Both Sides Declare Victory In Ruling On Open Meetings | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

    RALEIGH     A Superior Court judge ordered the Alamance-Burlington Board of Education to release previously undisclosed information about the circumstances surrounding the departure of a school superintendent in what media lawyer John Bussian said was "a big deal" for the public's right to know.

    Even so, former school board president Tony Rose disagrees with Bussian's interpretation of Superior Court Judge Michael O'Foghludha's ruling. The case surrounds a conflict between public records laws requiring disclosure of some information from closed meetings of government bodies and the confidentiality of government employees' personnel records.

    "There is nothing in this case that they have won," Rose said. He likened the newspaper's claims of victory to former Iraqi dictator Saddam Hussein's information minister. Known as "Baghdad Bob," he claimed Iraq was winning the war against the U.S. "while buildings were blowing up around him."

    Rose said at issue in the case was whether employee information remains perpetually confidential after an employee leaves, and whether the school board acted lawfully.

    "The judges have agreed with our stance all along that this is confidential," Rose said. "I can't comprehend why the newspaper is reporting this as a victory on their side."

    Citing the state's open records laws, the Burlington Times-News sued the school board to force the release of closed meeting minutes involving discussions about former school superintendent Lillie Cox. Cox resigned her position under what the newspaper believed were unusual circumstances.

    O'Foghludha reviewed in private more than 40 pages of minutes taken in school board closed sessions. He ruled the bulk of them would remain secret because they involved confidential personnel details exempt from disclosure.

    But Dec. 7, O'Foghludha directed the school board to disclose a very narrow section of the minutes regarding policy issues related to Cox's May 2014 resignation and more than $200,000 in severance.

    "I give him high marks" in rendering a decision in favor of the public's right to know, Bussian said. "The moments for the press in these battles against the government are so rare."

    "The board is very pleased with the court's ruling, and has decided not to appeal the court's decision to order the release of one single paragraph," said Adam Mitchell, a lawyer for Tharrington Smith, the Raleigh law firm that represented the school board.

    "After carefully reviewing 45 single-spaced pages of minutes, Judge O'Foghuldha stated in court yesterday that 99 percent of the minutes were properly redacted in compliance with the law. From the outset, the board's only interest in this case has been to follow the law," Mitchell said.

    Before O'Foghuldha got the case, Superior Court Judge Lucy Inman dismissed the newspaper's lawsuit without holding a hearing or reviewing minutes of the school board's closed session to determine if they contained information subject to public viewing.

    Bussian, representing the Times-News, went to the Court of Appeals, which refused to take the case. He appealed to the state Supreme Court, which assigned emergency status to the suit under the state's open records laws, and ordered the Court of Appeals to expedite its handling of the case.

    A three-judge panel of the Appeals Court heard heard the case in April, and ordered the trial court to review the minutes and determine if the board sealed any information that should have been disclosed.

    Bussian said O'Foghludha "pored over them against all the phony arguments the school board was making - 'They're personnel records, they're protected by attorney-client privilege,' everything eight ways to Sunday - so that nobody got to see anything about the three meetings where they decide in closed session to terminate the superintendent ... and then paid her 200-grand-plus to leave."

    He said the judge ordered only a single paragraph to be disclosed because it sums up "the policy considerations of why the superintendent is fired."

    "The fact that a trial judge under order from a unanimous Court of Appeals ordered the school board to open up a paragraph ... pretty much tells the whole story, from what the judge was suggesting at the bench today, is a huge victory for public access," Bussian said.

    The case demonstrates "how woefully inadequate the current North Carolina public records law is when it comes to personnel records ... and how little we're allowed to see here," Bussian said.

    Rose downplayed the significance of the paragraph, but said the board could not release it until the judge signs an order.

    He said the paragraph at issue involves a legal discussion the board had after board member Steve Van Pelt said he would not attend a closed meeting because he believed it was being held improperly. Rose said Van Pelt misinterpreted school board policy and Robert's Rules of Order in how to vote on a superintendent's termination.

    Cox's departure "was never a termination," but a resignation, Rose said. "We never fired her," and complied with the law.

    Cox was subject to a performance review in August 2013, "almost 10 months before this event went down," and the contract extension decision was not unanimous, he said. Cox was given "a one-year procedural extension."

    The paragraph O'Foghludha ordered released involves the board asking its attorney for legal guidance, and the attorney explaining why Van Pelt was incorrect, Rose said. He believes that falls under attorney-client privilege, but the board is not fighting its release.

    "The Times-News wanted particular information, and the court said, 'You can't have it,' and that's where the story ends," Rose said. "As a conservative taxpayer, I understand the groundswell of people who want to know. I get it. ... I probably would be saying the same thing" in their situation.

    But the school board is "obligated to protect" confidential information, Rose said. "We just do not have the ability to release this type of information to the public. In fact it would be illegal for us to do," and could open the school district to a lawsuit.
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