Press for change HLAD speakers: Municipal Association of South Carolina
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MARCH 2018
a publication of the municipal association of south carolina
HLAD
speakers:
Press
for
change
A
small-town elected official can make a difference in the This year’s HLAD drew local officials from all corners of
decisions that take place inside the S.C. State House. Just ask the state to learn about a variety of topics, such as the opioid
Wayne George. epidemic, infrastructure funding and flexibility, the outlook
Years ago, he was the mayor of the City of Mullins when state for the Local Government Fund, changes to the state retire-
lawmakers were debating changes to the Local Government ment system, the 2020 census count and the latest tax law that
Fund, recalled George, addressing nearly 500 municipal officials Congress passed.
at the 2018 Hometown Legislative Action Day. So George called
his representative, a member of the powerful Ways and Means Flexibility for infrastructure
Committee, who happened to be on the House floor at the time. The Town of Edisto Beach has incurred repeated damage
“I told him about the importance of our Local Government from storms in recent years, leading Mayor Jane Darby to
Fund, explained a couple things,” said George. “And he switched wonder: Why not allow cities and towns to spend their accom-
his vote that day.” modations and hospitality taxes the best way they see fit?
George, who became the Municipal Association’s executive “We had hospitality and accommodations tax funds in
director in January, has also been on the other side of the conversa- accounts,” said Darby, during a discussion with Rep. Craig
tion, serving from 2012 to 2016 in the S.C. House of Representatives. Gagnon, R – Abbeville, moderated by Greer Mayor Rick Danner.
“When I was in the General Assembly, the first calls I “However, that is so restricted that we could not put our
returned were to my local elected officials,” said George. “You bet town back together. How are you going to have visitors, which
I picked up my cellphone and called them back.” HLAD, page 2 >
In This Issue
Special Section: Open Government
Putting naloxone Small cells are coming: Keep up with Protecting residents’
within reach How to prepare FOIA changes privacy
Page 4 Page 6 Page 11 Page 13
In this
ISSUE
Agreement reached on
indigent defense fee................... 3
Putting naloxone
within reach............................... 4
Drones: Know what flies............. 5
Small cells are coming:
How to prepare.......................... 6
2018 MEOI and Advanced
Institute graduates...................... 7
Supreme Court to decide billion
dollar sales tax case................... 8
Make plans now to attend
the 2018 Annual Meeting..........10 (Left to right inset) Rep.Todd Rutherford, D - Columbia; Inman Mayor Cornelius Huff; and Representatives
Kirkman Finlay, R - Columbia; Mike Anthony, D - Union; and Mike Sottile, R - Isle of Palms, debate revenue
Special section: options to shore up the state retirement system.
Open Government
Keep up with FOIA HLAD, from page 1 > on operations and management of
changes....................................11 hospitality and accommodations taxes are tourism-related projects by lowering the
Council meetings now intended for, if you can’t get them there? yearly collection threshold from $900,000
streaming..................................12 And then you cannot sustain life for them to $750,000.
while they are there.”
Protecting residents’
She asked how the Legislature could Opioids
privacy......................................13
give towns more latitude to make spend- Opioids, such as fentanyl and oxyco-
Public access at a ing decisions. done, kill 91 people nationwide every day.
keystroke...................................14 “I do agree that when we do have a (See related article on page 4)
disaster in different areas of the state, the A panel of experts — including Arnold
state needs to step up and do those things Alier, EMS division director for the S.C.
that are necessary for our localities to have Department of Health and Environmental
President: Mayor Elise Partin the flexibility,” said Gagnon. Control; Frank O’Neal, who supervises
Cayce He emphasized that recovery decisions the Narcotics and Vice Section of the
Executive Director: Wayne George made on a local level are closest to the S.C. State Law Enforcement Division;
wgeorge@masc.sc immediate needs, and that state legislators and Todd Spradling, assistant special
don’t typically have detailed information agent in charge for the Drug Enforcement
Managing Editor: Reba Campbell about damage in individual towns. Administration — revealed lessons and
rcampbell@masc.sc “All we can do is say, ‘Who do we suggestions from combatting the crisis.
Editor: Sarita Chourey depend on to give us the right informa- O’Neal urged local law enforcement
schourey@masc.sc tion?’ And it is the localities — the towns to treat the scene of a fatal drug overdose
and cities — that are affected.” like a murder scene.
Associate Editor: Meredith Houck Darby urged attendees to advocate for “Go there. Interview people. Interview
mhouck@masc.sc two pieces of legislation: people at the time when everybody
Editorial Assistant: Ashleigh Hair • S917 would allow revenue from isstressed,” he said, adding that during
ahair@masc.sc state and local accommodations taxes such moments, parents have been known
and local hospitality taxes to be spent on to hand law enforcement officers the
Contributing Writers: flood control, damage repair and drainage cellphone of the deceased individual and
Eric Budds, Urica Floyd, improvements for tourism-related areas. direct officials to the drug dealers’ tele-
Megan Sexton and Tiger Wells •S945 would make it easier for local phone numbers. O’Neal also urged HLAD
governments to use local tax collections attendees to support drug courts.
2 uptown: march 2018
NEWS
BRIEFS
Mauldin Mayor Dennis Raines moved
up to second vice-president of the
Municipal Association’s board of
directors; Inman Mayor Cornelius
Huff moved from his board position
to the third vice president; and Aiken
Agreement reached on Mayor Rick Osbon was selected to fill
Huff’s unexpired, at large seat.
indigent defense fee Eight municipal officials graduated
from the 2017 S.C. Economic
A
pproximately 130 cities and towns indigents and to remit that fee to the state. Development Institute, a collaborative
in South Carolina operate municipal Once the proviso became law, municipal program of the S.C. Department
courts but do not receive indigent officials wondered if, in cases where there of Commerce and S.C. Economic
defense services from circuit public was no agreement between the municipal- Developers’ Association. The
defender offices. These cities do not receive ity and the circuit public defender’s office, graduates included Sergio Aparicio,
indigent defense services because of a the application fee was still required. City of Columbia; John Stankus,
2015 budget proviso that prohibits public During the 2017 legislative session, the City of Laurens; Scott Tanner, City
defenders from representing indigents in Municipal Association sought an agree- of Manning; Jerre Threatt, City of
municipal court unless there is an agree- ment with the Office of Indigent Defense
Clinton; Liam Kyle, City of Rock Hill;
ment between the municipality and the on this issue and proposed a legislative
Laura Little, City of Rock Hill; and
relevant circuit public defender’s office. change to clarify which circumstances
Brie Logue, City of Columbia.
Cities that do not have an agreement required municipal courts to collect the
with their public defender’s office do $40 fee.
not receive services, and should not The Association and the Office of Sandra H. Woods, City of Fountain
be collecting the $40 indigent defense Indigent Defense reached an agreement in Inn, earned her certified municipal
application fee provided for in Section January, likely rendering unnecessary any clerk designation from the
17-3-30 of the S.C. Code. Out of the clarifying legislation. International Institute of Municipal
roughly 209 municipal courts currently in The Office of Indigent Defense and the Clerks.
operation, only 78 have entered into such S.C. Court Administration agreed that
agreements. it was inappropriate to require an indigent The City of Walterboro received
“The Municipal Association worked defendant to pay the $40 application fee the Wastewater System of the Year
with the Commission on Indigent Defense required by Section 17-3-30 in courts that award at the 2017 Annual Conference
to clarify that municipalities not receiving did not receive public defender services.
of the South Carolina Rural Water
public defender services as defined under The S.C. Court Administration also
Association.
the statute should not be required to agreed that the code section should not be
collect the statutorily mandated fee,” said interpreted to require payment.
Tiger Wells, government affairs liaison for “Municipal courts that do not receive The City of Columbia has been
the Municipal Association. public defender services should not be awarded a 3-STAR Community Rating
“However, cities that receive those required to extract an application fee from for national leadership in sustainability
services should collect that fee.” indigents for services that are unavailable,” by STAR Communities, a nonprofit
Before the passage of budget proviso said Wells. organization that evaluates the
61.12, Section 17-3-30 of the S.C. Code of “This resolution makes perfect sense livability and sustainability of U.S.
Laws was interpreted to require municipal to clear up the ambiguity created by the communities.
courts to take a $40 application fee from budget proviso.”
uptown: march 2018 3
Putting naloxone
within reach the identification, treatment and reporting
of opioid overdoses.
But some lawmakers believe South
Carolina can do more.
“A lot of times, access and care is more
difficult than most people would think,” said
Bedingfield.
I
t’s hard to find pills in Eric Bedingfield’s Assembly for how to halt the rising human “When a person is ready to go get
house. and economic toll of addiction. treated, they need treatment then,” he added.
“If you can find a medicine bottle, Among them is a recommendation of “If they can’t get it then or within the next 24
good for you — Because you have ways to increase access to naloxone (some- hours, they’re probably going to use again.”
performed a miracle,” said Bedingfield, who times sold under the brand name Narcan), When someone expresses a willingness
retired from the S.C. House in January. a drug that can reverse an opioid overdose to receive treatment, Bedingfield also urges
“My kids cannot walk in my bathroom if administered in time. Currently, an indi- the individual’s friends and family members
and open a medicine cabinet and see vidual may buy a dose of the medicine over to be prepared. He suggests they purchase
bottles.” All medications “are on lockdown the counter for $120 at a retail pharmacy naloxone from a pharmacy and keep the
in my house,” he added. without a prescription, provided there is a medicine and the vulnerable individual
Bedingfield, a diabetic, said he’d never standing order, a collaborative agreement close at hand.
thought twice about taking his medication between a doctor and a pharmacy that Bedingfield said he would like commu-
in view of his children. But he feels differ- permits the dispensation. nity groups, such as the Salvation Army,
ently now. There has been some progress in the to be able to purchase naloxone directly
This winter, he addressed the Associ- General Assembly. from manufacturers for $35 – $40 per dose,
ation of SC Mayors about opioid abuse, a The South Carolina Overdose Preven- so that those organizations can also assist
problem that kills 91 people nationwide tion Act, enacted in 2015, granted civil and people in need.
each day. It’s an acutely personal crusade criminal immunity to doctors, pharmacists, He urged against stigmatizing opioid
for the Greenville Republican, who chaired caregivers and first responders who were addicts. They’re not lost causes — They’re
the House Opioid Abuse Prevention Study involved in prescribing, dispensing and a brother who is recovering from surgery,
Committee. He lost an adult son in 2016 to administering naloxone in a suspected a grandmother who’s taking pain medicine
an overdose. opioid overdose. Shortly after the new law under hospice care or a grandchild who
In January, Bedingfield’s committee was enacted, law enforcement and health takes the grandmother’s medicine.
released a report that makes a host of officials created the Law Enforcement Offi- “It can take your child as quick as it took
recommendations to the S.C. General cer Narcan program to provide training on mine,” said the former lawmaker.
I
n January, the S.C. House of Represen- that offers substance-use disorder assistance
tatives Opioid Abuse Prevention Study and services, such as counseling, homeless
Committee released a host of recommen- services, advocacy, harm reduction, treatment,
dations, including some that would have and alcohol and drug screening to individuals
Highlights particular relevance to local governments. at risk of an opioid-related overdose.
of the
Empower “community distribu- Expand prescription drug take-
tors” of overdose antidotes. Often, back day events and drop-off box
addiction sufferers can’t or won’t purchase locations. Local governments and public
opioids
naloxone from a pharmacist. So, lawmakers and private entities should partner with law
should pass legislation that allows a “commu- enforcement agencies to create community
nity distributor” to provide opioid overdose events associated with national and commu-
report antidotes. Community distributors would be
considered any public or private organization
nity-sponsored prescription drug take-back
days. These partnerships should also increase
4 uptown: march 2018
Drones:
Know what flies
T
he City of Florence has gotten a lot of Federal Aviation Administration Drone coverage now offered
mileage out of drone technology. regulations limit the altitude to 400 feet If a city plans to use drones, officials should
The small, unmanned aircrafts unless an operator receives a special develop protocols for using the devices when
have checked on construction projects exemption (known as a Section 333 conducting criminal investigations, said
and blighted property and helped create exemption) to fly the drone at a higher Leigh Stoner, underwriting manager for the
TV commercials to promote the city’s altitude. Most of the better drones Association’s Risk Management Services.
downtown. are preprogrammed to prohibit flying Local officials should also put a system
“Instead of having to climb up on a above the 400 foot level, according to in place to notify the public of drone
roof, you can take the picture, put it on a Reich. usage and have a way to keep records of
laptop and literally zoom down with great Nationwide, 42 percent of cities are its deployment. If a drone is expected to
clarity because of the resolution of the using or considering using drones in collect evidence of a crime, the city should
camera,” said Ray Reich, the city’s down- municipal operations, according to a secure a search warrant before launching
town development manager. report the National League of Cities the drone, said Stoner.
But as with any relatively new initia- released last October. Drone laws and regulations are still
tives and technology, drones can also run The Center for the Study of the Drone evolving at the federal level. In South
into problems. released a study in April of 2017, Drones Carolina, however, there is no specific law
One of the city’s first drones hit a tree at Home: Public Safety Drones, that found that regulates drones.
and fell to the pavement. from 2009 to 2017, at least 347 state and The SC Municipal Insurance and Risk
“The one we have now actually senses local police, fire and emergency units Financing Fund, which has previously
when it’s getting ready to run into some- nationwide had drones. provided property coverage for drones
thing,” said Reich. “And it will start beeping. The report listed a variety of under the inland marine category, began
And if you don’t take avoidant reaction, it ways government agencies across the offering drone liability coverage in January.
just stops right there and hovers.” country are putting drones to work, A city may acquire coverage, provided the
The city’s drone cost less than $1,400. including: locating a missing person’s drone is owned and operated in accordance
It has infrared sensing to avoid obstacles, body using thermal imaging sensors, with applicable federal and state laws.
photography and video features, and the taking aerial photographs of a burning For more information, contact Leigh
capability to run as long as 28 minutes and six-story building, detecting illegal Stoner, Risk Management Services’
travel up to 8 miles, although the city limits fireworks and reconstructing a car underwriting manager, at lstoner@masc.sc
its travel to comply with federal regulations. accident scene. or 803.354.4752.
the availability of prescription drug drop- of prescription opioids. Certain federal Evaluate the geographical avail-
off boxes by coordinating with local law regulations limit disposal options, and ability of facilities and the poten-
enforcement agencies. law enforcement entities must often retain tial expansion of detoxification
and store prescription drugs indefinitely. programs. State substance abuse officials
Coordinate with the U.S. Drug should review withdrawal management
Enforcement Agency for timely Support workforce initiatives to programs, initiate policies about the need
removal of prescription drugs increase awareness and access for in-patient or out-patient detoxification
collected from law enforcement to treatment. The state should estab- treatment programs, and establish detox-
agencies. State and local law enforce- lish comprehensive drug-free workplace ification facilities based on needs of each
ment agencies should coordinate with policies for employees and implement community. This review should identify
the DEA to develop policies to dispose of training for human resources personnel geographic areas that need additional
these medications in order to lessen the on how to recognize the signs of opioid facilities, capital improvements, or expanded
burden on local law enforcement depart- use disorder and to refer sufferers to detoxification programs, including transi-
ments, which accumulate large quantities treatment. tional housing and rehabilitation programs.
uptown: march 2018 5
Small cells
are coming:
How to
prepare Small wireless facilities in the City of Columbia attach to telephone poles and other structures.
R
esidents and businesses worldwide So what does the rollout of 5G Commission is in favor of using public
are increasingly reliant on handheld networks have to do with municipalities? rights of way as opposed to private
wireless devices to communicate and In short, cities and towns are where it’s property because commissioners do not
transmit data, and they expect ever-in- all happening — if not now, then soon. believe that enough private properties can
creasing processing capabilities and Specifically, while the size, design and be leased fast enough to allow this tech-
speed. To keep pace with user expecta- aesthetics of SWFs vary widely, what they nology to be rolled out. FCC policy also
tions, the telecommunications industry have in common is their need to be placed prohibits municipalities from banning
must rapidly build next-generation in publicly visible — and in most cases SWFs and requires the competitively
wireless networks and their associated publicly regulated — spaces. neutral and nondiscriminatory processing
infrastructure. Depending on the number of of permit requests within tightly defined
The newest version of performance mobile device users and volume of data time periods. Fortunately, FCC policy
standards for the mobile wireless industry processed, the average spacing of SWFs in preserves municipal police powers,
is labeled as a generation. Fifth generation urban areas ranges from a city block to a including local land use zoning.
standards, commonly known as 5G, mile compared to cell towers built many
will require mobile wireless networks to miles apart. To understand the potential Crafting an ordinance
provide greater bandwidth, which supports impact, the City of Columbia’s experience Over the past year, the Municipal
faster download speeds and the capability is revealing. In less than two years, the Association worked with the telecommu-
to run more complex mobile devices. city permitted 64 SWFs and continues to nications industry to understand the issue
Unlike previous wireless networks, the process permit requests. and its potential impacts and to craft a
5G wireless technology relies on a denser model small wireless facility ordinance.
network of antennas, deployed at heights High-stakes challenge The model ordinance balances municipal
closer to street level, to supplement and There is a lot riding on efforts to build and telecommunications interests by
communicate with traditional cell towers. a network that can handle users’ rising streamlining the review and permitting
Next generation antennas and support demands. The country’s reliance on wire- process. At the same time, it preserves
equipment — called small cells or small less technology is so significant that federal municipal authority to control rights of
wireless facilities (SWF) — are attached experts believe the expedited rollout of 5G way and the design and aesthetics of SWF
to a pole or support structure such as a networks is critical to the United States’ facilities to the extent permissible in state
building. The control equipment mounts continued economic competitiveness and and federal law.
on either the pole or structure, or on the quality of life of its residents. Under the model ordinance, small
or under the ground near the pole or To help build the network as quickly wireless facilities are classified as a
structure. as possible, the Federal Communications permissible use, subject to administrative
6 uptown: march 2018
review, in municipal rights of way and
abutting utility easements unless the
proposed SWF location is within a
historical, design or underground utility
district. In these supplemental review
districts, SWFs are a conditional use that
affords the municipality additional review
authority and protection for the character
of the districts.
Striking a balance
Municipal officials have a key policy
consideration: On one hand, cities
The 2018 Advanced Municipal Elected Officials Institute graduates, shown above at Hometown
must understand the importance of the
Legislative Action Day in February, recently finished the four of six courses offered after graduating from
technology to the national economy,
the Municipal Elected Officials Institute.
quality of life and convenience of users.
At the same time, however, officials
must recognize that the contributions of
the technology should be balanced with
the potential impact the technology
could have on municipally controlled
rights of way and the visual aesthetics
that residents and businesses demand.
Achieving an acceptable balance of
these interests is critical to avoiding an
unwanted legislative solution.
Last year, 17 states passed SWF
legislation that favors telecommunications
interests while severely restricting author-
ity over regulating SWFs. But unlike many
The winter 2018 MEO Institute graduates, picture above at HLAD this year,
other states, South Carolina previously
completed seven required courses.
addressed the most contentious issues that
other states debated — such as telecom-
munications company access to municipal
rights of way and fees municipalities 2018 MEO and Advanced
Institute graduates
could impose for such use — with the S.C.
Telecommunications Act of 1999.
“It would be helpful to cities to start
T
preparing now even before any permit hirty mayors and councilmembers The Advanced MEO Institute recog-
requests are pending before council,” said who graduated from the South nized 45 mayors and councilmembers
Eric Budds, deputy executive director Carolina Municipal Elected Officials during the Hometown Legislative Action
of the Municipal Association. “To get Institute of Government were recognized Day ceremony. To graduate from the
ready, cities and towns are encouraged during Hometown Legislative Action Day Advanced MEO Institute, participants
to consider the adoption of the model on February 6. To graduate from the MEO must complete four of the six courses
ordinance or use the model ordinance Institute, participants must complete offered. Sessions are held in person annu-
as a guide to develop and adopt an SFW seven required courses — two daylong ally in February and October. Registration
ordinance.” sessions and five other courses that can be opens in July for the next in-person
Small cell technology is among the taken in person through the 10 offices of session on Wednesday, October 24, from
topics at the spring meeting of the Munici- the Councils of Governments or online 9 a.m. to 4 p.m. at the Columbia Marriott.
pal Technology Association of SC on March through the on-demand option. The deadline to register online is Monday,
22. For more information, visit www.masc. The next in-person session is “Basic October 22.
sc (keyword: mtasc). For more information Budgeting and Municipal Finance,” which Visit www.masc.sc (keyword:
on the model ordinance, contact Eric Budds will be held at the COGs on Tuesday, March newsroom) to see a complete listing of
at ebudds@masc.sc or 803.933.1228 or visit 20, from 9:30 a.m. to 12:30 p.m. The dead- MEO Institute and Advanced Institute
www.masc.sc (keyword: SWF). line to register online is Thursday, March 15. graduates
uptown: march 2018 7
Supreme Court to Decide
Billon Dollar Sales Tax Case
By Lisa Soronen, executive director of the State & Local Legal Center
I
n November 2017, a Government how we got here and why it is likely South same result” as the Court had reached
Accountability Office report estimated that Dakota will win. in Bellas Hess.
states and local governments could “gain In 1967 in National Bellas Hess v. Customers buying from remote sellers
from about $8 billion to about $13 billion in Department of Revenue of Illinois, the still owe sale tax, but they rarely pay it
2017 if states were given authority to require Supreme Court held that per its Commerce when the remote seller does not collect
sales tax collection from all remote sellers.” Clause jurisprudence, states and local it. Congress has the authority to overrule
In January 2018 the Supreme Court governments cannot require businesses to Bellas Hess and Quill but has thus far not
agreed to decide South Dakota v. Wayfair. collect sales tax unless the business has a done so.
In this case South Dakota is asking the physical presence in the state. To improve sales tax collection, in
Supreme Court to rule that states and Twenty-five years later in Quill v. 2010 Colorado began requiring remote
local governments may require retailers North Dakota (1992), the Supreme sellers to inform Colorado purchasers
with no in-state physical presence to Court reaffirmed the physical pres- annually of their purchases and send
collect sales tax. ence requirement but admitted that the same information to the Colorado
This case is huge news for states and “contemporary Commerce Clause Department of Revenue. The Direct
local governments. This article describes jurisprudence might not dictate the Marketing Association sued Colorado in
8 uptown: march 2018
federal court claiming that the notice and
reporting requirements were unconstitu-
tional under Quill. The issue the Supreme
Court decided in Direct Marketing Associ-
ation v. Brohl (2014), was whether the Tax
Injunction Act barred a federal court from
deciding this case. The Supreme Court
held it did not.
The State and Local Legal Center filed
an amicus brief in Direct Marketing Asso-
ciation v. Brohl describing the devastating
economic impact of Quill on states and
local governments. Justice Kennedy wrote
a concurring opinion stating that the
“legal system should find an appropriate
case for this Court to reexamine Quill.”
Justice Kennedy criticized Quill for many
of the same reasons the SLLC stated in its
amicus brief. Specifically, internet sales
have risen astronomically since 1992, and
states and local governments have been
unable to collect most taxes due on sales
from out-of-state vendors.
Following the Kennedy opinion, a since entirely rejected the concept of the
number of state legislatures passed laws
requiring remote vendors to collect sales
dormant Commerce Clause, on which
the Quill decisions rests. Third, Justice
S.C. revenue
tax in clear violation of Quill. South
Dakota’s law was the first ready for
Gorsuch. The Tenth Circuit ultimately
decided Direct Marketing Association
may hinge on
Supreme Court review. v. Brohl ruling that Colorado’s notice court opinion
In September 2017, South Dakota’s and reporting law didn’t violate Quill.
S
highest state court ruled that the South Then-judge Gorsuch wrote a concurring outh Carolina has been missing
Dakota law is unconstitutional because opinion strongly implying that given the out.
it clearly violates Quill and it is up to the opportunity the Supreme Court should If state and local governments
U.S. Supreme Court to overrule Quill. In overrule Quill. had been allowed to require all
October 2017, South Dakota filed a certio- That said, the Supreme Court, and the remote sellers — companies located
rari petition asking the Supreme Court to Roberts Court in particular, is generally outside the state — to collect taxes
hear its case and overrule Quill. The SLLC reticent about overturning precedent. The on all remote sales last year, South
filed an amicus brief supporting South Quill decision illustrates as much. The Carolina could have seen between
Dakota’s petition. The Supreme Court Supreme Court looks at five factors in $132 million and $193 million in
ultimately agreed to decide the case. determining whether to overrule a case. revenue, according to the Govern-
It seems likely the Supreme Court One factor is whether a rule has proven ment Accountability Office.
will rule in favor of South Dakota and “unworkable” and/or “outdated ... after A GAO report released in
overturn Quill for a number of reasons. being ‘tested by experience.’” This factor November of 2017 also found that
It is unlikely the Supreme Court accepted weighs strongly in favor of overturning nearly half of those potential revenue
this case to congratulate the South Dakota Quill. As Justice Kennedy pointed out gains to state and local governments
Supreme Court on correctly ruling that in Direct Marketing Association v. Brohl: would have resulted from collecting
South Dakota’s law is unconstitutional. “When the Court decided Quill, mail sales taxes on all e-marketplace sales,
Said another way, if the Supreme Court order sales in the United States totaled transactions on sites such as eBay,
wanted to leave the Quill rule in place it $180 billion. But in 1992, the internet Etsy and Amazon Marketplace. The
probably would have simply refused to was in its infancy. By 2008, e-commerce current dynamic also works against
hear South Dakota v. Wayfair. sales alone totaled $3.16 trillion per year local brick-and-mortar businesses
It is easy to count at least three in the United States.” The Court will hear that lose out on sales when customers
votes in favor of South Dakota in this this case and issue an opinion by the visit to try on or try out a product
case. First, Justice Kennedy of course. end of June 2018. The SLLC files amicus only to go home and purchase the
Second, Justice Thomas. While he voted curiae briefs in support of states and local item online state-tax free.
against North Dakota in Quill, he has governments in the U.S. Supreme Court.
uptown: march 2018 9
Make plans now to attend
the 2018 Annual Meeting
T
he Municipal Association’s 30-minute appointments for munic-
Annual Meeting will be held July ipal representatives to register their Key Annual Meeting Dates
19 – 22 at the Marriott Hilton officials will be scheduled for May 29,
Head Island. The Association will 30 and 31. • March 7 – Deadline to register for
use the same registration/housing During the online process, munic- appointments.
reservation process as in past years ipal representatives will make hotel
to ensure municipal officials receive reservations and register municipal • March 12 – Drawing held.
priority for hotel reservations and attendees for the meeting using a
ticketed Annual Meeting events. Visa or MasterCard with a sufficient • April 9 – Agenda and registration
The Association will hold a draw- credit limit and per transaction limit. information posted online.
ing on March 12 to determine the Nonrefundable hotel deposits and
order of appointments for municipal- registration fees will be collected • April 9 – Registration brochures with
ities to make hotel reservations and during the registration process. meeting agenda mailed.
register local officials. The deadline During the scheduled phone
for municipal representatives to appointments, an Association staff • May 29, 30 and 31 – Online registration
register for the drawing is March 7. member will call the city representa- process for cities that have an appointment.
Visit www.masc.sc (keyword: annual tive to initiate the online registration/
meeting) to register. reservation process. The represen- • June 1 – Online registration opens for
After the drawing, Association tative can only register municipal cities without appointments and
staff will notify representatives of officials from his city during the non-municipal officials.
their 30-minute appointment time appointment. The designated repre-
and will post all appointment times sentative must have the completed • June 19 – Hotel reservation deadline.
at www.masc.sc. registration forms in hand, including
Registration materials will housing and meal ticket requests, for • July 5 – Meeting registration deadline.
be posted to the Association’s each person being registered during
website and mailed on April 9. The the call. • July 19 – 22 – Annual Meeting.
10 uptown: march 2018Special Section
Open Government
Keep up with FOIA changes
Open Government
T
here are several new elements in The law also Then what?
the S.C. Freedom of Information • Requires public bodies to develop a The public body must produce the
Act resulting from the legislation schedule of the fees for activities such requested records within 30 calendar
passed in May of 2017 that affects as searching, retrieving, redacting and days from the date it responds to say
public bodies’ allowable timeline to copying records. the request will be fulfilled or within
respond to a request, fees and the ability • Limits the copy rate to the prevailing 30 days of receiving any deposit. That
to seek outside judicial help on difficult commercial rate for producing copies. deadline is 35 days for records more
decisions. The legislative intent was that the public than 24 months old.
body would not charge more than its
Here are just a few changes that cities actual costs, treating the rate charged by Does the law offer any new
and towns should keep in mind: local commercial copiers (i.e. Kinko’s, guidance for public bodies?
etc.) as a gauge for capping fees. Yes. A public body may request a
Is my city required to generate • Limits the rates charged for searching, hearing with the circuit court for relief
records in a digital format, if retrieving and redacting records to the from unduly broad, burdensome, vague,
that is how the requestor asks hourly wage of the public body’s lowest repetitive or improper requests.
for it? paid employee with the skills to fulfill
No. A public body is not required the request. What if my city is faced
to create an electronic version of a with a tough disclosure
public record where one does not exist. I’ve heard cities have less time to decision?
However, the law says an individual respond to a FOIA request. Is that true? The law now allows a public body to
may request and receive a public record Yes. A public body must now respond request a hearing when it is unable to
electronically. to a written FOIA records request in 10 make a good faith determination about
business days instead of 15. A “response” whether to exempt information from
What is the most the city may communicates whether the public body disclosure. It also allows a third party,
charge as a deposit? will comply with the FOIA request or such as a private business or individual
No more than 25 percent of the antici- claim an exemption. The timeframe is 20 whose information is included in
pated cost for reproduction of the records. business days if a requested record is more requested records, to request a hearing
The law requires that any balance be paid than 24 months old. The public body is not if it has an interest in exempt informa-
at the time the public body produces the required to decide how a record may need tion or records that may be released as
records. to be redacted within this response period. part of a FOIA request.
uptown: march 2018 11Special Section
Open Government
Council meetings now streaming
T
he smartphone-wielding public
captures everything from live music
shows to political rallies and their
children’s dance recitals to customer service
interactions at fast-food restaurants. But
city council meetings, too, are often the
subject of residents’ cellphone videos.
That raises a question: Does a
member of the public have a right to
record a city council meeting with a
smartphone or other device?
Answer: Yes. This is a public meeting.
Anyone can make audio and video
recordings of council meetings. There
should be no expectation of privacy at a
public meeting. There are limits to how
Open Government
an individual may record the meeting,
however, relating to whether the indi-
vidual is disrupting the meeting. The
Freedom of Information Act “does not is an interruption in the live streaming, The city pays a monthly fee that
prohibit the removal of any person who they let Council know immediately. Some includes the council meeting and other
willfully disrupts a meeting to the extent residents come to the meeting and live recordings. The video recordings are
that orderly conduct of a meeting is seri- stream it from their cellphones and post archived with the company, and DVDs
ously compromised.” However, removal on their Facebook account.” are available to the city upon request.
should be a last resort after the presiding She said the town does the live The city pays nothing for the council
officer has made every reasonable effort to streaming on the town’s website, and meeting broadcast but does pay for event
restore order. then after a day or so, she puts the and business advertising. A city-hosted
But in many instances, residents don’t video on the site’s “Meeting, Agendas & talk show costs the city $350 per month,
need to take matters into their own hands. Minutes”’ page. while advertising is about $400 per
Municipalities large and small commonly In the City of Marion, council month.
make city council meetings easily viewable meetings are videotaped through a “We immediately saw this as an oppor-
through live streaming video and even service provided by a local TV station, tunity to provide more information to
public video archives. Hometown TV 8, through a local cable our residents,” said Shannon. “We began
The Town of Irmo does both. By franchise agreement. broadcasting our public meetings and
buying its own equipment, the town was “We began our partnership with advertising city events and local business.”
able to avoid monthly vendor fees. Hometown TV 8 in 2008 in an effort to The City of Marion also uses the
“We operate and store the digital provide our residents with convenient station to broadcast a sports talk show
videos in house,” said Renee Caviness, access to our public meetings,” said Lake- called “Hometown Sports Talk” and a city
clerk/treasurer of the Town of Irmo, sha Shannon, city clerk/business license talk show called “Swamp Fox Country,”
adding that the town purchased the official. “This partnership has helped us which is hosted by the mayor and city
video equipment for about $30,000. The offer more transparency to our residents administrator and features a special guest.
equipment is linked to the town’s website by providing access to the most current “Public meeting access through this
using the town YouTube account. business of the city.” local station has helped us tremendously
Irmo residents have come to rely on Marion City Council’s current meeting in communicating information to our
the service. broadcast is aired every Saturday on their residents and giving them a firsthand
“They love it and watch it,” said station, and the video is also available on look at the matters addressed by our City
Caviness. “If it does not work or there the station’s website. Council,” said Shannon.
12 uptown: march 2018Special Section
Open Government
Protecting residents’ privacy
I
n addition to changes to the Freedom state government or one of its agencies take steps to ensure that no individual
of Information Act, the bill the S.C. for commercial solicitation. But now, the or entity “obtains or distributes” such
Legislature enacted last May, H3352, law expands that offense to include local information for commercial solicitation.
also made a notable change to the Family governments and political subdivisions. So you received a request for docu-
Privacy Protection Act. That means municipalities must not ments containing personal information.
Previously, it was illegal to knowingly only provide notice of the prohibition What do you do next? First ask: Is what is
acquire personal information from the to requesting parties but must also being sought really personal information?
The town received a Freedom of Information Act request for documents containing personal information.
Does the Family Privacy Protection Act apply?
Do the documents contain personal information?
Personal information is any of the following that identify or describe an individual:
photograph or digitized image • social security number • date of birth • driver’s identification number
• name • home address and/or telephone number • medical or disability information • education level
• financial status
Open Government
NO YES
The Family Privacy Protec- The Family Privacy What is commercial solicitation?
tion Act does not apply. Protection Act applies. “Commercial solicitation” means contact by telephone,
1) The city must provide written notice to the mail, or email for the purpose of selling or marketing a
Fulfill the FOIA request requesting party that obtaining or using public consumer product or service.
according to the set municipal records for commercial solicitation directed
What isn’t “commercial solicitation?”
to any person in this state is prohibited, and
procedures. • offering membership in a credit union;
that a person knowingly obtaining or using
• notification of continuing education opportunities;
personal information for purposes of commercial
• selling or marketing banking, insurance, securities,
solicitation is guilty of a misdemeanor and subject
or commodities services provided by an institution or
to a fine of $500 or imprisonment for one year.
entity defined in or required to comply with the Federal
Gramm-Leach-Bliley Financial Modernization Act; or
2) The city may seek confirmation from the
• contacting individuals for political purposes
requesting party that any personal information
using information on file with state or local voter
contained in the requested records is not being
registration offices.
obtained for purposes of commercial solicitation
and will not be distributed for such a purpose.
Did the party provide written confirmation?
NO YES
Provide the records after Provide records after
redacting any personal redacting any personal
information they contain. information that is otherwise
protected by state or federal
laws other than the Family
Privacy Protection Act.
uptown: march 2018
13Special Section
Open Government
Open Government
Public access at a keystroke
W
hen Edisto Beach leaders want to increase in the public’s access to records Still, Collars said it is important to
know how many times the Town and an improvement in government remember that public records may only be
Council has discussed dogs on the transparency. destroyed by following a records retention
beach, the town clerk simply types a few Typically, local governments decide schedule approved by the state’s archives
keywords into the computer system and to digitize records for three reasons: cost and history department.
pulls up agendas, minutes, resolutions and savings, security and ease of access, said Digitization can also improve security.
ordinances. Bryan Collars, electronic records supervi- “A digitized record cannot simply be
It’s a simple process to find informa- sor with the S.C. Department of Archives picked up and carried out of the local
tion. But it wasn’t always that way. and History. courthouse or county office. One must be
Edisto Beach, like many other towns careful to ensure that digitized records are
and cities around the state, has moved Efficient retrieval adequately backed up, so if the distribu-
to a digitized system of record keeping. “Cost savings can happen at multiple tion copy becomes corrupted, another
That means taking hundreds of thousands levels, but the one with the most impact is digital copy is readily available to replace
of sheets of paper — everything from the storage of records. Digitization allows it,” he said.
city council minutes to proclamations to the records creator the opportunity to Finally, when properly indexed, digi-
meeting agendas — scanning them into destroy bulky, space-consuming originals,” tized records accessible through a website
a computer and filing them in a way that Collars said. “Additional cost savings may are available for public view at any time.
they are easily accessible. The result is less occur in retrieval times for the digital “No longer is the public denied access
space needed to house boxes of files, an record and savings in staff costs.” to a public record because the courthouse
14 uptown: march 2018Special Section
Open Government
is closed or it’s a holiday,” Collars said.
“Digitized records don’t take time off.”
For Deborah Hargis, the Edisto Beach
town clerk who worked to digitize records
as her capstone project for certification
as a municipal clerk, the new process is
extremely helpful — especially to office
staff who no longer have to wade through
boxes of records searching for a specific
paper document.
Edisto Beach contracted with a
national firm to scan and organize docu-
ments in an electronic format in Novem-
ber 2013. “They did all the scanning and
indexing of documents prior to then,” she
said. “Now I’m in charge of getting it into
it the system.” By June 2014, there was
a dedicated server at Edisto Beach and
on-site training began a few months later.
The town had two goals: Reduce the
amount of space for paper and make
records accessible.
Hargis started with records that
Open Government
went back to the town’s incorporation in
1972, including agendas and minutes of
meetings, along with ordinances and reso-
lutions. It was a lot of paper. She estimates
about 30 banker’s boxes crammed full
of paper — more than 135,000 sheets —
were converted to digital records.
Hargis said she scans current docu-
ments for about an hour each week to
stay up to date on the process. The cost to worked on the digitization of records Some of the documents were ‘onion skin’
maintain the site and house the electronic when she was the municipal clerk for the paper and very fragile.”
records is about $2,000 each month. Now, City of Landrum and has since moved
records are available to anyone who logs to the same position in the City of Plan for access
on to the town’s website. Woodruff. Her advice for other cities undertaking
Spivey participated in a similar a digitization project?
Improving transparency capstone project to digitize minutes, “Expect it to take longer than antic-
Clerks agree that, along with helping resolutions and ordinances going back ipated, and plan for additional time
city staff do its job, the digitization to the 1990s. As the project started, the beyond scanning,” Spivey said.
process improves government transpar- city already had a scanner/printer/copier “This is a daunting project, and
ency by allowing the public to monitor in use and plenty of cloud backup. The breaking it up into smaller bits helps keep
and understand the activities of their local base cost could be as little as a scanner it from feeling overwhelming. Do a year
governments. and an external drive, she said. After she of minutes or five at a time. Start scanning
“It helps keep a good record of completed her capstone project, the city in everything new you plan to keep right
everything that has happened so that purchased software to scan documents away. Plan a filing system that makes sense
the institutional memory isn’t just with into digital archives. for your city and that someone will be able
people who have been there a while. It’s “I spent easily over 80 hours across to make sense of in 10 years. Thinking
recorded digitally for even the newest several weeks on this project,” Spivey said. ahead as you look back is very important
members of the team to read. It’s harder “The types of binders they used in the as you archive because it helps you plan
to say records were lost if they are kept earlier days made pulling documents out for how these records will be accessed and
in a digital file,” said Shelly Spivey, who for scanning much more labor intensive. used as you prepare them for scanning.”
uptown: march 2018 15PRESORTED
STANDARD
U.S. POSTAGE
PAID
Greenville, S.C.
PERMIT NO. 305
1411 Gervais Street | PO Box 12109
Columbia, South Carolina 29211
Tel: 803.799.9574 | Fax: 803.933.1299
www.masc.sc
Calendar
21 SC Association of Municipal Power 13 Spring Managers Forum. Columbia
Systems Legislative Breakfast. S.C. Conference Center.
State House.
18 (repeated on April 19) SC Association
For a complete listing of training 22 Municipal Technology Association of Municipal Power Systems Lineman
opportunities, visit www.masc.sc to view of SC Spring Meeting. Columbia Confer- Training. SCE&G Pine Island, Columbia.
the calendar. ence Center. Topics include the U.S.
Census and its IT implications, Enhanced 19 Main Street South Carolina meeting.
MARCH 911, and a Criminal Justice Information Greenwood. The Inn on the Square.
7 – 9 Municipal Clerks and Treasurers Services Division update from the State Topics include the importance of historic
Institute Spring Session – Year 3, Session Law Enforcement Division. preservation and architecture.
A. Hyatt Place Columbia. Topics include
the basics of public speaking and media 28 SC Business Licensing Officials 25 SC Municipal Human Resources
relations, ordinance preparation, employee Association Spring Training Institute Association Spring Meeting. Columbia
evaluations and their importance, and and Advanced Academy. Columbia Conference Center. Topics include
human resources records management. Conference Center. Topics include effective internal investigations, ethics
preparing for the ABL exam and and an employer’s legal obligations when
11 – 13 SC Utility Billing Association addressing specific business license addressing harassment.
Annual Meeting. Hilton Myrtle Beach. problem areas.
Topics include workplace violence MAY
response; meter technology; and the APRIL 6 – 9 Building Officials Association of SC
practical, financial, technical and aesthetic 13 Municipal Court Administration Annual Meeting. Ocean Drive Beach and
implications of solar power. Association of SC Spring Meeting. Golf Resort, North Myrtle Beach. Topics
Columbia Conference Center. Topics include polymetric siding, controlling
20 Municipal Elected Officials Institute include bond estreatments, changes in building air leakage, wall bracing, changes
of Government: Basic Budgeting and the S.C. Freedom of Information Act and to the international building and residen-
Municipal Finance. Regional councils of an update from the S.C. Department of tial codes, and how to be a resource for
governments’ locations. Motor Vehicles. residents after a disaster.
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