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‘I’ve arrived. Just not in Beaufort’: The school board’s un-invitation of FOI lawyer

Jean Toal talks about important role Jay Bender played for open records in SC

Retired S.C. Supreme Court Chief Justice Jean Toal has known Bender almost 50 years.
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Retired S.C. Supreme Court Chief Justice Jean Toal has known Bender almost 50 years.

Between 1980, when I became counsel to the S.C. Press Association, and today I have given more seminars and participated in panel discussions regarding our state’s laws on open meetings and open records than I have kept count of.

I have been asked to give these presentations to school boards, state boards and commissions, state, county and municipal attorneys, and citizen groups such as the League of Women Voters. I don’t keep a record of these appearances, and I have participated in them at no charge to the organization extending the invitation. On occasion I get a meal, and even rarer, the offer of an overnight accommodation for an out of town event.

My favorite story from these presentations came from an evaluation form completed by a town council member who was attending an orientation for newly elected officials given by the Municipal Association of South Carolina. Obviously the council member missed my introduction, but he concisely demonstrated his lack of commitment to open government by writing on his evaluation, “Don’t invite this guy back. He sounds like a newspaper lawyer.”

On an another occasion while lobbying for an improvement in the Freedom of Information Act (FOIA) before a subcommittee of the House Judiciary Committee, an improvement opposed by a roomful of lawyers and lobbyists from all levels of government in South Carolina, the head of the Municipal Association jumped to his feet when it looked like the legislation would receive a favorable vote, and said, “Mr. Chairman, you don’t understand the problem, we have to deal with Bender-trained reporters all over the state.” I liked that so much I had printed on the coffee mugs I gave my journalism students, “I’m another Bender-trained journalist.”

You see, when I speak to the government officials and their lawyers I explain that the General Assembly found specifically that it is vital in a democratic society that public business be conducted in an open and public manner. Many in government resist that notion.

I was invited to present a seminar on the FOIA to a committee of the Beaufort County Board of Education at 5:30 p.m. May 20. About the time the arrangements for my appearance were being settled and my motel reservation made, I wrote to the chair of the board to point out that, contrary to the law and inconsistent with a decision of the South Carolina Court of Appeals directly on point, the school district had failed to provide access to personnel records of two school principals who had been subject of disciplinary inquiries. I was writing on behalf of The Island Packet. As the law provides, I pointed out that continued refusal to produce the records might result in litigation including a request for an order to enjoin the district from future violation of the law.

The board had a meeting on May 16 at which time a motion was made to approve the agenda that had been announced in advance of the meeting as required by law. After the motion was made and seconded, but before a vote was taken on the motion, a second motion was made to amend the agenda to add an item withdrawing my invitation to speak at the committee meeting.

Under the FOIA, an item may be added to a previously disseminated agenda by giving not less than 24 hour notice of the additional item. Once a meeting has started, an item requiring action may be added by an affirmative vote of two-thirds of the members present and voting “upon a finding by the body that an emergency or an exigent circumstance exists if the item is not added to the agenda.”

The emergency or exigent circumstance that required the addition of an item to withdraw my invitation was stated by a board member to be that there wasn’t enough time to give at least 24-hour notice of a meeting to discuss the withdrawal of my invitation. By my calculation, the board had not less than 96 hours to give notice of a meeting to withdraw my invitation.

My dictionary defines “exigent” as “needing immediate attention.” An “emergency” is “an unexpected, serious occurrence or situation urgently requiring prompt action.”

I’m guessing that in the mind of many of these board members, the emergency or exigent circumstance was that I was going to appear at a meeting open to the public to discuss ways in which the board could comply with the law. I must be one dangerous man in the eyes of those school board members.

I’ve arrived. Just not in Beaufort.

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