- A Superior Court judge dismissed two of former provost Chris Clemens' claims against the University of North Carolina at Chapel Hill in an open meetings and public records lawsuit.
- Clemens can continue to pursue allegations that university officials engage in a “pattern and practice of open meetings violations” and “unlawful use of personnel exemption” for closed sessions.
- Judge Thomas Currin dismissed claims alleging “deliberate destruction of public records” and “unlawful electronic meeting without notice.”
A Superior Court judge dismissed portions of former provost Chris Clemens’ lawsuit against the University of North Carolina at Chapel Hill during a hearing Monday in Hillsborough. The judge followed up Tuesday morning with an order partially granting the university’s request for a protective order in the case.
Judge Thomas Currin agreed to throw out two of three claims the university targeted in a motion to dismiss, according to the state’s eCourts system. Currin allowed one of the targeted claims to proceed.
Currin struck portions of the former provost’s suit alleging “deliberate destruction of public records” and “unlawful electronic meeting without notice.”
Clemens can continue to pursue allegations that university officials engage in a “pattern and practice of open meetings violations.”
The university did not seek in its motion to dismiss Clemens’ accusations about an “unlawful use of personnel exemption.” That type of exemption to public meetings laws can be used to conduct some government business in closed sessions.
“We appreciate the court’s dismissal of two of former Provost Clemens’ unfounded claims,” said Paul Newton, UNC-CH vice chancellor and general counsel, in a prepared statement Tuesday afternoon. “The University remains confident that the evidence will show that each of the four Board meetings that remain a subject of the Complaint were conducted properly and in full compliance with the Open Meetings Law.”
“Before this week’s hearings, Plaintiff’s counsel had already asked the Court to allow him to file an amended complaintm” Newton added. “Unfortunately, in light of the Court’s rulings, plaintiff’s counsel forecast that he plans to file yet another amended complaint. While we do not relish wasting taxpayer time and money, we look forward to continuing to defend our reputation of consistently and completely responding to open meetings and public records responsibilities in good faith, in a timely manner, and in accordance with the law.”
David McKenzie, the former provost’s lawyer, responded to the court’s actions in an emailed statement to Carolina Journal.
“We respect the Court’s rulings — and note that UNC’s characterization of them is incomplete,” McKenzie wrote. “Two claims were dismissed on narrow legal grounds. The Court made no finding that trustees complied with the law. The core Open Meetings claim about the Board’s closed-session tenure discussions remains, as does the Pattern and Practice claim and a public-records claim now moving forward. Discovery proceeds.”
“The dismissals turned on legal interpretation, not facts,” he added. “The Court did not find that trustees avoided auto-deleting apps or that the Board Chair’s texts to 11 trustees in five minutes was proper. We will seek appellate review on both issues.”
“As for ‘consistently and completely’ responding to transparency obligations — UNC will have the opportunity to make that claim under oath. We look forward to testing it,” McKenzie added.
Clemens accuses university trustees of conducting improper business in closed sessions and using the Signal messaging app improperly to bypass state public records requirements.
University lawyers filed a request earlier this month for a protective order to “protect Defendants from unreasonable annoyance and undue burden.” The order specifically targeted Clemens’ “requests for admission” filed on Nov. 18. During the discovery phase of a lawsuit, a request for admission allows one party to ask an opposing party to admit or deny the truth of a statement under oath
Newton accused Clemens in November of providing statements under oath that were “not true” in his lawsuit.
The accusation accompanied the university’s release of public records to Clemens.
“Through their lawsuit, Clemens and his counsel attacked both the character and motives of the Board,” Newton said. “They did so without even bothering to learn the true facts through a simple public records request. Their premature and ill-advised actions have forced the University, its Trustees, and — ultimately — taxpayers to bear the expense and distraction of responding to their baseless claims. We remain confident that the facts will continue to show that neither the University nor its Trustees have violated their obligations under North Carolina law.”
“This lawsuit is vital to upholding the right of every North Carolinian to have transparency from the people who are doing North Carolina’s business,” McKenzie responded. “We are eager to advance to discovery, where the evidence will speak for itself, and allow the court to resolve Dr. Clemens’ claims on their merits.”
The university filed a motion on Oct. 23 seeking dismissal of most of Clemens’ complaint.
“The North Carolina Public Records Act and Open Meetings Law provide citizens with the right to ensure they have access to the records and deliberations of public bodies as well as remedies that can be levied against public bodies for failing to honor those rights,” lawyers representing the university and its Board of Trustees wrote. “The fundamental flaw with the Verified Complaint is that it fails to understand what rights North Carolina law creates and what remedies it provides.”
Clemens “claims that the Defendants violated North Carolina’s Public Records Act by destroying public records without having bothered to request those same records as is required under the Public Records Act,” UNC-CH leaders’ court filing continued. “He invents a claim out of whole cloth that Defendants have a ‘pattern and practice’ of violating North Carolina’s Open Meetings Law. He attempts, through clever drafting, to avoid black-letter North Carolina law regarding what constitutes an ‘official meeting’ under the Open Meetings Law. And finally, he requests remedies for these purported violations of the Public Records Act and the Open Meetings Law that wildly exceed what the law allows.”
“Put differently, Plaintiff Clemens demands more of the law than it has to offer — as such the Second, Third, and Fourth Claims of the Verified Complaint should be dismissed,” the university’s lawyers wrote.
Orange County Superior Court Judge Allen Baddour ordered university officials during an Oct. 15 hearing to maintain records connected to the suit. Baddour rejected Clemens’ request for “forensic imaging” of university leaders’ phones.
Clemens served as executive vice chancellor and provost from February 2022 until May 2025, when “UNC leadership” asked for his resignation. University officials cited “inappropriate disclosure” of closed-session discussions, according to the complaint filed Sept. 22.
“Every trustee of the University of North Carolina at Chapel Hill takes an oath to ‘solemnly and sincerely’ be faithful and bear true allegiance to the State of North Carolina,” wrote McKenzie in the original complaint. “That oath is more than ceremony. It binds the Board of Trustees to the State’s transparency laws the Open Meetings Law and the Public Records Law and to the basic premise that the public’s business must be done in public. Yet this UNC Board treats that oath as a suggestion.”
“This Complaint will show a pattern and practice by the UNC Board of Trustees by systematically hiding matters of grave public concern behind closed doors: invoking closed session for reasons not authorized by statute; conducting deliberations electronically without proper notice or public access; and deliberately communicating about public business on auto-deleting platforms such as Signal to evade records retention and public inspection,” McKenzie continued. “The result is the same each time less transparency, less accountability, erratic governance, and a steady erosion of public trust in the nation’s first public university.”
Clemens asks the court “to declare that the Board’s use of the personnel exemption to shield discussion of tenure policy was unlawful; to enjoin the Board from using closed session to conduct general policy or budget debates; to require precise, statute-tracking closure motions and compliant minutes and general accounts; to prohibit the use of auto-deleting applications for public business; to order training; and to award attorneys’ fees as permitted by law.”
Editor’s note: This article has been updated to include new developments Tuesday and a response Wednesday from David McKenzie.
