence-Geneva-Mayor-OS-9794-08-05-2014-Fair-00400204xD2C78.pdf

Original opinion text

j

Alan Wilson

•s»'OLrni

ArmRNKy General

Auausl 5. 201-1

The I lononihlc Geneva I awrcnce. Mayor pro lemporc

Simpsonvillc C ily I (all
I IS N.l-:. Main Si.
Simpsonville. SC 20681
Dear Mayor l.awrenee:
Altomcy (iencral Alan W ilson has referred vonr letter dated June 12. 201-1 to the Opinions section for a response.

The following is this Office's undersianding of vonr question and our opinion hased on that

understanding.

Issue (as quoted froni your letter): ¦¦.Simpsonville has just implemented Standing Committees w ith three

council memhers on each committee.

Two friends that have always gone to lunch anil on day trips

together happen to be on a committee together. Since the two now present a quorum, does this mean thes u ill no longer be able to sociali/e?"

Law/Analysis:

Tel us begin In examining the applicable sections of the law concerning the South

Carolina freedom of Information Act. The South Carolina freedom of Information Act ("fOIA ") is found is 30-1-10 el seq. of the South Carolina Code of Taws. I he South Carolina General Assemble clearly stated concerning the intent of fOIA:

The General AssembK finds that it is \ ilal in a democratic societv that 50
, '
business
be performed in an open and 84
, ' ' c manner so that cili/ens shall be advised ol the
performance of public officials and of the decisions that are reached in 87
, ' ''c activity
and in the formulation of public policy. Toward this end. provisions of this chapter must be construed so as to make it possible for cili/ens. 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.

South Carolina Code

30-1-15 (1076 Code, as amended).

fOl.A's quintessential purpose i> for the

protection of the people. Seago v . I lorrv Coiintv. 378 S.C 414. 663 S.I-;. 2d 38 (2008).

Keeping f'OIA's purpose in mind, let us review some of South Carolina's fOIA statutes. South Carolina Code § 30-4-60 states:

livery meeting of all public bodies shall be open to the 94
, ' ' c unless closed pursuant
to § 30-1-70 of this chapter.

South Carolina Code S 30-4-20(d) dellnes a meeting as:

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Facsimii i: X().t-?S S-A's i

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The Honorable Geneva Lawrence
Page 2
August 5, 2014

(T]he convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter over

which the public body has supervision, control, jurisdiction or advisory power. South Carolina Code § 30-4-20(a) defines a public body as:
[A]ny department of the State, a majority of directors or their representatives of

departments within the executive branch of state government as outlined in Section !• 30-10,

any

state

board,

commission,

agency,

and

authority,

any

public

or

governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, including committees, subcommittees, advisory committees, and the like of any such body by whatever name known, and includes any quasigovernmental body of the State and its political subdivisions, including, without limitation, bodies such as the South Carolina Public Service Authority and the South Carolina State Ports Authority. Committees of health care facilities, which are subject to this chapter, for medical staff disciplinary proceedings, quality assurance, peer review, including the medical staff credentialing process, specific medical case review, and self-evaluation, are not public bodies for the purpose of this chapter.

Moreover, under the South Carolina Freedom of Information Act, a quorum is defined as ua simple majority of the constituent membership of a public body." S.C. Code § 30-4-20(e). This Office agrees that:

1)

A committee is a public body (S.C. Code § 30-4-20(a));

2)

Two members on the same committee could constitute a quorum (S.C. Code § 30-4-20(e));

3) A meeting ofthe quorum would trigger a meeting of the committee (S.C. Code § 30-4-20(d)); 4) A meeting of a public body must be open unless it is an exception (S.C. Code § 30-4-60).

However, a meeting is defined as "a quorum ... to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power.,' S.C. Code § 30-4-20(d). Where there is no discussion or action on a matter which the committee would have "supervision, control, jurisdiction or advisory power," there would likely be no meeting.

Nevertheless, we urge caution to you as FOIA is specific in stating:

(c) No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. S.C. Code § 30-4-70(c). Furthermore, there are numerous legal opinions concerning FOIA. As this Office has previously stated concerning FOIA questions, "each situation would have to be judged on its

own facts." Op. S.C. Attv. Gen.. 2004 WL 245 1475 (October 7, 2004) (quoting On. S.C. Attv. Gen.. 2002 WL 3 134 1 81 1 (August 19. 2002)). One such opinion noted that even advisory committees must follow FOIA. Op. S.C. Attv. Gen.. 2005 WL 292232 (January 27, 2005). A 1983 opinion concluded that a

The I ionorahlc Geneva Lawrence

Page 3
August 5, 20 1 'I

meeting includes inlbrmal as well as formal meetings. On. S.C. Attv. Gen.. 2006 VVl. 2593081 (August 1 1. 2006) (citinu On. S.C. Attv. Gen.. 1983 \VL 142726 (August 8. 1983)). The 1983 opinion also stated that:

|R)IA| must be liberally construed in order to fulfill its remedial purpose. When all
of these factors arc considered in light of the statutory definition of ¦meeting*, it is

evident that the mere fact that a gathering is charactcri/ed as •social* in nature is not controlling, what is instead dispositive is whether the gathering or convening of the

body is "to discuss or act upon a mailer over which the public body has supervision, Authorities from other jurisdictions agree

control, jurisdiction or advisory power.'

with this conclusion in that they recognize no real distinction between formal and informal gatherings for purposes of the applicability of the Freedom of Information Act. ... On. S.C. Attv. Gen.. 2006 WL 2593081 (August II. 2006) (auoiine On. S.C. Attv. Gen.. 1983 WL

142726 (August 8. 1983)). Another 1983 opinion concluded that breakfast meetings between a member of the General Assembly and elected officials discussing legislation and assistance would be subject to

FOIA. On. S.C. Ally. Gen.. 1983 WL 142769 (December 2L 1983). These arc just a few examples of previous opinions concerning issues similar to the (gicstion you raised. Please know there are many other opinions on the subject of FOIA if you desire further reading. Moreover, it is a well-recognized principle of law that an act which is forbidden to be done directly cannot be accomplished indirectly. Ons. S.C. Attv. Gen.. 2000 WL 1803581 (November 13. 2000): 1990 WL 599265 (Julv 31. 1990) (citing Stale ex

rcl. l-dwards v. Oshonic. 193 S.C. 158. 7 S.l-.2d 526 (1940): l.urcv v. Citv of Laurens. 265 S.C. 217. 217 S.i;.2d 226 (1975): Weslbrook v. Haves. 253 S.C. 244. 169 S.H.Zd 775 (1969)).

As the State Supreme

Court cautioned in Richardson v. Blalock. 1 18 S.C. 438. 1 10 S.F. 678 (1922). *"|t|hnt which cannot be

done directly cannot be done indirectly.** As this Office previously slated, "the purpose of this rule is to prevent circumvention of the law by ruse or artifice." Op. S.C. Attv. Gen.. 2003 WL 21471505 (June 10.

2003).

*

Conclusion: Based on the law of this State at this time and prior opinions issued by this Office, as referenced above, this Office believes a court will likely determine that the South Carolina Freedom of Information Act would not apply to socializing where no business matlers are discussed oracled upon, as determined on a case-by-ease basis. We emphasize, however, that this Office construes FOIA broadly and all doubt must be resolved in favor of openness, rims, a strict adherence to no business being

discussed must he followed for FOIA not to apply. However, until a court or the Legislature specifically addresses the issues presented in your letter, this is only a legal opinion on how this Office believes a

court would interpret the law in the matter. Moreover, there are many other sources and authorities you may want to refer to for a further analysis. For a binding determination, this Office would recommend seeking a declaratory judgment from a court on these matters, as only a court of law can interpret statutes. S.C. Code 5} 1 5-53-20. et al. If it is later determined otherwise or if you have any additional tpieslions or issues, please let us know.

Sincerely.

.

c£.
Anita S. Fair

Assistant Altomev General

The I fonorahlc Geneva Lawrence
Page 4

August 5. 20 H

REVIEWED AND AI'PROVHI) BY

Robert D. Cook
Solicitor General