Cases of an incidental quorum of council occurring outside a called meeting, sometimes called a chance meeting, can lead to questions about how to handle the situation under the SC Freedom of Information Act. According to SC Code Section 30-4-20(d), a meeting is “the convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power.”
The problem is that a majority of council might assemble outside the context of a noticed public meeting. For example, a majority of council might attend a conference, a local holiday party, or even the same church. Must public notice be provided every time a majority of council is together, even inadvertently or by chance?
To understand the issue, it’s important to carefully read the definition of a meeting in the law — the gathering is a meeting only if the council will “discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power.”
Elsewhere in FOIA law at SC Code Section 30-4-70(c), the General Assembly made this point explicit: “No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.”
The law does not require that notice be provided every time a quorum of council will be in the same place at the same time. Instead, it requires that, if notice has not been provided, the quorum may not act on or discuss any matter within its government supervision, control, jurisdiction or advisory power.
When council is gathered it is remarkably easy to slip into such action or discussion, even without any intention to do so, therefore the safest course is to provide FOIA notice whenever a majority of council is expected to gather. In cases in which notice is not or cannot be provided, councilmembers should make every effort to avoid acting upon or discussing municipal business.