ELECTRONICALLY FILED - 2024 May 16 10:43 AM - RICHLAND - COMMON PLEAS - CASE#2024CP4000829

STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS

COUNTY OF RICHLAND FOR THE FIFTH JUDICIAL CIRCUIT

Clint Wallace, Civil Action No.: 2024CP4000829

Plaintiff,

v.
ORDER
Richland County School District One,
a body politic and corporate,

Defendant.

This matter came before the Court upon the filing of a Summons and Complaint by Plaintiff

Clint Wallace on February 7, 2024, in which he seeks declaratory and injunctive relief, as well as

attorney’s fees and costs, pursuant to the South Carolina Freedom of Information Act (FOIA), S.C.

CODE ANN. §§30-4-10 et seq. A hearing was conducted on February 16, 2024. Plaintiff was

represented by Christopher P. Kenney, Esquire, and L. Cody Smith, Esquire. Defendant was

represented by Eugene H. Matthews, Esquire, and Chandra Austin Stallworth, Esquire.

Having considered the evidence, the arguments of the parties, and the law, Plaintiff’s

request is GRANTED for the reasons set forth below.

BACKGROUND

This is a dispute under the South Carolina Freedom of Information Act (FOIA), S.C. Code

Ann. §§ 30-4-10 et seq., brought by Plaintiff Clint Wallace against Defendant Richland County

School District One (Richland One), a body politic and corporate, alleging that Richland One’s

Board of Commissioners (the “Board”) broke the law by taking secret government action.

Plaintiff alleges that when the Board met on February 1, 2024, it failed to give sufficiently specific

reasons for an executive session discussion, then emerged from that closed-door meeting and took

public votes to approve recommendations made in a private meeting without stating what the
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recommendation was or the action that was approved. According to Plaintiff, the Board took

official action during an “illegal, secret meeting.” He asks the Court to declare Richland One

violated the FOIA, declare the votes void ab initio, and enjoin Richland One from acting on those

votes.

FINDINGS OF FACT

On February 1, 2024, the Board held a special meeting. The published agenda for the

meeting provided for an executive session to discuss two matters: (i) “2.01 Legal Advice Related

to Construction Project presented by Dr. Richardson” and (ii) “2.02 Legal Advice Related to IG

Investigation.” The agenda further provided that following the executive session the Board would

consider two matters: (i) “4.01 Vince Ford Early Learning Center presented by Dr. Richardson”

and (ii) “4.02 IG Investigation presented by Dr. Richardson.”

According to subsequent testimony from Aaron Bishop, Chair of the Board (“the Chair”),

the purpose of the February 1 meeting was for the Board to receive information about the status of

a thirty-one-million-dollar construction project known as the Vince Ford Early Learning Center

(VFELC) that was subject to a work stoppage. As a result of public concern, the South Carolina

Office of Inspector General (“IG”) opened an investigation into the VFELC project. According to

the Chair, the reason for the meeting was for the Administration to advise the Board of the status

of the project and “to hopefully take steps towards some resolution” of the work stoppage.

When the meeting convened, the Chair requested a motion to go into executive session.

The motion was made, seconded, and unanimously approved by the Board without discussion.

Following the vote, the Chair announced the purpose of the executive session by reading from the

Agenda. The public statement of the Chair indicated that the Board was going into executive

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session to discuss Items 2.01 and 2.02 on the agenda. No further explanation or specific purpose

for the executive session was given; then the Board went into executive session.

When the Board returned to public session and reached public Agenda Item 4.01, Richland

One’s general counsel stated the matter had been discussed in executive session and “the

Administration requests approval of the recommendation as outlined in executive session.”

Likewise, the meeting minutes indicate the item was presented by Dr. Richardson and “[f]ollowing

receipt of legal advice in Executive Session concerning the Vince Ford Learning Center, the

administration recommended approval of the course of action as outlined by legal counsel.”

Immediately thereafter, and without discussion or explanation, the Chair called for a motion, a

commissioner moved to adopt the recommendation, it was seconded, and approved. At no point

was there any statement as to what the Administration recommended or what the Board’s public

vote approved.

The Board then turned to public Agenda Item 4.02. By unanimous vote, the Board

approved an Administration recommendation to hire the Wyche Law Firm and approve a deviation

from the district’s standard attorney fee rate. The meeting was then adjourned.

Plaintiff filed the instant action on February 7, 2024. Six days later, on February 13, 2024,

the Board held a regular meeting. The February 13 agenda included an executive session and

“legal advice regarding lawsuit,” among other matters. After voting to go into executive session,

Aaron Bishop, the chairman of the Board (“the Chair”), announced that one of the executive

session matters for legal advice was this lawsuit.

After the Board came out of executive session, the Chair read a statement prepared by its

counsel. In the statement, the Chair referred to the February 1 meeting, and stated that the purpose

of the meeting was to receive legal advice about the VFELC and the IG investigation. He

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explained that the legal advice concerning the VFELC related to Richland One’s “legal interest”

due to the work stoppage of a multi-million-dollar project under a contract, and the scope of the

project going forward. As to the IG investigation, the Chair stated the legal advice addressed

Richland One’s “full cooperation” with the inquiry while showing “compliance” with laws and

regulations. The statement explained that included in the February 1 discussion was the need for

additional legal services and that, “Upon entering into executive session the Board approved the

hiring of the Wyche Law Firm” to work with Richland One during the IG investigation. When

asked to confirm, “you entered into a contract and took action [on February 1] is what you are

telling us on February 13th?”, the Chair agreed, “Yes.” The Board voted to attach the February

13 statement to the February 1 Minutes.

On February 15, 2024, Richland One moved to dismiss under Rule 12(b)(6), SCRCP. The

motion argued there was “no evidence” to support Plaintiff’s allegation of secret action during the

February 1 meeting, and any purported defect was cured by a statement made at a subsequent

Board meeting. Based on that statement, Richland One argued the case was moot, injunctive relief

was not appropriate, and Plaintiff was not entitled to fees and costs.

CONCLUSIONS OF LAW

“The essential purpose of the FOIA is to protect the public from secret government

activity.” Glassmeyer v. City of Columbia, 414 S.C. 213, 219, 777 S.E.2d 835, 839 (Ct. App.

2015). To accomplish this purpose, FOIA requires that “[e]very meeting of all public bodies shall

be open to the public unless closed pursuant to § 30-4-70 of this chapter.” S.C. CODE ANN. §30-

4-60. A public body1 can only close a meeting to the public if it meets one of the enumerated

1
Richland One is a “public body” under S.C. CODE ANN. § 30-4-20(a), and the Board is the legally
constituted governing body under S.C. CODE ANN. § 59-19-10.
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exceptions. S.C. CODE ANN. §30-4-70(a). One reason a meeting can be closed is to receive legal

advice related to “a pending, threatened, or potential claim or other matters covered by the

attorney-client privilege, settlement of legal claims, or the position of the public agency in other

adversary situations involving the assertion against the agency of a claim.” Id. at §30-4-70(a)(2).

Here, the Board entered executive session to receive legal advice about the VFELC matter and the

IG investigation.

However, FOIA imposes rules on a public body when it holds non-public executive

sessions. “Before going into executive session the public agency shall vote in public on the

question and when the vote is favorable, the presiding officer shall announce the specific purpose

of the executive session.” S.C. CODE ANN. §30-4-70(b). A “specific purpose” under FOIA means

one of the five enumerated exceptions in Subsection 30-4-70(a)(1)– (5). Id. “No action may be

taken in executive session except to (a) adjourn or (b) return to public session.” Id. “The members

of a public body may not commit the public body to a course of action by a polling of members in

executive session.” Id.

Plaintiff alleges Richland One violated these rules by (1) failing to properly notice and

announce a specific purpose when entering executive session on February 1 to discuss Agenda

Item 2.01, and (2) taking official action in executive session on the Executive Session Items (i.e.,

Items 2.01 and 2.02). The Court agrees.

I. Agenda Item 2.01 failed to state a specific purpose.

“FOIA is clear in its mandate that the specific purpose of [an executive] session shall be

announced.” Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 164, 547 S.E.2d 862, 866

(2001) (quotations omitted, italics original). According to the Agenda and public statements of the

Chair, the stated purpose of the February 1 executive session was legal advice related to (a) a

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construction project and (b) IG investigation. The Court holds that the statement of Agenda Item

2.01 fails to meet FOIA’s specific purpose mandate.

Legal advice related to an unnamed construction project is not a specific purpose. Agenda

Item 2.01 merely refers to a construction project; it says nothing about the VFELC. When pressed

to agree, the Chair correctly acknowledged, “It does not detail what you are asking. But it was

related to the Vince Ford Learning Center.” Notably, this defect could have been easily remedied

by simply referencing the VFELC.

Vague statements by a public body, such as its intent to discuss a “contractual matter,” are

insufficient to satisfy the specific purpose requirement. Donohue v. City of North Augusta, 412

S.C. 526, 531–33, 773 S.E.2d 140, 142–43 (2015). Richland One has more than 50 schools plus

athletic facilities, any of which might require construction from time to time; or the school district

may contemplate new construction. Based on the stated purpose here, it is anyone’s guess what

construction project is referenced in the Agenda and during the February 1 meeting. This stands in

stark contrast with Item No. 2.02, concerning the IG investigation. While that purpose could be

more specifically stated—e.g., IG investigation related to the VFELC—Plaintiff’s allegations take

no issue and the Court finds it sufficient alert the public to the nature of the closed-door discussion.

Arguably, because of public news reports leading up to the February 1 meeting, an astute

observer of the news might also assume the non-specific reference to a construction project was,

in fact, referring to the VFELC; however, FOIA does not rely on such assumptions or require the

public to be keen observers to understand government action. “Therefore, FOIA is not satisfied

merely because citizens have some idea of what a public body might discuss in private.” Quality

Towing, 345 S.C. at 164, 547 S.E.2d at 866. To conclude otherwise puts the onus on the public to

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assume rather than on the government to explain the purpose behind a closed-door meeting. The

Court will not do that here and therefore finds the purpose to be insufficiently specific.

Moreover, not every discussion of a construction project can be taken behind closed doors.

Only “[d]iscussion of negotiations incident to proposed contractual arrangements and proposed

sale or purchase of property,” or the receipt of legal advice relating to a pending, threatened, or

potential claim is allowed to be discussed outside of public’s view. S.C. CODE ANN. §30-4-

70(a)(2). Not every construction project results in litigation, and not every contract results in suit.

Thus, telling the public the Board would receive legal advice about a construction project is

meaningless—the executive session discussion might be authorized by FOIA, or it might not. That

clearly violates the FOIA’s specific purpose rule.

When a public body fails to provide a specific purpose, the resulting executive session is

“improper.” See, e.g., Miramonti v. Richland Cty. Sch. Dist. One, 438 S.C. 612, 616, 885 S.E.2d

406, 408 (Ct. App. 2023). The Court holds that because the Board failed to provide a specific

purpose, the executive session to discuss Item 2.01 was unlawful under FOIA.

Notably, this FOIA defect was easily preventable by providing a modicum of additional

information to the public prior to the executive session. By merely referencing the VFELC,

Richland One would have met the specific purpose requirement for Item 2.01 under S.C. CODE

ANN. §30-4-70(b) without revealing any potentially attorney-client or otherwise exempt

information. Because Richland One failed to do so, the Court finds it violated FOIA.

II. The votes on Items 4.01 and 4.02 were unlawful executive session action.

FOIA’s open meeting mandate requires prohibits executive session votes except to adjourn

or resume public session. S.C. CODE ANN. §30-4-70(b). Doing otherwise contravenes FOIA’s

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open meeting mandate. S.C. CODE ANN. §30-4-60. Likewise, a public body cannot act during a

special board meeting unless the public has been notified.

Here, the Board took public votes, but the actions it voted to approve were described by an

Administration lawyer in executive session, and the public received no advance notice. This

amounts to “secret action by holding a private discussion in executive session, agreeing to a course

of action, and then returning to public session to ‘approve’ the decision reached in secret and never

stated in public.”

First, it cannot be correct that a public body can go behind closed doors, have a course of

action proposed (even by a lawyer), and then return to public session and vote to approve what

was said behind closed doors without ever publicly stating the action approved. Such a rule defies

common sense, is contrary to the core purpose of FOIA, and would create a loophole that renders

FOIA’s public meeting provisions meaningless. S.C. CODE ANN. §30-4-70(b) is clear and

unambiguous. Nevertheless, to the extent any statutory construction is required, FOIA should be

construed “to prevent an interpretation that would lead to a result that is plainly absurd.” See

Hodges v. Rainey, 341 S.C. 79, 91, 533 S.E.2d 578, 584 (2000).

Second, requiring a public body to make a public statement of the action it voted to approve

in no way interferes with the attorney-client privilege. The purpose of the privilege is to facilitate

confidential communication between counsel and the client. See Wilson v. Preston, 378 S.C. 348,

359, 662 S.E.2d 580, 585 (2008). There is nothing privileged about action, and nothing required

the Board here to disclose attorney advice when adopting general counsel’s recommendations in

public session. Upon returning to public session, a commissioner need only state the proposed

action in the form of a motion to be seconded, debated, and then voted upon. Nothing about this

procedure requires a disclosure that the proposed action was the product of attorney advice. To the

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extent any attorney-client communication was disclosed, that was the result of the procedure

Richland One chose to employ, not FOIA.

Third, this conclusion comports with precedent considering the open meeting mandate and

the special meeting notice provisions. For example, in Miramonti, 438 S.C. 612, 885 S.E.2d 406,

the Board discussed a parent’s complaint letter in executive session while receiving legal advice,

then returned to public session where the chair announced that the complaint had been received

and responded to and that the parent “will get something in writing from the Board tomorrow.” Id.

at 615–16, 885 S.E.2d at 407–08. After noting the school board failed to announce a specific

purpose, the Court of Appeals explained that even if the school board complied with the specific

purpose requirement, it was prohibited from taking any vote except to adjourn or return to public

session and was prohibited from committing the public body to a course of action in executive

session. Id. at 617, 885 S.E.2d at 408. In other words, the Miramonti court held that a private

meeting followed by a public statement of government action without a vote violated FOIA. The

same is true here.

CONCLUSION

For the foregoing reasons, the Court finds that the February 1 votes on the Executive

Session Items are void ab initio and that Richland One should be restrained from acting on those

votes. Nothing in this Order prevents the Board from convening a properly noticed public meeting

to take a public vote authorizing the exact same action, should it so choose.

In addition, Plaintiff is entitled to payment of attorneys’ fees and costs pursuant to S.C.

CODE ANN. §30-4-100(B). The Court has considered (1) the nature, extent, and difficulty of the

legal services rendered, (2) the time and labor necessary to the case, (3) the professional standing

of counsel, (4) the contingency of compensation, (5) the fee customarily charged for similar legal

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services; and (6) the beneficial results obtained. See Dedes v. Strickland, 307 S.C. 155, 160, 414

S.E.2d 134, 137 (1992).

For the reasons explained, the Court enters this final JUDGMENT FOR THE

PLAINTIFF and ORDERS as follows:

1. It is hereby DECLARED, under S.C. CODE ANN. §§15-53-20 & 30-

4-100(A), that:

a. The Board failed to properly notice and announce a specific

purpose for Item 2.01;

b. The Board illegally approve action on Agenda Items 4.01

and 4.02;

c. Richland One and its Board violated S.C. CODE ANN. §§30-

4-60 and 30-4-70(b) of FOIA as described here; and

d. Richland One’s actions were unlawful and void ab initio;

2. Richland One is ENJOINED, under S.C. CODE ANN. §§ 15-53-120

and 30-4-100(A), from acting on the Executive Session Items unless

a lawful public meeting and vote occurs; and

3. Richland One SHALL pay Plaintiff attorney’s fees in the amount of

$9,750 and costs in the amount of $712.06 pursuant to S.C. CODE

ANN. §30-4-100(B).

AND IT IS SO ORDERED.

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Richland Common Pleas

Case Caption: Clint Wallace vs Richland County School District One

Case Number: 2024CP4000829

Type: Order/Judgment Amended and Form 4

So Ordered

Jocelyn Newman

Electronically signed on 2024-05-15 14:48:07 page 11 of 11