Sometimes, judges do stick to the law
My column today:
As a career newspaperman with nothing more than a bachelor's degree in journalism from a state university, I have to admit that judges usually know more about the law than I do.
Even the Open Meetings Law, which is vitally important to my profession.
Not everyone in the trade is as cognizant of personal limitations as yours truly, however. Thus, my editorial colleagues at The Charlotte Observer recently delivered a scalding but misguided denunciation of an N.C. Court of Appeals ruling unfavorable to another newspaper over an Open Meetings Law dispute. ...
The Asheville Citizen-Times challenged the Buncombe County Board of Commissioners and the Asheville City Council about closed-door negotiations over a regional water agreement.
Each board sent one representative and lawyers to meet with a mediator about their water contract. Every so often, the representatives returned to their own boards for discussions and instructions. This went on in an Asheville hotel from 8 a.m. until midnight on April 26, 2005. It must have been an exceedingly tiresome day.
All the meetings were closed, meaning Citizen-Times reporters were kept out. The newspaper immediately went to court demanding access. A judge refused to grant an injunction on the spot, and the newspaper was later denied relief in Superior Court. In August, by unanimous decision of a three-judge panel, the Court of Appeals upheld the original ruling. Last month, the state Supreme Court declined to hear a further appeal. While it was a defeat for the media, they can always get the last word.
"Bafflingly, the Court of Appeals did not think the intent was to avoid complying with the spirit and purposes of the open meeting law," The Charlotte Observer wrote in a Nov. 28 editorial.
As I said, I'm no expert on the law. But, after reading the Court of Appeals decision, I'm not baffled. Its opinion, written by Judge Linda McGee, is clear and convincing to the point that the Open Meetings Law was followed carefully.
The law requires public bodies to conduct open meetings. It also allows exceptions.
One is when a majority of board members are not present. That was the case in regard to the mediation session attended by one commissioner and one councilman.
The law also allows public bodies to meet in private to "consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration or administrative procedure." This exception clearly applied to the separate meetings of the commissioners and council, but that point became moot anyway: On appeal, the Citizen-Times abandoned its contention that those meetings should have been open. The case before the appeals court rested on the newspaper's claim that the mediation session should have been open and its complaint that the whole set-up was meant "to evade the spirit and purposes" of the law.
In its own editorial published Nov. 26, the Citizen-Times asserted that the two boards "used the exemptions that exist to totally circumvent the law."
In other words, they used the law to get around the law. Isn't that a contradiction?
In a phone interview last week, I asked Judge McGee whether the court could tell if the boards actually intended to evade the spirit of the law.
"Based on the record before us, we just couldn't find any basis for that," she said.
By the way, McGee is hardly unsympathetic to newspapers. She worked for a couple of small-town papers before becoming a lawyer.
Elsewhere in its editorial, the Citizen-Times conceded that "the court is bound by the law as it is written." Then it urged the legislature "to strengthen the law to leave no opportunity for boards to duck their obligation to allow the public the ability to oversee its own affairs."
That's really hitting at the heart of the matter. The legislature is supposed to change the law, not the courts -- not even when it would suit the media if they did.
Contact Doug Clark at 373-7039 or dgclark@news-record.com
Comments (6)
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Given the involvement of lawyers and a mediator on tnis issue, I must concur with the courts, both on the substance of the ruling and on the suggestion that the open-meetings law be strengthened. Florida's statute has fewer and smaller loopholes of this type, and yet somehow the public's business continues to get done down there. So I don't think the fate of the Republic would hang on maintaining the status quo.
Posted on December 6, 2006 9:30 AM
But should this have ever had to go to court, Doug? Should the elected officials have done the right thing?
This wouldn't have been a problem if the county commissioners and city council had conducted their business in public. While the Open Meetings Law does allow exceptions, it never says anything has to be held in
Similarly, the Guilford County School Board recently held a late-night, closed-door meeting to give Terry Grier a previously unannounced raise. That struck me as a dirty deal. Even if Grier deserved a raise, it should've been handled in full public view.
Quite frankly, I wish the N&R was as stauch a defender of the public's right to know as papers like the Asheville Citizen-Times and Charlotte Observer. But lately, it seems the News & Record has been lackadasical in its watchdog role.
Perhaps this has something to do with the fact that the newspaper's attorney is none other than Alan Duncan - chairman of the school board and a staunch foe of open government.
Posted on December 6, 2006 10:45 AM
I left out part of a sentence. It should read, "This wouldn't have been a problem if the county commissioners and city council had conducted their business in public. While the Open Meetings Law does allow exceptions, it never says anything has to be held in closed session."
Posted on December 6, 2006 10:46 AM
Good conclusion, Doug.
Appeals courts look at the constitutionality of the law and how it was applied by the lower court, not the merits of the argument or which side "should" have won.
Posted on December 6, 2006 11:01 AM
It's a good question whether the public bodies needed to hold closed sessions in this case. Given that they were negotiating, maybe each had reason to conceal its position from the other. But wait a minute! Both boards were representing the people. Why couldn't they meet in open session and agree to do what was best for the people?
They were entitled to operate as they did under the provisions of the law. Will any legislators take this case as an example of the need to close some exceptions in the law?
Posted on December 6, 2006 12:20 PM
They were entitled to operate as they did under the provisions of the law. Will any legislators take this case as an example of the need to close some exceptions in the law?*Doug
Why should legislators change the law if the media says they are all crooks and liars from a "unnamed" source?
Posted on December 6, 2006 1:01 PM