State Attorney General Alan Wilson's office believes a court would be reluctant to uphold a recent rule by the state Department of Disabilities and Special Needs Commission forbidding commissioners from tape recording public meetings, according to an opinion by the office issued last week.
Assistant Attorney General Anita Fair said in the opinion that the South Carolina Freedom of Information Act allows anyone at a public meeting to use a tape recorder.
"Since the South Carolina Freedom of Information Act authorizes recording of meetings 'by any person,' this office believes a court will be reluctant to uphold such a rule preventing anyone from recording a meeting," she wrote in the opinion.
She wrote that the opinion is just that and only a court can interpret statutes and make determinations about the law.
The opinion was requested by Sen. John Scott of Columbia following the adoption of rules by the DDSN commission in August that include a ban on commissioners tape recording meetings. The commission does not now use tape recorders for its official minutes.
Scott told The Greenville News that he was not surprised by the opinion.
"Commissioners should be able to (use tape recorders) like everybody else," he said.
Scott said the reason a commissioner used a tape recorder was because the agency does not use one to record its official minutes. And he said there have been questions about minutes in the past, questions that could have been resolved with official tape recordings.
Sen. Thomas Alexander, a Walhalla Republican who chairs the Senate's budget committee with oversight of DDSN, said he hopes the commission will come into compliance with the attorney general's opinion.
"I don't know how you have a policy that a commissioner cannot use a tape recorder," he said. "I was surprised when they took that action to begin with."
Commission Chairman Bill Danielson said at the time the rules were an attempt to foster more courtesy on the board. He could not be reached for comment on Monday.
Another proponent of the rules said they are more guidelines and commissioners who violate them will not face sanctions.
Commissioner Vicki Thompson of Seneca, who used tape recorders before the rule was adopted, said she used one to help her because commissioners are presented so much information at their meetings.
But she said she does not intend to violate the rule.
"I don't think I'm going to break a rule that all the commission decided on," she said. "But I am going to try to get them to change their mind about it because I don't think it's right. I think it's wrong."
Other rules for the commission adopted at the meeting include requiring board members to change seating locations for each meeting; being candid, open and respectful; having one conversation at a time and using a system of color-coded agendas. The rules also forbid texting during a meeting and using the word ELMO, for enough, let's move on, when a commissioner feels like discussion has become redundant and believes the board should move to a new topic.
The rules also require following Roberts Rules of Order special procedures for small boards.
The commission adopted them on a 4-2 vote, with Thompson and Commissioner Eva Ravenel voting against them.