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Sylva officials apparently violate Open Meetings Law
By Stephanie Salmons and Lynn Hotaling
According to an N.C. Press Association attorney, Sylva officials apparently violated North Carolina’s Open Meetings Law on two occasions this month.
In both cases, meetings that were announced as committee meetings included participation by all five town board members even though the sessions were not advertised as special town board meetings.
In the opinion of N.C. Press Association attorney Mike Tadych, the meetings were illegal because all board members participated even though the sessions were not announced as town board meetings.
“The bedrock concern is the ‘bait and switch,’ ” Tadych said Tuesday. “They were advertised as committee meetings yet everyone was there. The whole idea of the Open Meetings Law is not to have spontaneous meetings of public bodies.”
Sylva’s committees include two town board members; a majority of a board must be present and conducting town business for there to be a violation of the law.
According to Tadych, there would be no problem with a mayor determining that a given issue merited the whole board’s attention and changing the session to a special meeting. All that would have been necessary would be to send out a new notice and wait 48 hours, he said.
“Even if the purpose of the (improper) meeting is true, it doesn’t absolve officials of the need to follow the law,” Tadych said.
Sylva town attorney Eric Ridenour, who was not present for either apparently illegal session, declined to comment on the matter.
Jay Denton, who was fired as town manager Sept. 4 – the day after admitting a mistake during what was advertised as a Finance Committee meeting but included all five board members – said Tuesday that while he didn’t go over open meeting rules during a board meeting, he had discussed the provisions of the law with individual board members.
“My job was to make sure they abided by the law to the best of my ability,” he said.
The first suspect meeting was that Sept. 3 meeting when all five town board members were present for and participated in what was advertised as a Finance Committee meeting. Committee members Sarah Graham and Stacy Knotts were joined at the table by their three fellow town board members – Ray Lewis, Harold Hensley and Maurice Moody – and the session’s start was delayed while the others waited for Moody to arrive.
Mayor Brenda Oliver said the meeting was properly announced as a committee meeting and that it did not constitute a special board meeting. She said she had called the other board members who were not on the committee to remind them about the meeting.
However, according to state statutes, if all five board members are present and discussing town business, it becomes a town board meeting and must be advertised as such.
Board members Hensley and Lewis said that the mayor had called them and suggested they attend.
The second instance occurred this week, during a Tuesday (Sept. 9) meeting that was announced as a Personnel Committee meeting with employees of the town’s public works department.
However, four town board members were initially present. When The Herald asked Oliver why it wasn’t advertised as a town board meeting, Oliver said it wasn’t a board meeting because no action would be taken.
“We are sitting as a board to get information. It is an information-gathering session,” Oliver said.
After Committee Chairman Graham called the meeting to order, she announced that the assembled group – committee members, other town board members and town maintenance personnel – would go into closed session to discuss personnel.
Though Graham cited the proper statute, the decision to enter into a closed session is properly done by a motion and a vote. However no motion was made or vote taken on Tuesday.
In a telephone interview that afternoon, Graham said a motion wasn’t made because action isn’t taken during committee meetings.
She also elaborated on the closed-session discussion.
“We have a set of questions we developed several months ago so that we could periodically on an annual or semi-annual basis meet with different departments just to check in,” she said.
Some questions included on the survey are “do you feel you have the tools to do your job to the best of your ability?” “From your perspective how does information flow?” “Describe the annual employee review process,” “Describe morale in your unit,” and “What are general issues in your unit that the board should address?”
“When we developed these questions, we decided to go into closed session for employees to feel more comfortable talking,” Graham said. “They probably would generally not want to speak in front of the press about their jobs.”
Graham also said that she wanted to “make it clear” that these are “really positive meetings where we achieve a lot of communication with town employees and learn quite a bit about their jobs.”
Such closed-session talks constitute a violation of the Open Meetings Law, Tadych said.
Those types of discussion are not allowed under the closed-session personnel exemption, which stipulates that a board can only hear or investigate a grievance or complaint against a particular employee, he said.
“General personnel policy issues may not be considered in a closed session,” the statute states.
When asked why the two recent committee meetings weren’t special meetings when the whole board was present, Graham said that all board members didn’t have to attend.
“I take it a good sign that the entire board is interested even if it’s not a committee that they sit on,” she said. “We’ve taken an active interest in participating in the workings of the town, and every meeting of this nature that has taken place over the past nine months or so has been really positive for everyone involved.”
A guide authored by David Lawrence of the Institute of Government at the University of North Carolina at Chapel Hill also indicates that town officials violated the Open Meetings Law.
The 2008 version of the booklet “Open Meetings and Local Governments in North Carolina,” uses a question-and-answer format to discuss the state’s Open Meetings Law.
“What is an open meeting?” one question asks.
“An official meeting occurs whenever a majority of the members of a group meet – in person or by some electronic means, such as a conference telephone call – in order to do any of the following: conduct a hearing, deliberate, take action or otherwise transact public business,” Lawrence writes.
Lawrence also uses an example of a seven-member board of commissioners that has a finance committee of three members. The question is asked if the finance committee meets with proper notice and one or more of the other commissioners attend, does that mean the committee meeting becomes a meeting of the board of commissioners?
“Not necessarily,” Lawrence writes. “The commissioners who are not members of the finance committee have the same right as any other citizens to attend the finance committee meeting. As long as they sit in the audience along with other citizens and do not attempt to join with the members of the finance committee, the gathering would remain a meeting of the finance committee.”
This was not the case at either Sylva meeting discussed here. All board members sat together at one table and participated in the discussion during both meetings.
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