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SCHSL may have violated FOIA in meeting discussing FOIA violation lawsuit

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By Travis Jenkins

In discussing a lawsuit that, in part, accuses them of violating the state’s Freedom of Information Act (FOIA), the South Carolina High School League (SCHSL) may have violated the FOIA.

Recently, Spartanburg Districts 1, 2 and 4, Laurens District 56 and Greenwood District 50 filed suit against both the SCHSL and Union County Schools. The suit relates to realignment, a process of grouping schools into athletic regions based on size and proximity that the SCHSL undergoes every two years. In the realignment that is supposed to go into effect for the coming school Union County was to stay put in the AAAA classification in Region II where it would continue to compete with a number of Greenville County Schools. Union County filed an appeal, but it was defeated on a 14-0 vote by the SCHSL executive committee. They then took the appeal to the league’s appellate panel, a seven-member board appointed by legislative delegations from each congressional district, which has final authority over the appeals process. Union County’s argument centered primarily on the long travel within the region and the resulting missed instructional time for students. The appellate panel upheld Union County’s appeal on a 4-3 vote and placed the school in Region III-AAA with Woodruff, Mid-Carolina, Newberry, Clinton and Emerald.

The lawsuit asks that the SCHSL and the appellate panel be declared government agencies, which would then insure all schools are given due process in matters such as realignment appeals (which the plaintiff schools said they were denied in not being informed of or allowed to protest Union County’s appeal). It also asks the court to declare that the SCHSL deprived affected schools of their due process, to declare Union County’s move to Region III-AAA “arbitrary and capricious,” (since similar appeals made by other schools were rejected) and to declare that move null and void, effectively sending Union County back to Region II-AAAA. As a separate issue, the suit asks the court to declare that the SCHSL violated the meeting notice requirement of the South Carolina Freedom of Information Act for failing to post agendas for meetings more than 24 hours in advance.

On Tuesday, the SCHSL held an executive committee meeting via teleconference. At least one media outlet requested that they be allowed to listen to the meeting via phone but that request was denied. The News & Reporter went to the SCHSL office and was allowed to sit in a room and listen as the meeting took place via teleconference. The agenda for the meeting listed a discussion of the lawsuit as the last item of business, but it was discussed first, without a vote to actually move it. The discussion was brief. One executive committee member (it was difficult to discern whom since it was taking place over the phone) asked why the SCHSL was named in the suit. He said he was “disturbed” by the notion that the appellate panel is somehow part of the league. Commissioner Jerome Singleton noted only that the panel is “part of the structure” of the league. He said the SCHSL would have written response by June 21 to the suit and that all parties involved hope the matter is settled quickly, so that it does not continue into the start of the new school year and new athletic calendar. The committee will discuss the matter further at a meeting next week. The committee later decided (but did not actually vote) to go into executive session to discuss the unrelated matter of SCHSL staff compensation. No executive session was listed on the agenda for the meeting, though compensation is a matter than can be discussed behind closed doors. At that point, the News & Reporter was asked to leave the room, as were the other two people in the audience, Spartanburg District 4 Superintendent Rallie Liston and attorney Ken Nettles, who is representing the school districts in the suit. Liston told SCHSL staff present in person that he believed the meeting violated the FOIA on multiple fronts. An agenda for the meeting was sent to media members and the SCHSL mentioned the meeting on its Twitter account, but Liston said he and other school officials had not received the notice or agenda, nor had the League posted it on its website. He also stated (as did the News & Reporter) that the executive session was not legal since it was not on the agenda, wasn’t added there by vote and wasn’t actually voted on.

The News & Reporter sought an opinion from the South Carolina Press Association (SCPA), which advocates for open government. Attorney Jay Bender said the meeting “had two, and perhaps three FOIA violations.” Bender said the public has to be provided an opportunity to listen to a teleconference meeting of a public body (which the SCHSL has been judged to be in two previous court cases), but not necessarily via phone.

“Usually by going to a place where the call is on a speaker,” he said via email.

However, Bender said there must be a public vote to enter executive session and that “following the vote, the specific purpose of the executive session must be announced.” If the item discussed in executive session was voted on following the executive session, its omission from the agenda violates the law, he said. The committee did take action on the compensation discussion, voting for a continuation to the next meeting.

Bender said shifting the order of action items on the agenda did not violate the FOIA, but would perhaps violate rules of parliamentary procedure as prescribed in Robert’s Rules of Order. There is no indication on the league’s website that it has adopted Robert’s Rules as the governing document of its meetings.

SCPA Executive Director Bill Rogers added that the SCHSL should also have posted an agenda for the meeting on its website.