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Brock v. Town of Mount Pleasant

Court of Appeals of South Carolina

November 5, 2014

Stephen George Brock, Appellant,
v.
Town of Mount Pleasant, Respondent

Heard: September 8, 2014.

Appeal From Charleston County. J. C. Nicholson, Jr., Circuit Court Judge. Appellate Case No. 2012-208787.

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.

CURETON, A.J. HUFF and SHORT, JJ., concur.

OPINION

Page 204

[411 S.C. 109] CURETON, A.J.

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

Page 205

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 million dollars, and Brock's position on Town Council's planning commission[3] 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 [411 S.C. 112] 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 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 ...

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