If a South Carolina school board posts several documents called an agenda, which one counts as the legal public-meeting agenda?

Plain-English summary

A legislator asked the South Carolina Attorney General to review reports that the Charleston County School Board had created multiple versions of documents labeled as meeting agendas. The AG could not determine whether any document had been edited or when it was posted because those are factual questions outside the opinion process.

The opinion instead explained how a court would likely identify the legal agenda. Under § 30-4-80(A), a public body must post the agenda for a regular or special meeting in a publicly accessible place, and on its website if it has one, at least 24 hours before the meeting. A document's filename or use of the word "agenda" does not control. The relevant document is the publicly posted list of items to be considered, while later packets containing votes, attendance, or background material may serve a different purpose.

For a special meeting, action must stay within the purpose for which the meeting was called. A board may discuss unnoticed matters in executive session, but it may not take action there, and action after returning to open session must concern properly noticed items. The opinion said a court would be unlikely to find a § 30-4-80(A) violation if the publicly posted agenda accurately reflected the matters discussed and acted upon.

What this means for you

School boards and other public bodies

The opinion treats the timely public posting, not the document's title, as the key fact in identifying an agenda. The posted agenda must accurately describe the matters the body will consider, and a special meeting cannot be used to act beyond its stated purpose.

Board clerks and staff preparing meeting materials

An agenda is the list of items to be considered. A larger packet can contain background information, vote records, or minutes without becoming the legal agenda merely because its filename includes that word. The opinion warns that multiple similarly titled files can create public confusion even when only one is the posted agenda.

Board members and government attorneys

After posting, ordinary additions require another 24 hours of public notice. Once a meeting begins, an item can be added by a two-thirds vote, with an additional emergency or exigent-circumstance finding when final action is possible and there was no earlier opportunity for public comment.

Parents, journalists, and other members of the public

The opinion says a court would likely look for the document posted on the public bulletin board or website before the meeting. Later documents showing attendance, motions, and votes may be minutes or supporting material rather than proof that the original agenda was changed.

Common questions

Q: Does putting the word "agenda" in a filename make a document the official agenda?
A: No. The opinion relies on Holcomb for the rule that an agenda is the posted list of items to be considered. A title alone does not turn a background packet or later meeting record into the legal agenda.

Q: How early must a South Carolina public body post its agenda?
A: Section 30-4-80(A) requires posting at least 24 hours before a regular or special meeting. Called, special, or rescheduled meetings also require public notice stating the agenda, date, time, and place.

Q: Can a board add an item after the meeting begins?
A: The opinion says an item may be added by a two-thirds vote of the members present and voting. If final action can be taken and the public had no earlier noticed opportunity to comment, the body must also find an emergency or exigent circumstance.

Q: Can a board discuss an unnoticed matter in executive session?
A: The opinion reads Brock as allowing unnoticed discussion in executive session, but no action may be taken there other than adjourning or returning to public session. Any later action in open session must concern a properly noticed item.

Q: Did the AG find that the Charleston County School Board violated FOIA?
A: No. The AG said that deciding whether a notice or agenda was edited, and when, would require factual findings the office could not make. The opinion supplied the legal framework a court would likely apply.

Background and statutory framework

The South Carolina Freedom of Information Act requires public notice and an agenda for regular and special meetings. S.C. Code § 30-4-80(A) supplies the 24-hour posting rule and the procedures for adding items. S.C. Code § 30-4-90(a) separately requires written minutes recording the meeting's time and place, attendance, matters discussed or decided, and votes when requested.

The opinion uses two South Carolina appellate decisions. Brock v. Town of Mount Pleasant addresses special meetings, executive sessions, and the notice required before action. Holcomb v. City of N. Augusta distinguishes the one-page agenda from a larger packet of supplementary material even though both filenames contained the word "agenda."

The AG applied those principles conditionally. If the document timely posted for the public accurately listed what the board discussed and acted upon, the opinion said a court would be unlikely to find a violation of § 30-4-80(A). It did not decide which Charleston County document was posted or whether the underlying facts met that test.

Citations and references

Statutes:

• S.C. Code § 30-4-80(A) (Supp. 2022)
• Id. § 30-4-70(b)
• S.C. Code § 30-4-90(a)
• S.C. Code § 30-4-15

Cases:

• Brock v. Town of Mount Pleasant, 415 S.C. 625, 785 S.E.2d 198 (2016)
• Holcomb v. City of N. Augusta, No. 2020-000080, 2023 WL 3000661 (S.C. Ct. App. Apr. 19, 2023)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-multiple-documents-titled-for-a-public-meeting-of-the-charleston-county-school-board/
• Original PDF: https://www.scag.gov/media/vnup2oxq/03312434.pdf

Original opinion text

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O

Alan Wilson
ATTORNEY GENERAL

June 15, 2023

The Honorable Matthew W. Leber
Member
South Carolina House of Representatives
District No. 116

3805 Marshfield Rd.
Johns Island, SC 29455
Dear Representative Leber:

Attorney General Alan Wilson has referred your letter to the Opinions section. The letter
states the following.

In what could be a violation of state law, it has come to my attention the
Charleston County School Board is creating multiple versions of their public
meeting notices. This impedes the ability for the public to give robust input on

matters before the board and ultimately impacts the future of the children this
board serves.
Out of an abundance of caution, I respectfully request your office review the
public meeting notice procedures of the Charleston County School Board to
include the proper notification of agenda items.
Law/Analysis

Initially, it must be noted that determining whether a public notice or an agenda was edited,
and if so when, requires factual findings which are beyond the scope of this Office's opinions. See

Op. S.C. Att'y Gen., 2006 WL 1207271 (April 4, 2006) (“Because this Office does not have the
authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual

questions”). However, we will assume the facts provided in your letter in order to offer guidance.

The South Carolina Code of Laws requires public bodies to provide an agenda and public
notice for all regular and special meetings.

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The Honorable Matthew W. Leber
Page 2

June 15, 2023

An agenda for regularly scheduled or special meetings must be posted on a bulletin
board in a publicly accessible place at the office or meeting place of the public body
and on a public website maintained by the body, if any, at least twenty-four hours
prior to such meetings. All public bodies must post on such bulletin board or
website, if any, public notice for any called, special, or rescheduled meetings. Such
notice must include the agenda, date, time, and place of the meeting, and must be
posted as early as is practicable but not later than twenty-four hours before the
meeting.

S.C. Code § 30-4-80(A) (Supp. 2022). After an agenda is posted, items cannot be added to an
agenda without “an additional twenty-four hours notice to the public.” Id. Additional items may
be added to an agenda after the meeting begins, but only by “a two-thirds vote of the members
present and voting.” Id. Finally, in the case where “an item is one upon which final action can be
taken at the meeting or if the item is one in which there has not been and will not be an opportunity
for public comment with prior public notice given,” it may be added with both (1) “a two-thirds
vote of the members present and voting” and (2) “upon a finding by the body that an emergency
or an exigent circumstance exists if the item is not added to the agenda.” Id. The S.C. Freedom of
Information Act (“S.C. FOIA”) does not authorize other changes to an agenda.

A public body violates the S.C. FOIA if it takes unnoticed action. This Office understands

the May 30th meeting was called as a special meeting. The South Carolina Supreme Court noted
that the S.C. FOIA does not define “special meeting,” but the Court has described such meetings
as “meeting [s] called for a special purpose and at which nothing can be done beyond the objects
specified for the call.” Brock v. Town of Mount Pleasant, 415 S.C. 625, 630, 785 S.E.2d 198, 201
(2016) (internal quotations omitted). In Brock, the Court explained that public bodies are
authorized to close an open meeting and enter executive session.

Importantly, no action 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.

Brock, 415 S.C. at 630 (internal quotations omitted) (emphasis added). The Court also recognized

that “unnoticed items may be added to an executive session discussion at the time of a meeting.”
Id. at 631.

However, after leaving executive session and reconvening open session, the public

body can only act on properly notice items. See id. Further, in the case of special meetings, any

item acted upon cannot “exceed the scope of the purpose for which the meeting was called.” Id.
Finally, the Court clarified that its “holding does not require [a public body] to list with specificity
the actions it plans to take following an executive session; it only requires . . . notice that some
action may be taken.” Brock 415 S.C. at 632.

The Honorable Matthew W. Leber
Page 3

June 15, 2023

Attached to your letter are two PDF documents containing a heading that reads “Tuesday,

May 30, 2023 Board of Trustees- Special-Called Meeting.” One of the files is named “Board
Agenda Public Version” with a time stamp of 6/9/23, 2:47 PM. The second file is named “Board
Member Version Agenda” with a time stamp of 6/2/23, 2:53 PM.

Both documents include

“Motion & Voting” entries for adoption of the agenda, entering executive session, reconvening
open session, the subjects addressed in open session, and to adjourn the meeting. They also reflect
which members of the board were present or absent.

The information in these documents was

necessarily recorded after an original agenda was posted; which would have occurred on May 29th
or earlier to comply with the twenty-four hours notice requirement discussed above. It is unclear
whether these documents are meant to reflect minutes of the meeting, but they are not an original

agenda as it includes information that would not have been available at the time it was required to

be publicly posted.1

The South Carolina Court of Appeals recently issued an unpublished opinion addressing
alleged S.C. FOIA violations arising from a city’s website containing two documents whose title

included the word “Agenda.” Holcomb v. City of N, Augusta, No. 2020-000080, 2023 WL
3000661, at *1 (S.C. Ct. App. Apr. 19, 2023). The respondent alleged that the city violated the

S.C. FOIA by considering a project not listed within the document titled “Agenda 050718
Complete.” However, the file titled “Agenda 050718” included an item listed as “projects related
to the sales tax” which could include the project.

The Court found that the “one-page agenda

posted on the website and physically posted (as is required by section 3 0-4- 80(A))” was the

agenda, while “Agenda 050718 Complete” which contained thirty-six pages of “supplementary
information and background for different items on the agenda,” was background material. Id. The
Court defined “‘agenda’ as ‘a list of items to be considered.’ See Agenda, Black's Law Dictionary
(1 1th ed. 2019) (defining agenda as, ‘A list of things to be done, as items to be considered at a
meeting, usu[ally] arranged in order of consideration’).” Id.

Finally, the Court rejected the

argument that because the title of the larger document included the term “Agenda” it should be

considered the agenda for the meeting.

We are not aware of a common understanding of agenda that hinges on something's
title, and we doubt the statute was meant to control how public bodies name
documents (as opposed to relying on the common meaning of agenda). As outlined
above, we understand the term “agenda” to describe a list of things to be done such

1 See S.C. Code § 30-4-90(a) (emphasis added).
All public bodies shall keep written minutes of all of their public meetings. Such minutes
shall include but need not be limited to:
(1) The date, time and place of the meeting.

(2) The members of the public body recorded as either present or absent.
(3) The substance of all matters proposed, discussed or decided and, at the request of any
member, a record, by an individual member, of any votes taken.

(4) Any other information that any member of the public body requests be included or
reflected in the minutes.

The Honorable Matthew W. Leber
Page 4
June 15,2023

as items to be considered at a meeting. We also understand agenda to not include
background material, however it is labeled.

Id. at *2. As in Holcomb, if a court is asked to review multiple documents all purported to be an
agenda for a public meeting, it would likely consider which of the documents was “posted on a
bulletin board in a publicly accessible place at the office or meeting place of the public body.” S.C.

Code § 30-4-80(A). If the agenda document which is publicly posted accurately reflects the items
discussed and acted upon in a meeting, a court is unlikely to find a violation under S.C. Code §
30-4-80(A).

Conclusion

Of course, an opinion of this Office cannot determine facts or conduct an investigation, but
can only comment on the law. However, as discussed above and based on a recent opinion of the
South Carolina Court of Appeals, we advise that if a court is asked to review multiple documents
all purported to be an agenda for a public meeting, it would likely consider which of the documents
was "posted on a bulletin board in a publicly accessible place at the office or meeting place of the

public body.’’ S.C. Code § 30-4-80(A). If the agenda document which is publicly posted accurately
reflects the items discussed and acted upon in a meeting, a court is unlikely to find a violation
under S.C. Code § 30-4-80(A).
Regardless of whether the documents attached to your letter arc ultimately determined to
be an agenda, the uncertainty surrounding them has led to confusion regarding what topics were
properly noticed to the public.

We take this opportunity to remind public bodies that the S.C.

FOIA was adopted based on the finding “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. Code § 30-4-15. To that end, public bodies should make every effort to ensure
their agendas, public notices, and procedures used to conduct public meetings not only comply

with the minimum requirements of the S.C. FOIA, but also accurately apprise the citizenry of the
activities of their bodies and the decisions of their public officials. As we cautioned the Board in
an earlier letter, “[f]or decades, in order for public bodies to fully comply with FOIA, this Office
has advised that when in doubt, disclose.” That advice remains applicable here.
Sincerely,

,

Matthew Houck

Assistant Attorney General

The Honorable Matthew W. Leber
Page 5
June 15,2023

REVIEWED AND APPROVED BY:

^Robert D. Cook
Solicitor General