An ever present challenge for local governments and other public bodies is how to balance their roles as open governmental entities and the need to address sensitive issues -- such as negotiation of crucial contracts or heated disputes -- which can be jeopardized or spoiled completely by too much public scrutiny.  The North Carolina Court of Appeals confirmed, in a recent opinion, that while municipalities and counties are subject to a general rule of open government by virtue of North Carolina’s Open Meetings Law, there are exceptional situations which warrant negotiations and deliberations behind closed doors, including mediated settlement conferences.  At issue in Gannett Pacific Corp. v. City of Asheville, were settlement negotiations between the City of Asheville and Buncombe County relating to termination of a Regional Water Authority Agreement between them.  The Agreement concerned the future supply of water and other services within the City and the County. 

In an effort to resolve their dispute regarding the Agreement, the City and the County arranged a highly structured meeting at an area hotel for a mediated settlement conference.  The City announced the meeting beforehand, giving notice that it would be going into closed session for a substantial portion of the meeting to consult with an attorney regarding possible litigation and to give instructions to the attorney regarding the handling of the mediation.

A majority of the members of the City Council and all of the members of the County Board of Commissioners met in separate rooms.  Each governmental body voted to close its session to consult with its attorneys about the upcoming mediation.  The mediation proceeded throughout the day, with the City and the County each sending one representative along with one or more of its attorneys, to meet in mediation with a mediator from the Institutes of Government at UNC-Chapel Hill both had earlier approved.  The mediation was closed to the public. 

While the two representatives and the attorneys met in mediation, the City Council and County Board of Commissioners either stood in recess or discussed no official business.  The two representatives and attorneys reported back to their respective bodies, and each body caucused separately in a closed meeting to discuss the handling of the mediation.  Following such meetings, the two representatives and attorneys returned to the mediation. 

A local newspaper and television station demanded that the City and County cease the closed meetings and mediation on the grounds that they were in violation of the Open Meetings Law.  The City and County refused to end the closed meetings or mediation. 

The newspaper and television station sued, seeking declaratory judgment and injunctive relief.  The trial court denied their request for a temporary restraining order and preliminary injunction, concluding that the City and County did not violate the Open Meetings Law.  The North Carolina Court of Appeals agreed, concluding that the closed mediation was not an official meeting required to be open to the public because by definition, a majority of the governmental body’s members must be present for an official meeting, and a majority of the members of the City Council and County Commissioners were not present for the mediation.   Rather, at any given time, only one member representing the City Council and the Board of Commissioners attended the mediation.  The Court also indicated that the separate caucus meetings of the City Council and County Commissioners were properly closed to the public pursuant to the attorney-client exception.  The Open Meetings Law specifically provides that a public body may meet in closed session to consult with legal counsel regarding the handling or settlement of various types of matters, including mediation. 

The Court of Appeals rejected the media’s contention that the mediation constituted an unlawful attempt by the City Council and County Commissioners to evade the spirit and purpose of the Open Meetings Law.  The Court reasoned that:  (1) any terms negotiated during the mediation could be accepted only by a majority vote of the members of the City Council and County Commissioners in open meetings; (2) the presence of a majority of the members of a public body is an absolute prerequisite for an official meeting that must be open to the public; and (3) the mediation was not held to evade the spirit or purposes of the Open Meetings Law.

In sum, the Court of Appeals acknowledged strong support for openness in government, public participation and the free exchange of ideas, but stressed that in certain situations, such as the mediation between the City and County, “the right to public access must yield in order to protect other important societal interest.”  Those other important societal interests are reflected in the exceptions contained in the Open Meetings Law which set forth the situations that warrant closed meetings of public bodies.  The Gannett Pacific case provides helpful guidance for local governments and other public bodies regarding options for negotiating sensitive issues without running afoul of the Open Meetings Law. 

To avoid protracted litigation or other disputes with media organizations or members of the general public who might challenge closed meetings involving subjects of interest to them, municipalities, counties and other public bodies should consult with their legal counsel regarding whether contemplated closed meetings are permitted under the Open Meetings Law and how best to structure such meetings procedurally.  

If you have questions regarding the issues raised in the Gannett Pacific case or other similar issues, please contact Pam Scott at 919.783.2954 or pscott@poynerspruill.com or Robin Tatum Currin at 919.783.2931 or rcurrin@poynerspruill.com.