BOC notified of specific legal issues re. new jail. Debate whether to let the public know what those issues are. | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    At the tail-end of a long meeting Monday night (2-3-14) the Beaufort County Board of Commissioners dealt with an interesting issue. The board had received two letters from an attorney representing several Beaufort County citizens, one asking that the board address specific legal issues raised in the letter before the board (majority of 4) spends any more money on building a new jail. The second letter was a Public Records Request asking for documents related to the planning that has already gone into the jail project.

    The video below is the discussion about how to handle the two letters, and more specifically whether to discuss it in "closed session" or not.

    To make sense of the discussion one needs to know a bit about the Open Meetings Law. That law provides that a board may go into closed session to protect attorney/client privileged communications. The case law is pretty specific on the issue. If there is a law suit there is no question that the suit may be discussed in closed session. If there are other elements of privileged attorney/client communication, that may be done in closed session. But the case law specifically says that simply because the attorney is present does not qualify for a closed session. Not all communications between an attorney and client is privileged. The issue is the content of the discussion and the burden is on the board's attorney to read into the record what makes it privileged communication.

    Essentially what you have here is an attorney representing a group of citizens asking the Board to address the legal issues before spending money designing or constructing a new jail. And a request for public documents. After listening to the discussion, there is a link below the video to the letters.

    For the Legal Eagles among us we would note the North Carolina Court of Appeals, in Multimedia Publishing v. Henderson County (COA99-520) said: "the attorney-client exception is to be construed and applied narrowly...public officers and attorneys cannot abuse their trust by extending the privilege as a mere conduit to suppress public observation of the decision-making process." The court went on to say: "The burden of proof is on the government body to demonstrate that the attorney-client exception applies...in meeting its burden, government bodies may not simply treat the words 'attorney-client privilege' or 'legal advice' as some talisman, the mere utterance of which magically casts a spell of secrecy over their meetings."

    Click here to review the full court decision.



    Here's what all the fuss was about:

    Click here to review the letter from the attorney identifying specific legal issues he asks be addressed before spending any more money.

    Click here to review the request for public documents.

    We'll have more on the meeting later.

    Commentary

    Quiet aside from the legal nuances of what "attorney-client privilege" means, what is clear here is that the County Attorney was trying his best to allow "the letters" to be discussed in secret. One of the letters clearly requires no privileged communication between the attorneys and the board. It is a public records request and the board has no reason to discuss whether to comply. It's the law.

    The other letter, as you read, simply specifies some legal issues the clients have concerns about and asks the board to address those issues. You don't need an attorney present to advise you whether you want to address legal issues.

    Now, once addressed the board does certainly have every right to meet in closed session with its attorney to review how they can/should respond to the issues raised. But that comes down the road, not before the issues are even disclosed.

    We suspect the real reason behind this maneuver Monday night was that the majority do not want a public debate over the legal issues. Rather, they want give a cursory nod to them and then proceed to do what they had already decided to do.

    And that is exactly what the attorney and several commissioners wanted to do: Keep the public from knowing what some of the legal issues are.

    The real crux of this matter will be determined when the board responds to the lawyer's letter. If they fail to respond that will have significant implications if a law suit is ultimately filed. Once they do respond we would expect that response will be an enlightening implication of whether the majority on the board wants to avoid a law suit on the matter.

    But the real issue here is a political issue, not a legal one. The question is whether the public is going to be able to see how the decisions on building a new jail are made. At this point, clearly illustrated in a later article on a discussion of the Jail Committee's report--and indeed, the very existence and structure of the Committee itself--appear to be saying that most of the important decisions are made outside of public view, and certainly without public participation, and then a kabuki dance is performed in the open meeting to simply put on an appearance of openness.

    Sources tell us that Al Klemm is really the one making these decisions. Al holds the key swing vote on this issue. He is the only Republican commissioner on the Jail Committee and sources tell us that the three Democrats on the commission have to be sure they have Al's vote on anything they want to do. As long as Al goes along, it's a "done deal." If Al does not go along the Democrats have to yield to what he wants. For that reason, the Observer will henceforth be referring to the jail as the "Al Klemm Jail."