SCHSL committee on competitive balance violated state law, attorney says. What we know
The S.C. High School League’s subcommittee that’s dealing with competitive balance issues in statewide athletics violated state law with its first meetings about the issue, according to a media law attorney.
The league’s Competitive Balance Committee, a subcommittee of the larger SCHSL executive committee, was formed this fall and met for the third time Monday. The Monday session was the first instance where at least 24 hours’ notice of the meeting was given publicly as required by state law.
The announcement of the latest meeting came Friday, about a week after The State filed a Freedom of Information Act request seeking documentation and minutes related to the subcommittee’s first two meetings that were not publicized. Any minutes, or a written recap, from the first two meetings were not kept and would not be available through The State’s FOIA request, a lawyer who works on behalf of the S.C. High School League said.
“The law requires notice of the meeting, requires that it be convened in public and requires that minutes be kept and made available to the public,” media law attorney Jay Bender told The State.
SCHSL attorney Michael Montgomery, in an Oct. 4 emailed response to The State’s open records request, gave an explanation for the lack of available minutes.
“Because this subcommittee does not have any authority to make any binding decisions and will only make recommendations to the Executive Committee, there is no set agenda or meeting minutes kept,” Montgomery wrote last week to The State.
Committees and subcommittees meet the definition of being a public body, Bender said, and must follow the same laws under the Freedom of Information Act. “All public bodies shall keep written minutes of all of their public meetings,” the state’s FOIA law says.
The SCHSL is a public entity but is not a state agency and not managed by the state government.
Monday’s meeting was mostly held in executive session — or closed to public view — without the subcommittee fulfilling the legal requirement for first announcing why they were closing things.
The league’s subcommittee is one of three similar efforts currently dealing with the hot-button issue of competitive balance among South Carolina high school athletics. All of those efforts have at least some intent of discussing solutions for concerns about imbalance and competition in the state’s Class A and 2A classifications, where charter and private schools have had an arguably disproportionate amount of success in winning state championships in recent years.
In addition to the SCHSL’s own competitive balance committee, Gray Collegiate Academy principal Brian Newsome formed a committee on the same issue that’s comprised of school leaders and officials from a variety of classifications and sizes That committee has met twice already.
A state House Education and Public Works Ad Hoc Committee will hold a third meeting next week regarding high school sports, again with public testimony. Competitive balance is just one element of what that committee is discussing. Its ultimate goal is to form a list of recommendations, some of which could be considered and voted on when the next legislative session starts in January.
Why go into executive session?
Monday’s meeting of the S.C. High School League’s subcommittee was held virtually and streamed publicly. However, the board met for about 86 minutes in executive session. The other 3-and-a-half minutes of the meeting shown publicly included a roll call, a vote to go into executive session and a return to open session that included brief parting remarks.
Before going into any closed session, the state’s FOIA law requires that “the presiding officer shall announce the specific purpose of the executive session.” No reason was given beyond a motion to close the meeting for “the discussion of competitive balance.”
That alone isn’t “reason that it could be a lawful executive session,” Bender said.
Montgomery, the SCHSL attorney, was present in the meeting and told The State afterward that legal advice was given to the subcommittee and was the reason the discussion was held in executive session. Montgomery, after the meeting, cited a portion of the FOIA law that says the session can be closed to the public for “the receipt of legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege.”
The argument that legal advice would be taking place was not announced before the closed session as required by state law. Even so, the law requires a public body to offer a specific purpose for why they are going into executive session beyond just simply saying they are seeking legal advice, Bender said.
“Had they said that, it might have been sufficient,” Bender said. “The failure to say it makes it illegal.”
SCHSL commissioner Jerome Singleton issued a statement on the matter, acknowledging the mistake shortly after the story was published.
“Proper protocol dictates that a reason for entering an Executive Session of a public meeting must be stated before entering the session. During this morning’s meeting, there was an oversight of that protocol; however, upon returning from the Executive Session, the reason was publicly announced. Please accept the Committee’s apology for this oversight,” Singleton said. “Please note, in the future care will be given to ensure that proper protocols are followed.”
In response to The State’s FOIA request, Montgomery said he and the league would provide copies of any documents that were shared and discussed during the subcommittee’s meetings.
Nicholas Pearson, principal of White Knoll High, presided over Monday’s meeting and offered some remarks publicly in closing on what was talked about.
“We went to executive session to discuss some litigating factors related to the South Carolina High School League’s ability to address competitive balance,” Pearson said. “In executive session, a lot of conversations had in reference to that. Hopefully in the upcoming days or so, we’ll be able to speak to the entire membership.”
Six bills were filed in the Legislature in the past year regarding high school athletics, with most of them offering significant changes in how charter and private schools that are S.C. High School League members compete alongside traditional public schools.
There were 219 schools in the SCHSL as of the 2022-24 league realignment, a process that groups schools by classification according to enrollment and is updated every two years. Of those, 15 are charter schools and four are private schools — and four new charter schools have been approved for membership.
An existing proviso, or temporary law, that’s been in place for 10 years says the S.C. High School League can’t treat those charter and private school members any differently from their traditional public school counterparts. It’s been suggested that doing anything that’s counter to that proviso could invite a lawsuit against the league.
This story was originally published October 9, 2023 at 4:09 PM.
