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The Hospital Board is acting illegally and it should stop doing so to keep public support
Publisher's Note: Delma Blinson has contibuted another inciteful article about Beaufort County's second largests employer, which is most important to the county and the region - The Beaufort County Medical Center. The Open Meetings law is the most important statute that gives promise to the public that corruption in government will be limited. The county commissioners, and moreover, the school board expect Delma to raise pointed objections should they veer from their respective government body's continual objective of basking in the anticeptic nature of sunshine. Now Delma is in the hot pursuit of the Hospital Board. This is very necessary to keep the public's interest in the forefront of all decisions made by elected officials, and their appointed board members.
We have reported on the Hospital board's July 6 meeting at which the public was barred from entering the room while six of the nine board members were present, presumably meeting behind closed doors. The link above reports more of the details but this article focuses on the violation of the Open Meetings Law.
N.C.G.S. §143-318.10 provides that a "public meeting" occurs when a majority of a public body assembles to discuss the business of that public body. It does not require that a formal meeting be called or that official action take place. In plain language a group of board members cannot assemble and discuss business if a majority of the board members is present unless the assemblage is open to the public. The case law behind this statute holds that there are two exceptions to a group of board members assembling that does not constitute an "open meeting." The first is that less than a majority is actually present. The second is a purely social event in which no business of the organization is discussed.
There were six of nine members of the Hospital board present on July 6 and at least five of them met behind closed doors for 24 minutes before the public was invited in. A person on the hospital staff advised us that the Security staff was ordered by Board Chair Sandy Hardy to keep the public in the lobby.
As you can hear in the video of the meeting at the link above, the five board members who met for nearly half hour in private said they did not know the press was waiting in the lobby. We don't buy that. They either knew or should have known. They most surely did know the press and public was not in the room and it should have dawned on someone to ask why.
But this is not the first or only such violation of the Open Meetings law by this Board. In fact, the Hospital Board has violated the law every time it has met recently. It does so by assembling to eat before the meeting. The public is kept out of the room until the board is ready to convene the formal meeting. This is a violation of the Open Meetings law simply because a majority of the members is present. It is also a violation because non-board members (staff) are allowed in the room. The courts have interpreted Chapter 143 to mean that a board may not meet in closed session if non-board members are allowed to be present (unless those non-members are meeting with the board for a permitted purpose.) The law specifically provides for the executive staff of a board (usually the CEO and secretary/clerk) to be present in both open and closed sessions. In short, a public body cannot get together in an informal gathering (e.g. to eat) without allowing the public to observe what is going on.
Moreover, if a public body has a legitimate reason to meet in closed session, N.C.G.S. §143-318.11(c) requires that they first meet in a duly called open session and vote to go into closed session, stating in the motion a permitted reason to exclude the public.
The Hospital Board has also gone into closed session illegally of several occasions in recent months. For example, at the June 29 meeting it voted to go into closed session to consult with its attorney. Twice to "confer with their attorney" and one for "personnel." The media present (except the WDN) formally objected to two of the three closed sessions. We did so because the motion to close the meeting did not properly state the nature of the confidential information in the invoked "attorney-client" privilege that warranted closing the meeting. We did not contest the session on personnel.
The N. C. Court of Appeals held in the case of Multimedia v. Henderson County that closing a meeting to consult with their attorney is to be strictly construed and held:
The "legislature has explicitly forbidden general policy matters from being discussed during closed sessions," the court wrote, and quoting an Arizona case, said: "'public bodies cannot simply delegate responsibilities to attorneys and then cloak negotiations and closed sessions in secrecy by having attorneys present. Thus, discussions regarding the drafting, phrasing, scope, and meaning of proposed enactments would be permissible during a closed session. Discussions regarding their constitutionality and possible legal challenges would likewise be so included. But as soon as discussions move beyond legal technicalities and into the propriety and merits of proposed enactments, the legal justification for closing the session ends."
Most importantly, the court addresses burden of proof. Recognizing that "requiring a plaintiff to plead and prove specific facts regarding alleged violations that are taking place in secret is a circular impossibility," the court placed the burden on the public body to establish the validity of the closure. The court wrote that 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. After all, 'the incantation of an attorney-client rationale is not an abracadabra to which this Court must defer judgment. The public body must come forward with "objective indicia" that the exception is justified, not merely rely on assertions by the public body or its lawyers. Moreover, in an earlier meeting the Board again voted to go into closed session to discuss "selling real estate." When challenged, it was admitted that they did not actually discuss real estate, but other general policy matters.
Clearly, what we have is a public body violating the law and doing so time after time.
But what we find most egregious is Chairman Hardy's handling of the media's protest of the closed session on June 29. The protest which was filed immediately after the vote to close the meeting and before the actual closed session asked that the media be given a hearing on the issue. Mr. Hardy dismissed that request out of hand, even to the point of refusing to allow the media spokesperson to speak. Faced with a timely protest the chair is duty bound to afford a hearing on the issue of whether the board has sufficient grounds to close the meeting. Thus, the chairman's decision would appear to constitute clear and obvious arbitrary and capricious action on the chair's part. The courts have held that when faced with a protest of closing a meeting the full board is required to consider evidence or "pleading" on both sides (to close or not to close) and then, with competent legal advice to decide whether to proceed with a closed session. All of that is to be part of the record, which allows a court to review the appropriateness of closing any meeting.
And for those who are interested, the fact that these meetings were apparent violations of the Open Meetings Law nullifies the action taken.
Commentary
Chairman Hardy is an attorney. He should know better than to conduct the Hospital Board meetings as he has been doing. Much of what is presented above is technical legalese. But the reason that law exists is precisely for cases such as this. The fundamental principle of law is that the Legislature has adopted a policy that the public's business should be conducted in public for the public to see not only what the final decision (vote) is, but to see how the public body arrived at that conclusion. Meeting behind closed doors to "iron out" their action, then coming out into open session and putting on a display is not consistent with the intent of the law.
It is also bad public relations. The Hospital is an important institution in this community and the public has a supreme interest in how the Hospital is run. The public in fact owns the Hospital. The public constitutes the Hospital's "customers." But even beyond that, it is in the Hospital's best interest that it have strong public support. The Hospital needs to have the public's confidence. And confidence that things are being done correctly, whether they be medical or legal, means that the public needs to know what is going on.
The issues that confront Beaufort Regional Health Systems, including the Hospital, are complex and to a great extent esoteric in nature, both legally and medically. But that is no excuse to exclude the public from having as full a degree of knowledge as they wish to have. It is the duty of the medical community to articulate, in understandable terms, what the community needs and wants to know about the medical issues involved in the delivery of health care in a health system. And it is the duty of the board, attorney and staff to adequately inform the public on the management issues. It is not appropriate, and is really playing with fire, for a chairman or a board to treat the public as though it is an inconvenience or something to be manipulated. Both the press and the public may often be ignorant, but we are not stupid. It is the Hospital's responsibility to educate the press and the public.
The solution is simple. Just let the public see what you are doing and to know what information you have in making your decisions. It is really just that simple.
The issues our Hospital faces are exceedingly important to this community. We need everyone's focus to be on making the best decisions that can possibly be made in the best interest of all of the stakeholders and that most definitely includes the public. It is shameful to divert that focus and energy onto such things as how to call a board meeting.
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.
Go Back
We have reported on the Hospital board's July 6 meeting at which the public was barred from entering the room while six of the nine board members were present, presumably meeting behind closed doors. The link above reports more of the details but this article focuses on the violation of the Open Meetings Law.
N.C.G.S. §143-318.10 provides that a "public meeting" occurs when a majority of a public body assembles to discuss the business of that public body. It does not require that a formal meeting be called or that official action take place. In plain language a group of board members cannot assemble and discuss business if a majority of the board members is present unless the assemblage is open to the public. The case law behind this statute holds that there are two exceptions to a group of board members assembling that does not constitute an "open meeting." The first is that less than a majority is actually present. The second is a purely social event in which no business of the organization is discussed.
There were six of nine members of the Hospital board present on July 6 and at least five of them met behind closed doors for 24 minutes before the public was invited in. A person on the hospital staff advised us that the Security staff was ordered by Board Chair Sandy Hardy to keep the public in the lobby.
As you can hear in the video of the meeting at the link above, the five board members who met for nearly half hour in private said they did not know the press was waiting in the lobby. We don't buy that. They either knew or should have known. They most surely did know the press and public was not in the room and it should have dawned on someone to ask why.
But this is not the first or only such violation of the Open Meetings law by this Board. In fact, the Hospital Board has violated the law every time it has met recently. It does so by assembling to eat before the meeting. The public is kept out of the room until the board is ready to convene the formal meeting. This is a violation of the Open Meetings law simply because a majority of the members is present. It is also a violation because non-board members (staff) are allowed in the room. The courts have interpreted Chapter 143 to mean that a board may not meet in closed session if non-board members are allowed to be present (unless those non-members are meeting with the board for a permitted purpose.) The law specifically provides for the executive staff of a board (usually the CEO and secretary/clerk) to be present in both open and closed sessions. In short, a public body cannot get together in an informal gathering (e.g. to eat) without allowing the public to observe what is going on.
Moreover, if a public body has a legitimate reason to meet in closed session, N.C.G.S. §143-318.11(c) requires that they first meet in a duly called open session and vote to go into closed session, stating in the motion a permitted reason to exclude the public.
The Hospital Board has also gone into closed session illegally of several occasions in recent months. For example, at the June 29 meeting it voted to go into closed session to consult with its attorney. Twice to "confer with their attorney" and one for "personnel." The media present (except the WDN) formally objected to two of the three closed sessions. We did so because the motion to close the meeting did not properly state the nature of the confidential information in the invoked "attorney-client" privilege that warranted closing the meeting. We did not contest the session on personnel.
The N. C. Court of Appeals held in the case of Multimedia v. Henderson County that closing a meeting to consult with their attorney is to be strictly construed and held:
The "legislature has explicitly forbidden general policy matters from being discussed during closed sessions," the court wrote, and quoting an Arizona case, said: "'public bodies cannot simply delegate responsibilities to attorneys and then cloak negotiations and closed sessions in secrecy by having attorneys present. Thus, discussions regarding the drafting, phrasing, scope, and meaning of proposed enactments would be permissible during a closed session. Discussions regarding their constitutionality and possible legal challenges would likewise be so included. But as soon as discussions move beyond legal technicalities and into the propriety and merits of proposed enactments, the legal justification for closing the session ends."
Most importantly, the court addresses burden of proof. Recognizing that "requiring a plaintiff to plead and prove specific facts regarding alleged violations that are taking place in secret is a circular impossibility," the court placed the burden on the public body to establish the validity of the closure. The court wrote that 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. After all, 'the incantation of an attorney-client rationale is not an abracadabra to which this Court must defer judgment. The public body must come forward with "objective indicia" that the exception is justified, not merely rely on assertions by the public body or its lawyers. Moreover, in an earlier meeting the Board again voted to go into closed session to discuss "selling real estate." When challenged, it was admitted that they did not actually discuss real estate, but other general policy matters.
Clearly, what we have is a public body violating the law and doing so time after time.
But what we find most egregious is Chairman Hardy's handling of the media's protest of the closed session on June 29. The protest which was filed immediately after the vote to close the meeting and before the actual closed session asked that the media be given a hearing on the issue. Mr. Hardy dismissed that request out of hand, even to the point of refusing to allow the media spokesperson to speak. Faced with a timely protest the chair is duty bound to afford a hearing on the issue of whether the board has sufficient grounds to close the meeting. Thus, the chairman's decision would appear to constitute clear and obvious arbitrary and capricious action on the chair's part. The courts have held that when faced with a protest of closing a meeting the full board is required to consider evidence or "pleading" on both sides (to close or not to close) and then, with competent legal advice to decide whether to proceed with a closed session. All of that is to be part of the record, which allows a court to review the appropriateness of closing any meeting.
And for those who are interested, the fact that these meetings were apparent violations of the Open Meetings Law nullifies the action taken.
Commentary
Chairman Hardy is an attorney. He should know better than to conduct the Hospital Board meetings as he has been doing. Much of what is presented above is technical legalese. But the reason that law exists is precisely for cases such as this. The fundamental principle of law is that the Legislature has adopted a policy that the public's business should be conducted in public for the public to see not only what the final decision (vote) is, but to see how the public body arrived at that conclusion. Meeting behind closed doors to "iron out" their action, then coming out into open session and putting on a display is not consistent with the intent of the law.
It is also bad public relations. The Hospital is an important institution in this community and the public has a supreme interest in how the Hospital is run. The public in fact owns the Hospital. The public constitutes the Hospital's "customers." But even beyond that, it is in the Hospital's best interest that it have strong public support. The Hospital needs to have the public's confidence. And confidence that things are being done correctly, whether they be medical or legal, means that the public needs to know what is going on.
The issues that confront Beaufort Regional Health Systems, including the Hospital, are complex and to a great extent esoteric in nature, both legally and medically. But that is no excuse to exclude the public from having as full a degree of knowledge as they wish to have. It is the duty of the medical community to articulate, in understandable terms, what the community needs and wants to know about the medical issues involved in the delivery of health care in a health system. And it is the duty of the board, attorney and staff to adequately inform the public on the management issues. It is not appropriate, and is really playing with fire, for a chairman or a board to treat the public as though it is an inconvenience or something to be manipulated. Both the press and the public may often be ignorant, but we are not stupid. It is the Hospital's responsibility to educate the press and the public.
The solution is simple. Just let the public see what you are doing and to know what information you have in making your decisions. It is really just that simple.
The issues our Hospital faces are exceedingly important to this community. We need everyone's focus to be on making the best decisions that can possibly be made in the best interest of all of the stakeholders and that most definitely includes the public. It is shameful to divert that focus and energy onto such things as how to call a board meeting.
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.
| Beaufort County Government's General Meeting Agenda: Monday, July 12, 2010. | Regional Health System, Governing Beaufort County | County Commissioners hear a report on the Hospital |
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