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Voices. Knowledge. Solutions.

Who Can Set or Change an Agenda?

Since 2015, the South Carolina Freedom of Information Act has required public bodies to prepare and post in a timely manner an agenda for every meeting, whether regularly scheduled or specially called. Even without this requirement, it would be scarcely possible to conduct public meetings without an agenda.

Agendas are fundamental organizational tools that ensure the effective and transparent functioning of local government. They provide a structured framework for each meeting, helping councilmembers stay focused on critical issues, make informed decisions, and allocate meeting time efficiently. By setting clear priorities and detailing the topics to be discussed, agendas promote transparency, enabling both elected officials and the public to anticipate and prepare for discussions.

Sometimes, however, the preparation and execution of an agenda can create questions.

Who sets the agenda for a meeting?

In most cases, agenda preparation is an informal process in which elected officials and staff provide the municipal clerk with items to be included on the agenda, subject to internal deadlines, and the clerk prepares the agenda for distribution.

In some cases, however, controversy may arise over whether an item should be included on the agenda. What if a councilmember wants to include an item on the agenda, but one or more other councilmembers disagree? What if many councilmembers want to include an item, but the mayor 
opposes it?

South Carolina law does not directly answer these questions. Regardless of the form of government — whether council, mayor-council, or council-manager — the powers allocated by state law do not include setting the agenda for regular meetings. However, general government principles establish that the authority to set the agenda belongs to the governing body, acting through a majority of its council. One way to establish the agenda would be for council to gather and vote on the items to be included in the next upcoming agenda.

Because this approach would be inefficient, most local codes delegate the power to set the agenda to a single person, usually the mayor or the manager. In the absence of a specific delegation by ordinance, most councils simply allow the clerk to set the agenda through an informal process.

In 2016, the South Carolina Court of Appeals heard a case, Atkins v. Wilson, in which the local code delegated agenda preparation to the mayor, who in turn refused to place an item on a regular meeting agenda against the wishes of the majority of council. The court agreed that the town was free to delegate the power to set the agenda for regular meetings to the mayor. 

On the other hand, the court found that state law indicates “special meetings may be held on the call of the mayor or of a majority of the members,” in accordance with SC Code Section 5-7-250(a). Therefore, the council could force consideration of the item by calling a special meeting.

A better approach would be to use an ordinance to include in the local code the council’s power to add an item to the agenda for a regular meeting. Language similar to that contained in Section 5-7-250 would suffice — for example, in a council-mayor form of government, “the clerk shall prepare the agenda for regular meetings at the direction of the mayor. Items may be included on the agenda for a regular meeting by call of the mayor or a majority of the council.” 

With this language, the clerk would ordinarily prepare the agenda in consultation with the mayor. For an item opposed by the mayor, however, a majority of council could insist that it be included on the agenda without having to call a special meeting.

How can council add items added to the agenda after distribution or posting?

In the same amendment to South Carolina’s FOIA law that required posting an agenda for a regular meeting, the South Carolina General Assembly addressed the process by which items may be added to an agenda. Under the current law, once an agenda for a regular, special, or called meeting is posted, no items may be added without an additional 24-hour notice to the public. The revised notice must be made in the same manner as the original posting.

After the meeting begins, an action item for anything other than a final action may be added to the agenda by a two-thirds vote, provided that public comment on the added item will be received at a future, duly noticed meeting. A final action item, or one for which there will be no opportunity for future public comment, may be added to the agenda by a two-thirds vote and a finding that an emergency or exigent circumstance exists. An exigent circumstance would be considered an urgent or time-sensitive issue

Given the restrictions on adding action items less than 24 hours before the meeting, councils should be careful to establish their agenda in a timely manner, and ensuring that all important items are included in the original notice.

Can council add an executive session to the agenda?

It seems clear that, even under the newer version of the FOIA law, council can call an unnoticed executive session during a meeting. The reasoning is that an ordinary executive session is not an “action item.” 

Under SC Code Section 30-4-70(b), “No action may be taken in executive session except to (a) adjourn or (b) return to public session. The members of a public body may not commit the public body to a course of action by a polling of members in executive session.”

It follows that the council cannot take action on an item discussed in an unnoticed executive session even after returning to open session, except in cases where the item was on the agenda or the council takes a vote to add an item to the agenda.

What actions by council would be considered adding an item?

FOIA does not define the terms “agenda” or “item,” and so confusion may arise in determining whether an unnoticed act by council is adding an item. In an unpublished recent decision, the SC Court of Appeals ruled that making a change to an item included in the agenda packet is not adding an item. The issue in that case was that the distributed agenda packet — the supporting materials accompanying the agenda — included a resolution with an exhibit listing proposed projects. At the meeting, without prior notice, the council added a project to the exhibit list.

The plaintiff argued that the resolution was part of the agenda and the project was an item. The court rejected this argument, concluding that the agenda itself was the short list of matters to be considered by the council. The resolution was not part of the agenda, but was merely supporting information.

Municipalities can avoid the issue presented in this case by clearly distinguishing and labeling the agenda and the agenda packet.

Keeping meetings effective

The agenda is a critical tool for orderly, efficient and effective public meetings. Municipalities should be thoughtful in establishing the process by which their agendas are set, as well as diligent in making sure that all relevant items are timely included.