The N.C. Court of Appeals has ruled that mediation sessions are not official meetings covered by the state’s Open Meetings Law. The ruling comes in a case determining how the water supply system in Buncombe County should be operated.

Water and sewer policy has been a controversial issue between the city of Asheville and Buncombe County in recent years. In an attempt to reach an amicable agreement on ending a regional water authority arrangement, the two sides obtained the help of a mediator, Professor John Stephens of the Institute of Government at UNC-Chapel Hill.

On April 26, 2005 the Asheville City Council and the Buncombe County commissioners met separately in different rooms in closed session at the Asheville Renaissance Hotel. Each side sent a representative plus one or more lawyers to the mediation session with Stephens. Board meetings and mediation lasted from about 8 a.m. to about midnight.

Unsurprisingly, the press was interested in the proceedings. Just after noon, the Asheville Citizen-Times Publishing Company and WLOS-TV presented a note demanding access under the state’s Open Meetings Law to the mediation sessions as well as the city council and county commission meetings. The request was refused.

The media outlets sued, asking for an injunction to prevent a repeat occurrence.

In its ruling Aug. 1, a three-judge panel of the court unanimously rejected the claim of an Open Meetings Law violation.

“While the courts strongly support openness in government, public participation, and the free exchange of ideas, it must be noted that in some instances the right to public access must yield in order to protect other important societal interest,” Judge Linda McGee wrote for the court.

“The degree of openness is a matter of public policy that must be settled by legislators in their capacity as elected representatives of the people,” she said

The court said the General Assembly had not extended Open Meetings Act requirements to the circumstances at issue.

“Under N.C.G.S. § 143-318.10(d), the definition of an official meeting has three essential elements: (1) a meeting, assembly, or gathering together, (2) of a majority of the members, (3) of a public body,” McGee wrote.

“By the plain language of the statute, in order to be an official meeting, a majority of the members of the public body must be present. In the present case, at no time did more than one member of the City Council or the Board of Commissioners participate in the mediation. Thus, by statutory definition, the mediation was not an official meeting mandated to be open to the public.”

The media outlets argued that a separate requirement applied, prohibiting informal meetings to evade the purpose of the Open Meeting Act. The mediation session, they argued, was simply a ruse to not have to conduct business in public.

The appellate court was not persuaded by this characterization of the proceedings.

“The structure and function of the meetings and the mediation do not evidence such an intent. The function of the mediation was to negotiate terms of the agreement.”

The court also noted that the Open Meetings Law recognizes an exception for government boards to consult with their lawyers. Since the city council and county commission sessions were closed to the public for this reason, no violation occurred.

N.C. Court of Appeals decisions are controlling interpretations of state law unless overruled by the N.C. Supreme Court. The high court is not required to hear the case because the Court of Appeals decision was unanimously.

The case is Gannett Pacific Corp. v. City of Asheville Bd. of Educ. (05-1304).

Michael Lowrey is associate editor of Carolina Journal.