- A unanimous North Carolina Court of Appeals panel has rejected a lawsuit claiming that Pinehurst elected officials broke the state's open-meetings law by conducting business via email.
- Former council member Kevin Drum and his group NC Citizens for Transparent Government filed the suit against Drum's former colleagues. Claims were based on actions taken from September to October in 2021.
- A media coalition filed court documents earlier this year supporting Drum's case.
The North Carolina Court of Appeals has rejected a lawsuit alleging that Pinehurst officials broke the state’s open-meetings law in 2021 by conducting business via email. Major state media outlets had filed paperwork earlier this year supporting plaintiffs in the case.
Former Pinehurst Village Council member Kevin Drum and his group NC Citizens for Transparent Government accused the council of using email to avoid open-meetings requirements. A trial judge dismissed Drum’s lawsuit in October 2023.
A unanimous three-judge Appeals Court panel affirmed the decision Tuesday.
The legal dispute stemmed from events that started on Sept. 20, 2021. During a closed session, three council members raised concerns about Drum and colleague Lydia Boesch. The discussion focused on “conversations with the Chief of Police, Moore County legislators, aggressive e-mails to business owners, and other behaviors that council members believed violated the Village Ethics Policy,” according to the Appeals Court opinion.
Between that meeting and another meeting on Oct. 12, 2021, other council members and top town staff exchanged emails about Drum’s and Boesch’s conduct. Additional emails followed between Oct. 12 and an Oct. 26 meeting. The emails included a “draft motion for censure.”
No censure vote ever happened. Drum lost his re-election bid and formed his citizens group in February 2022. Drum and the group filed suit against town officials in May 2022.
The suit sought “declaratory and injunctive relief for violations of the Open Meetings Law alleged to have occurred at the 20 September 2021 special called meeting and during the e-mail communications occurring between 20 September and 12 October 2021,” the Appeals Court opinion explained.
“At issue here is whether the e-mails in question were ‘simultaneous communication’ between a ‘majority’ of the council members,” Judge April Wood wrote for the court. “The question of whether e-mail exchange is a form of communication by which an official meeting can be conducted has not been directly answered by North Carolina courts.”
“In reviewing the legislature’s use of simultaneous communication in statute, e-mail is not considered a simultaneous communication subject to open meetings requirements but rather work product subject to public records requests,” Wood wrote.
“Many states requiring simultaneous communication have found e-mails generally do not meet the requirement of ‘simultaneity,’” Wood added, citing court decisions in Virginia, Pennsylvania, and California. “While the holdings of these jurisdictions are not binding on this Court, we find their reasoning to be both instructive and persuasive.”
Wood focused on the nature of the exchanges among the mayor, other council members, and the village manager and attorney.
“A council member who generates two e-mails containing seven sentences of less than ninety words over the course of five days is not engaging in ‘simultaneous communication,’ ‘conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business,’” Wood wrote. “When limited communication takes place hours or days apart, it does not constitute ‘simultaneous communication.’”
“[T]he vast majority of the communication occurred between Mayor Strickland, the Village Attorney and the Village Manager, only one of whom is a council member, and thus, it fails to meet the requirement that a majority of the council members must engage in the communication,” Wood added.
“Plaintiffs concede Plaintiff Drum was never formally censured. Further, the Council never voted on whether to censure Plaintiff Drum. Therefore, the council members did not deliberate, vote or otherwise complete business via e-mail as an ‘end-run’ around mandated public deliberation as Plaintiffs suggest. Rather, a few members of the Council, one of whom was also the mayor, consulted with the Village Attorney and the Village Manager to ensure they were prepared for the next open Village Council meeting,” Wood explained.
Chief Judge Chris Dillon and Judge John Tyson joined Wood’s opinion.
A media coalition filed paperwork in May supporting Drum’s case. The Reporters Committee for Freedom of the Press, North Carolina Press Association, Associated Press, Axios, Gannett, Gray Media, Hearst, McClatchy, WRAL, and WTVD all signed on to the coalition.
“This case concerns the newsgathering rights of journalists who attend and inform the public about meetings of public bodies in all levels of North Carolina’s government,” wrote Washington, DC-based lawyers representing the media outlets. “The issues in this case will have broad impacts on the news media, who often take part in public meetings so that they can provide the public with information about time-sensitive and important decisions that affect North Carolinian’s daily lives.”
The media outlets “have a significant interest in ensuring that the newsgathering rights of journalists are not violated,” according to the court filing. They ask the Appeals Court to determine “that emails can be ‘official meetings’ under the North Carolina Open Meetings Law.”
Such a decision would reverse a trial judge who ruled in Pinehurst’s favor. “[V]ital, time-sensitive journalism would be hampered — and sometimes impossible — if the Superior Court’s decision is adopted,” the media outlets argued.
The media groups filed their court document one week after Drum and his transparency group filed a brief in the case.
“The Open Meetings Law makes clear that the public’s business is only conducted in public if three requirements are met: notice, access, and minutes,” wrote Amanda Martin, the plaintiffs’ lawyer. “Further, when a public body considers the behavior of one of its own members, it must do so in public.”
“Yet, a majority of the members of the Village Council of the Village of Pinehurst repeatedly violated both the letter and the spirit of the Open Meetings Law (‘OML’) through a series of email deliberations that discussed whether to censure two other members,” the brief continued. “Those three Councilmembers (‘the Majority’) then instructed the Village Attorney to prepare resolutions to that effect.”
“The same Majority of Councilmembers prepared and finalized a public statement for the Mayor to make about the censures,” Martin wrote. “The deliberation and final resolution were concluded out of the public eye and then sprung upon the public in an October 2021 council meeting. The secrecy of these deliberations was antithetical to the spirit and letter of the OML, which requires government decisions to be made in the open.”
A unanimous state Appeals Court panel ruled in August 2023 that the lawsuit could proceed. The panel reversed a trial court’s decision to dismiss the suit.
Drum and his group filed suit in May 2022 against Pinehurst, Mayor John Strickland, and Council Member Jane Hogeman.
Drum raised concerns about a series of events from September through October in 2021. The first involved a Sept, 20, 2021, closed session “to discuss issues pertaining to a strained relationship between a councilmember and citizens.”
The lawsuit also pointed to an October 2021 email exchange involving a majority of the Pinehurst council. Strickland, Hogeman, and Pinehurst’s manager and attorney “began participating in an email thread to consider possible censures against Plaintiff Drum and another Village Council member,” according to the Appeals Court opinion. “The emails discussed complaints received from local business owners about Plaintiff Drum’s negative treatment of them and continued through the Village Council meeting on 12 October 2021.”
Drum alleged that the email exchange led on Oct. 12, 2021, to an announcement from Strickland and the village attorney “that there had been consensus by the majority of the Village Council to investigate whether Plaintiff Drum and another councilmember had violated the Village Council’s Code of Ethics.” Hogeman read a censure motion “that had been discussed and formed in the email thread.”
More emails through Oct. 26, 2021, focused on Drum’s alleged ethics violations and involved the Pinehurst council’s majority, according to the Appeals Court opinion. Strickland read a prepared statement during an Oct. 26, 2021, council meeting “regarding Plaintiff Drum’s potential ethics violations.”
As early as Oct. 13, 2021, Drum and another council member discussed the possibility that the email thread violated North Carolina’s Open Meetings Law.
When Drum and his government transparency group filed suit more than six months later, they sought declarations from a trial judge that the September and October meetings and the email thread violated state open-meetings requirements.
The suit sought a court order “declaring that it is a violation of the Open Meetings Law for a majority of the members of the Village of Pinehurst Council to attend to, discuss and transact public business without the notice, public access and minutes required by the Open Meetings Law.” Drum also sought an order “permanently enjoining the defendants and anyone acting in concert with them from conducting meetings violations of the Open Meetings Law, including through email.”
Drum also asked for attorney’s fees but did not ask the court to declare any action of the Pinehurst council taken on Sept. 20, Oct. 12, or Oct. 26 to be void.
Judge James Webb ruled in favor of Pinehurst in September 2022. Webb determined that a 45-day statute of limitations barred Drum’s lawsuit.
Appellate judges disagreed. The 45-day limit would have applied only if Drum had asked the court to throw out decisions the Pinehurst council had made after violating open-meetings requirements.
“As Plaintiffs did not seek an order rendering actions by the Village Council null and void pursuant to N.C.G.S. § 143-318.16A, and because the plain meaning of N.C.G.S. § 143-318.16A provides that, of the three forms of relief the trial court has discretion to grant for violations of the Open Meetings Law, nullification is the only form which is limited by 45-day period contained in the statute, Plaintiffs’ claims that allege violations of the Open Meetings Law in relation to the 20 September 2021 Special Meeting, the 8 October 2021 through 12 October 2021 email thread meetings, the 12 October 2021 Village Council meeting, the 12 October 2021 through 26 October 2021 email thread meetings, and the 26 October 2021 [meeting] are remanded to the trial court for further proceedings,” wrote Judge Hunter Murphy.
Tyson and Judge John Arrowood joined Murphy’s unpublished 2023 opinion.