In January of last year, the U.S. Supreme Court issued its opinion in Reed v. Town of Gilbert, striking down the Town of Gilbert, Arizona’s sign ordinance. The Court did so on the grounds that the town’s restrictions on size, location and duration of temporary directional signs amounted to unconstitutional content-based restrictions on speech. The Municipal Association addressed this case in a November 2015 Uptown article, citing the Court’s determination that Gilbert’s sign code was "hopelessly underinclusive."
Many municipal attorneys agree that Reed does not impact restrictions on commercial speech, which has historically enjoyed less protection. But broader questions remain. The International Municipal Lawyers Association led a collaborative effort to create a model ordinance in response to Reed. The Municipal Association will share the model ordinance when IMLA releases it.
In the 2015 SC Supreme Court case of Azar v. City of Columbia, the Court raised concerns for local governments regarding fund transfers the City of Columbia made between its water and sewer enterprise fund and the city’s general fund. The SC Supreme Court returned the case to the circuit court for it to make factual determinations related to the nature of those transfers.
Two recent cases referenced the Freedom of Information Act. First, in last year’s Donohue v. City of North Augusta, the SC Supreme Court reminded public bodies of the need to be more specific when a body gives its reason for entering executive session. Second, this year, in Brock v. Town of Mount Pleasant, the Court weighed in on the related topic of whether public officials are allowed to take action after they emerge from an executive session.
In Brock, the Court determined that the town had violated the Freedom of Information Act when, without notice, it took action on matters discussed in executive session after leaving the closed portion of a special meeting. In light of this opinion, the Municipal Association recommends the following statement be included on agendas containing an executive session item: "Upon returning to open session, council may take action on matters discussed in executive session."
Earlier this year, the 1999 case of Garris v. Board of Governors of SC Reinsurance Facility raised questions among some municipal attorneys as to whether the SC Supreme Court’s analysis in this case leads to the conclusion that for-cause recusals or disqualifications of a public body’s voting members might leave officials without a quorum.
In Garris, a nonprofit entity’s adopted rules required a quorum of the board be present in order to take action. While the Supreme Court agreed with the determination that a quorum was present, it disagreed with the lower court’s position that the council could reach a quorum by counting the board’s non-voting members.
For municipal councils, Section 5-7-160 of the SC Code of Laws says that to transact council business, there must be a quorum, which the Legislature described as a majority of the total membership of the council.
If the Garris logic holds true, a councilmember’s recusal or disqualification may destroy the quorum and potentially invalidate council’s action on the disqualifying item.
These cases will be discussed in detail at a breakout session at the Annual Meeting on July 15 at 2:30 p.m.