Under North Carolina's Open Meetings law, all official meetings of public bodies must be open to the public. While there are exceptions, some experts say that those exceptions may not apply to Asheville City Council’s ‘check-in’ process due to the Council’s use of subcommittees.
Check-in sessions are held between the regularly scheduled Council meetings. They are typically comprised of three Council members and are billed as an opportunity to review the upcoming Council agenda, discuss items with City Staff, and review legal matters.
In recent weeks, these meetings have come under scrutiny after a document containing a “Potential Asheville [food-sharing] Ordinance” was obtained by The Asheville Free Press and released to the public. The document was included among the meeting materials for City Council’s January 20th check-in. While the meeting materials are a matter of public record, the public is not permitted to attend these meetings, and there are no minutes kept. This means that the content of any discussions is effectively kept private.
A Majority of Subcommittee Members?
North Carolina’s open meetings law provides an exception for meetings where less than a majority of the public body meets, which would be four or more members in the case of City Council. Because of the ‘majority’ rule, the City has asserted that these meetings are in accordance with NC law. However, City Council’s committees may complicate this justification since only two or more committee members would constitute a majority.
For example, during the January 20th check-ins Manheimer, Kilgore, and Turner met — representing a majority of the Finance and Human Resources Committee. So did Manheimer, Mosley, and Roney — representing a majority of the Boards and Commissions Committee.
Open government advocate Patrick Conant, director of Sunshine Request, has pursued this line of reasoning for several weeks.
In an email to City Council, the City Manager, and City Attorney Brad Branham published online, Conant states, “I understand that Council check-ins bring together 3 members of Council, which is less than a majority of our 7 member Council. However, what is also clear is that Council check-ins bring together a majority of members of several 3 member Council Committees.”
In response, City Attorney Brad Branham said, “In any particular check-in where two members of a subcommittee of the Council are present, we simply do not discuss the business of the committee during that check-in. [...] This has always been a requirement we are cognizant of, and pay close attention to it.”
But Conant isn’t just acting under his interpretations of the law.
“I have spoken to several experts on NC Open Meetings Law and discussed the exact process you described,” he said to Branham. “Each person I have spoken with feels that these check-in meetings, with a majority of a Council Committee present, clearly constitutes a public meeting under the law.”
Beth Soja, one of the experts Conant consulted with and an associate at Stevens Martin Vaughn & Tadych, agrees. She told us she believes that when a majority of committee members are present at these meetings and they are discussing city business, the exceptions do not apply.
“These are open meetings,” Soja said. “It doesn’t matter what they call them.”
Brooks Fuller, director of the NC Open Government Coalition and assistant professor of journalism at Elon University, was another expert that Conant consulted with before taking the matter to the City. Fuller also told us he disagrees with the City’s interpretation of the law.
“I think [the check-ins] fall within the meaning of ‘official meeting,’” Fuller said. “I think they are probably splitting hairs or finding a distinction without a difference.”
Fuller also pointed to part of the open meetings law which specifically cautions against members of a governmental body meeting in a way that keeps the public out by using the quorum exemption or otherwise avoiding an ‘official meeting.’
“Even if it appears to be navigating a loophole in the open meetings law, it’s not good for public accountability.”
Echos of Last Year's Illegal "Retreat?"
Notably, Amanda Martin, a member at Stevens Martin Vaughn & Tadych — the same law firm at which Beth Soja is an associate — represented a coalition of media organizations who won a lawsuit against the City for attempting to violate open meetings laws with their “retreat” session last year.
Conant, who helped spur that lawsuit, draws another link between the incidents.
“[Branham’s justification is], in my opinion, identical to what a judge found unacceptable during last year’s Council retreat,” he said.
What's Next?
According to the Citizen-Times, mayor Manheimer indicated that she believes “some changes” are coming, but it is presently unclear what those changes may be.
Conant is advocating for the private check-in meetings to be replaced with something more transparent.
"I believe these check-ins are public meetings. They should be properly noticed, keep official minutes, and allow public attendance as required under NC Open Meetings Law," he said on Twitter.
