Our School Board Needs to Get its Legal Act Together | Eastern North Carolina Now

    Our School Board continues to violate the Open Meetings Law. The latest incident was Friday (12-18-09) when they called a special meeting without disclosing 48 hours in advance what the purpose of the meeting was. That is required by N. C. G. S. § 143 318.12(b)(2). The Observer was notified of the date, place and time of the meeting according to the fact that we have filed a written request to be notified of all meetings. But this notice did not state the purpose of the meeting. An agenda was not provided until about three minutes before the meeting was called to order even though we requested one within a couple of hours of receiving the notice of the meeting.

    As we have reported, there was no harm done (to us) by the board's actions. But the fact that the meeting was "illegal" could cause the board a problem down the road if they try to enforce the policy they adopted was ultra vires or illegal because it was adopted in this "illegal" meeting.

    We wouldn't be writing this if it were the first time such disregard of the law had happened. But it happened just last week. And it has happened numerous times in the past, particularly under the previous superintendent and this board chairman.

    Last week the board had called a "special" meeting to hear School Improvement Plans from the schools. But after doing that the chairman, Robert Belcher, announced that they had another item of business to take care of. They then proceeded to discuss and vote on bids for the demolition of a building on the Snowden campus and approved a contract.

    Some may say "no big deal." They had an "emergency" and they needed to take care of it. "They called a meeting to get a policy adopted within the legal deadline and you guys knew about the meeting," some might say. "No big deal."

    But it is a big deal, particularly for this board. It makes many of its decisions in secret. All one has to do to see this is watch the video of the regular meetings.

    Just recently they met in closed session to discuss a "settlement" of a court case that had already been settled. They came out from secret session and one board member read a motion (which obviously had been prepared in secret) and they voted without discussion. That is a blatant abuse of the Open Meetings Law.

    The law has an important intent. It was the intent of the legislature when it wrote the law that public business will be conducted in public. They made some exceptions for things that can be discussed in closed session, but even then all the actual decisions are required to be made in open session.

    For example, the law permits a public body to meet in closed session with its attorney(s) to protect the "attorney-client communication privilege." But that does not mean that just because the attorney is present that the communication is privileged. Numerous courts have ruled that it depends on the nature of the communication, as determined on a case by case basis. There are very specific standards for determining what is privileged communication and what is not. It is for that very reason that law requires them to cite the case they are meeting in closed session to confer with the attorney about. And that closed session should be constrained to the privilege communication related to that case. And even if the discussion is about the case it still may not be privileged, depending on the impact it would have on the case (i.e., the exegesis of the need for a closed discussion. As a lawyer might say, "orbiter dicta is not permitted in secret")

    I was involved once with a board that went into closed session, as permitted by law, to deliberate and get advice from the attorney on the purchase of some land for a new school. While in the closed session we agreed to buy the land for a stipulated price and authorized the attorney and me to negotiate a deal. All well and good. Then a board member raised the question of what grades would be housed at the new school. From there the discussion went to attendance areas. I advised the board, because (the attorney had already departed), that they were out of bounds, and fortunately they ended the closed session and went back out into open session to discuss the issues not directly related to the purchase of the land.

    It should be noted that the board was later advised in an informal Attorney General opinion that it could have met in closed session, with or without the attorney present to discuss the purchase of the land but not pupil reassignment.

    Months later, an attorney who was suing the board over its student assignment plan put me on the witness stand and asked me under oath if the assignment plan had been discussed in closed session. And neither he nor the judge was interested in whether the attorney was present or not. The issue was whether anything other than the land purchase was discussed and decided upon.

    And by the way, once the land deal was closed the minutes of the closed session had to be made public just as if it had been a public session to begin with. That we had adhered to the Open Meetings Law saved that school system potentially thousands of dollars in legal fees.

    The problem with our School Board is that they look at the Open Meetings Law backward. They look at it as though it permits them to do things in secret if they can merely classify the topic as included the the exceptions of the Open Meetings law. The way they should look at it is that they are going to do their business openly except when it is 1. really and actually essential that it be done in secret and 2. for a legally permissible reason. And that is absolutely all that should be done behind closed doors.

    When they meet with their attorney they should ask "what makes what we are talking about privileged communication?" But our board looks at it as: "we're closing the meeting so we can talk to our attorney" in secret. How do we know that? About the only time they ever talk to an attorney they do so in secret. You have to know not everything those lawyers have billed for was privileged communication.

    The Open Meetings Law is important. The chief reason it is important is that it makes boards better at doing the public's business. And on that point our School Board needs to get much better.

    Let's hope they don't kick a kid out of school, or fire an employee for harassment and the lawyer finds out about Friday's meeting. Let's hope some contractor doesn't decide that they could have done the Aurora job for less if they had known the job was up for consideration. And let's hope some lawyer does not decide some day that they can make more money if the board gets sued than if they prevent a law suit.

    Delma Blinson writes the "Teacher's Desk" column for our friend in the local publishing business: The Beaufort Observer. His concentration is in the area of his expertise - the education of our youth. He is a former teacher, principal, superintendent and university professor.