Secret Road-Funding Meetings Likely Violating Law

January 19, 2016

Investigative Reports

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By RON AIKEN

closed meeting‘It’s not a public body,’ chairman of senate committee says

The final version of legislation to fix South Carolina’s roads (read: tax hike) is being hammered out right now in secret meetings experts say likely are illegal, The Nerve has learned.

Eight Senators make up the road plan “working group” appointed by Sen. Hugh Leatherman (R-Florence) in his role as Senate president pro tempore – Sens. Joel Lourie (D-Richland), Darrell Jackson (D-Richland), Vincent Sheheen (D-Kershaw), Shane Massey (R-Edgefield), Sean Bennett (R-Dorchester) and Wes Hayes (R-York).

The group is co-chaired by Sens. Brad Hutto (D-Orangeburg) and Raymond Cleary (R-Georgetown) and has met three times, according to published reports.

All the meetings have taken place in secret with no notice given of them beforehand nor have any minutes as yet been made public, if they exist.

Under the South Carolina Code of Laws Section 30-4-20, a public body is defined as “any public or governmental body or political subdivision of the State … including committees, subcommittees, advisory committees, and the like of any such body by whatever name known.”

Attorney Jay Bender is the Freedom of Information Chair at the University of South Carolina’s School of Journalism and Mass Communications and represents the South Carolina Press Association in matters of open records. He says his review of Section 30-4-20 leads to a similar conclusion that working groups are public bodies that may not hold meetings in private.

“I think a committee of the General Assembly cannot meet without giving notice and without convening the meeting in public,” Bender told The Nerve. “There do not appear to be any grounds to hold such a meeting closed to the public.”

Bill Rogers, executive director of the S.C. Press Association, agrees.

“Of all things that should be public, it should be budget discussions,” Rogers said. “People need to know what is in the pipeline on taxes and spending.”

In response to the closed-door meetings, a growing coalition of community groups is calling for an end to the secrecy and for the Senate to acknowledge that the meetings are illegal.

Executive director of government watchdog group Common Cause/SC John Crangle (who is an attorney) says there is no question the working group is a public body.

“They’re appointed to this group because they’re public officials, they were appointed to it by a public official and the purpose of the committee is to deal with public policy-making,” Crangle said.

“That’s a public body. And I’ll bet they’re most likely meeting on public property and being facilitated by staff and by the the legislature’s schedule if they adjourned early, as Senator Leatherman said. Any argument that they’re not a public body is false on its face.”

Talbert Black, president of the S.C. Campaign for Liberty, says in his view the secret meetings are clearly illegal.

“They’re essentially an ad hoc committee,” Black said. “And they should operate as an ad hoc committee, in the public. They should receive testimony from the public and operate in the open. I think operating in secrecy violates FOIA and is illegal. It’s not in the public’s interest.”

A review by The Nerve of legal opinions in other states show several have ruled that working groups of legislative bodies are public and therefore subject to FOIA guidelines that include open meetings and the keeping and publishing of minutes.

In Delaware, the Attorney General issued an opinion in 2013 determining that a working group appointed by the governor to study charter school legislation met the definition of public body because members were selected/invited by a public official of the state (governor) to participate and the group was charged with acting in an “advisory” manner to make recommendations.

In Massachusetts, the attorney general’s office affirms on its website that working groups are public bodies, stating that “a public body can be any type of multiple-member board, regardless of what it’s called. It can be called a committee, a task force, an ad-hoc committee, or a working group, but if it meets this definition, it is a public body.”

In New York in 2003, the state delivered an opinion declaring working groups of the state’s fiscal authority “constitute public bodies required to comply with that (open meetings) statute,” and as recently as September of 2015 the Virginia attorney general’s office ruled “Committees, working groups, etc., of a public body are also public bodies.”

Cleary said in his opinion the public isn’t entitled to attend working group meetings nor should there be legislative or public oversight because of the group is not a public body.

“It’s not a public body but a few members working together,” Cleary told The Nerve Friday. “Working groups aren’t creating policy or guidelines, they’re just an informal group trying to build consensus.

“A subcommittee takes testimony, holds public meetings to create findings and makes determinations to report to a full committee. We’ve gone through that process. A working group is seeing what’s in common with those things and what’s not in common.”

When asked where the meetings have taken place or will take place, Cleary declined to answer. When reached Monday for clarification, he referred any questions about the legality of holding meetings in secret to “the four lawyers who are part of (the) working group.”

“I’m a dentist,” Cleary said.

Multiple messages left with Sheheen, who is an attorney and member of the group, were not returned.

Critics say taking the process out of public view and putting an outcome in the hands of a politically connected few is precisely the flawed process that has led to South Carolina funneling billions into new road construction rather than maintaining and repairing a crumbling road system in the first place.

“I think its very disturbing that they’re not meeting publicly,” said Coastal Conservation League executive director Dana Beach. “Having deliberations private is a big concern because their product is going to be something that will presumably be advanced in some semi-formal or official capacity and reflects an alignment with the interests of the Senate as a whole.

“Therefore the logic behind their conclusions is going to be vitally important for public to understand. If this is going to be the official position of the Senate, then the public needs to understand how they reached the conclusions they reached, which isn’t possible if meetings are behind closed doors.

“Sadly it’s a continuation of the flaw, a representation of the flaws in the (road-funding) system today because decisions are made without public knowledge and without transparency.”

Leatherman’s choices for who was – and was not – included on the committee also has drawn criticism. Because no rules govern the makeup of a working group, no safeguards exist to prevent a legislative leader’s critics from being excluded as a way to silence opposition.

Though Cleary said the working group was comprised of “people who have studied the issue and who understand it,” perhaps the biggest voice for DOT reform, including changing the current power structure atop which Leatherman sits, was not invited to participate despite his strong desire to do so.

“If I were in that meeting I would say the (State Infrastructure Bank) should be abolished, that having two legislators in control of how hundreds of millions of dollars are spent is insane,” Sen. Tom Davis (R-Beaufort) told The Nerve. “And, it makes no sense to raise taxes before making sure existing dollars are spent wisely, especially when existing tax collections are at record levels.

“But I wasn’t invited to that meeting, so I will wait to make my case on the Senate floor.”

Beach said excluding alternative viewpoints, including those as informed as Davis’, is counter-productive to a healthy debate.

“I’d say first the membership of that working group ought to be reflective of those people who have a range of points of view, and Senator Davis certainly has a clear point of view and has played a key role in the debate. He has been very diligent in trying to understand the details of this issue; it’s not something you can have a couple of meetings about and understand the complexity of how DOT is funded and the need.

“If a Senator has already put that effort into this issue, in a very sincere fashion trying to understand how to create a transparent and efficient system, it’s foolish not to include him as one of the members. I’m surprised and concerned he’s not a member.”

Cleary defended the group’s makeup.

“You want a diverse group with strong opinions rather than a large group,” he said. “This isn’t a subcommittee because testimony has already been given. We understand everything about tax relief and funding and the people who put those things together are part of this committee, so there’s a broad knowledge.

“We’re just trying, the hopeful thing is that we make a common-sense decision, which is what the taxpayers want.”

Lynn Teague of the League of Women Voters said what taxpayers want most is transparency.

“The League of Women voters firmly believes in transparency in government,” Teague said. “In my years at the State House I’ve seen so much take place behind closed doors and I’ve seen it produce unfortunate surprises.

“The Senate prides itself on being a deliberate body, and this road-funding process should be done deliberately in public. The League has gone on record as arguing for more dispersion of power in government, and certainly we’d rather see the authority to do something this important spread around since there’s likely to be pretty intense pressure for senators to get on board with whatever they come up with.”

Teague says excluding voices such as Davis’ only harms the credibility of the Senate and its leadership.

“Last year Leatherman didn’t allow amendments in committee on the roads bill,” Teague said. “Senator Davis attempted to introduce amendments, including structural reform, and wasn’t allowed to.

“So when made the bill made it to the floor there was nothing about structural reform in it and any subsequent amendments were ruled as not being germane and therefore not possible to introduce, which clearly was the plan all along.”

“We at the League have a concern about the overall degree to which the public debate is strictly limited. Everybody understands that this is the legislature’s number one priority this year and people in the state consider it their number one priority. So it shouldn’t be something that is handed over with no modifications and behind closed doors. That’s not how government should work. Not with anything, much less something this important.”

Reach Aiken at 803-254-4411. Email him at ron@thenerve.org. Follow him on Twitter @RonAiken and @TheNerveSC. Have The Nerve delivered to your inbox as stories post by clicking here.