SC Supreme Court upholds Freemantle lawsuit (On Preston buyout)

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Court upholds SC Freedom of Information Laws

By Stan Welch – The South Carolina Supreme Court has issued its ruling on the lawsuit brought by area resident Rick Freemantle concerning the County Council’s 2008 buyout of former administrator Joey Preston. The court’s ruling reversed Circuit Judge Cordell Maddox’s ruling that Freemantle had no standing to bring the suit.

The Supreme Court’s decision means that Freemantle’s suit, which seeks to hold each of the five member majority who approved the buyout responsible in both their official capacity and as individuals, will go forward.

The Supreme Court upheld Maddox’s ruling in several respects. He had denied Freemantle’s standing on several grounds. He ruled that Freemantle’s status as a taxpayer did not satisfy the criteria necessary for either constitutional standing or the “public importance” exception to that category.

He also ruled that the Council members were entitled to legislative immunity from being sued individually and that Rule 12(b)(8) which prohibits duplicative litigation could be invoked because the County was also seeking to force Preston to return the severance benefits awarded him.

But it was Freemantle’s claims that the entire vote taken by that Council, which not only gave Preston a $1.2 million severance package, but immediately elevated deputy administrator Michael Cunningham to the position of administrator, was invalid because of a violation of the SC Freedom of Information Act that won the day upon appeal.

The Supreme Court ruled that Freemantle, like any other citizen, automatically has standing to seek both declaratory and injunctive relief because that standing is written into the Freedom of Information Act itself. As Justice Kitteredge, who wrote the opinion, said, “Appellant has pled that he is a citizen of the State and that FOIA has been violated. Nothing more is required.”

Freemantle contends in his lawsuit, filed in November 2009, that the Council illegally amended the agenda of the Nov. 18, 2008 meeting. He contends that the five member majority ( Council members Larry Greer, Michael Thompson, Ron Wilson, Gracie Floyd and Bill McAbee) knew before hand that the matter would be brought before the Council, and that it should have appeared on the published agenda as required by the FOIA.

On that evening, following the amendment of the agenda, all the required contracts and documents had been prepared and were ready to be acted on, a circumstance that led Chief Justice Jean Toal to call that meeting “a wire job from start to finish” during arguments on the case made on April 17.

Despite Toal’s remarks, and those of other justices, the state grand jury released its findings two weeks ago that they had found no evidence of a crime in the scope of that meeting, and they ended a two year investigation.

The Supreme Court ruling also reversed Judge Maddox on the questions of legislative immunity and Rule 12(b)(8). The ruling on legislative immunity does not rule out that defense, but states that it must be proved at trial, and not presumed. And the cases brought by Freemantle and the County are not close enough in nature to be declared duplicative, according to the Justices’ ruling.

Freemantle, a two time candidate for the District Six County Council seat and a vocal opponent of Preston when he was the administrator, told The Journal “I am pleased with the ruling of course. It is nice to see that a little justice still exists in the state.”