Well known and loved local attorney Reese Boyd will be the host of a weekly running radio show on radio channel 94.5. Boyd was born in and is a life long resident of Horry County.
Boyd offers highly intelligent thought and is a measured voice of conservative perspectives on all things Horry County, as well as, South Carolina. Below is a recent post Boyd put online after last Wednesday’s Horry County Council County Administrator interview process went into executive session.
The General Assembly finds that it is vital in a democratic society that public business be performed in an open and public manner 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. S.C. Freedom of Information Act, Section 30-04-15 (S.C. Code of Laws, 1976, As Amended.)
That’s from your state Freedom of Information Act, which is supposed to insure that, when you care to know, you can know what your government is up to, and to the extent possible, that government business will not be conducted behind closed doors. (Seems fair, after all, that you should know and be able to participate. After all, YOU are paying for it! Right?)
Well, there are many things that can be said about the current goings-on in Horry County government. Unfortunately, that it is being conducted in an “open and public manner” so that citizens feel empowered and advised of the “performance of the public officials” doesn’t make the list. Not in the Top 50. Not in the Top 100.
Yesterday’s farce of a County Council meeting (or should we call it an “un-meeting”, since it lasted less than four minutes) was the latest episode in the ongoing saga of “business as usual, good ol’ boy” politics in Horry County. Way “not public,” and very much “not in the open.” The more things change in Horry County, it seems, the more things stay the same.
In case you missed the “show” on Wednesday, Chairman Johnny Gardner had called a Special Meeting of Council, for the sole and specific purpose of allowing the public an opportunity to hear from the five “finalists” who remain in consideration for the County Administrator position. No sooner had the meeting been called to order, then Councilman Johnny Vaught made a motion to move the discussion into “executive session,” on grounds that “inadvertent questions” might open up the Council to lawsuits. This, frankly, was a silly suggestion, and the motion itself was out of order, but suddenly there was a clamor amongst the Council members, the County Attorney immediately and duly opined (as if, dare we notice, that the whole exchange looked slightly “rehearsed?”) that motions to go into executive session are not debatable, and suddenly there was a call for the Question. The Chairman then had little choice but to respond to the call for the question, and before you could say, “can they really do this?”, ten votes went up on the Big Board, and suddenly, the Chairman’s desire to bring a little open-ness and accountability to County government was shot down in flames. The meeting had “augured in,” a charred and smoking ruin at the center of a black crater in the middle of the desert on a bright, sunny day.
I sat there staring at the screen. Speechless. In my mind’s eye, I saw Chairman Gardner as Chuck Yeager, walking away from the charred smoking hole in the ground, dragging his parachute behind him.
What the ***** just happened here?
I’ll tell you what just happened here: transparency, open-ness, accountability, honesty, fairness. All of the above. All of them took a whopper on the chin. But that’s Ok. They’re also walking away from the wreckage, dragging their parachutes behind them. And they won’t give up, because the Truth, you see, is an amazingly resilient thing. And you can’t silence it just by high-jacking one meeting.
You’ll hear some amazingly ridiculous arguments in the days ahead, and you may have already heard a few. Don’t believe a word of it. Wednesday was simply the outward and visible signs that there are still a great many people in county government who don’t want you, the public, to be invested, and don’t want you to know what’s going on. Meetings like what Johnny Gardner tried to schedule for Wednesday frighten them, and frighten them deeply.
We heard Councilman Johnny Vaught say that he was concerned about the County being sued. Questions might be asked “inadvertently” that would expose the County to liability. He did not elaborate. Poppycock. And not just poppycock, but poppycock with an “LOL” on top. Stemming from the “Speech and Debate” clause in the U.S. Constitution, there is a long-standing tradition in this country, well-established in our law, that legislators (be they Members of Congress, state legislators, or local government councilmen) cannot be sued for things that they say in the performance of their duties in the legislative chamber. This privilege also applies, generally, to Judges, lawyers, and witnesses in the courtroom. But don’t take my word for it. At the end of this post, for those who want to drill a little deeper, I’ll add two paragraphs from the U.S. Supreme Court discussing the Speech and Debate privilege in the legislative context. Go ahead and drill down. Just be ready for the solid rock slab. Read the cases. Understand for yourself how silly these arguments are. (And then, of course, don’t just stop there, but also ask yourself why these silly arguments are being made.) But that will be the subject of a future article.
While the argument didn’t get raised at the “un-meeting,” (in fairness, there is only so much you can accomplish in three and one-half minutes when two minutes are consumed by the Invocation and the Pledge of Allegiance), I’ve also heard that “the County should not be interviewing employees in a public forum.” Jibberish. Don’t buy it. We’re not interviewing somebody to be dog catcher. We’re seeking someone to be the County Administrator. That means, taxpayers are going to pay someone something close to a quarter of a million dollars, annually, to negotiate what is essentially, the political hazards of what is essentially a political position. It is worth noting that two of the five finalists are, basically, politicians. It is altogether fitting and appropriate that the citizens of this County should have not only the desire, but the right, to hear each of these individuals speak in their own words to the beliefs about how County government should function, so that they can have an informed opinion, and (if they so desire) contact their elected councilman and “weigh in” on that councilman’s choice (vote) for who will be our next county administrator.
Nobody has even remotely suggested that the full HR process for the County should be moved into the public arena. That is a silly suggestion, and the Chairman certainly hasn’t made it. But don’t take the extreme form of his suggestion, and turn it into some sort of justification for why Council did the right thing on Wednesday.
There also those who would suggest to you that the County cannot, because of the nature of the discussion, hear from potential candidates for the county administrator position in an open and public forum, that the Freedom of Information Act requires that such discussions take place behind closed doors, in executive session. Those people, aside from being delusional, have also (apparently) not read the Freedom of Information Act.
It is worth noting that Wednesday’s special public meeting could have continued, as planned, and if at any point some well-intention and seasoned Council-person had asked a question that the Chairman (or anyone else on Council, or the County attorney for that matter) had deemed inappropriate, then the question could have been interrupted, with the suggestion that it be saved for a “more appropriate” venue, or (here’s a novel concept) the witness could have simply declined to answer the question. That sort of thing happens all the time in legislative hearings. The fact is, there were numerous “interim” solutions and remedies to the perceived (though non-existent) problem that would not have required the entire meeting be moved to executive session, but nobody seemed very interested in giving that much thought. “Why have an open meeting in front of all these people, Mr. Chairman, when we can go back into our nice cozy conference room?” In true Monty Python fashion, your County Council (ten of them, anyway) has spat in thy general direction.
I’ve heard it suggested that “everybody knew for a week or more that this was going to have to be in executive session,” and for some reason (we can ponder) that makes all of this Chairman Gardner’s fault. As noted above, it is simply not the case that this meeting had to take place in executive session. Executive session was not, and is not, a requirement for what the Chairman sought to accomplish for the People on Wednesday. But even if it WAS, and the Chairman knew about it, would he not have reached out to somebody and come up with a different plan? Who would convene all these people, all the Council members, all the staff, all the TV cameras and news crews, all for a meeting, if it is a foregone conclusion that your planned “public meeting” is going to have to take place in private, behind closed doors? Answer: Nobody would do that! Nobody wants to hop on a ride that blows up after only 210 seconds in the air. Chairman Gardner certainly doesn’t need press that badly. If he had known about this issue in advance, I am quite certain that a different route forward would have been plotted.
Which brings me to my last question, if you thought the whole meeting, which had been scheduled for the public’s benefit, needed to be conducted in private, then why would you not raise that issue in a private communication with the Chairman, in advance of the public meeting, or in some other fashion, before committing Council to another “farce” of a meeting? In the practice of law, we have something called “Rule 11,” which basically says if you have an issue with something that opposing counsel is doing, you bring it up with them, directly, before you bring it up in front of the judge. Rule 11, and our other civil court rules, are designed to prevent “trial by ambush,” and are drafted to help make sure that all the parties know what the issues are, and what they are arguing about, before they enter the courtroom. They are also designed to prevent lawyers from wasting a judge’s time with arguments that they should have been able to work out amongst themselves.
While Rule 11 obviously does not apply in the legislative chamber, as it does in the courtroom, one would expect that reasonably “good” (and I use that term loosely) and decent legislators would be able to find it within themselves to discuss such issues, and perhaps resolve them, before the cameras are turned on.
But sadly, on Wednesday it was not to be. Not here, not in Horry County. What happened in council chambers on Wednesday was unadulterated political theater. Scripted, and calculated to embarrass the Chairman. It was, in the truest sense of the word, an ambush.
Which brings me to my last point, which is that it now seems there is a block of County Council representatives who are driven, not by a desire to serve, and not by a desire to work together for the good of the County, but by an over-arching desire to thwart the Chairman and his agenda at every turn. Each councilman should ask themselves what side of history they want to be on. As I said, the Truth is stubborn and resilient. In my mind, to the extent that this is a “dispute,” the outcome has already been determined. It’s just a question of when the points will go on the board.
As for we the People, be reminded that you are the Judge. Not anybody else. You hired your County Councilman. And you can fire him. And on Wednesday, your County Council – most of them, anyway – wasted your time. I hope you were all taking good notes.
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For those who want to dig a little deeper on the subject of the “Speech and Debate” clause, following are two paragraphs from the U.S. Supreme Court on the subject:
It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate `errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called `news letters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years…. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things `generally done in a session of the House by one of its members in relation to the business before it,’ Kilbourn v. Thompson, [103 U.S. 168, 204 (1881)], or things `said or done by him, as a representative, in the exercise of the functions of that office.’ Coffin v. Coffin, 4 Mass. 1, 27 (1808). United State v. Brewster, 408 US 501, at 512-13.
The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U.S. 265, 279 (1990) (noting, in the context of addressing local legislative action, that `any restriction on a legislator’s freedom undermines the “public good” by interfering with the rights of the people to representation in the democratic process’); see also Kilbourn v. Thompson, 103 U.S. , at 201-204 [(1881)] (federal legislators); Tenney[ v. Brandhove, 341 U.S. 367], at 377 [(1951)] (state legislators); Lake Country Estates, 440 U.S. , at 405 [(1979)] (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing `the cost and inconvenience and distractions of a trial’). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). See Bogan v. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)