|By Adam Beam, The State, Columbia,
S.C.McClatchy-Tribune Regional News
March 10, 2009 - A judge will decide today whether Columbia City Council members have to testify under oath as part of a multimillion-dollar lawsuit.
Four companies -- Stevens and Wilkinson, Turner Construction, Gary Realty and Garfield Traub Development -- have sued the city because they say they were not paid for their work on a publicly funded convention center hotel project in 2004.
Combined, the companies are seeking more than $4 million, and they want to question council members under oath.
Public officials are shielded from courtroom testimony by the doctrine of legislative privilege, which says elected officials cannot be asked to explain their votes.
But when council members were considering paying for a public hotel in 2003, they set up a nonprofit corporation because it made it easier, from a legal standpoint, to operate the hotel and borrow the money to pay for it.
Attorneys for the businesses are arguing that when council members made decisions, they acted as members of the nonprofit board of directors, not as elected officials. For that reason, they say, legislative privilege does not apply.
If a judge agrees, it could mark one of the first times in South Carolina that elected officials are ordered to testify in court, attorneys on both sides said.
"It would be unprecedented," said Richard Detwiler, an attorney who represents Columbia. "To make a legislator talk about those things, to require him to explain where he came from when he made that decision, would really impede their ability to make good, objective decisions on behalf of the taxpayers."
But attorneys for Turner Construction say that legislative privilege only covers legislative actions. If the judge allows council members to testify in this case, they said, it would not weaken legislative privilege.
"This is a commercial action," said Brink Hinson, an attorney with Janet, Jenner & Suggs who represents Turner Construction. "This is a contract to build a hotel. There's nothing legislative about it."
The case focuses on a memorandum of understanding between Columbia and the four companies.
According to the agreement, the companies were taking a risk by working on the project. If the city decided the project was not economically feasible, it could halt the project and not pay the companies anything.
In April 2004, council members voted to request proposals from developers for a private hotel. Attorneys for the city say the vote indicated council members didn't think the public hotel project was feasible.
But the companies disagree. They say that because council never specifically voted that a publicly funded and managed hotel wasn't feasible, the city violated the contract.
The companies want to question council members under oath to settle the issue.
So far, Tameika Isaac Devine is the only council member to testify.
Last month, after Devine's testimony in November, Columbia's attorneys filed a motion asking the judge to prevent other council members from testifying.
"You don't just take off your city councilman's hat," Detwiler said.
Devine answered questions mostly from Stevens and Wilkinson attorney Dick Harpootlian for about five hours on Nov. 17.
During the deposition, a transcript of which was obtained by The State, city attorneys repeatedly objected to questions about why she voted for the city to move forward with a private hotel project.
Devine said City Council never formally voted to not build the publicly owned hotel, but later clarified her answer.
"It was told to us there was a certain amount of work that needed to be done. And that's the work that we were paying for," Devine said, according to a transcript of her testimony. "So at that point, there wasn't anything else that would need to be done until after the bonds closed. And they never did. So there should not have been any additional work."
Columbia Mayor Bob Coble said he voluntarily testified as an elected official in a case involving redistricting when he was on Richland County Council. He declined to comment about the hotel case.
Reach Beam at (803) 771-8405.
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Copyright (c) 2009, The State, Columbia, S.C.
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