Date: Thursday, February 24th, 11:59am
To: Brad Branham <bbranham@ashevillenc.gov>, Debra Campbell <dcampbell@ashevillenc.gov>, Asheville City Council <ashevillenccouncil@ashevillenc.gov>
Subject: Concerns regarding Asheville City Council check-ins under NC Open Meetings Law
Subject: Concerns regarding Asheville City Council check-ins under NC Open Meetings Law
Brad, Debra, and Members of City Council
I have previously expressed my concerns regarding the City Council check-in process via public comment (Slides | Full Text of Public Comment).
As an advocate for open government, I find the check-ins to be opaque, inefficient, and damaging to public trust. I strongly encourage City Council to adopt a more transparent process to prepare for Council meetings.
However, I am contacting you today to share additional concerns.
Upon review of NC Open Meetings Law (NCGS 143-318), I have come to the conclusion that your Council Check-Ins represent public meetings and should be conducted in accordance with Open Meeting Law.
I understand that Council check-ins bring together 3 members of Council, which is less than a majority of our 7 member Council.
However, what is also clear is that Council check-ins bring together a majority of members of several 3 member Council Committees.
Furthermore, the Council Committees, as “political subdivisions” of our Council, are clearly public bodies as described by NC Open Meetings law:
143-318.9. Public policy.
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. (1979, c. 655, s. 1.)
As described by the Council Check-In Agendas, it appears that a majority of Council Committees are “gathering together” for the purpose of “transacting the public business within the jurisdiction, real or apparent, of the public body:”
143-318.10. All official meetings of public bodies open to the public.
(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.
Can City Council or the City Attorney explain why our Council has been conducting check-ins without adhering to the notice, public attendance, official minutes, or other provisions of Open Meetings Law?
I strongly encourage City Council to immediately adopt a transparent, open process to conduct public business in accordance with the requirements of NC Open Meetings Law.
Patrick Conant
On Thu, Feb 24, 2022 at 12:08 PM Brad Branham <bbranham@ashevillenc.gov> wrote:
To: Patrick Conant <patrick@prcapps.com>, Debra Campbell <dcampbell@ashevillenc.gov>, Asheville City Council <ashevillenccouncil@ashevillenc.gov>
Patrick,
I'm happy to engage with you individually on such questions, but I am not going to further burden the email boxes of the City Council with a continuous back and forth on an issue which has already been addressed. Feel free to reach out to me personally if you would like to do so.
Sincerely,
--
Brad R. Branham
On Thu, Feb 24, 2022 at 12:18 PM Patrick Conant <patrick@prcapps.com> wrote:
To: Brad Branham <bbranham@ashevillenc.gov>, Debra Campbell <dcampbell@ashevillenc.gov>, Asheville City Council <ashevillenccouncil@ashevillenc.gov>
Brad,
Patrick,
I'm happy to engage with you individually on such questions, but I am not going to further burden the email boxes of the City Council with a continuous back and forth on an issue which has already been addressed. Feel free to reach out to me personally if you would like to do so.
Sincerely,
--
Brad R. Branham
On Thu, Feb 24, 2022 at 12:18 PM Patrick Conant <patrick@prcapps.com> wrote:
To: Brad Branham <bbranham@ashevillenc.gov>, Debra Campbell <dcampbell@ashevillenc.gov>, Asheville City Council <ashevillenccouncil@ashevillenc.gov>
Brad,
Respectfully, I have received no direct response from you or any member of Council regarding the concerns I have shared regarding the Council check-in process. Can you clarify to me how the issue has "already been addressed?"
As the decision to conduct check-ins is made by our Council members, I do feel it is critical that they hear my concerns on the matter, and I would certainly appreciate any response members of Council are able to offer.
I would certainly appreciate any clarification you can provide as the City Attorney, and you are welcome to remove Council Members from the list of recipients if you feel that would be appropriate.
Patrick Conant
In any particular check in where two members of a subcommittee of the Council are present, we simply do not discuss the business of the committee during that check in. We may, however, discuss that during the remaining check ins where a quorum is not present. This includes avoidance of any subject that MIGHT come before that committee. This has always been a requirement we are cognizant of, and pay close attention to it.
On Thu, Feb 24, 2022 at 12:52 PM Patrick Conant <patrick@prcapps.com> wrote:
To: Brad Branham <bbranham@ashevillenc.gov>
Brad,
On Thu, Feb 24, 2022 at 12:52 PM Patrick Conant <patrick@prcapps.com> wrote:
To: Brad Branham <bbranham@ashevillenc.gov>
Brad,
I appreciate your response. I understand the justification you are providing. However, I can not find any section of NC Open Meetings law that permits such a process to be employed to allow majorities of public bodies to meet without triggering a public meeting.
Furthermore, I am concerned this explanation is almost identical to the response you offered when I expressed concerns regarding the "team building" portion of last year's Council Retreat. In that instance, the structured nature of the meeting, including a formal agenda, was considered by the Court before they decided the "team building" portion of the retreat constituted a public meeting.
I have spoken to several experts on NC Open Meetings Law and discussed the exact process you described. Each person I have spoken with feels that these check-in meetings, with a majority of a Council Committee present, clearly constitutes a public meeting under the law. They were not persuaded by the process you described, where members can "avoid" discussing certain topics to circumvent the provisions of NC Open Meetings law.
I did learn that the NC Press Association plans to publish a column discussing these types of check-in processes next week - I will share the link with you.
Have you spoken with any outside experts who agree the process you have described is appropriate under NC Open Meetings Law?
To: Patrick Conant <patrick@prcapps.com>
Patrick,
I may have spoken with others over the years, but I can't recall doing so recently. I'm always happy to speak with other attorneys on the topic, and I would welcome their input. Presently, I believe the Check in process is in conformity with State law.