Posts From May, 2014

U.S. Supreme Court Opinion on Public Meeting Invocations 

Thursday, May 22, 2014 10:25:00 AM Categories: Public Meeting Invocations

This Technical Bulletin outlines a recent opinion of the US Supreme Court relating to invocations at public body meetings. A copy of the Court’s syllabus opinion in the case Town of Greece New York v. Galloway et al., is attached for your convenience. The full opinion is available online at www.supremecourt.gov.

On May 5, 2014, the United States Supreme Court narrowed the scope of legal challenges that may be brought against a public body’s invocation policies based on the content of the prayers. In this particular case the Town of Greece, New York had a policy of opening meetings with a prayer/invocation. The Town’s policy was open to clergy of all creeds, however, nearly all of the local congregations were Christian. As a result nearly all of the prayers at town meetings were Christian in nature. The plaintiffs, who were all citizens attending various meetings, challenged the policy arguing that the prayers preferred Christianity over all other beliefs. They sought to limit the town to “inclusive and ecumenical” invocations that referred only to a “generic god.” The Court’s opinion held that the first amendment to the Constitution  requires public bodies to maintain a policy of nondiscrimination, and may not intentionally create a pattern that over time denigrates, proselytizes, or betrays an impermissible government purpose. However, the Court held that the first amendment did not require the public body to search outside of its borders in order to achieve religious diversity. The Court also rejected the argument that individual prayers had to be nonsectarian. To hold such, the Court said, would require the public  body to act as a supervisor or censor of religious speech.

The Court further pointed to the fact that the audience to whom the prayers are directed are the lawmakers themselves and not the public. The prayers are meant to lend gravity to public proceedings, and not to coerce citizens to engage in a religious observance. The public attending these meetings may leave the room or otherwise not participate.

Public bodies should also look to § 6-1-160 of the SC Code of Laws for guidance concerning public invocation policies. The South Carolina Legislature enacted the Public Invocations Act in 2008, to provide a procedure for state and local governments to enact policies for an invocation to open a public meeting. The Act’s requirements apply to most public bodies, and includes many of those issues addressed by the Supreme Court in Galloway.

Pursuant to § 6-1-160(B) public bodies may enact an invocation policy by one of three methods: (1) the members of the body offer an invocation on an objective and rotating basis; (2) the body may elect a chaplain; or (3) the body may allow invocation speakers from the community of religious leaders where the body is located. If the body allows speakers from the community, to ensure objectivity, the body annually shall compile a list of all known, established religious congregations and assemblies by reference to local telephone books or similar sources.

Please consult your county attorney if you have specific questions about this opinion and its application to the SC Public Invocations Act. The SCAC staff is also available at 1-800-922-6081 to address general questions.

Electronic Waste Recycling Changes 

Act No. 129 of 2014 (R. 134, H. 3847)
Thursday, May 1, 2014 9:02:00 AM Categories: Electronic Waste

This Technical Bulletin outlines changes to the South Carolina Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act of 2010. A landfill disposal ban remains in effect for computers, computer monitors, televisions, and printers generated from households until 2021.  As a result, Act No. 129 provides a short-term plan for 2014 as well as a longer-term plan, beginning in 2015, intended to relieve counties of some of the costs associated with recycling these materials.

Act No. 129 requires  computer monitor and television manufacturers to provide a recovery program, recycle their market share on an annual basis, and register with and annually report to the South Carolina Department of Health and Environmental Control (DHEC). DHEC is working on drafting regulations to conform to Act No. 129 and is hoping to issue these regulations in the fall.
    
Recovery Obligations in 2014

Section 48-60-20 sets the recovery obligations on a calendar year basis. The recovery obligations are different for the first program year, 2014, than for the remaining years of the legislation, which sunsets in 2021. Section 48-60-50 of the Act states that during the 2014 program year, each television manufacturer must recover their market share of 4.8 million pounds of covered television devices, and each computer monitor manufacturer must recover their market share of 720,000 pounds of covered computer monitors. Covered devices included only those computer monitors and televisions marketed and intended for use by a consumer. The market share for 2014 is based upon the total weight of televisions and computer monitors collected and recycled in South Carolina in 2013. DHEC notified manufacturers of their market share obligation on April 4, 2014. In order to fulfill their obligations, manufacturers may act on their own or participate with other manufacturers through representative organizations (RO), which are designed to jointly fulfill the recovery obligations listed above.  

Recovery Obligations Beginning in 2015

Beginning in 2015, manufacturers may once again choose to fulfill their recovery obligation on their own or to join an RO. Any RO that may be formed must submit a plan to DHEC within 90 days of the start of the program year. The RO plan must provide for the recycling of all computer monitors and televisions collected by participating local governments specified in the plan based upon the proportionate membership that comprises the organization. DHEC is in the process of determining and defining what proportionate membership means.  

Under Section 48-60-55(K)(1), a manufacturer that chooses not to participate in a RO must recycle eighty percent of the weight of computer monitors and televisions sold by the manufacturer in South Carolina during the previous program year. DHEC will provide the manufacturer with their recovery obligation by March 15 of each program year. Any manufacturer that fails to meet their recovery obligations must either pay a shortfall fee or account for the amount of the shortfall in the following program year. Manufacturers looking to meet this eighty percent recovery obligation may look to bypass local governments by collecting the computer monitors and televisions from Goodwill or other store sites to avoid this shortfall fee.  Shortfall fees will be deposited in a dedicated account to be used for implementation of the program and to assist local governments in recycling covered devices.

Effect on County Operations

There are many questions regarding the implementation of Act No. 129 and the amount of money that it will save counties. Counties planning to renew contracts with their recycling vendors in 2014 need to be aware of the changes in 2015 that may affect the price they pay for disposal of the covered devices. Each county will need to review their current program and decide what best suits its individual needs. Each county should check with their recycling vendors to see which manufacturers the vendor may have relationships with and whether these manufacturers have elected to join a RO. This will allow each county to choose between maintaining their current operational arrangement or securing a new vendor arrangement backed by a manufacturer program.  Counties also need to make sure that recycling vendors are not double-dipping by collecting money from the RO as well as the county.

Counties also need to be aware that if they elect to contract with a recycling vendor that has an agreement with a manufacturer that is a member of a RO, the county must make all consumer electronics available for pick up at no cost, even those items which have value. Section 48-60-140 requires that counties ensure that the material they collect is transferred to a recycling or reuse facility that is certified by a third-party accreditation program, such as the Responsible Recycling Practices (R2) or e-Stewards.

The Governor signed this legislation making it effective on March 14, 2014. Please consult your county attorney if you have specific questions about the application of these changes. Feel free to contact Owen McBride of SCAC at 1-800-922-6081 or omcbride@scac.sc with any questions.