WINNSBORO – On Tuesday night, May 9, the Fairfield Joint Water and Sewer System (FJWSS) commission voted during a special called meeting to go into executive session to receive “legal advice concerning a draft wastewater plant alternatives analysis.”
According to The Voice’s media attorney, the executive session may not have met the requirements of the South Carolina open meetings law.
The analysis was a long awaited report by the FJWSS’s contract engineer, Bill Bingham, owner of American Engineering, intended to provide information that could assist the FJWSS commission in determining the best place to build and discharge a new wastewater treatment plant for Fairfield County. There are two primary options – one would discharge into Cedar Creek; the other would discharge into the Broad River.
The purpose of the report was to analyze the costs and timeline for designing, planning, permitting and constructing each of the two wastewater treatment plant options.
On Friday, May 5, an agenda was posted that showed the report would not be made in public, as those who regularly attend the meetings had expected, but behind closed doors in the May 9 executive session.
Prior to the May 9 meeting, The Voice asked FJWSS commission attorney C.D. Rhodes how the Freedom of Information law provided for such a report to be presented in private.
Rhodes explained that there were several reasons, including that the report to be presented was still in draft form and, therefore was not a public document and that such a private discussion was allowed under the attorney/client privilege.
According to Jay Bender, media attorney for the South Carolina Press Association, of which The Voice is a member, both reasons may not have met the requirements of the S.C. Freedom of Information Act for open meetings.
“A document becomes a public record when it is in the possession of the public body or used by the public body. There is no language in the law that conditions public access to records upon the record being approved,” Bender said.
Rhodes announced prior to going into executive session, that he “had the opportunity to view the report, but you (the commissioners) have not. You’ve not received it,” he emphasized.
As for Rhodes’ suggestion that the private discussion about the analysis was allowed under the attorney-client privilege, Bender had this to say.
“The board may receive legal advice in a closed session if the advice is in a circumstance covered by the attorney-client privilege,” Bender said. “If the engineer is in the closed meeting, there can be no attorney-client privilege because the privilege governs confidential communications between a lawyer and the client.”
The FJWSS board is Rhodes’ client, not Bingham. The entire county council as well as attorneys for the county and Town of Winnsboro were also invited into the executive session to hear the presentation which, Bender said, also presented a problem.
“The presence of a third party precludes the attorney-client privilege,” Bender said.
While a quorum of the county council constituted a public meeting, their meeting was not posted as required by law.
“The attendance of a quorum of county council members means that county council was holding a meeting which should have been preceded by notice and convened in public,” Bender added. “The result is a compound violation of the law: two public bodies disregarding the legal requirements for meetings.”
Prior to the FJWSS voting to go into executive session, Rhodes added that privacy was necessary because of the threat of litigation that could occur as a result of the choice that would eventually be made by the FJWSS commission as to the location of the wastewater treatment plant.
Rhodes’ Statement
“We’re going to discuss preliminary drafts of the alternative analysis that’s been prepared by American Engineering. The original scope of work you all asked for or the commission authorized, asked, among many factors that are being considered, that American Engineering consider litigation risks, permitting risks with respect to both possible locations.
That is not a theoretical risk. We have not received a demand letter or anything along those lines. We are aware that there are various groups out there that oppose both locations and the risk of litigation is very real. We need to make sure that the information that we’re including in the final version of this report is based on accurate facts and that the report itself does not include information that is better presented to you as legal advice by me that would be subject professionally to attorney-client privilege.
[As for] the report itself, I believe the intent of this commission is to make it public to the extent that the information could be made public and shouldn’t be privileged, to make public as quickly as possible. But in order to make it public, we really have to have the opportunity to review it and to make sure that the information as presented to the public is factually accurate and doesn’t include information that’s going to ultimately be prejudicial to one system if we were subject to litigation,
So this is the ultimate purpose of this executive session, for you to receive my advice based on the information that’s in the report. I had the opportunity to view the report, but you have not. You’ve not received it. As soon as we are able to finalize it, make sure that it is sanitized, you will receive it and at that time it will become FOI-able. But we need to make sure it’s in proper form first.”
The information presented during the executive session is next expected to go to the commission’s technical committee for study and could be made public at the regular June 27 meeting, at which time, Rhodes said, the public would be able to obtain it through an FOI request, which could take up to 50 days for a response.
