Politicians poised for Open Meetings violation in Southern Loop talks

Politicians poised for Open Meetings violation in Southern Loop talks
The Smoky Mountain News
November 26, 2008
By Josh Mitchell

A private meeting has been scheduled between the N.C. Department of Transportation and elected leaders to discuss the controversial Southern Loop — a move that seems headed toward a violation of the N.C. Open Meetings Law.

County commissioners and town board members were invited to the private meeting by the DOT, which is in the planning stages of a hotly debated highway that would slice through Jackson County northeast of Sylva.

The public has not been notified of the meeting, which is required under the N.C. Open Meetings Law, according to an attorney from the North Carolina Press Association.

The meeting will take place from 2 to 3 p.m. Thursday, Dec. 4, in the Ramsey Center Hospitality Room at Western Carolina University. The private meeting will be followed by one for the public from 4 to 7 p.m. at the same place.

DOT Senior Public Information Officer Jamille A. Robbins said that the DOT does not want the public to attend the meeting intended for local officials. Robbins said the meeting is an opportunity for the elected leaders to become informed about the road project so they will be prepared to answer constituents' questions.

"We want to let the local officials to know first," Robbins said. "We're not hiding anything. You're trying to make it sound like we're having a clandestine meeting."

However, Robbins said if members of the public showed up, they wouldn't be "turned around." Robbins said DOT is not trying to do anything "underhanded" with the local officials' meeting or it wouldn't be having the public workshop afterwards.

Robbins said he does not think the DOT is violating the Open Meetings Law.

North Carolina Press Association Attorney Mike Tadych agreed the DOT is not violating the Open Meetings Law — but local officials will be if they don't give public notice of the meeting. Tadych said an official meeting occurs when there is a simultaneous gathering of a majority of a public board, other than a social setting.

"I think they would have to give notice," Tadych said.

The majority of Jackson County commissioners say they plan on attending the meeting, according to a poll by The Smoky Mountain News.

Jackson County Commissioner Chairman Brian McMahan said he does not believe the commissioners will violate the Open Meetings Law if they attend the meeting without announcing it.

"We didn't call the meeting," McMahan said. "It's strictly a DOT meeting."

McMahan said the commissioners will simply attend the meeting to get information, similar to when they attend Economic Development Commission meetings. However, EDC meetings are already announced to the public since it is a public entity in its own right, regardless if commissioners attend.

Even if the commissioners are attending the DOT meeting to merely listen, it should still be noticed to the public, Tadych said.

State law defines an "official meeting" as anytime the majority of a board gathers for a meeting pertaining to public business.

County Manager Ken Westmoreland said he doesn't think the county commissioners need to advertise that they will be attending the meeting.

"It's not an official meeting from our standpoint," Westmoreland said. "We're not going to conduct business or take official action."

But Westmoreland said to avoid the appearance of violating the Open Meetings Law there will not be a majority of the county commissioners in the room at one time. That is standard practice for Jackson County commissioners in a meeting such as this, Westmoreland said.

But Tadych said even if there are two county commissioners in the meeting — although it technically isn't a majority of the five person board — it is still subject to public notice. The two commissioners in the room would constitute a committee serving as an extension public body, Tadych said.

Westmoreland said he disagrees with that.

"This is not a committee meeting of any formal nature," Westmoreland said.

County Commissioner William Shelton said the county is not going to violate the Open Meetings Law. He agreed with Westmoreland that there will not be more than two commissioners in the meeting room at a time. Shelton said two commissioners could go into the meeting and listen a while and then two others could go in.

Westmoreland said he agrees that the DOT meeting "probably wasn't arranged the best."

"I admit DOT has not been very prudent," Westmoreland said.

Other local officials were also invited to the meeting, according to Robbins, including the town boards of Sylva, Dillsboro, Webster and Forest Hills.

The private meeting raised the ire of Franklin Town Alderman Bob Scott, who received an invitation to the meeting and tipped off The Smoky Mountain News that it is taking place.

"My feeling is that it's in violation of the Open Meetings Law," Scott said. "I think it's a little strange to have a meeting for elected officials that the public is not invited to."

The private meeting gives the appearance that DOT wants to tell the local officials something it doesn't want to tell the public, he said.

What the law says

The argument over whether elected boards can attend a private meeting with the DOT to talk about the Southern Loop comes down to whether the meeting qualifies as an "official meeting." Here's how it's defined in state statute:

"'Official meeting' means a meeting, assembly, or gathering together at any time or place ... of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article."

— N.C. 143-318.10-d.