IT WAS THE evening of Sept. 23, 1975, when the three legislators from Williamsburg County and their county recreation commissioners met in Sen. LaNue Floyd’s Kingstree law office to conduct a performance review of the recreation director. Then-Sen. Frank McGill allegedly declared that director George Richardson was “incompetent” and that “he was going with the women in the Department and no woman would be hired unless George Richardson could go to bed with them and as a result he would hire no married women.”
Mr. Richardson filed a slander suit against Sen. McGill, who denied saying any such thing and argued that, even if he had said it, he couldn’t be sued because he was acting in his capacity as a legislator. As such, he claimed, he had “absolute immunity” from suit.
In a landmark decision four years later, the unanimous South Carolina Supreme Court agreed that the statements were defamatory but ruled that they “were made on an absolutely privileged occasion.”
Chief Justice Woodrow Lewis explained that although the court had previously held that legislative immunity was “practically limited to legislative and judicial proceedings,” it in fact covered pretty much anything legislators say in their capacity as legislators
“A sound public policy has long recognized an absolute immunity of members of legislative bodies for acts in the performance of their duties,” he wrote. “Accordingly, an absolute privilege is recognized as to defamatory statements made by legislators in the course of their functions, if such statements are connected with, or relevant or material to, the matter under inquiry.”
Because the legislative delegation controlled the recreation commission’s funding, he continued, “public policy mandated that legislators be permitted to pursue reports of incompetent or illegal behavior involving appointed county personnel without the necessity of having to justify their actions in a suit for defamation.”
In the four decades since, the court has applied absolute legislative immunity to such obscure bodies as the State Board of Dentistry, and other courts routinely apply it to city and county councils. Just last year, the state Court of Appeals expanded it to hold that legislators were absolutely immune from having to pay attorney fees and court costs when they’re sued.
Which brings us to the matter of Gerald Seals v. the Richland County Council. I probably should say “versus” instead of “v.,” since the abbreviation is used for lawsuits and the county administrator never actually filed suit after the council botched his first firing and then tried a second time; he simply threatened to sue council members individually.
Knowing, as you now do, about Richardson v. McGill, you’d think the council members would have laughed Mr. Seals’ threat out of the county. Or told him that, at most, they’d pretend they didn’t have cause and just pay him the $184,000 his contract promised for being fired without cause.
Instead, they voted 5-4 to give him $985,000 and six months worth of health insurance to go away. And not sue the county and the individual council members for saying he slept on the job and making other allegations that came nowhere close to the level of charging that “no woman would be hired unless George Richardson could go to bed with them.”
(It was possible that the county could have lost a lawsuit, but state law limits its liability to $300,000. And there shouldn’t be any attorney fees since the county keeps an office full of attorneys on staff.)
Maybe you’re thinking it’s not realistic to expect council members to know that they can’t be sued individually if they libel people while they’re doing their jobs. Let’s assume you’re right. That’s why they spend $163,000 a year to keep a county attorney on their payroll. And another $1.1 million for assistant county attorneys and staff. Isn’t it?
It’s certainly why one of the most important jobs of the state attorney general’s office is to provide legal opinions to any public officials who request them. Which apparently no one from Richland County bothered to do. Which is more than outrageous.
I had a vague understanding of legislative immunity, but I learned about the McGill case when I read the attorney general’s opinion that Solicitor General Bob Cook wrote last month in response to a question from the new mayor of Mount Pleasant. Mayor Will Haynie ousted an incumbent who didn’t bother to get good legal advice before he and three council members settled a lawsuit by allowing a developer to build a high-density project the council had earlier rejected. That July 2017 vote occurred, media attorney Jay Bender explained in a recent column, because “Council members were apparently told by town attorneys that they faced potential personal liability from the suit.”
You’d think that knowing everything about state law and major court cases concerning city and county councils, or at least being able to quickly find that information, would be the primary job description of city and county attorneys. And who knows? Maybe it is.
Maybe Richland County Attorney Larry Smith told the council members about Richardson v. McGill when he briefed them behind closed doors about the proposed settlement. After all, three of the five council members who voted for the $1 million payout were Seals supporters. (Maybe council members’ fear wasn’t really losing a lawsuit but having the public find out about inappropriate things they were doing, as Mr. Seals has implied.)
Maybe, in fact, Mr. Smith always gives council members great legal advice. Maybe all town and city and county attorneys give great advice that their councils ignore. Maybe that’s why they always want to give out their advice in secret.
Maybe that’s not the case, but I figure as long as cities and counties do government in secret, I can engage in some not-so-wild speculation.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.