*1 thеir totality, the cumulative effect of the lack of latitude al- lowed the defense cross-examining State’s investigating officers along with the comments, court’s unfairly prejudiced the defense and necessitates the convictionsbe set aside.
V.Separate Trials Carroll also the trial argues denial judge’s of a motion for separate trials unduly him prejudiced and deprived him aof fair trial. We A disagree. motion for a separate trial is addressed to the discretion of the trial court. Statе v. Boys, (1990). 302 S.C. 397 S.E. Absent a showing of abuse of discretion, this court will not disturb the trial court’s ruling appeal. State v. Thompson, S.E. For reversal, a defendant who was tried jointly must show prejudice. Id. Carroll has not met that bur den here.
Carroll argues there was not a sufficient nexus between the indictments to warrant a joint trial. However, Carroll and Joseph were tried for the cultivation of the marijuana patches at Coker Pond in addition to their separate trafficking, pos- session, and distribution charges. joint The venture of raising аnd cultivating the marijuana provided a sufficient nexus to try them jointly. Thus, we hold the trial court properly denied Carroll’smotion for severance.
Nevertheless, having found the search warrant invalid and the conduct of the trial judge prejudicially affected the fair- trial, ness of the we reverse and remand for a new trial. Reversed and remanded.
Howell, C.J., J., concur. Connor, DISTRICT, PIEDMONT PUBLIC SERVICE
Respondent Douglas COWART, Appellant. W. (459 (2d) 876) Appeals Court of *3 Adams, Quakenbush Deborah R.J. Shupe, Berry, of & Dun- bar; Louthian, Jr., Herbert Louthian; W. of Louthian & and Columbia, appellant. for Horton, A.
Michael Farry, Drawdy, Johnson, Ward & of Greenville, respondent. for 4, 1995. Apr.
Heard 19, 1995; 8, 1995.
Decided June Reh. Aug. Den.
Howell, Chief Judge: (the District) brought Piedmont Publiс Service District The a of seeking judgment W. Cowart against Douglas this action con- a that Cowart’s $30,000.00 employment and declaration public policy. was void as a matter of tract with District the contract and counterclaimed, to enforce seeking Cowart The trial court $11,100.48 due under the contract. collect and dis- summary judgment, the District’s motion for granted affirm. counterclaim. Cowart We appeals. missed Cowart’s District, purpose The Piedmont a dis- special Public Service counties, trict оf Greenville and Anderson covering portions 389,1955 in 1955.Act No. by legislature was created In the District Cowart as the fire employed Acts. 776. named administrator of the District. chief. Cowart later was 1,1984, entered into an On November the District and Cowart a The con- twenty years. contract for employment period the Dis- required tract contained a termination clause which the termination of years salary upon trict to Cowart two pay em- any even “in the event of violation employment, modified to On November the contract was ployee.” years, regardless increase the severance to five pay period the reason for termination. a the commis- 12,1992, regular meeting
On November at District, they sioners of the the commissioners announced mat- into executive session to discuss a go “personnel would session, the voted ter.” the executive commissioners During without cause four to one to terminate Cowart’s employment to honor his contract. The commissioners employmеnt encompassing then signed separate Cowart sepa- contract. The severance provisions $37,781.40 would receive provided rate contract Cowart under the em- required of five as annually period years, for $30,000.00imme- contract. The District paid ployment *4 $7,781.40 January on and to the additional diately, agreed pay session, the executive 5, adjourned 1993. The commissioners Each to the com- public. announced the results of vote understanding his then as to publicly polled missioner wаs the vote. a let- the commissioners sent Cowart 4,1992, December
On 12 vote violated him that the November advising ter and, therefore, They was invalid. Information Act Freedom of with all other $30,000.00,along directed Cowart to return refused, funds and benefits he had received. Cowart and the District, 5,1993, at meeting January voted to terminate Cowart for insubordination. This suit followed.
Pursuant to the District’s motion for summary judgment, the trial court ruled the District’s November vote violated (1991), S.C. Code Ann. 30-4-70 more known as the commonly Freedom of Information Act. The court therefore ruled the addition, vote without effect. In the trial was court found the January District’s termination of Cowart on was $30,000.00 proper, and Cowart’s failure to return the consti- tuted insubordination. The trial court also found the twenty- year contract with against public be policy and void as a matter of law. The court dismissed all of Cowart’s counterclaims.
I. (the Act) The Freedom of Information Act dictates the which procedures by public bodies must conduct their 30-4-70(a)(6)(1991) §Ann. meetings. S.C. Code states: Prior tо into going executive session the public agency shall in public question vote on the and when such vote is favorable the officer presiding specific shall announce the purpose of the executive session. No formal action may be taken in executive session. As used this item “for- mal action” means recorded vote committing course of action. No vote be concerned to a specific taken in executive session. (Emphasis added.) There is no the District’s vote dispute to terminate Cowart took place while the District was in executive session. Be- cause the vote was taken violation of the requirements of Act, the trial court held the vote was ineffective.
Cowart argues the trial court employed hyper-techni cal of the reading Act. We If a lan disagree. statute’s guage plain unambiguous and a clear conveys and definite there is no occasion for meaning, employing rules of statutory interpretation. The court has no right to loоk for Doe, Miller v. or impose meaning. another The District clearly plain violated the lan guage of the Act while in by voting executive session.
Cowart also contends the subsequent public ratification and polling Act, of the commissioners satisfied the spirit *5 the his- However, an examination of thus the vote was valid. The Act al- originally argument. of the Act refutes this tory if the ac- taken in executive session formal action to be lowed 30-4-70(a)(5) §Ann. Code public. was later ratified S.C. tion 1978) in executive session aсtion taken formal (“Any (Supp. to such ac- prior session public thereafter be ratified shall effective.”). 1987 amendments to However, the tion becoming ratification of votes allowing language the Act deleted the voting prohibited and specifically taken in executive session 30-4-70(a)(6) Ann. Code in executive session. S.C. while 1987). not constitute mere technical error While a (Supp. Multimedia, Inc. v. Air- Act, see Greenville a violation of the (Ct. (2d) 884, 887 Comm’n, 521, 522, 339 S.E. 287 S.C. port 1986) (“^substantial the Act will sat- with compliance App. no violation has where a technical isfy requirements his- the party”), given effect on a complaining demonstrated the District’s error as Act, cannot characterize of the we tory the ratification affirmatively deleting By technical. merely no intent clear. Ratification made its legislature the language, session. cast an executive during validates a vote longer public Act “is to the Moreover, protect of the purpose the Brown, 305 S.C. v. activity.” Bellamy government from secret (1991). of thе The elimination 291, 295, 408 S.E. the vote Subjecting purpose. furthers this provision ratification the ensure that scrutiny helps light public to the bright itself the considered, while carefully and more debated fully issue doors. behind closed the debate keeps ratification procedure meeting may hold course, public body that a recognize, We or compensation, employment, to discuss public closed to 30-4-70(a)(l). §Ann. Code employee. of an termination matters that the details of no Moreover, requirement there is to the pub- be revealed meeting in a closed discussed properly (2d) 306 Bales, 270, 233 S.E. 268 S.C. lic. See Cooper in public heightens to taken Nonetheless, votes be requiring issue, and forces understanding awareness public In for his vote. take responsibility each member of example prob- excellent an fact, provides the case at bar in met ex- apparently The District to avoid. lem the Act seeks the de- an hour to discuss Cowart for over ecutive session however, the District votе, After of his termination. tails the commissioners only told the public voted to dismiss and terminate Douglas Cowart without cause, and he [that] be relieved of his duties immediately. Furthermore, on day, this the same commissioners voted to honor the contract entered into between Doug *6 and the Piedmont Public Service District on November 1st, 1984in entirety. its The vote to terminate Doug Cow- art without cause carried four to one. Commissioner is that the Ropier, way you understand it?
[Response] That’s the Iway understand it. Dickson,
Commissioner is the way you understand it? Commissioner McAbeе, is that the way you under- stand it? Furthermore, to honor the contract of Doug 1st, entered into on November 1984 in en- tirety, do you understand it that way?
[Response] Right. youDo understand it? Everybody agree on that? The District did not inform the public of the terms of the 1984 contract and that Cowart was to $180,000 receive over after being terminated. While the public knew the vote was four to one, public the did not know which commissioner voted the against termination. the Clearly, procedure used the District satisfied neither the letter nor thе spirit of the Act. a
Upon finding Act, violation of the the trial court may order equitable relief as it considers appropriate, and violation of the statute must be considered to be an ir reparable injury for which no adequate at remedy law exists. 30-4-100(a). S.C. Code Ann. The vote to terminate Cowart was taken violation of the Act. We find no abuse of discretion on the part of the trial court in the ordering equitable relief of invalidation of the vote. See Business License Opposition Comm. v. Sumtеr County, (1992) 311 S.C. 426 S.E. (affirming master’s decision to invalidate ordinance adopted by county Act).1 councilin violation of the Freedom of Information 1Cowart effectively also contends the District terminated Cowart on No 12,1992, authority vember and thus had no to take regard further action with judicial until there was to Cowart’s pro determination of the priety of the District’s actions on disagree. November 12. We To hold that a public body cannot correct proceedings judicial errors in its absent a review prоceedings unnecessarily impede would decision-making powers body, improperly and would allow actions taken to stand while the ease way judicial through system. winds its
II. Cowart argues the trial court found, erred when it aas mat- law, ter of twenty-year Cowart’s employment contract void as a matter of public policy. We disagree.
A municipal corporation2 ais creature of statute and has only powers it, expressly granted those which are necessarily or implied or incident to thе fairly express powers, or those powers essential to the accomplish ment of its purpose. Creech v. South Carolina Pub. Serv. Auth., 200 S.C. 20 S.E. Thus, while a mu nicipal corporation has the power contract, enter into this City North Charleston v. North power is not unlimited. Dist., Charleston (1986) (nei 346 S.E. ther a municipal corporation nor a special purpose district can bind itself by any contract beyond of its “A scope powers). for, be made for, but only such a term as is within the limitation imposed by statute or or, charter if for a reasonable time.” 63 C.J.S. Mu no limitation imposed, *7 nicipal Corporations 979(b) (1950). § Here, the statutes estab lishing the District generally authorize the District to enter contracts, into but do not limit the duration of the contracts.3 2 special purpose Public service or necessarily equivalent districts are not to municipalities municipal corporations See, purposes. or e.g., Tovey for all v. Charleston, (2d) City 475, 117 (1961) (special 237 S.C. S.E. purpose 872 dis of municipality trict is meaning not a within governing the of statutes annexation by municipalities). may properly While the District quasi- be described as a municipal corporation, Boyce County Auth., see v. Lancaster Natural Gas 266 (2d) 398, (1976), S.C. 223 part grounds, S.E. 769 oven-ruledin on other McCall Batson, (2d) 243, 329 (1985), 285 purpose S.C. S.E. 741 determining for the of scope power the contracts, of the governing District’s to enter into the law mu nicipal corporations applicable. Floyd is See v. Parker Water & Sewer Sub- Dist., (2d) (1941) (water 203 S.C. 17 S.E. 223 and sewer sub-district is a corporation agency or corporate endowed with limited functions derived from the same substantially way source and in any exercised the same as other mu nicipal corporation); Auth., see also Parent v. Woonsocket Hous. 87 R.I. (1958) (housing authority 143 A. public in functions area which is governmental character; therefore, governing in municipal corporation’s rules power applicable housing to enter into authority). contracts to specifically appoint officers, The District is agents, employ authorized “to sеrvants, prescribe such, ees and to the compensa [and] duties of to fix their tion,” 3(17), § Act No. 389 1955Acts and [t]o make contracts for construc tion, engineering services, competitive and other bidding.” with or without 3(18). § addition, Id. In employ the District is “[s]elect authorized to a fire equivalent chief or supervise department official to the fire and have com plete supervision operation fire-fighting over the use and equipment of the 4(h), § the district.” Act No. 1839 1972Acts 3655. twenty- the District’s whether then becomes question
The
rеasonable.
with Cowart is
contract
year employment
beyond
in
extends
question
the contract
If the term of
the municipality
members of
of the governing
the term
contract, the
of the contract
validity
the
into
entering
The gen
of the contract.
matter
subject
on the
dependent
the
the exercise of
involves
that, if the contract
eral rule is
the
powers,
proprietary
business or
municipal corporation’s
contracting
the term of the
beyond
extend
if, at the time the contraсt
bodies
on successor
binding
and is
or
necessary
reasonable and
into, it was fair and
entered
was
if
contract in
However,
municipality.
to the
advantageous
theof
governmental powers
functions or
the legislative
volves
binding
is not
on successor
the contract
corporation,
municipal
Municipal Corporations
63 C.J.S.
councils. See
boards or
&
Counties
Corporations,
987;
Municipal
§
56 Am. Jur.
(1971);
Mc-
Eugene
Political Subdivisions
Other
ed.)
(3d
§ 29.101
Municipal Corporations
The Law
Quillin,
(Rev. 1990).
Court
by
Supreme
rule was
оur
adopted
This
(1948):
McCullough,
Newman v.
enter,
councilto
power
With
respect
will ex-
into a contract which
municipality,
behalf
of the coun-
the term for which members
tend beyond
is drawn based
elected,
upon
a distinction
cil were
or
legislative
the contract —whether
matter of
subject
Thus,
proprietary.
business or
or whether
governmental,
or
relates to governmental
involved
where the contract
a matter of
council,
or involves
functions of
legislative
the statute
the councilunless
to be exercised
discretion
the council
authorizes
clearly
to contract
conferring power
term, no
beyond its own
extending
to make a contract
*8
exists,
con-
power
to do so
since
of the council
power
or
legislative
councils to exercise
municipal
ferred upon
exercised as
functions is conferred to be
governmental
or
and the council
politic,
found needful
often as
be
no discretion
is vested with
holding
powers
such
presently
efficiency,
their
but
or limit or diminish
to circumscribe
to their successors.
unimpaired
transit them
must
(2d)
be-
Unfortunately, the difference
at
at 255.
Id.
S.E.
often diffi-
functions is
governmental
and
proprietary
tween
determine,
cult to
because,
the scope
“[a]s
of ‘governmental
ity’ expands, the
and
intertwining
of
overlapping
such func
tions make it increasingly more difficult to draw any definitive
line of separation.” Valvano v. Board
Freeholders,
Chosen
of
Applying rule to the bar, case at there is no doubt that the contract between Cowart and the District in volves the governmental or lеgislative powers of the District.
As a general rule, the appointment and removal of public officers is a governmental function, coun- cil cannot engage public officer by contract for a term extending beyond that of its own members, so to im- as pair the right of their successors to remove such officer and to appoint another his place.
Newman, at 23, 46 at 255. The District’s dis cretion to employ the Administrator of the District and set the terms of his employment is discretionary power which public policy remain demands unimpaired. The twenty-year employment contract five requiring years severance pay even if Cowart breaches the contract is an enormous impairment of the District’s power and authority and therefore cannot be binding on successor boards.4 See City Potter, Hazel Park v. Mich. (1988) (contract App. 426 N.W. of em ployment between outgoing city council city manager included generous pay severance provisions held void because it deрrived the council incoming power select and ap- While the agreement between Cowart and the District allows any reason, District to terminate five-year Cowart for notice and sev provisions any erance argument foreclose agreement that the in fact does not tie the hands of the District.
134 v. Pa. Township Scatty, Falls 115 city manager); point (1988) (environmental (2d) control offi A. 912 Cmwlth duties; thus, three-year employ governmental cer performed and officer not into board by outgoing enterеd ment contract Sch. Dist. v. Harrison Cent. board); on successor binding (2d) (2d) (1977), 218 A.D. 400 N.Y.S. Nyquist, 59 appeal (2d) (2d) (2d) denied, 44 N.Y. 645, 406 N.Y.S. 378 N.E. (1978) school contract of between (three-year 126 boards); it binds successor void because attorney district and (contract (2d) act as Valvano, broker to engaging 183 A. 450 the County’s discretionary powers limited insurance advisor board); City on successor binding therefore was not and (Fla. Witt, (2d) Riviera Beach v. App. 286 So. Dist. Ct. (2d) (Fla. 1974) denied, 1973), cert. (city prosecu 295 So. involved governmental two-year employment tor’s beyond it еxtended and therefore was void because function officers); 56 Am. Jur. Munici contracting the terms Other Political Subdivisions Counties & pal Corporations, (the public gener § and removal of officers appointment function, a council cannot municipal a and ally governmental is tending beyond contract for a term by officer engage public members). own of its Cowart, however, District, contends that because statute, is a succes by public corporation perpetual survive are siоn, binding the District’s actions and commissions, even of the commis though future members (“Where See, e.g., McQuillin 29.101 change frequently. sion commission, is a board or the terms of the municipal body of which are it is a continuous exist staggered, body, members body and contracts of such a cannot be ing perpetuity; City office.”); deemed to or restrict successors in bind 1988) (Ct. Phoenix v. Long, 158 Ariz. 761 P. App. (contract beyond the term of office of the members extending board, faith, valid, if in good ordinarily of a made be public continuously existing сorporation); Daly cause the is a (Fla. 1953) (when Stokell, commission 63 So. terms of are the commission is a staggered, continuing body ers time). However, contract for reasonable we do not be any lieve this validates the contract at issue here. exception we whether our Court
Preliminary, question Supreme corpo- The rule that recognize exception. would rations cannot bind successors to contracts involving govern mental is very clearly matters stated powerfully court in Nеwman. city While the council in Newman appar *10 ently did not have terms, in the staggered nothing opinion suggests that an may there be to the rule stated in exception Moreover, the opinion. is not exception apparently widely recognized, because there are cases contracts en involving tered into or by boards council with staggered terms where the courts nonetheless void the contracts on the grounds that . they beyond extend the term of the contracting members of See, Charleston, the terms. e.g., Rogers v. City South 163 of (2d) W.Va. (1979); 557 v. Parent Woonsocket Auth., R.1.444, 143 Hous. A.
Most importantly, however, we the public believe policy concerns underlying rule that can- municipal corporation not bind successor equally boards are applicable cases where the members of the board have terms. As staggered above, discussed the rule is intended to ensure that governing bodies are free to discharge governmental their duties manner they deem appropriate and beneficial to the public they serve. This concern is present municipal bodies, with all or whether not the board or technically commission is a con- of tinuing body because terms are staggered members or because the board has perpetual succession. Accordingly, the fact that the District has existence does perpetual not save Cowart’s contract.
However, However, eveneven ifif exception exception thethe forfor contracts contracts entered entered byby intointo boards boards withwith continuing continuing existence existence werewere applica applica ble,ble, municipal municipal must,must, contacts contacts atat thethe timetime ofof their execu their execu tion, fairfair bebe andand ofof aa reasonable reasonable duration. Morrison duration. SeeSee Morrison Pleasanton, Homes v. Corp. City 58 Cal. App. of (1976) (contract Cal. Rptr. was fair and reasonable boards); when entered into wаs binding Daly successor 1953) (Fla. (when Stokell, 63 So. terms of commission are staggered, ers the commission is a continuing may contract for any time); reasonable Municipal C.J.S. §§ Corporations 979(b), 987 be (municipal contract must of duration; fair, reasonable contract that is reasonable and ad vantageous to the is valid if it municipality even extends be yond the term of officeof the of gov members the contracting The erning body). contract between and the District dura- twenty-year aWhile twenty years.5 for a period was rea- contracts, it is not a for some well be reasonable tion the adminis- for contract for an duration sonable impor- of utmost district, a position service of a public trator coop- the trust and requires and one that the public, tance to the commissioners. eration of that, as a matter trial court with the agree We therefore is void as twenty-year employment law, Cowart’s rea foregoing for the Accordingly, public policy.6 violation of hereby the trial court is sons, the decision Affirmed. J.,
Connor, concurs. opinion. in a Goolsby, J., separate concurs (concurring): Judge Goolsby, *11 court did not err that the trial the majority I with agree contract twenty-year employment Cowart’s holding Douglas decision, this I would base policy. of public as a matter void a reasonable not of that the contract was however, the fact 979(b) Corporations Municipal 63 C.J.S. duration. See by restricted (unless contract is (1950) municipal of a the term is limited of the contract mаndate, the term other statute or the duration). not reach I therefore would a reasonable to that is in corporation a a council of issue of whether contractually bind authority has succession perpetual its successors. that, allows termina argument the contract reject because Cowart’s We years rather notice, contract is five years duration of the
tion after five twenty years. than by Cowart at the the District and agreement executed the extent the To employment con simply reflected the terms meeting on November underlying modified, agreement is void because tract as separate a contract However, agreement considered if the could be even void. agreement was contract, void. The it nonetheless is from the Thus, in executive session. the District was upon into while and entered voted Cowart, the contract was to enter into the vote to terminate like the vote Act, invalidated and was of Information of the Freedom taken in violation trial court.