THE STATE OF SOUTH CAROLINA In The Supreme Court

Stephen George Brock, Petitioner,

v.

Town of Mount Pleasant, Respondent.

Appellate Case No. 2015-000406

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County J.C. Nicholson, Jr., Circuit Court Judge

Opinion No. 27621 Heard February 10, 2016 – Filed April 13, 2016

AFFIRMED AS MODIFIED

Robert Clyde Childs, III, of The Childs Law Firm, and J. Falkner Wilkes, both of Greenville, for Petitioner.

James J. Hinchey, Jr. and Julia P. Copeland, both of Hinchey, Murray & Pagliarini , LLC, of Charleston, for Respondent.

JUSTICE KITTREDGE: We issued a writ of certiorari to review the court of appeals' decision in Brock v. Town of Mount Pleasant , 411 S.C. 106, 767 S.E.2d 203 (Ct. App. 2014), that the Town of Mount Pleasant (the Town) did not violatethe Freedom of Information Act (FOIA) 1 by taking unnoticed action following executive sessions at special meetings. Ha ving carefully reviewed the record and law, we agree with Petitioner Stephen Ge orge Brock that the Town technically violated FOIA and that the court of app eals erred in relying on the discussion of regular meetings in Lambries v. Saluda County Council , 409 S.C. 1, 760 S.E.2d 785 (2014), in resolving the underlying ch allenge concerning special meetings. We accordingly modify the decision of the court of appeals. This technical FOIA

violation shall be included in the court of appeals' existing remand to the trial court

as an additional matter in Petitione r's request for attorney's fees.

I.

The facts and procedural history are set fort h in the court of appeals' opinion. The disputed actions occurred during special meetings for which the Town issued agendas listing an executive session but not indicating Town Council would take action following the executive session. Petitioner, who was a member of the Town's Planning Commission and the presid ent and general ma nager of a local television station, filed a complaint agai nst the Town alleging numerous violations of FOIA and seeking declaratory and injunctive relief. 2

The trial court granted Petitioner partial relie f, but ruled against him on the issue of "whether a matter added to an agenda fo r an executive session may be acted on . . . by a public body upon reconvening to open session." The court of appeals ruled against Petitioner on the issue as well, conc luding that "the Town did not violate . . . FOIA by acting on items added to sp ecial meeting[] agendas upon reconvening to open session." Brock , 411 S.C. at 124, 767 S.E.2d at 212. We issued a writ of certiorari to review that portion of the cour t of appeals' opinion. We note here that Petitioner does not seek to set aside any of Town Council's actions, but merely

1 S.C. Code Ann. §§ 30-4- 10 to -165 (2007 & Supp. 2015).

2 Petitioner specifically complained about the sufficiency of the notice provided by the agendas for three meetings. The agenda for one meeting listed only an executive session, while another indicated Town Council would go into executive session and then adjourn. The third agenda indicated Town Council would act on only one of the three items listed for di scussion during the executive session. Petitioner alleged the ag endas were insufficient to gi ve the public notice of actions that were taken following the executive sessions.seeks a declaration that the Town violated FOIA. 3

II.

A.

"The standard of review in a declarat ory action is determined by the underlying

issues." Nationwide Mut. Ins. Co. v. Rhoden , 398 S.C. 393, 398, 728 S.E.2d 477, 479 (2012) (citing Felts v. Richland Cnty. , 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991)). "The interpretation of a statute is a question of law." Sparks v. Palmetto Hardwood, Inc. , 406 S.C. 124, 128, 750 S.E. 2d 61, 63 (2013) (citing CFRE, L.L.C. v. Greenville Cnty. Assessor , 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011)). This Court may interpret statutes, and ther efore resolve this case, "without any

deference to the court below." CFRE , 395 S.C. at 74, 716 S.E.2d at 881 (citing City of Rock Hill v. Harris , 391 S.C. 149, 152, 705 S.E.2d 53, 54 (2011)).

B.

"The essential purpose of FO IA is to protect the public from secret government activity." Lambries , 409 S.C. at 8–9, 760 S.E.2d at 789 (citing Wiedemann v. Town of Hilton Head Island , 330 S.C. 532, 535 n.4, 500 S.E.2d 783, 785 n.4 (1998)).

In declaring FOIA's purpose, the General Assembly has found

3 We also granted Petitioner's petition for a wr it of certiorari to review the court of appeals' holding that certain issues raised to the trial court, including the effect of Town Council's subsequent ratification of unnoticed actions, were not preserved for appellate review. See Brock , 411 S.C. at 118–19, 767 S.E. 2d at 209. We agree with Petitioner that the court of appeals erre d, for the issues were properly raised to and ruled upon by the trial court. See, e.g.

, Elam v. S.C. Dep't of Transp. , 361 S.C. 9, 23, 602 S.E.2d 772, 779–80 ( 2004) ("Issues and arguments are preserved for appellate review only when they are raised to and ruled on by the lower court."). However, because Petitioner does not seek to set aside any of Town Council's actions, resolution of this issue on the me rits is unnecessary and we decline to

address it further. See, e.g.

, Wallace v. City of York , 276 S.C. 693, 694, 281 S.E.2d 487, 488 (1981) (per curiam) ("The function of appellate courts is not to give opinions on merely abstract or theore tical matters, but only to decide actual controversies injuriously affecting the righ ts of some party to the litigation.")."that it is vital in a democratic society that public business be performed in an open and public ma nner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy."

Id. at 9, 760 S.E.2d at 789 (quoting S.C. C ode Ann. § 30-4-15 (2007)). "'Toward this end, [FOIA's] provisions . . . must be construed so as to make it possible for citizens, or their representatives, to l earn and report fully the activities of their public officials at a minimum cost or de lay to the persons seeking access to public documents or meetings.'" Id. at 9, 760 S.E.2d at 789 (alterations in original) (quoting S.C. Code A nn. § 30-4-15).

In 2007, when the meetings at issue in this case occurred, agendas were not required for regularly scheduled council meetings. See S.C. Code Ann. § 30-4

- 80(a) (2007) ("Agenda, if any , for regularly scheduled m eetings . . . . (emphasis added)) (amended 2015); Lambries , 409 S.C. at 16, 760 S.E.2d at 793 ("[N]owhere in FOIA is there a statement that an ag enda is required for regularly scheduled meetings."). Because no agendas were re quired for regularly scheduled meetings,

we held in Lambries that FOIA did not prohibit a public body from amending a posted agenda once a regularly scheduled meeting began. Lambries , 409 S.C. at 18, 760 S.E.2d at 794 ("[W]e decline to judicially impose a restriction on the amendment of an agenda for a regularly sc heduled meeting, especially when it is clear that no agenda is required at all.").

However, regarding special meetings, FO IA imposed the following requirements:

All public bodies must post . . . public notice for any called, special, or rescheduled meetings. Such noti ce must be posted as early as is practicable but not later than twen ty-four hours before the meeting. The notice must include the age nda, date, time, and place of the meeting. This requirement does not apply to emergency meetings of public bodies. 4

S.C. Code Ann. § 30-4-80(a), amended by Act of June 8, 2015, No. 70, 2015 S.C.

4 Although this case is governed by the previ ous version of the statute, FOIA now requires agendas for regularly scheduled meetings and sets forth a specific procedure for amending agendas during mee tings. S.C. Code Ann. § 30-4-80(A) (Supp. 2015).Acts 320 (codified at S.C. Code Ann. § 30-4-80 (Supp. 2015)).

FOIA defines a "meeting" as "the c onvening of a quorum of the constituent membership of a public body . . . to di scuss or act upon a matter over which the public body has supervision, control, jurisdic tion[,] or advisory power." S.C. Code Ann. § 30-4-20(d) (2007). FOIA does not contain a definition of "special meeting." See Lambries , 409 S.C. at 14, 760 S.E. 2d at 791. However, in

Lambries , this Court described special meetings as "meeting[s] called for a special purpose and at which nothing can be done beyond the objects specified for the

call." Id. at 15, 760 S.E.2d at 792 (citing Barile v. City Comptroller , 288 N.Y.S.2d 191, 196 (Sup. Ct. 1968)). It is undisputed the challenged mee tings were special meetings.

During an open meeting, public bodies may vote to close the meeting and go into

an executive session for certain enumerat ed purposes. S.C. Code Ann. § 30-4- 70(a)–(b) (2007) (allowing executive sessions fo r the discussion of sensitive topics, including employment matters, negotiations dealing with the purchase of property, and the receipt of legal advice). Im portantly, "[n]o acti on may be taken in executive session except to (a) adjourn or (b) return to public session." Id. § 30-4- 70(b). Therefore, "[FOIA] does not require that an agenda for an executive session be posted or that the news media be notified of the agenda of an executive

session." Herald Publ'g Co. v. Barnwell , 291 S.C. 4, 11, 351 S.E.2d 878, 883 (Ct. App. 1986).

III.

A.

In relying on this Court's ruling in Lambries that FOIA imposed no restrictions on amending discretionary agenda s, the court of appeals failed to distinguish between regular meetings and special meetings. See Brock , 411 S.C. at 117, 767 S.E.2d at 208 (quoting Lambries , 409 S.C. at 18, 760 S.E.2d at 794). The court of appeals noted that, like regularly scheduled meeti ngs at that time, "FOIA does not mandate an agenda for executive sessions." Id. at 120, 767 S.E.2d at 21 0. Therefore, the court of appeals held that once an age nda was amended to allow discussion of additional items during the executive se ssion, "Town Council could certainly act on the agenda items upon reco nvening to public session." Id. at 120, 767 S.E.2d at 210. Importantly, the court of appeals c oncluded that by issuing an agenda for a special meeting listing an executive sessi on, which could thereafter be freelyamended, the public not only "had notice To wn Council desired to confer . . . in closed session regarding certain matters," but also that Town Council "may take some action upon reconvening to open session." Id. at 119–20, 767 S.E.2d at 209–

10.

B.

The court of appeals erred in failing to recognize the distinction between regularly scheduled meetings and special meetings. See Lambries , 409 S.C. at 16, 760 S.E.2d at 792 (stating that by requiring age ndas for regularly scheduled meetings and prohibiting amendments to those agendas, the court of appeals had "treat[ed] a regularly scheduled meeting as a called, sp ecial, or rescheduled meeting"). Thus, the court of appeals' holding that Town Council could take any action on any item that was properly discussed during an executive session is in conflict with

Lambries , wherein we noted that in special meetings, "nothing can be done beyond the objects specified for the call." Id. at 15, 760 S.E.2d at 792 (citing Barile , 288

N.Y.S.2d at 196). The court of appeals er red in concluding that an agenda giving notice of discussion during an executiv e session necessarily implies action following that discussion.

We recognize, and Petitioner does not disput e, that unnoticed items may be added to an executive session discussion at the time of a meeting. See Brock , 411 S.C. at 120 & n.11, 767 S.E.2d at 210 & n.11. Ho wever, after the executive session concludes and the public body reconve nes in open session, any action taken or

decision made must be properly noticed and, in the case of special meetings, such items may not exceed the scope of the pur pose for which the me eting was called. In so ruling, we do not suggest that an ag enda must specifically state the action to be taken; rather, it is sufficient for the ag enda to reflect that, upon returning to open session, action may be taken on the items discussed during the executive session.

C.

Although we conclude the To wn committed technical viol ations of FOIA, we are not unsympathetic to the Town's position. We, like the trial court and court of appeals, recognize that unforeseen events often occur and To wn Council may "not

have known what action it would take—t o include on an agenda—prior to discussing the relative legal issues and personnel matters during executive

session." Id. at 119, 767 S.E.2d at 209. Thus, our holding does not require the Town to list with specificity the actions it plans to take following an executivesession; it only requires the Town give notice that some action may be taken. This gives Town Council the flexibility to act as may be discovere d appropriate during executive sessions while ensuring the pub lic receives notice Town Council may

take such action.

IV.

For the reasons discussed above, we modify the court of appeals' opinion by holding that the Town did violate FOIA by taking unnoticed action at special meetings following executive sessions. As this case is already being remanded to the trial court for a redetermination of attorney's fees, see id. at 124, 767 S.E.2d at 212, the trial court is instructed to add this ruling to its consideration of Petitioner's request for attorney's fees.

AFFIRMED AS MODIFIED.



### PLEICONES, C.J., BEATTY, HEARN, JJ., and Acting Justice Tanya A. Gee, concur.