Private Text Messaging During Public Meetings. 

by Don Moniak
August 14, 2023

The integrity of Aiken City Council meetings is often undermined by private, off-the-record communications, whether it be whispered side conversations or private text messages between Council members and/or Council members and staff.

In all likelihood, private text messages during public meetings constitute violations of both City code and the South Carolina Freedom of Information Act (SC FOIA).

This behind-the-back text messaging is also quite remarkable given the occasional lectures on “civility” from some Council members to audience members.

Statutes Governing Public Meetings. 

Roberts Rules of Order are a century-old set of rules and and guidelines considered to be the standard for the deliberative process and group decision making. These rules are designed to promote civility, good conduct, and order in meetings.

A Cornell University simplified guide describes their three basic principles:

• Everyone has the right to participate in discussion if they wish, before anyone may speak a second time.
• Everyone has the right to know what is going on at all times. Only urgent matters may interrupt a speaker.
• Only one thing (motion) can be discussed at a time.

Aiken City code requires adherence to Roberts Rules of Order:

“Except as otherwise required by state law or this Code, all proceedings of the council shall be governed by Robert’s Rules of Order.” (Section 2-63)

The Mayor of Aiken acting as Presiding Officer (Chair) and the City Attorney acting as Parliamentarian are charged with monitoring and enforcing the rules of order and procedure. (Section 2-63)

The South Carolina Freedom of Information Act (SC FOIA) also governs the conduct of public meetings. SC FOIA prohibits private meetings and discourages closed-door Executive Sessions.

The legislative intent of SC FOIA is open government: 

“The General Assembly finds 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 public activity and in the formulation of public policy. Toward this end, provisions of this chapter 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.”  (S.C. Code Ann. §30-4-15; emphasis added). 

SC FOIA specifically prohibits surreptitious communications that also undermine the stated intent of the law and the integrity of public meetings:

“No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” (SC 30-4-70(c))

SC FOIA also requires meeting minutes that can include all discussion: Meeting minutes must contain “Any other information that any member of the public body requests be included or reflected in the minutes.” (SC 30-4-90(a)(4)) 

Private, Secretive Text Messaging

Private text messages between Council members and/or members and staff certainly violate the spirit, and likely the letter, of Roberts Rules of Order and SC FOIA. The communications are not shared with other members, and are not a part of the official audio record nor are they part of the meeting minutes. They function as impromptu, unannounced Executive Sessions that lack a quorum. 

The extent of this practice is unknown but several known examples (1) include: 

• August 8, 2022. City Attorney Gary Smith during discussion of the proposed closing of neighborhood parks. 
• October 22, 2022. Councilwoman Andrea Gregory during the “Issues and Updates” agenda item.
• On November 15, 2022, Mayor Osbon announced he had received a text message from a staff member during the public hearing to repeal the ordinance privatizing Newberry Street on behalf of the Pascalis project developer.(2)
• April 26, 2023. Manager Stuart Bedenbaugh texting during the Parker’s Kitchen at Whiskey and Stratford public hearing.
• May 9, 2023. City Councilman Ed Girardeau following a public hearing to commend Mayor Osbon on his leadership.
  
  With the exception of the latter example, the content of most of these private messages during public meetings are unknown.
  
  What is known is the content of a series of text messages during the April 10, 2023 Council public meeting, obtained via a SC FOIA request. At  least three separate text message communications occurred during Council’s April 10th public meeting. Each communication involved Council business.

The first two known exchanges were between Councilwomen Kay Brohl and Andrea Gregory. The first messaging occurred after City Attorney Gary Smith announced he was requesting an informal opinion from the State Ethics Commission regarding potential conflicts of interest for the proposed dissolution of the Aiken Municipal Development Commission. 

Councilwoman Brohl: “Why did Lessie wait until today to ask for this??”

Councilwoman Gregory: “Exactly! Not appropriate.”

Councilwoman Brohl: “Agree.”

Above: Councilwoman Andrea Gregory and City Manager Stuart Bedenbaugh using their cell phones at 16:33 to 16:38 of the April 10, 2023 Council meeting. At the same time, Mayor Osbon and City Attorney Gary Smith appear to be having a private side conversation.

A second exchange between Councilwomen Gregory and Brohl occurred during the second public hearing to approve the allocation of $15.9 million of plutonium settlement funds for three well-defined projects (3) and to pay off the $9.6 million Project Pascalis bond debt.

Above: Councilwoman Kay Brohl using her cell phone at the 1:30:00 to 1:30:15 portion of the meeting.

The surreptitious messaging also occurred while Councilwoman Lessie Price was openly advocating an amendment to set aside $4 million for Northside neighborhoods within the City limits and for Generations Park.

Councilwoman Brohl: “I can’t believe her.”

Councilwoman Gregory: “What the heck!!!”

Ms. Price’s effort failed, and to this day zero funds from a $25 million pot of the City’s plutonium settlement funds are dedicated to the area between Richland Avenue and the northern city limits. 

A third exchange occurred between Councilwoman Gregory and City Manager Stuart Bedenbaugh. Ms. Gregory advocated a Council discussion of the two relatively new agenda items called “public comment on nonagenda items.” The messaging took place during the second public hearing to approve a new hotel near Whiskey Road—which accounts for the reference to the Hampton Inn.

Councilwoman Gregory: “Please make sure we schedule a work session to update the ordinance regarding the 2nd session of public comment. We need to throw it on the agenda immediately.”

Mr. Bedenbaugh: “Ok.”

Ms. Gregory’s motivation behind an ordinance amendment is unknown. A July 21st email asking whether it is a matter of meeting length and/or a reluctance to face more public comment has not been answered. The work session was scheduled June 12th, and not immediately as requested. (4)

Whether or not this private text messaging communication during public meetings is nefarious, complimentary, or irrelevant, the communications are inappropriate. Such communications do not adhere to Robert’s Rules of Order or the South Carolina Freedom of Information Act governing Open Meetings.

Government officials should fully comply with local and state law and standard rules of order, emphasize decorum. Secretive communications during public meetings have no place in a public meeting. Government officials who share their thoughts secretly during public meetings should instead share those thoughts with fellow officials, and those at the top of the organizational chart—the citizenry.



FOOTNOTES

(1) Examples of cell phone use during meetings:

City Manager Stuart Bedenbaugh

City Attorney and meeting Parliamentarian using his cell phone

Councilwoman Andrea Gregory using her cell phone.

(2) The message followed the Mayor’s interruption of a speaker in mid sentence to dispute a known fact. The Mayor subsequentally apologized for his mistake. But if proper rules of order and procedure had been followed, the staff member would stand up, be recognized, and provide the correction for all to hear.

(3) The projects approved for the use of plutonium settlement funding were:

a. $3 million for reconstruction of the Fairfield Street bridge that has been closed by the SC Department of Transportation, due to structural problems, since 2016. The Union Street bridge that is one block away was closed this past January due to structural problems. The two closures leave a gap in access for vehicle traffic and emergency first responders.

b. $3.5 million for the “Northside Sewer Lift Station” to be constructed just north of Interstate 20, more than five miles north of city limits. The project is not an upgrade to old city sewer system lines that are prone to failure.

As reported in “Aiken Takes on Exit 18,” the project will facilitate expansion of the City’s sewer system to service new subdivisions and businesses near I-20’s Exit 18 along Hwy 19.

The only recent public meeting was held a month ago at Smith-Hazel Recreation and Meeting facility, which perpetuates the false perception that the project will benefit the Northside within city limits.

c. $400 thousand for the embattled Williamsburg Street Project at the Aiken Farmer’s Market. The block recently had seventy percent of the tree canopy removed, a planned but unpublicized action that incited so much outrage that the project is currently on hold.

The $400 thousand supplemented the project costs after the low bid was more than $500 thousand dollars over the $960,000 budget. Due to the funding shortfall portions of the project were deferred.

(4) The minutes of that meeting indicate a unanimous preference to reduce and restrict public feedback on non agenda items, although there was no unanimity on a new format.