NA City Council Jan 7, Perry Holcomb (copy)

North Augusta resident Perry Holcomb speaks about the New Savannah Bluff Lock and Dam during a January 2019 City Council meeting. Holcomb sued the city, claiming a FOIA violation during a May 2018 meeting. 

North Augusta’s request to a judicial court judge to reconsider an order in a Freedom of Information Act case was denied Thursday morning during a hearing.

An Oct. 8 order by Judge Clifton Newman found that the City of North Augusta violated the Freedom of Information Act during a May 7, 2018, City Council meeting when council amended a resolution included in an agenda document.

North Augusta resident Perry Holcomb sued the city, mayor and City Council claiming a FOIA violation. That suit was filed in November 2018.

Danny Crowe, lawyer for the defendants, said Thursday that the order was “the wrong call, a bad call, and, frankly, bad law.” Crowe referred to the order as “the second order,” since an order in favor of the defendants was initially filed on Oct. 7 but was removed and replaced with the order in favor of Holcomb.

A motion for alteration or amendment of finding, or for a new trial, filed by the defendants, states that the court in its order filed Oct. 8 committed an error of law in conflating the concepts of “agenda” and committed a legal error in failing to consider the common and dictionary meaning of “agenda.”

The motion also states that the court overlooked and failed to consider testimony by the plaintiff, Perry Holcomb, as well as testimony by then-City Clerk Donna Young. That testimony was heard in a Jan. 15, 2019, hearing. 

During the May 2018 meeting, Council unanimously passed an amendment to a resolution that allocated funds to the New Savannah Bluff Lock and Dam as part of Capital Projects Sales Tax IV.

The list of projects for CPST IV, as part of the resolution, was included on a document labeled "Agenda 050718 Complete." The Lock and Dam funds were not included on the published agenda ahead of the meeting and were added during the meeting.

“In Amending the Agenda item, the City and City Council failed to make a finding by the body that an emergency or an exigent circumstance existed if the item was not added to the agenda,” Holcomb's initial complaint states.

The South Carolina Code of Laws states that once an agenda for a public meeting is posted, "no items may be added to the agenda without an additional 24 hours before the meeting."

"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," the Code says in Section 30-4-80 of the Freedom of Information Act.

The Oct. 8 order enjoins the city from “future similar violations, and awards Plaintiff reasonable attorney’s fees and costs.”

The city's motion states that the court in the Oct. 8 order used vague terms and did not fairly inform the city of the action intended to be enjoined. 

The city’s motion also states that the circumstances in which two contradictory orders were signed and filed “establish an obvious error in the Court’s failure to apply an appropriate level of judicial consideration and determination of this lawsuit, constitute a manifest injustice, and warrant a new trial.”

Crowe said to Newman during the hearing Thursday that the order “is not an order worthy of your honor.” He said the order could also discourage other local governments within the circuit from putting anything besides a one-page agenda on their websites.

Dione Carroll, attorney for Holcomb, said during the meeting that the city had the option of posting backup materials to meetings without including “agenda” in the title.

A filing submitted by Carroll in response to the defendant’s motion states defendants are “indulging in an expression of sour grapes because the court came to a conclusion adverse to Defendants’ position.” Carroll repeated that the defendants were “sour grapes” during Thursday’s hearing and said there was no error in the order.

Crowe said during the hearing that the defendants are “not sour grapes, your honor, we’re looking for a good solid order.”

North Augusta Mayor Bob Pettit said Thursday evening he is disappointed by the judge's ruling. "I will have to await the opportunity to read (the) judge's order to see what it contains. I will have to consult with Council members and the City Attorney about further action, if any."

Holcomb did not respond to a request by the North Augusta Star for comment.

Lindsey Hodges is a general assignment reporter at the Aiken Standard and North Augusta Star. Follow her on Twitter at @LindseyNHodges.