SC city refuses to give details on missing COVID tax dollars

BENNETTSVILLE, S.C. (QUEEN CITY NEWS) — Out of nowhere, members of the Bennettsville City Council started showing up to council chambers just after 5 p.m. on April 16, a little more than an hour before their scheduled council meeting.

By 5:25 p.m., all seven elected members of council – including Mayor Leith Fowler – had huddled in the meeting room, along with four city staffers, and city administrator William Simon.

Council had a clear quorum, but a meeting notice wasn’t posted anywhere on the city’s agenda website, or anywhere at the building where the people holding the political power in Bennettsville were planning to meet.

It appeared the city was about to violate one of the basic tenets of the S.C. Freedom of Information Act: to conduct the peoples’ business in the open.

S.C. Code Sec. 30-4-80 requires public bodies to give the public written notice 24 hours before any regular or special meeting. The city titled the April 16 meeting a ‘special meeting,’ which required the city to post notice of it 24 hours before the meeting.

But, the city didn’t.

Instead, the city administrator’s assistant, QuShika Lucas, emailed the special called meeting agenda to council members at 12:37 p.m. The city then posted the agenda to the city’s Facebook page at 12:42 p.m.

The public notice was 19 hours too late.

“Can you tell me where you guys posted a notice of this meeting? Did you post it in public?” Queen City News Chief Investigator Jody Barr asked Simon before the special called meeting started. “We did. We posted it on Facebook,” Simon responded.

“How about the building that the statute requires and on the city’s website?” Barr continued questioning the city manager, “We posted it on Facebook, and we followed the procedures that we’ve been following for the better part of two or three years,” Simon said, dismissing questions about why the city didn’t follow what the SCFOIA required.

Mayor Fowler had taken his place behind the dais when Barr approached him, asking about what appeared to be a blatant violation of the 24-hour notification law, “Not what I handle with, Mr. Simon will take care of it for you. Appreciate it,” Fowler said, dismissing the questioning.

“Would you be disappointed if there was a violation of the state’s open meetings law,” Barr asked the mayor. “I would be,” Fowler replied. “Do you feel complicit in that, being the mayor,” Barr asked.

“I got a lot on my plate right now,” Fowler said.

During the exchange with the mayor, the city sent Bennettsville Police Acting Assistant Chief Sammy Crosland over to end Barr’s questioning, “Sir, they don’t want no disruption while they have the meeting,” Crosland said, interrupting the conversation with Fowler. “Oh, the meeting hasn’t started yet. As soon as it starts, I’ll be orderly,” Barr replied.

Crosland’s intervention came at 5:27 p.m., three minutes before the mayor gaveled the meeting to order. Despite not properly noticing the meeting, the mayor opened the meeting by banging his gavel on the table, and the meeting started.

The SCFOIA allows the government to “…remove any person who wilfully disrupts a meeting to the extent that orderly conduct of the meeting is seriously compromised.” Again, in this case, there was no meeting to disrupt since the meeting had not started when Barr approached the mayor.

The agenda showed city council was there for one reason: to discuss “City Financial Affairs.” The agenda offered no further clarification on the vagueness of the agenda item.

OBJECTION: Council illegally meets in private

“Mayor and council members, we have one item on this agenda at 5:30 and it’s city financial affairs discussion,” City Administrator William Simon said as the meeting got underway. It became clear, the mayor and Simon had some sort of conversation before the meeting started.

“All right. We need to go into executive session?” Mayor Fowler asked Simon, in a near whisper from his council seat. “Huh?” Simon asked.

“Are we taking this to executive session?” Fowler asked Simon again. “We are,” Simon responded.

But, the executive session was not an option listed on the agenda. The agenda stated “Discussion” related to City Financial Affairs,” which indicated that would take place in public.

“You guys have to vote on it, so we don’t proactively put it on there,” Simon explained to the mayor, clarifying why the agenda didn’t show the potential of a closed-door meeting would happen during the special called meeting.

“Do I have a motion to take this financial affairs to executive session?” Mayor Fowler said. “So moved, second,” Councilman Bill Jennings immediately responded. Fowler called for a vote to discuss the city’s finances in private.

Council members Gregory Scott, Tyron Abraham, Jennings, Allen Taylor, Tyrone Davis, Wanda Weaver, and Mayor Fowler each voted to meet privately.

Barr then did something any member of the public has the right to do: call out public bodies when an apparent violation of the state’s open meeting law occurs. In this case, the council never stated the “specific purpose” of the executive session, which S.C. Code Sec. 30-4-70(b) requires.

The statute prohibits public bodies from meeting in private, except to discuss business related to five narrow purposes: personnel issues, contract negotiations/potential litigation, development of security personnel or devices, investigative proceedings regarding allegations of criminal misconduct, and economic development matters.

“City Financial Affairs,” is not listed in the SCFOIA as a basis for elected officials to meet privately.

“I object on behalf of the public; can you state the reason for this executive session?” Barr asked Mayor Fowler from the audience. “City financial affairs,” Fowler said, reading from the printed agenda on his desk.

“That’s – you might want to check with your attorney, the statute requires specific reasons, and that isn’t one under the statute,” Barr informed the mayor. Despite the warning, the mayor and council members collected their papers and walked out of a side door of the council chambers.

Bennettsville City Attorney Mason King sat at his council seat during the exchange and never objected to the way the council entered the executive session. King didn’t counsel any of the elected officials about a potential SCFOIA violation.

“Are you looking the statute up,” Barr asked King as council members continued filing out of the room. City Attorney King confirmed he was, as he frantically scrolled through an electronic copy of the SCFOIA on his iPad.

The only other person still in the room at the time with authority to attend the private council meeting was City Administrator William Simon. As Simon ended the city’s live Facebook stream of the council meeting and gathered his papers to go into the private council meeting, King stopped Simon on his way out the side door.

“Mr. Simon. I think that was probably an improper basis for us to go into executive session,” King told Simon. “I think the council needs to come back out here and let me inform them of that. That’s not to say council can’t go into executive session, but if it intends to do so, it needs to state one of the reasons that gives them the right to do that,” King explained. “I’m sure they wouldn’t have a problem going there. So, I go get them,” Simon told the city attorney.

As Simon packed up, Barr attempted to question the city manager about the “City Financial Affairs.” A source within the city told Barr that afternoon, that the city rushed to meet that day to learn how federal tax dollars given to the city during the pandemic “went missing.” The source said the total could be as high as $1 million.

We went to the council meeting to confirm whether the tip was valid, along with the dollar figure given to QCN.

“Mr. Simon, how big is the shortfall? A million? Million, plus, just under a million?” Barr asked. Instead of answering the question, the city administrator diverted the question, “Where’s your cameraman tonight?” Simon asked as Barr held a camera up to record the encounter.

“Right here. That’s all you get tonight, me,” Barr said as Simon walked out the side door leading to the private meeting room where the council had gathered.

Soon after, King walked out the same door and into the private meeting.

All totaled, a quorum of the council, Simon, and King were outside the public meeting room for a little more than 15 minutes before walking back into the council chambers.

Once back inside the public meeting, King took the floor, offering his legal opinion on the two complaints we lodged concerning what appeared to be violations of the SCFOIA in the failure of the city to properly notice the meeting, then meeting in an unlawful executive session.

CITY ATTORNEY: ‘POOR CHOICE OF WORDS’

“I just wanted to address the concern that was raised earlier about this meeting failing to comply with the 24-hour public notice requirement, as I said, is generally the rule, there is an exemption, however, for emergency meetings,” City Attorney Mason King told the council.

King also confirmed council decided to meet just hours before the meeting.

“Around lunchtime today, council made a decision that it needed to hold an emergency meeting one-hour prior to our regular scheduled meeting. So, to begin at 5:30 instead of 6:30 to discuss some issues that just came to light regarding our budget,” King told the public.

And just like that, the special called meeting became an “emergency meeting.”

S.C. Code Sec. 30-4-80(A) gives city councils the authority to call an emergency meeting without any notice. At the same time, the law recognizes an actual emergent issue to underpin an emergency meeting.

Simon never revealed the emergency nature of what the city uncovered in its “City Financial Affairs.”

In this case, there had to be something inside the “City Financial Affairs” item that warranted an emergency. We wanted to know what that was and made the two-hour drive from Charlotte to Bennettsville to tell the public what we found.

The Municipal Association of South Carolina gives direction to city councils on its website about using emergency meetings to get around the 24-hour notice rule, “Even so, for the public benefit and out of an abundance of caution, municipalities should use every effort to comply with the notice and agenda posting requirements that would ordinarily apply.”

Barr again objected to the city changing the name of the meeting after the fact of being called on it. Here’s a transcript of the exchange between Barr and King:

BARR: “Could I object again on behalf of the public to get it on the record? You all sent at 12:30 today, you sent an email out saying—”

KING: “I’m sorry, maybe I misspoke. I had 12:30 or so, wasn’t posted –“

BARR: “It was a special called meeting. When did this become an emergency?”

KING: “So, and again, one thing we discussed, that was a poor choice of words how they deemed that that meeting. It is the decision of council it’s an emergency meeting to discuss the matters. We’re not going to executive session to discuss them; I’m turning it over to Mr. Simon. That discussion is now going to ensue.”

BARR: “Are you saying they mistakenly called –”

KING: “Thank you, Mr. Barr. Look, we’re just trying to have our meeting –”

JB: “I’m just trying to get this on the record in case we have to—”

KING: “Let’s do it after the meeting…”

Mayor Fowler continued banging his gavel to end the exchange. King then turned to the executive session objection we raised, telling his bosses they’d made a mistake.

“And then when council left the room, they did so by invoking executive session to discuss financial matters. As we know that is improper use of executive session. So, we’re all back out here now. The agenda item on the emergency meeting at 5:30 says financial affairs, financial information. And so, we’re here to discuss that, and I’ll turn it over to Mr. Simon,” King said.

Simon then took over the meeting to walk council through the financial issue that led to all of this, which should have revealed the emergency forming the basis for the special-turned-emergency meeting of April 16, 2024.

UNACCOUNTED FOR ‘FUNDS’

“The purpose of the meeting is there’s some accounting that we need to do regarding some of our funds and some of our accounts that could impact our budget,” Simon’s presentation began, “I will just say we’ve combed through some of our accounts, some of our federal accounts, and we are still in the process of accounting for all of the funds.”

“What we’ve done as step one is to look at all of our expenditures out of said fund, and we’re looking at remaining balances in those things that have not been purchased as a starting point to make sure that we can account for any remaining funds from that pool of money,” Simon told council in the public meeting.

Simon did not explain what fund was “said fund” or how much money was unaccounted for.

“And we will entertain any questions to the best of our ability. If we don’t have the answers to those questions, we’ll let you know and get back with you with an answer or if there’s some documentation or information that you need, we can provide that to all of you as well. Any questions about just broadly what we’re doing with our accounting practices or logistics and planning for the budget?”, Simon asked.

Not a single member of the council, or the mayor, asked a single question to get to the bottom of the financial affairs that apparently presented an emergency meeting of the council.

“I will say too, especially for our public, that this issue that we ran into recently, it’s not a new issue, as most of you know and our public needs to know is that, you know, we’ve had some turnover in some of our departments over the last three to four years since this money was awarded to us and since then, we’ve taken a number of steps to make sure that we had good accounting of those funds,” Simon said in the meeting.

By the time Simon ended his speech, he still had not revealed any information about which account was missing money, how much, or who controlled that account.

“So we’ve made progress towards accounting for these funds. The reason for the meeting is that we just want to get to the point where we’re at the finish line and there are some remaining funds that we’re looking for, or need to account for. We’re confident that we’re going to be able to do so. But we want to know we want to give you all that information as you consider first reading of the budget today and let you know that we’re going to continue to work after that,” Simon said in closing.

We, once again, questioned Simon following the meeting.

Here’s a partial transcript of that exchange:

BARR: “You were very vague in here and I’m not sure the public would understand.”

SIMON: “So we’re not going to do it tonight at the meeting.”

BARR: “Why not?”

SIMON: “But I’ll be happy to sit down with you or anyone else at some point to clarify things concerning our budget process, we are absolutely willing to do that.”

SIMON: “Tonight, we’re following our agenda, regardless of what you’re planning to put out.”

BARR: “Well, kind of went off the rails on that agenda earlier when you all went into an improper executive session.”

SIMON: “Well, that’s your opinion. What we’re going to do is get back on this agenda and if at any time at a later date, you want to sit down and really talk about this information, because we’re very open. We want to be transparent we want to do that, but we’re going to…”

BARR: “Well, we’ve got 28 minutes before your next meeting. Is it a million? Right at a million? Are these COVID relief funds? This sounds pretty serious. I’m sure the public would like a little transparency on what exactly is going on here because it sounds pretty dire.”

Simon did not answer the final question. He did confirm the missing money was connected to a COVID relief account but refused to clarify which one.

On April 18, Barr called the city attorney to ask him to convince the city to explain what problem the city found in the unaccounted-for tax dollars so we could pass that information along to the public.

The city has had more than a week to do so but hasn’t. Simon and the council had another chance during another special meeting on April 23, but in the less than half-hour meeting, Simon never mentioned the COVID tax dollars and not one elected official on the council questioned him about it in public.

King agreed to pass our request along to City Administrator William Simon. That was six days ago and as of this report, neither Simon nor King has responded.

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