The Pinehurst Hot Mess: NC Court of Appeals time!

Here is the defendant’s (Drum’s) statement of the facts of the case:

STATEMENT OF THE GROUNDS OF APPELLATE REVIEW Judge Webb’s order dismissing the Plaintiffs’ claims is a final judgment, and appeal therefore lies to the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b).

STATEMENT OF THE FACTS

 Plaintiffs sought two rulings in their complaint. Under both the Uniform Declaratory Judgment statute, N.C. Gen. Stat. § 1-253, and the Open Meetings Law, N.C. Gen. Stat. § 143-318.16A, the Plaintiffs sought a declaration that the actions of a majority of the Pinehurst Village Council (hereinafter, “the Council”) violated the Open Meetings Law. The Plaintiffs also sought an injunction against future violations under the Open Meetings Law, N.C. Gen. Stat. § 143-318.16. Plaintiffs did not ask the court to void, alter or in any way disturb any action taken by the Council.

On 20 September 2021, the full Pinehurst Village Council met in a closed session. (R p 10). The stated purpose of the meeting was a “personnel” discussion. (R p 9). In reality, notwithstanding the explicit statutory prohibition of discussing the performance of public body members in closed session, the meeting was called to reprimand Councilmember Boesch for perceived violations of the Village Ethics Policy. (R p 10). See N.C. Gen. Stat. § 143-318.11(a)(6) (“A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting.”)

The notice for the 20 September meeting had multiple inaccuracies, such that a person reading it would not have known when or where to go to attend any public portion of the meeting. (R p 8). Similarly, the meeting minutes contain multiple inaccuracies, such as listing the Village Manager as having attended when in fact he did not. (R p 13).

After the September meeting, a majority of the Village Councilmembers — Village Mayor John Strickland, Mayor Pro Tem Judy Davis and Councilmember Jane Hogeman (hereinafter, “the Majority”) — engaged in an extensive exchange of emails. In the emails, the Majority considered and concluded that Councilmember Boesch needed to be formally censured. (R p 14).

The Majority also considered and decided that Councilmember Drum needed to be censured. (R p 14). The basis for the Drum censure was that allegedly he had been disrespectful of Village residents. According to the Majority, being disrespectful violated the Village Ethics Policy. (R p 14). Through the course of these emails, the Majority consulted with both the Village Attorney and the Village Manager, who were copied on the emails and participated in the discussion. (R pp 14- 19). Through the emails, the Majority drafted the language of censures to be proposed and the exact language that ultimately would be used to introduce and explain the perceived need for the censures. (R pp 14-19).

In a public meeting on 12 October 2021, the Village Attorney described what he had been asked to do, saying he was asked by “a consensus or a majority of the Village Council.” (R p 19). After the Village Attorney provided background, as planned, Village Councilmember Hogeman read the motion that had been created and approved by the Majority in their email exchanges. (R p 20).

Councilmember Boesch was stunned and reacted to the censure motion. She said, “I’ve never seen that,” and asked, “Did somebody provide that to you to read?” Councilmember Hogeman replied, “No. I worked on that.” (R p 20). “With whose help?” Councilmember Boesch asked. She continued, “I mean, you’re reading something that was prepared before this meeting. And again, these are things that are being written about and against me, and I’ve never had an opportunity to see this. This. There’s something so just uneasy about this. So you wrote that by yourself?” (R pp 20-21). At that point, Mayor Strickland responded and lied, saying, “As far as I know yes, and Jane’s an attorney.” (R p 21).

Despite the Mayor’s misrepresentation and misdirection that Councilmember Hogeman had worked alone, it appeared to Councilmembers Boesch and Drum that there may have been some discussion among the members of the Majority prior to the 12 October 2022 meeting. If there had been, they had been excluded from the discussion. Councilmember Boesch sent a question to the UNC School of Government asking about the propriety of that exclusion. Defendants submitted part of that email exchange to the trial court, but part was missing. The portion filed with the court did not include the question that had been asked or what background information had been provided. Only the response from Professor Frayda Bluestein is in the record, attached to Defendants’ amended motion to dismiss. (R p 257).

Professor Bluestein wrote that it would be “hard” for a public body to meet by email. (R p 257). She did not say it was impossible. She wrote, “if they are having a conversation spaced over a span of time, it’s not illegal,” (R p 257) but the record is devoid of what details Professor Bluestein had been provided when she responded. For example, the record does not reveal whether Professor Bluestein knew that the Majority had exchanged emails in very short blocks of time or that, in the words of the Village Attorney, the Majority reached a “consensus” to censure the two other councilmembers. (R p 51).

Following the October meetings, Councilmember Drum wanted to understand exactly what had taken place by email. Although of course the council members emails are public records, they had not been publicly disclosed. Former Councilmember Drum engaged counsel to send a group of public records requests on 1 March 2022, seeking the emails exchanged related to the proposed censures.(R11 Supp pp 275-304). On 21 April 2022 — 51 days after the public records request — the Village completed providing the public records. (R11 Supp p 305).