state of south carolina in the court of common pleas ... · carolina and is located and conducts...

STATE OF SOUTH CAROLINA COUNTY OF HORRY

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IN THE COURT OF COMMON PLEAS FIFTEENTH JUDICIAL CIRCUIT

CIVIL ACTION NO. 2020-CP-26-_______ ) Robert Hellyer in his official capacity as Mayor of the Town of Surfside Beach, and Cynthia Keating, Michael Drake, in their official capacities as members of the Town Council of the Town of Surfside Beach,

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SUMMONS

(Jury Trial Requested)

) Plaintiffs, ) )v. ) )David Pellegrino, Debbie Scoles and Paul Holder, in their official capacities as members of the Town Council of the Town of Surfside Beach, and the Town of Surfside Beach.

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) Defendants.) )TO: THE DEFENDANT ABOVE NAMED: YOU ARE HEREBY SUMMONED AND REQUIRED to answer the Complaint in the

above entitled action, a copy of which is herewith served upon you, and to serve a copy of your

Answer upon the subscribers at their offices located at 1000 29th Ave. N., Myrtle Beach, South

Carolina 29577, within thirty (30) days after the date of such service, exclusive of the day of

service; and if you fail to answer the said Complaint within the time aforesaid, judgment by default

will be rendered against you for the relief demanded in the Complaint.

BELLAMY, RUTENBERG, COPELAND, EPPS, GRAVELY & BOWERS, P.A. s/ Howell V. Bellamy, III Howell V. Bellamy, III (SC Bar # 66575) [email protected] 1000 29th Ave. N. Myrtle Beach, SC 29577 843-448-2400 Phone 843-448-3022 Facsimile Attorneys for Plaintiffs

Myrtle Beach, SC 29577 July 27, 2020

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STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) FIFTEENTH JUDICIAL CIRCUIT COUNTY OF HORRY ) CIVIL ACTION NO. 2020-CP-26 _________ ) Robert Hellyer in his official capacity as Mayor of the Town of Surfside Beach, and Cynthia Keating, Michael Drake, in their official capacities as members of the Town Council of the Town of Surfside Beach,

) ) ) ) ) )

) Plaintiffs, ) VERIFIED COMPLAINT

) (DECLARATORY JUDGMENT (FOIA) v. ) AND INJUNCTIVE RELIEF) ) David Pellegrino, Debbie Scoles and Paul Holder, in their official capacities as members of the Town Council of the Town of Surfside Beach, and the Town of Surfside Beach.

) ) ) ) )

) Defendants. )

) The Plaintiffs, Robert Hellyer, Cynthia Keating, and Michael Drake, by and through their

attorneys, Howell V. Bellamy, III and Howell V. Bellamy, Jr., of the Law Firm of Bellamy,

Rutenberg, Copeland, Epps, Gravely & Bowers, PA., complaining of the Defendants, David

Pellegrino, Debbie Scoles and Paul Holder, in their official capacities as members of the Town

Council of the Town of Surfside Beach, and the Town of Surfside Beach, would show unto this

Honorable Court as follows:

JURISDICTION, PARTIES, AND VENUE

1. Plaintiff, Robert Hellyer (“Hellyer”), is a citizen and resident of the County of

Horry, State of South Carolina, residing in the Town of Surfside Beach, South Carolina; and

Hellyer at all relevant times acted in his official capacity as the current Mayor of the Town of

Surfside Beach.

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2. Plaintiff, Cynthia Keating (“Keating”), is a citizen and resident of the County of

Horry, State of South Carolina, residing in the Town of Surfside Beach, South Carolina; and

Keating at all relevant times acted in her official capacity as a Councilmember of the Town of

Surfside Beach.

3. Plaintiff, Michael Drake (“Drake”), is a citizen and resident of the County of Horry,

State of South Carolina, residing in the Town of Surfside Beach, South Carolina; and Drake at all

relevant times acted in his official capacity as a Councilmember of the Town of Surfside Beach.

4. Defendant, David Pellegrino (“Pellegrino” or “Defendant”) is a citizen and resident

of the County of Horry, State of South Carolina, residing in the Town of Surfside, South Carolina;

and Pellegrino at all relevant times acted individually and/or in his official capacity as a

Councilmember of the Town of Surfside Beach.

5. Defendant, Debbie Scoles (“Soles” or “Defendant”) is a citizen and resident of the

County of Horry, State of South Carolina, residing in the Town of Surfside Beach, South Carolina;

and Soles at all relevant times acted individually and/or in her official capacity as Mayor Pro

Tempore and a Councilmember of the Town of Surfside Beach.

6. Defendant, Paul Holder (“Holder” or “Defendant”) is a citizen and resident of the

County of Horry, State of South Carolina, residing in the Town of Surfside Beach, South Carolina;

and Holder at all relevant times acted individually and/or in his official capacity as a

Councilmember of the Town of Surfside Beach.

7. Defendant, Town of Surfside Beach (“Town” or “Defendant”) is a “body politic

and municipal corporation as defined by FOIA, organized and existing under the laws of South

Carolina and is located and conducts business in Horry County.

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8. This action for declaratory judgment and for injunctive relief is brought pursuant

to and under the authority of S.C. Code Ann. § 30-4-10, et seq., as amended, which is known as

the “Freedom of Information Act,” (“FOIA”), and the matters alleged herein are justiciable

controversies and also satisfy the requirement of irreparable harm as provided by the FOIA.

9. The Plaintiffs, Horry County citizens, have standing to bring an action for the

alleged violations of the FOIA, pursuant to S.C. Code Ann. § 30-4-100(a), as amended.

10. Venue is proper under S. C. Code Ann. §§ 15-7-20(2) and 15-7-30(C) because the

acts and occurrences at issue occurred in Horry County where Defendants are located and conduct

their business.

11. The relief sought by this Complaint is specifically authorized by S. C. Code Ann.

§30-4-100, as amended.

12. This Court has jurisdiction under S.C. Code Ann. § 30-4-100 of FOIA and S. C.

Code Ann. § 15-53-20 of the Declaratory Judgment Act and over all matters alleged herein upon

which relief is sought.

RELEVANT LEGAL BACKGROUND

13. In South Carolina, FOIA governs the public disclosure of the activities of public

bodies, and it has provisions pertaining to public meetings as well as documents. S.C. Code Ann.

§§ 30-4-10 to -165 (2007 & Supp. 2015). The essential purpose of FOIA is to protect the public

from secret government activity. Wiedemann v. Town of Hilton Head Island, 330 S.C. 532, 500

S.E.2d 783 (1998).

14. In declaring FOIA's purpose, the General Assembly has found "that it is vital in a

democratic society that public business be performed in an open and public manner so that citizens

shall be advised of the performance of public officials and of the decisions that are reached in

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public activity and in the formulation of public policy." S.C. Code Ann. § 30-4-15 (2007). "Toward

this end, [FOIA's] provisions . . . must be construed so as to make it possible for citizens, or their

representatives, to learn and report fully the activities of their public officials at a minimum cost

or delay to the persons seeking access to public documents or meetings." Id.

15. FOIA's open meeting provision, S.C. Code Ann. § 30-4-60, provides "[e]very

meeting of all public bodies shall be open to the public unless closed pursuant to [section] 30-4-

70 of this chapter." Id. S.C. Code Ann. § 30-4-60. Meetings may be closed for certain enumerated

reasons, including such matters as the discussion of proposed contractual arrangements and the

proposed sale or purchase of property; the receipt of legal advice related to a pending, threatened,

or potential claim; and the discussion of the proposed location, expansion, or provision of

services. Id. S.C. Code Ann. § 30-4-70, as amended.

16. FOIA's notice provision is set forth in S.C. Code Ann. § 30-4-80 and requires

"written public notice" of the meetings of public bodies as follows:

(a) . . . An agenda for regularly scheduled or special meetings must be posted on a bulletin board in a publicly accessible place at the office or meeting place of the public body and on a public website maintained by the body, if any, at least twenty- four hours prior to such meetings. All public bodies must post on such bulletin board or website, if any, public notice for any called, special, or rescheduled meetings. Such notice must include the agenda, date, time, and place of the meeting, and must be posted as early as is practicable but not later than twenty-four hours before the meeting. This requirement does not apply to emergency meetings of public bodies. Once an agenda for a regular, called, special, or rescheduled meeting is posted pursuant to this subsection, no items may be added to the agenda without an additional twenty-four hours notice to the public, which must be made in the same manner as the original posting. After the meeting begins, an item upon which action can be taken only may be added to the agenda by a two- thirds vote of the members present and voting; however, if the item is one upon which final action can be taken at the meeting or if the item is one in which there has not been and will not be an opportunity for public comment with prior public notice given in accordance with this section, it only may be added to the agenda by a two-thirds vote of the members present and voting and upon a finding by the body that an emergency or an exigent circumstance exists if the item is not added

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to the agenda. Nothing herein relieves a public body of any notice requirement with regard to any statutorily required public hearing. (Emphasis Added).

Id. S.C. Code Ann.§ 30-4-80(a) (Emphasis Added).

17. "Written public notice must include but need not be limited to posting a copy of the

notice at the principal office of the public body holding the meeting or, if no such office exists, at

the building in which the meeting is to be held." Id. S.C. Code Ann. § 30-4-80(d), as amended.

18. Any citizen of this state may apply to the circuit court for either or both a

declaratory judgment and injunctive relief to enforce the provisions of FOIA no later than one year

following the date on which the alleged violation occurs or one year after a public vote in public

session, whichever occurs later. Id. S.C. Code Ann. § 30-4-100(a). The court may award attorney's

fees and other litigation costs to a prevailing plaintiff. Id. S.C. Code Ann. § 30-4-100(b). Any

person or group willfully violating FOIA shall be deemed guilty of a misdemeanor. Id. S.C Ann.

Code § 30-4-110, as amended.

RELEVANT FACTUAL BACKGROUND

19. Defendant Town, a municipal corporation, is governed by a mayor and town

council; and the town council comprises of seven (7) members, and four (4) members thereof

constitute a quorum for doing business at any meeting, and the members of Town Council with

the mayor conduct the business and affairs of the Town of Surfside Beach, South Carolina in

accordance with the laws and statutes of the State of South Carolina, and Defendant is a public

body as defined by the FOIA.

20. The current Mayor, Mayor Pro Tempore, and Town Council Members for the Town

of Surfside Beach are as follows: Mayor Hellyer, Mayor Pro Tempore Scoles, Councilmembers

Pellegrino, Drake, Dietrich, Holder and Keating.

RELEVANT HISTORY CONCERNING THE BID PROCESS FOR THE CONSTRUCTION OF THE NEW SURFSIDE BEACH FISHING PIER

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21. In October of 2016, the Surfside Beach Fishing Pier was destroyed by Hurricane

Matthew. The Surfside Beach Fishing Pier is currently owned by the Town of Surfside Beach

(“Town”).

22. In 2017, Collins Engineering/LS3P Architects (A/E) were contracted by the Town

to design a repair or replacement for the damaged pier. Multiple public pier workshops were held

to discuss alternate designs from wooden replacement to new concrete design with two (2) story

buildings. Ultimately, the new concrete design with one (1) story buildings was chosen in March

of 2018. A FEMA grant for $9.5M was award to the Town for the pier replacement project.

23. In March 2020, at a regular scheduled meeting of Town Council, Mayor Hellyer

made a motion to send out the construction pier bids, seconded by Councilmember Drake. After

discussion, Mayor Hellyer asked for a vote on putting out the pier bids on March 11, 2020.

Councilmembers Drake, Pellegrino, Keating, Holder, and Mayor Hellyer voted in favor of the

motion. Councilmembers Scoles and Dietrich voted against the motion. The Motion Carried.

24. The pier bids were published with a mid-May due date in five webpages (most

requiring a contractor account log in), and on the Surfside Beach webpage under Request for

Information (“RFQs”).

25. On June 11, 2020, at a regular scheduled meeting of Town Council, Mayor Hellyer

entered Council Chambers and called time at 2:00 p.m. and stated the Bid Opening for the Fishing

Pier Restoration Project would proceed. The bids were opened in the order in which they were

requested: First, Consensus Construction & Consulting, Inc.; Second, Cape Romain Contractors,

Inc., and Third, Orion Marine Construction, Inc and FBi Construction, Inc. – a joint venture. Mayor

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Hellyer closed the Bid opening at 2:11 p.m., and indicated approximately a 30-day evaluation

process would occur before awarding the bid would be determined.

26. On June 30, 2020, at a special meeting of Town Council, Defendant Scoles made

a motion to hold a meeting on Friday, July 3, 2020 at 10:00 a.m. to discuss and award the pier bid

contract. Defendant Holder seconded. After discussion, Defendants, Holder, Scoles, and

Pellegrino, voted in favor of motion to hold a meeting on Friday, July 3, 2020 at 10:00 a.m. to

discuss and vote to award the pier bid contract. Motion Carried.

27. On July 1, 2020, at a special meeting of Town Council, Defendant Scoles made a

motion to conduct a vote to award the pier bid to Orion Marine Construction, Inc. & FBI,

Construction, Inc., (“Orion/FBi”) and authorize the Town Administrator to execute any

agreements and to negotiate value engineering and to proceed with bonding for funding the

Surfside Pier Project. Defendant Holder seconded.1

28. “Mayor Hellyer asked Defendant Scoles, you set a meeting for this for Friday,

[July 3, 2020], to discuss and award a bid contract what circumstance changed from having a

meeting on Friday? Why did you change the vote date that we already set? Councilmember Scoles

stated my reasoning on this is, I wanted to hear the architect's and Engineer's answers to the

questions that the Council and the pier committee had. There is no reason now, having all questions

answered, waiting until Friday to award this bid since we have all the information we need to move

forward, and also Friday is a holiday for our employees.”2

1 Town Council Special Meeting Minutes dated July 1, 2020, p. 2, ¶ 61-63, marked Exhibit A. 2 Town Council Special Meeting Minutes dated July 1, 2020, p. 2, ¶ 65-70, marked Exhibit A.

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29. In response, Councilmember Keating stated she had not seen any references, nor

had she validated them. Councilmember Keating further stated she did not have sufficient

information at this time to vote to award the bid.

30. Next, Mayor Hellyer indicate he would be better prepared to vote to award the pier

bid on Friday, July 3, 2020. Councilmember Scoles stated, why are we going to postpone this until

Friday, July 3, 2020 when we have all of our questions answered. Councilmember Keating then

stated we do not have all of our questions answered, and we do not have all the information.3

31. Mayor Hellyer asked Defendant Scoles to restart her motion for the vote.

Defendant Scoles restated her motion to vote to award the bid to Orion/FBi and authorize our

Town Administrator to execute any agreements and to negotiate value engineering and to proceed

with bonding for funding the Surfside Pier Project. Defendants, Scoles, Holder, and Pellegrino,

voted in favor of the unnoticed final action items, for which public comment has not been or will

not be received, and without a finding of an emergency or exigent circumstances. Mayor Hellyer

and Councilmember Keating voted against the motion. Motion carried4.

32. On July 12, 2020, Mayor Hellyer, and Councilmembers, Drake and Keating, in

their official capacities sent a letter by certified mail addressed to the following: Town

Administrator, Dennis Pieper, and Town Council, Elise Crosby, and to Defendants, Scoles, Holder,

and Pellegrino, making certain demands, among others, that the Defendants’ motion and approval

of the following unnoticed final action items, “to award the bid to Orion/FBi”; “to authorize the

Town Administrator to execute any agreements”; “to negotiate value engineering”; and “to

3 Town Council Special Meeting Minutes dated July 1, 2020, p. 2, ¶ 75-77, marked Exhibit A. 4 A copy of a Letter from the Town of Surside awarding the pier bid to Orion Marine Construction, Inc. & FBI, Construction, Inc., marked Exhibit “B” is attached hereto and incorporated by reference as part of this Complaint.

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proceed with bonding for funding the Surfside Pier Project”; after the executive session on July 1,

2020 was an Ultra Vires Act and violated the Town’s governing documents as well as state law.5

33. At the present date, the Defendants, Scoles, Holder, and Pellegrino, as well as the

Town Administrator, Dennis Pieper, and Town Attorney, Elise Crosby, have failed to resond,

individually or collectively, to all of the Mayor Hellyer, and Councilmembers, Drake and

Keating’s written demands as stated in Exhibit C as of the present date.

VIOLATION OF THE STATUTORY PROCESS FOR AGENDA AMENDMENT UNNOTICED FINAL ACTION (S.C. CODE ANN. § 30-4-80(A))

34. Mayor Hellyer scheduled a special meeting for July 1, 2020 for which notice was

given and the agenda6 for such meeting was posted in accordance with the requirements of FOIA

(S.C. Code Ann. 30-4-80(a)).

35. Town Council’s entire “Special Meeting Agenda Notice” for its July 1, 2020

meeting (July 1 meeting) states in pertinent part:

1. CALL TO ORDER. Mayor Bob Hellyer.

2. Discussion with Architect and Engineers.

3. EXECUTIVE SESSION –Motion to adjourn Regular Meeting and enter Executive Session pursuant to south Carolina Code sections 30-4-70-(a)(2) discussion of negotiations incident to proposed contractual arrangements and/or receipt of legal advice related to the Surfside Beach Pier Restoration Project.

5 A copy of the demand letter, marked Exhibit “C” is attached hereto and incorporated by reference as part of this Complaint. 6 A copy of the agenda for the special meeting for July 1, 2020 is attached hereto as Exhibit D and incorporated by reference as part of this Complaint.

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36. Mayor Hellyer called the special meeting to order, and the record reflects that the

specific purpose for the meeting was “to discuss the pier bids with Engineer and Architect.”7

(Emphasis Added).

37. No motion, written or oral, was made by Defendants, Scoles, Pellegrino, and

Holder, to amend the July 1st special meeting agenda to add for discussion the following unnoticed

action items: “to award the bid to Orion/FBi”; to “authorize the Town Administrator to execute

any agreement,”; “to negotiate value engineerin”; and “to proceed with bonding for funding the

Surfside Pier Project’; prior to them making a motion to enter into for discussion before going into

executive session.

38. Defendant Holder made a motion to adjourn the special meeting and enter into

executive session, seconded by Defendant Scoles. The Defendants, Scoles, Pellegrino, and

Holder, voted in favor of motion, while Councilmember Keating and Mayor Hellyer voted against

it. The Motion carried. The record reflects that the unnoticed action items as described above in

Paragraph 37 were not discussed during the executive session.

39. Upon reconvening, the Mayor Hellyer indicated no actions or votes were taken

during executive session.

40. Subsequently, the Defendant Scoles made a motion to call for a vote on the

following unnoticed action items: “to award the bid to Orion/FBi’; “to authorize the Town

Administrator to execute any agreements and to negotiate value engineering”; and “to proceed

with bonding for funding the Surfside Pier Project.”8 Defendant Holder seconded. Defendants

Scoles, Holder, and Pellegrino all voted in favor of approving the unnoticed final action items as

7 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-15, marked Exhibit A. 8 Town Council Special Meeting Minutes dated July 1, 2020, p. 2, ¶ 61-63, marked Exhibit A.

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described above, for which public comment has not been or will not be received, and without a

finding of emergency or exigent circumstances as required by FOIA, S.C. Code Ann. § 30-4-80(a),

as amended. Mayor Hellyer and Councilmember Keating voted against the motion. Motion

carried.

41. Defendants, Scoles, Pellegrino, and Holder, voted in favor of the unnoticed final

action9 items not set forth on their July 1st special meeting agenda and not appended to it by the

statutory process for admendment of an agenda, denying the public the opportunity to comment

and to observe the performance of the public officials in violation. S.C. Code Ann. § 30-4-80(a),

as amended (notice of items to be considered is always required except in cases of emergency

which this was not). Furthermore, the Defendants, Scoles, Pellegrino, and Holder, by voting on

and approving the unnoticed final action items as described above have violated FOIA’s notice

provisions by exceeding the scope of specific purpose for which the special meeting was called on

July 1, 2020, which was “to discuss the pier bids with Engineer and Architect.”10 (Emphasis

Added).

42. It is important to note that at a prior special meeting held on June 30, 2020, the

Defendants, Scoles, Pellegrino, and Holder had already agreed pursuant to a passed motion to hold

a special meeting on Friday, July 3, 2020 at 10:00 a.m. for the express purpose of discussing and

voting on who to award the pier bid for the pier construction contract project.

9 A town violated the South Carolina Freedom of Information Act by taking unnoticed action following executive sessions at special meetings, and the intermediate appellate court erred in holding otherwise, because in special meetings, nothing could be done beyond the objects specified for the call. Brock v. Town of Mount Pleasant, 415 S.C. 625, 785 S.E.2d 198 (2016). 10 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-15, marked Exhibit A.

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FAILURE TO ANNOUNCE THE “SPECIFIC PURPOSE” OF EXECUTIVE SESSION AT THE JULY 1ST SPECIAL MEETING IN OPEN SESSION

(FOIA, S.C. Code Ann. § 30-4-70, as amended)

43. The July 1, 2020 Executive Session was illegal. Defendants, Scoles, Pellegrino,

and Holder, violated FOIA when their announcements of executive session violated FOIA’s

specific purpose provision.

44. S.C. Code Ann. § 30-4-70(b), FOIA, provides in pertinent part:

Before going into executive session the public agency shall vote in public on the question and when the vote is favorable, the presiding officer shall announce the specific purpose of the executive session. As used in this subsection, “specific purpose” means a description of the matter to be discussed as identified in items (1) through (5) of subsection (a) of this section.

45. At the July 1, 2020 Town Council Special Meeting, it was announced in open

session that the specific purpose of the executive session was “to discuss the pier bids with the

Engineer and Architect,” as well as “contractual matters,” when, in fact, the Defendants never

announced they would take final action on unnoticed items by motion and voting, “to award the

bid to Orion/FBi”; to “authorize the Town Administrator to execute any agreement,”; “to negotiate

value engineering”; and (d) “to proceed with bonding for funding the Surfside Pier Project’;

following executive session at the special meeting. Moreover, the above unnoticed actions taken

by the Defendants, Scoles, Pellegrino, and Holder, was not consistent with the announced purpose

of the July 1st special meeting. (Emphasis Added).

46. In Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862

(2001), the Court was asked to determine whether the city had met the "specific purpose"

requirement of the FOIA before going into executive session. In that case, the written agenda

reflected as item 4(C) "Towing-Contractual Recommendation." When item 4(C) was reached, the

City Council minutes reflect:

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C. Towing—Contractual Recommendation Mayor Grissom advised this matter would be discussed in Executive Session Upon motion by Councilman Cain, seconded by Councilman Woods, Council voted unanimously to go into executive session. Id. at 164, 547 S.E.2d at 866. In finding this notice insufficient, Court said:

FOIA is clear in its mandate that the "specific purpose" of the session "shall be announced." (emphasis added in original opinion). Therefore, FOIA is not satisfied merely because citizens have some idea of what a public body might discuss in private. As evidenced by the minutes, the presiding officer did not announce the specific purpose of the executive session. This was a violation of FOIA.

47. Like Quality Towing , the failure of Defendants, Scoles, Pellegrino, and Holder, to

announce the specific purpose of the executive session in open session violated S.C. Code Ann. §

30-4-70(b), as amended, because the real purpose of the Executive Session was not announced in

open session.

48. The July 1, 2020 special meeting adjournment into Executive Session was illegal

because the Defendants failed to comply with S.C. Code Ann. § 30-4-70(b), as amended. This

requires the specific purpose of all items to be discussed in Executive Session. However, the

following unnoticed final action items, “to award the bid to Orion/FBi”; “to authorize the Town

Administrator to execute any agreements”; “to negotiate value engineering”; and “to proceed

with bonding for funding the Surfside Pier Project”; were not announced in open session at all as

part of the Executive Session agenda.

49. Upon returning to open session, the Defendants’made a motion and approved the

following unnoticed final action items, “to award the bid to Orion/FBi”; “to authorize the Town

Administrator to execute any agreements”; “to negotiate value engineering”; and “to proceed with

bonding for funding the Surfside Pier Project”; which were illegal and violated S.C. Code Ann. §

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30-4-7080(a), as amended, because there was no public notice of the final action items as required

by law.

FOR A FIRST CAUSE OF ACTION (Declaratory Judgment – The “Unnoticed Action” of July 1, 2020 Violated the Statutory

Process for Agenda Amendment. S.C. Code Ann. § 30-4-80(a) of FOIA)

50. Plaintiffs reallege all the foregoing allegations of the Complaint as if set forth here

verbatim.

51. Plaintiffs bring this action for Declaratory Relief pursuant to S.C. Code Ann. § 15-

53-10 et seq., 1976, as amended.

52. There is a justiciable controversy between the Plaintiffs and Defendants about

whether Defendants’ motion and approval of the following unnoticed final action items, “to award

the bid to Orion/FBi”; “to authorize the Town Administrator to execute any agreements”; “to

negotiate value engineering”; and “to proceed with bonding for funding the Surfside Pier Project”;

after the executive session, exceeded the scope and purpose for which the special meeting was

called on July 1, 2020 and, therefore, violated FOIA, S.C. Code Ann. § 30-4-7030-4-80(a), as

amended.

53. The relevant principle of law or authority at issue provides: “in the case of special

meeting, nothing can be done beyond the objects [items or actions] specified for the call” quoting

from the case of Brock v. Town of Mount Pleasant, 415 S.C. 625, 631, 785 S.E.2d 198, 202 (2016)

(“However, after the executive session concludes and the public body reconvenes in open session,”

the South Carolina Supreme Court ruled that “any action taken or decision made must be

properly noticed and, in the case of special meetings, such items may not exceed the scope of

the purpose for which the meeting was called.”) (Emphasis Added).

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54. Once the Mayor called the July1, 2020 special meeting to order, and the record

reflects that the sole purpose of the meeting was only “to discuss the pier bids with Engineer and

Architect,” and “contractual matters”. 11 (Emphasis Added).

55. No motion was made by the Defendants, Scoles, Pellegrino, and Holder, to amend

the July 1st special meeting agenda for the purpose of adding and discussing the following

unnoticed final action items, “to award the bid to Orion/FBi”; “to authorize the Town


bonding for funding the Surfside Pier Project”; before going into executive session.12

56. The factual allegations set forth in Paragraphs 34, 33, 34, 35, 36, 37, 38, 39, 40, 41,

and 42 of the Complaint, further, evidenced that Defendants’ motion and approval of the following

unnoticed final action items as described above exceeded the scope and purpose for which the July

1st special meeting had been originally called and, therefore, violated the provisions of FOIA, S.C.

Code Ann. § 30-4-7030-4-80(a), as amended.

57. Plaintiffs desire a judicial determination that the Defendants’ motion approval of

the following unnoticed final action items, “to award the bid to Orion/FBi”; “to authorize the Town


bonding for funding the Surfside Pier Project”; following executive session, exceeded the scope

and purpose for which the special meeting was originally called on July 1, 2020, which was only

“to discuss the pier bids with Engineer and Architect.”13 (Emphasis Added).

59. Plaintiffs are entitled to a declaration of this Court that the Defendants’motion and

approval of the following unnoticed final action items, “to award the bid to Orion/FBi”; “to

11 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-15, marked Exhibit A. 12 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-47, marked Exhibit A. 13 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-15, marked Exhibit A.

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authorize the Town Administrator to execute any agreements”; “to negotiate value engineering”;

and “to proceed with bonding for funding the Surfside Pier Project”; did exceed the scope and

purpose for which the special meeting was originally called on July 1, 2020, which was “to discuss

the pier bids with Engineer and Architect,”14 and, therefore, these Defendants’ conduct and

actions violated the provisions of FOIA, S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp.

2015).(Emphasis Added).

FOR A SECOND CAUSE OF ACTION (Declaratory Judgment – The “Unnoticed Action” of July 1, 2020 Violated the Statutory

Process for Agenda Amendment. S.C. Code Ann. § 30-4-80(a) of FOIA)


verbatim.



62. There is a justiciable controversy between the Plaintiffs and Defendants about

whether or not the Defendants’ motion and approval of the following unnoticed final action items,

“to award the bid to Orion/FBi”; “to authorize the Town Administrator to execute any

agreements”; “to negotiate value engineering”; and “to proceed with bonding for funding the

Surfside Pier Project”; following executive session at the July 1st special meeting, qualifies as

recognized exception(s) to the FOIA’s notice and agenda mendment requirements under S.C.

Code Ann. § 30-4-80(a), as amended.

63. S.C. Code Ann. § 30-4-80(a), FOIA, sets out the only statutory procedure to add a

“final action items without public comment” to a public special meeting agenda within 24 hours

of the special meeting. (Emphasis Aded). This subsection (a) provides in pertinent part:

14 Town Council Special Meeting Minutes dated July 1, 2020, p. 1, ¶ 14-15, marked Exhibit A..

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Once an agenda for a . . . called, special, or rescheduled meeting is posted pursuant to this subsection, no items may be added to the agenda without an additional twenty-four hours’ notice to the public, which must be made in the same manner as the original posting. After the meeting begins, an item upon which action can be taken only may be added to the agenda by a two-thirds vote of the members present and voting; however, if the item is one upon which final action can be taken at the meeting or if the item is one in which there has not been and will not be an opportunity for public comment with prior public notice given in accordance with this section, it only may be added to the agenda by a two-thirds vote of the members present and voting and upon a finding by the body that an emergency or an exigent circumstance exists if the item is not added to the agenda. Nothing herein relieves a public body of any notice requirement with regard to any statutorily required Public hearing. (Emphasis Added).

64. It is undisputed that no motion was made by Defendants, Scoles, Pellegrino, and

Holder, to amend the special meeting Agenda for July 1, 2020 to add the following unnoticed final

action items, “to award the bid to Orion/FBi”; “authorize the Town Administrator to execute any

agreement”; “to negotiate value engineering”; and “to proceed with bonding for funding the

Surfside Pier Project”; before to going into executive session.

65. It is also undisputed that the Defendants’ motion and approval of the following

“unnoticed final action items,” as described above were done without public comment and no

finding of emergency or exigent circumstances15as mandated by S.C. Code Ann. § 30-4-80(a), as

amended.

66. The factual allegations set forth in Paragraphs 34, 33, 34, 35, 36, 37, 38, 39, 40, 41,

and 42 of the Complaint further evidenced that Defendants’ motion and approval of the following

“unnoticed final action items” as described above did not qualify as recognized exceptions to

FOIA’s notice and agenda amendment requirements pursuant to S.C. Code Ann. § 30-4-80(a), as

amended.

15 Audio recording of Town Council Special Meeting taken on Wednesday, July1, 2020, 5:00, PM.

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67. Plaintiffs desire a judicial determination that the Defendants’ approval of the

following unnoticed action items, “to award the bid to Orion/FBi”; “to authorize the Town


bonding for funding the Surfside Pier Project”; following executive session did not qualify as

recognized exception(s) to FOIA’s notice and agenda amendment requirements, but instead

violated the requirements under S.C. Code Ann. § 30-4-80(a) as amended.

68. Plaintiffs are entitled to a declaration of this Court that the Defendants’ motion and

approval of the following “unnoticed final action items” as described above following executive

session at the July 1st special meeting, did not qualify as recognized exception(s), but instead

violated FOIA’s notice and agenda amendment requirements under S.C. Code Ann. § 30-4-80(a),

as amended.

FOR A THIRD CAUSE OF ACTION (Declaratory Judgment – Failure to Announce “Specific Purpose” of an Executive Session

at the special meeting in open Session. S.C. Code Ann. § 30-4-70(b), as amended)


verbatim.



71. There is a justiciable controversy between the Plaintiffs and the Defendants about

whether the Defendants’ anouncements of executive session in open session at July 1st special

meeting violated FOIA’s specific purpose provision. S.C. Code Ann. § 30-4-70(b), as amended.

72. S.C. Code Ann. § 30-4-70(a), as amended, allows a public body to hold a closed

meeting for any one of five reasons. If such a closed executive session is to be held, its "specific

purpose" must be announced in the open session. Id. "Specific purpose" is defined by statute as:

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a description of the matter to be discussed as identified in items (1) through (5) of subsection (a) of this section. However, when the executive session is held pursuant to Sections 30-470(a)(1) or 30-4-70(a)(5), the identity of the individual or entity being discussed is not required to be disclosed to satisfy the requirement that the specific purpose of the executive session be stated.

Id., S.C. Code Ann. § 30-4-70(b). 73. Subsection (a)(1) covers employment matters while (a)(5) covers "Discussion of

matters related to the proposed location, expansion, or the provision of services encouraging

location or expansion of industries or other business in the area served by the public body." Here,

Defendants did not invoke either (a)(1) or (a)(5), but rather, at their July 1st special meeting, the

special meeting minutes and audio recording reflect the Defendants invoked only S.C. Code Ann.

§ 30-4-70(a)(2), and merely stated in open session that the specific purpose of the special meeting

was “to discuss the pier bids with the Engineer and Architect,” as well as “contractual matters”.

(Emphasis Added).

74. In the case of Donohue v. City of N. Augusta, 412 S.C. 526, 773 S.E. 2d. 140

(2015), the South Carolina Supreme Court held that the circuit court erred in finding that City of

North Augusta, the mayor and City Council of North Augusta had satisfied the FOIA's specific

purpose requirement when they announced the specific purpose of the executive session in these

types of general terms:

ITEM 1. LEGAL: Executive Session-Request of the City Administrator Upon the request of the City Administrator and in accordance with Section 30-4- 70 (a) (2) and on motion by Councilmember Baggott, second by Councilmember Adams, City Council unanimously voted to go into executive session for the purpose of discussion of negotiations incident to 1 proposed contractual matter. On motion by Councilmember McDowell, second by Mayor Jones, the executive session was adjourned. There was nothing to report out. Id. (Emphasis Added).

75. The factual allegations set forth in Paragraphs 42, 43, 44, 45, 46, 47, 48, 49, and 50

evidence further acts of the Defendants that constitute illegal and unlawful Executive Sessions of

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the Defendants that are prescribed by the FOIA because the Defendants failed to announce the

reason for the Executive Session as required by the FOIA, and the matters not considered in the

Executive Session were discussed afterwards, such as “to award the bid to Orion/FBi and authorize

the Town Administrator to execute any agreements and to negotiate value engineering and to

proceed with bonding for funding the Surfside Pier Project,” in violation of FOIA.

76. Plaintiffs desire a judicial determination that Defendants’ anouncements of

executive session in open session at July 1st special meeting violated FOIA’s specific purpose

provision. S.C. Code Ann. § 30-4-70(b), as amended.

77. Plaintiffs are entitled to a declaration by this Court, finding that the Defendants

failed to satisfy the FOIA’s specific purpose requirement when they announced in open session

the specific purpose of the executive session in these types of general terms:

EXECUTIVE SESSION Request by Mayor Hellyer

Councilmember Holder made motion to adjourn special meeting and enter into executive session in accordance with S. C. Ann. Code sections 30-4-70- (a)(2), seconded by Councilmember Scoles, Councilmembers, Scoles, Pellegrino, and Holder, voted to go into Executive session for the purpose of discussing “with the architects and engineers to discuss the pier bids” and “contractual matters”.

On motion by Councilmember Holder, seconded by Councilmember Scoles, the executive session was adjourned. There was nothing to report out.16 (Emphasis Added). 78. Additionally, Plaintiffs are entitled to a declaration by this Court, finding that the

discussions in July 1st executive sessions are limited in scope by law to the topics specifically

discussed and announced in the Defendants’ motion to enter executive session, which did not

include the following final action items, “to award the bid to Orion/FBi and authorize the Town

Administrator to execute any agreements and to negotiate value engineering and to proceed

16 Audio recording of Town Council Special Meeting taken on Wednesday, July1, 2020, 5:00, PM.

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with bonding for funding the Surfside Pier Project,” which items were later voted on and

improperly approved by the Defendants, Scoles, Pellegrino, and Holder, after the parties

reconvened from executive sessions at the special meeting on July 1, 2020 in violation of FOIA,

S. C. Code Ann. § 30-4-70(b) as amended. See Brock v. Town of Mt. Pleasant, 411 S.C. 106, 767

S.E.2d 203, 2014 S.C. App. (Ct. App. 2014), aff'd in part, modified, 415 S.C. 625, 785 S.E.2d 198

(2016). Town violated S. C. Code Ann. § 30-4-70(b) by failing to announce the specific purpose

of its executive session, i.e., to discuss whether to retain its own individual attorneys at public

expense for all lawsuits related to town business, as this was not consistent with the announced

purpose: to obtain legal advice on a particular issue). (Emphasis Added).

FOR A FOURTH CAUSE OF ACTION (INJUNCTIVE RELIEF)

79. Plaintiffs reallege all of the foregoing allegations of the Complaint as if set forth

here verbatim.

80. Should this Court declare that Defendants have violated the FOIA in any respect as

requested in causes of action I through IV of this Complaint, Plaintiffs are then entitled to

injunctive relief and any other equitable relief that this Court deems appropriate under the

provisions of S. Code Ann. § 30-4-100, as amended.

81. Plaintiffs, therefore, seek an injunction against Defendants to enjoin and prevent

any future violation of the FOIA by the Defendants with particular respect to the violations

specified in this Complaint. Further, Plaintiffs seek other equitable relief from the Court setting

aside the vote to award the bid to Orion/FBi Joint Venture.17

17 Piedmont Pub. Serv. Dist. v. Cowart, 319 S.C. 124, 459 S.E.2d 876 (Ct. App. 1995)( “Upon finding a violation of the Act, the trial court may order equitable relief as it considers appropriate, and a violation of the statute must be considered to be an irreparable injury for which no adequate remedy at law exists. S.C. Code Ann. § 30-4-100(a). The vote to terminate Cowart was taken in violation of the Act. We find no abuse of discretion on the part of the trial court in ordering the equitable relief of invalidation of the vote. See Business License Opposition Comm. v. Sumter

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82. Plaintiffs also seek an award of costs and attorneys’ fees as allowed by law.

WHEREFORE, the Plaintiffs pray for relief as follows: (1) For a Declaratory Judgment by this Court declaring that Defendant’ conduct

described in Causes of Action I through IV of this Complaint is unlawful and violates the FOIA, S.C. Code Ann. § 30-40-10, et seq., as amended;

(2) For an injunction against future unlawful conduct that violates the FOIA, S.C. Code Ann. § 30-4-10, et seq., as amended; (3) For an Order of the Court invalidating the “unnoticed final action: illegal

motion and vote” taken by Defendants, Pellegrino, Scoles, Holder on July 1, 2020 at a Town Council Special Meeting which awarded the Surfside Beach Pier Project Bid to Orion Marine Construction, Inc. and FBI construction, Inc.

(4) For reasonable costs and attorney’s fees incurred as provided by S.C. Code

Ann. § 30-4-100, as amended; and (5) For such other equitable relief as may be just and proper. BELLAMY, RUTENBERG, COPELAND,

EPPS, GRAVELY & BOWERS, P.A. s/ Howell V. Bellamy, III Howell V. Bellamy, III (SC Bar # 66575) [email protected] 1000 29th Ave. N. Myrtle Beach, SC 29577 843-448-2400 Phone 843-448-3022 Facsimile Attorneys for Plaintiffs

Myrtle Beach, SC 29577 July 27, 2020

County, 311 S.C. 24, 426 S.E.2d 745 (1992) (affirming master's decision to invalidate ordinance adopted by county council in violation of the Freedom of Information Act)”).

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