- North Carolina recognizes the importance of government transparency with its open meetings law
- Some local governments try to skirt the open meetings law, including by splitting their meetings into two nonmajority meetings
- The General Assembly should close an apparent loophole in the open meetings law and put a transparency constitutional amendment up for a vote of the people
As the John Locke Foundation’s report on legislative reform pointed out, government transparency is a public good. There are some exceptions, such as certain personnel records, but in general, citizens have a right to the information their government possesses.
Also, transparency helps citizens better understand why government officials make their decisions and hold them accountable for their actions. That makes democratic governance more meaningful. In short, “more transparent governments govern better.”
To that end, North Carolina has an open meetings law. Some local governments, however, are using a perceived loophole to circumvent that law. It must be closed.
Official meetings must be open, but what constitutes an official meeting?
Article 33C of North Carolina’s General Statutes sets the rules for meetings of public bodies in the state. It starts with a statement of the state’s policy favoring open meetings:
Whereas the public bodies that administer the legislative, policy‑making, quasi‑judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.
“Political subdivisions” include counties and municipalities.
The law later states that all official meetings of public bodies “shall be open to the public.” Nevertheless, how it defines “official meetings” leaves it up to interpretation which meetings of public bodies are subject to the open meetings law (General Statutes § 143‑318.10(d)):
“Official meeting” means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.
The law allows closed meetings under limited circumstances, such as consulting with an attorney or planning contract negotiations.
That leaves officials who wish to keep the public out of their meetings with three possible exceptions: closed meetings, meetings without a majority of members, and informal assemblies. Local governments have abused all three.
Local governments try to circumvent open meetings law
While journalists and citizens try to understand government actions, some governments exploit those supposed loopholes in the open meetings law to circumvent it. Local governments have declared meetings “informal gatherings,” restricted meeting recordings, and abused the allowance to hold closed sessions under limited circumstances.
The board of commissioners of the town of Huntersville, in northern Mecklenburg County, works around the open meetings law by conducting nonmajority agenda review meetings (also called “3-on-3” meetings) among the six commissioners. On the day of every board meeting, three commissioners meet in the morning, and three others meet in the afternoon to discuss the agenda for the official meeting later that evening. They have been holding 3-on-3s for over a decade.
The 3-on-3s are not a matter of a couple of commissioners talking about town business after bumping into each other in the hall. They are regular, planned, and organized gatherings in which all commissioners review the agenda for the official meeting later that day and make plans about that agenda. They amount to a “fragmented, asynchronous meeting of the full body.”
Huntersville resident Eric Rowell has been advocating for opening to the public the 3-on-3 sessions, saying they are held with a “clear intent to evade the spirit and purpose of the law.” The North Carolina Open Government Coalition awarded Rowell their 2021 Sunshine Award for his efforts to increase transparency in Huntersville.
Rowell told me that town officials claimed the 3-on-3 meetings were not subject to the open meetings law because a quorum of the commission was not in the room during either of the meetings. Also, the purpose of the meetings was not to conduct hearings, participate in deliberations, vote upon, or otherwise transact public business. The town has resisted repeated attempts by Rowell to make those meetings open to the public. They also told Rowell that experts at the UNC School of Government said that the 3-on-3 meetings were legal (but declined to say who those experts were). Finally, they said there were no “enumerating activities” at the meetings, meaning that commissioners were not doing anything in the meetings that would influence town policy.
I contacted Huntersville Mayor Christy Clark, Town Manager Anthony Roberts, Town Attorney Emily Sloop, and Staff Attorney Jacob Chambers with questions about the 3-on-3 meetings. Ms. Sloop replied that they are “informational in nature,” and she referred to GS § 143‑318.10(d) (quoted above) when asked more about the nature of the meetings and why they should be closed to the public. When asked if there is anything else the public should know about the 3-on-3’s, she simply wrote, “No.”
Other local governments, including Charlotte and Asheville, have also avoided (or evaded) the open meetings law by conducting nonmajority meetings.
The “nonmajority loophole” is not a loophole, but close it anyway
So, what is so magical about Huntersville conducting meetings with no more than three commissioners at a time? Why can’t a commissioner join the afternoon meeting if she misses the morning meeting? If no “enumerating activities” occur in the meetings, why don’t the commissioners all meet together for convenience?
The answer to those questions is that Huntersville’s 3-on-3 meetings are “fragmented, asynchronous meetings of the full body” designed to evade the spirit and purposes of the state open meetings law.
So, what should be done?
The supposed “nonmajority loophole” in such cases should not be considered a loophole at all but rather a clear violation of the law. As such, one strategy would be to wait for a lawsuit against Huntersville or one of the other local governments holding nonmajority meetings.
That path would be uncertain, however. Lawsuits are laborious and expensive undertakings. They are also dependent on the discretion of judges, who may be swayed by arguments from local government attorneys.
A surer, though perhaps ironic, path would be to add nonmajority meetings to the sentence in the open meetings law defining what is not an official meeting (addition underlined):
However, a social meeting or other informal assembly or gathering together of the members of a public body, or a meeting by less than a majority of a public body, does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.
That change would make it plain to local government attorneys and judges that nonmajority meetings held to circumvent the public meetings law (clearly the intent of Huntersville’s and other local government’s nonmajority meetings) are illegal.
The ultimate solution would be to pass the transparency amendment to the state constitution recommended in Locke’s report “Reforming North Carolina’s General Assembly.” That amendment would include a “clearly outweighing” standard that requires all meetings to be open to the public unless a compelling public interest (narrowly tailored) would be protected by a closed meeting. Those compelling public interests served by closed meetings are listed in state law. Nonmajority agenda review meetings, such as Huntersville’s 3-on-3s, are not on the list.
No one should consider nonmajority agenda meetings to be legitimate exceptions to North Carolina’s open meetings law. But since some local officials do, that loophole should be closed.
