Ad hoc or not, panel of city employees is a public body

Employees who recommended award of towing contract subject to meetings law

From the Summer 2001 issue of The News Media & The Law, page 40.

An ad hoc committee of city employees charged with recommending who should receive a city contract is a public body whose meetings have to be open, the South Carolina Supreme Court ruled in May. Even though none of its members are decisionmakers, the committee’s members are part of the process that leads to decisions for the public, the court held.

Before 1995, the city of Myrtle Beach rotated its calls for towing service among nine companies. But in 1995, the city council passed an ordinance requiring companies to bid for one or more towing contracts. The city manager selected a review committee of city employees with experience either with towing or with procurement to go over the bids, inspect the operations of strong candidates and recommend who should get the contracts.

After its meeting in September 1995, the committee told Quality Towing, which had been on the rotation list, that its proposal was “non-responsive,” which effectively eliminated the company from the competitive bidding process. In fact, the only premises that would be inspected would be those of Auto Body Works.

The city manager overruled the committee and ordered an inspection of Quality Towing. Two months before its inspection, however, the committee recommended that the city’s business go to Auto Body Works and the city manager submitted its bid to the city council. In January 1996, the council awarded Auto Body Works the contract.

Quality Towing sued in February 1996 complaining, among other things, that the review committee met in secret, violating South Carolina’s Freedom of Information Act. Because of the secrecy, Quality Towing did not know what it had done wrong, why it had not been selected and the fairness of the process.

In South Carolina, the Freedom of Information Act covers both open records and open meetings.

A court-appointed special referee, whose decision the county court accepted, said the review committee, formed only of city employees to help choose a wrecking company, was not a public body. It was just a committee appointed by the city manager, not even a committee of the city council, and its meetings did not have to be open, the court said.

Quality Towing appealed to the state Supreme Court, which reversed the lower court decision.

South Carolina’s FOI Act covers a wide range of committees and boards subject to the act, it said, including committees, subcommittees, advisory committees, and the like of any such body by “whatever name known.” Quoting from an earlier case, the court said that if a committee is “one step, however remote” in making a public decision, its meetings should be open.

The state’s high court also pointed out that the city council, in voting to accept the recommendation for Auto Body Works, went into executive session without announcing why it did so. The wrecking company also raised other fairness issues with the court.

The city argued that the committee was made up only of employees, not council members who would actually make a decision and they were too remote from the council members to be covered by the act. The city also said that it had not needed to announce the purpose for going into open session because everyone, including Quality Towing, knew what they were going to discuss when they went behind closed doors.

In rejecting the city’s arguments, the Supreme Court said the legislature used clear and unambiguous language when drafting the FOI Act. It simply does not matter who appoints a committee, or that its members are not themselves on the parent body, the court said: The act covers committees of public bodies.

The secrecy employed by the committee was exactly what the act was designed to prevent, the court said. The court also said the city council’s failure to announce why it went into closed session violated the act.

The case was sent back to the county court to determine what relief Quality Towing would get. — RD