The Open Meetings dispute between former councilman Kevin Drum, a nonprofit he chairs, and the Village Council is getting its day in court in Carthage on Friday.
Last year, mayor John Strickland, then-council member Judy Davis, council member Jane Hogeman, village attorney Mike Newman and village manager Jeff Sanborn met to discuss a sneak-attack ethics censure of then-councilman Kevin Drum and councilmember Lydia Boesch. Boesch is a political rival of Strickland. Drum needed to lose in order to aid the election of a new Strickland ally. The censure motions were timed to go public right before the November elections. Drum was on the ballot, and he lost. The publicity from this shenanigan played a key role in that loss.
It appears that village resources were used for political means and that Open Meetings laws were violated. Drum and his attorneys are going after the alleged open meetings violations. The Village and its four taxpayer-funded attorneys are seeking to dismiss Drum’s complaint.
Here’s what the village is alleging:
[…] Attorneys representing the Village of Pinehurst deny the allegations, and have filed a motion to dismiss the lawsuit. In their motion to have the case dropped, the legal team contends that the issue falls outside the state’s relevant, 45-day statute of limitations, and that the electronic communications referenced in the complaint “do not constitute an ‘official meeting’” under state law because they were not “simultaneous communications.”
An exhibit attached to the motion to dismiss shows an email Boesch received in October from Frayda Bluestein, a professor at the University of North Carolina’s School of Government in Chapel Hill. In the email, which Boesch forwarded to Drum, Bluestein advised that the messages exchanged by the other council members were likely not in violation of the state’s open meeting law.
“If three members are discussing town business simultaneously it would be a violation of the law,” Bluestein wrote. “It’s hard to do that by email, but if it was a zoom or conference call and of course, if they are doing it in person, it would be the same thing.
“The issue is that these would be official meetings without notice to the public. But if they are having a conversation spaced over a span of time, it’s not illegal.”[…]
I. The October Email Meetings Violated the Open Meetings Law.
a. The Emails Were Simultaneous Communications.For three reasons, the Village Council’s actions constituted a meeting within the meaning of the Open Meetings Law. First, the emails were simultaneous communications. Second, this Court must apply the rules of construction that consistently have been recognized by North Carolina’s appellate courts, interpreting liberally in favor of access. Third, by including the phrase “other electronic means,” the legislature contemplated the development of additional means of meeting.
a. The Emails Were Simultaneous Communications
The emails at issue in this case were simultaneous communications, not one-on-one, serial communications. Merriam-Webster defines simultaneous as “existing or occurring at the same time.” Simultaneous, Merriam-Webster (2022). The emails in question were sent to and received by the Majority at the same time. Just as members of a public body do not all speak at once when they are physically in the same room, they do not “all speak at once” in an exchange of emails. The emails were a discussion – a back and forth among a Majority – by which the Majority fashioned the censures and finalized a procedure and script to be used in the October 12 meeting. The work product resulting from the email discussion included the censure motions that Councilmember Hogeman introduced at the October 12 meeting and the statement that was delivered by Mayor Strickland. The emails at issue contained identical content that was communicated to a majority of the Council at the same time. For a representative description of the email exchanges, see Attachment A.
The give-and-take process that occurred during this exchange of emails mirrors what might have happened if the Majority had been together in a room. Repeatedly, Mayor Strickland, Mayor Pro Tem Davis and Councilmember Hogeman – a majority of the Village Council – are all addressed in unified email threads at one time. In short, a majority of Councilmembers communicated collectively and simultaneously among themselves. The emails exchanged between and among the Majority were not one-way communications. Instead, the emails constituted a simultaneous discussion and deliberation of public business.
b. The Emails Constituted a Meeting Under Open Government Laws.
The series of September and October emails by which the Majority deliberated and reached consensus on censures of two other Councilmembers fulfills the essence of a meeting under the Open Meetings Law. A majority of councilmembers were present and they deliberated and transacted public business. G.S. § 143-318.10. […]
The North Carolina Attorney General’s Open Government Guide plainly states: “The General Assembly has declared it to be the public policy of North Carolina that the hearings, deliberations, and actions of public bodies be conducted publicly.” Att’y Gen. Josh Stein, North Carolina Open Government Guide (2019) https://ncdoj.gov/download/141/files/17891/2019-open-government-guide. The Open Government Guide advises, “Members of public bodies may not hold a social gathering or communicate through an intermediary — for example, in a series of telephone or other communications — to evade the spirit and purpose of the Open Meetings Law.” Id. […]
The UNC School of Government’s guidance suggests that depending on its content, an email exchange by a majority of a public body, in which members conduct official business, constitutes a meeting subject to the Open Meetings Law. 9
The definition of official meeting makes clear that an official meeting occurs by the simultaneous communication, in person or electronically, by a majority of the board. Because the definition includes electronic communication, a telephone call or email communication that involves a simultaneous conversation among a majority of a public body would violate the open meetings law if notice and access are not provided.
Frayda Bluestein, Open Meetings and Other Legal Requirements for Local Government Boards, in COUNTY AND MUNICIPAL GOVERNMENT IN NORTH CAROLINA, 53-3 (2d. ed. 2014) (emphasis supplied). In writing specifically about the possibility of email meetings, Professor Bluestein notes that “more than passive receipt of an email” has been required for courts to deem emails to be meetings. Frayda Bluestein, Polling the Board, Coates’ Canons NC Local Gov’t Law (Dec. 3, 2014), https://canons.sog.unc.edu/2014/12/polling-the-board/. Professor Bluestein warns against email exchanges that cross the line.
It might be tempting, however, to use the scheduling email to also get consensus on other matters, such as what should be on the agenda, or whether everyone approves of a final draft of a proposed policy to be discussed at the meeting. It’s difficult to define or describe the point at which a scheduling or transactional email poll becomes a policy discussion. Board members and staff should be careful to avoid using email to do the substantive work of the board, especially if the process engages a majority of the board in the discussion.
[…] In both of Professor Bluestein’s hypotheticals, the communications are by text message. […]
In the context of the open meetings law, emails and text messages are qualitatively the same thing. In Professor Bluestein’s hypotheticals and in this case, 11 the communications were sent at one time among a majority of Councilmembers. They were received at one time, though they may have been read at different times. The subject matter of the emails was plainly a matter of public business. The subject matter under discussion in this case was defined by statute as public business, as the Open Meetings Law provides that “A public body may not consider the … performance, character, fitness … of a member of the public body … except in an open meeting.” G.S. § 143-318.11(a)(6). The email meeting threads included a Majority of the Village Council, the Village Attorney and the Village Manager. The Council Majority was deliberating sanctions against members of the Council, which falls squarely within prohibited closed-door discussions […]
The village’s FOUR taxpayer-funded attorneys try to suggest that Drum was just as guilty as their clients:
[…]The village’s motion to dismiss, which was first filed in July and amended on Aug. 30, goes on to state that because Drum himself participated in the September meeting, his request for an order declaring that the meeting violated open meetings law would “necessitate a finding that both Plaintiff Drum and Defendants acted in violation of the Open Meetings Law, and therefore this matter does not constitute an actual case of controversy and is instead an improper request for an advisory opinion.”[…]
And here’s what Drum had to say about that:
[…] II. The September 20 Meeting Violated the Open Meetings Law.
The defendants have attempted to lodge an unclean hands argument against Kevin Drum to exonerate themselves from their September Open Meetings Law violations. That argument fails on two grounds. First, Councilmember Drum was not on notice the meeting would be illegal until he attended it. Second, the defendants’ arguments ignore a core tenet of North Carolina’s Open Meetings Law: the law is a specific declaratory judgment act. In addition, the statute of limitations alleged by defendants is inapplicable.
First, Councilmember Drum could not have known he was summoned to a meeting that violated the law until it was too late. The Notice deliberately concealed the purpose of the meeting. It stated the meeting would be about personnel matters. In reality, the meeting was held to illegally discuss the performance of a member of the Village Council. Complaint Exhibit B, Complaint ¶¶ 27, 28, 30, 31. The September 20 meeting was called under false pretenses, and the true nature and substance of the meeting only became apparent during the meeting. As such, Councilmember Drum has clean hands.[…]
Friday’s hearing should be fun. If, by chance, the judge dismisses Drum’s complaint, Drum can appeal. If the complaint is not dismissed, we will continue to be on the hook for Strickland and Sanborn’s shenanigans.
This could actually serve as a great practice run. Even more lawyers will be needed by the village if they continue with this rental ban nonsense. Boy, the Strickland era is getting mighty expensive.