That’s the question after the town recently attempted to deny me access to the minutes from the closed session town board held on January 9. I was finally provided a copy of the redacted minutes on February 7, but only because I’m familiar with open meeting and public records laws and because I don’t mind being persistent. Is it possible other less persistent Huntersville residents have been denied access to records or information in the past?
For the record, none of the criticism below is directed towards the town clerk who has always promptly facilitated my many requests for records and information.
The Huntersville town board held a special meeting on January 9 for the purpose of accepting the resignation of former town manager Greg Ferguson. This special meeting was not live streamed. During this special meeting the town board went into closed session to discuss a personnel matter – the resignation of the town manager. NCGS 143-318.11 sets forth the situations when a public body is permitted to go into closed session.
According to the Lake Norman Citizen, the only media outlet in attendance at the special meeting, the closed session lasted over two hours. Given the lengthy time period of the closed session, I was interested in determining whether anything was discussed among the board that was unrelated to the specific personnel issue for which the closed session was called. I sent a request to the town on January 18 for a copy of the closed session minutes once they had been approved. I was informed the same day the closed session minutes cover personnel related matters and cannot be released and that I could speak with the town attorney [Bob Blythe] for an explanation – no exceptions were cited, just an outright denial. Mr. Blythe is a part-time employee of the town and his current base salary is $110,577.36.
I responded to the town’s denial by citing NCGS 143-318.10(e) and that I would discuss the legality of withholding the closed session minutes with the town attorney once they had been approved by the town board. NCGS 143-318.10(e) states in part: Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions… such minutes and accounts shall be public records… however, minutes or an account of a closed session… may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.
Six days later on January 24 I was informed that upon advice from the town’s employment attorney the town was precluded from releasing the requested minutes because NCGS 160A-168 takes precedence over NCGS 143-318.10(e). My immediate thoughts after receiving that email: 1) who is the town’s employment attorney and why did the town have to consult outside counsel to address such a basic open meetings issue; and 2) NCGS 160A-168 only deals with privacy of employee personnel records and does not provide for any outright ban on disclosure of closed session minutes dealing with a personnel matter.
I was later advised the town uses an attorney in the Raleigh office of Jackson Lewis P.C. at an hourly billable rate of $275 for shareholders, $225 for associate attorneys and $120 for paralegals. Are there no employment attorneys the town could contract with in Mecklenburg County, possibly at a lower hourly billing rate? The good news – the town only pays Jackson Lewis on an as needed basis and does not pay them an annual retainer unlike Smith Rodgers, PLLC, the law firm used by Huntersville Police Department at a minimum annual cost to taxpayers of $18,070.
I responded the same day on January 24 by requesting the town forward my email and the 2015 NC Court of Appeals case Times News Publishing Co. v. Alamance-Burlington Bd. of Ed. to the town’s employment attorney and that I would be available to discuss with either Mr. Blythe or the town’s employment attorney at their convenience. I never received a call from either attorney. The Times News case dealt with a very similar situation and is still good law in NC. I’d encourage anyone interested in open meeting and public records law in NC to read for yourself – it’s only twelve pages and can easily be understood by a non-lawyer.
I re-sent my request on February 7 for a general account of the January 9 closed session and received a redacted copy of the minutes later the same day. [See below.] But this apparently warranted further review by the town’s employment attorney to assist with the redaction. Again, why was outside counsel needed to comply with this request pursuant to straightforward NC statutory and case law and how much did this request end up costing the taxpayers of Huntersville? If I was immediately provided with the redacted minutes upon request on February 7, why did the town promptly deny my identical request sent on January 18? How do we know other citizens haven’t been wrongly denied records or information by the town in the past based on similar grounds?
Maybe instead of using taxpayer dollars to employ outside counsel to help with responding to basic records requests from residents, those taxpayer dollars would be better spent on requiring select town employees to attend an open meetings/public records training or CLE.