Sunshine Law Needs Teeth | Eastern North Carolina Now

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

    In John 3:19 we read: "...people loved darkness instead of light because their deeds were evil."

    Thom Goolsby gets it. He gets it exactly right when he says:

    Do you know what happens in North Carolina if a government board, agency or commission refuses to obey the state's sunshine laws requiring open meetings and records? Absolutely nothing!

    In other words, your local school board, county commission, city council or airport authority can decide to have closed meetings by going into "executive session" just because they feel like it. Maybe they don't want the public or press around because the topic under consideration will make them look bad. But, there is nothing the public or press can effectively do about it. There's also nothing that any other state, local or federal official can do about it.

    There is an open meetings law on the books, but it has absolutely no teeth. In fact, the law doesn't even have any gums. You can file a lawsuit, but it will not allow you into a meeting that has already taken place or provide you with minutes of the meeting that were never taken.

    The same rule holds true with records. Say a government official or one of his underlings does not want you to have a document, email or invoice that would demonstrate mismanagement, fraud or incompetence. Guess what? They can fight you tooth and nail. Even after a protracted court battle, there is no real punishment (except for some possible legal fees) for them doing so.

    Does this sound like government run amok with no accountability to anyone? It should appear that way to any public-minded citizen. Let's be clear: North Carolina has open meeting and open record laws on the books. The problem is there is no way to enforce them because there is no punishment for any violation.

    Here's a real life example of how bad it can get: a local Alcohol Beverage Control board in Southeastern North Carolina decided that it did not want to address issues regarding the outrageously high salary it was paying its director. Guess what the board members did? They held a private, executive session where they may have discussed the matter. However, since the session was closed to the public (open meeting violation) and since they kept no minutes (open record violation), the public will never know what was done in its name, with its money, on its time.

    There is a way to stop this madness and it is a simple fix. A bill was introduced in the last session of the General Assembly to criminalize open meeting/open record law violations. Although the public likes the idea, government bureaucracies and politicians do not. Why? It's great to act with impunity, as long as you are in charge and not paying the bills. After all, it has worked well for czars, kings and potentates for centuries.

    Here's what the proposed law will do: if you violate the open meeting/open record law, you can be charged with a Class III misdemeanor. This is the lowest level crime on the books. However, it is still a crime punishable by up to 20 days in jail. The intent of the law is not to jail politicians and bureaucrats. It is meant to fire a shot across the bow of potential offenders. Upon its implementation, the law will change the default position on government meetings and records making them "open," rather than "closed." Only an extremely dim-witted bureaucrat or politician will refuse to give out a government record or close a meeting, unless they are told to do so by their lawyer.

    The result of this proposed law should be more open government, faster and greater access to records and less hanky-panky, self-dealing and corruption on the part of officials. Nonetheless, it will be up to the public and the press to demand accountability from their leaders. It was the French lawyer, diplomat and writer, Joseph de Maistre, who said, "People get the government they deserve." In North Carolina, we deserve better than the status quo.

    Thom Goolsby is a state senator, practicing attorney and law professor. He serves as a Chairman on the Judiciary 1 Committee in the NC Senate and introduced the change to the open record/open meeting law last session.

    Click here to go to the original source.

    Commentary

    We agree with Sen. Goolsby. When you attend dozens of government meetings every month you eventually begin to see a pattern. Some governing bodies make good decisions and they seem to be very conscientious about doing the public's business. But others, namely in Beaufort County the Economic Development Commission and the Beaufort County School Board, have operated for years in back rooms, making decisions out of sight of public view. It has given us deals like a sitting legislator selling his building to a "non-profit" arm of a governing body which used money that the legislator facilitated via the state grant-making process. It resulted in teachers and students being deprived of their constitutional rights, as found by the N. C. Supreme Court. It has resulted in the condemnation and seizure of private property without just compensation. But most of all, it has simply degraded the decision-making process of numerous governing bodies.

    Based on our experience, we will say without pause that the current open meetings and public records laws in North Carolina are totally ineffective, as Sen. Goolsby says, and this has been responsible for more bad government than anything we have seen in our job of keeping an eye on governing officials. It does indeed need to be changed.

    Sen. Goolsby is, more precisely, absolutely correct in identifying the ineffective enforcement mechanism as the heart of the problem. His proposed solution is worth a try. We're not sure it is the best solution, but it is a far cry better than what we have now. A tweak we would suggest is to add a provision that subsequent violations (after the first Class III misdemeanor) should carry increasingly strong penalties, even including being a felony and removal from office after three convictions.

    The heart of this idea is to hold governing officials individually liable for their actions. We would even go so far as to suggest that they be required to foot their own legal bill after the first offense. And we would suggest that the law provide that any citizen of the jurisdiction have standing to file charges against the violators but that the local District Attorney be required to prosecute the offense without benefit of a plea bargain other than resignation from office by the charged official(s).

    We commend Sen. Goolsby for his leadership on this issue. We strongly recommended that the other legislators get behind him and support it...regardless of what the Association of County Commissioners, League of Municipalities and the School Board Association say about it.

    It is time for action. Let's get-r-done.