Overview
A review committee set up by a city manager to evaluate and recommend proposals for a wrecker services contract was a public body and was required to hold public meetings under the Freedom of Information Act. The city council violated FOIA when it failed to announce the specific purpose for which it was going into executive session. The City's exclusive contract with a towing company to provide wrecker services was a franchise, not a contract, and required that council to pass an ordinance pursuant to statute.
Summary
The city's ordinance instructed the city manager to contract with a wrecker company for the City's towing services. The manager formed a review committee composed of city employees, not city councilmembers, to evaluate proposals. The committee met several times and recommended a particular company. Quality Towing challenged the City's actions.
The Court held that the special referee erred in finding the review committee was not subject to FOIA. The committee was a public body pursuant to the plain language of S.C. Code Ann. - 30-4-20(a), which includes an "advisory committee." The committee was formed to help determine the award of a city contract, i.e., the expenditure of public funds. Because the committee was formed to give advice to a public body or official, it was performing a governmental function, not a business or proprietary function.
The special referee also erred in finding the city council did not violate FOIA when it went into executive session to discuss the contract award. The presiding officer did not announce the specific purpose for which the council was going into executive session, which violated FOIA.
The Court also found that because FOIA allows executive sessions for discussion of negotiations incident to proposed contractual arrangements and for the receipt of legal advice, the city council did not take formal action in executive session and did not, therefore, violate FOIA. The council's vote on the contract was done in public.
The Court determined that the contract awarded by the City to the towing company was a franchise, and the City was required to pass an ordinance to approve the franchise. The contract granted one company the exclusive right to charge the public for services; it was a privilege granted only to a designated business. Even though individuals could request other towing services in limited circumstances, the exclusive contract was at least a "partial franchise." The franchise was invalid because the City did not pass a franchise ordinance pursuant to statute.
The dissent disagreed that the contract was a franchise. The contract allowed vehicle owners to obtain services from any wrecker service. Under the contract, the towing company was to provide services to the City, not to citizens or businesses. The agreement was therefore a contract, not a franchise. That the contract made the towing company the default service provider for certain individuals and businesses did not render the contract a franchise agreement.