A Superior Court judge could rule Monday on a lawsuit demanding the Bertie County Board of Commissioners release a tape recording of a closed session at which then county manager Zee Lamb was given a 42 percent pay hike.
John Davis, one of the founders of the grass-roots group Friends of Bertie, said the case brings attention to the organization’s longstanding battle over what it sees as a lack of transparency and abuse of the public trust in Bertie County government.
The commissioners view the demand for release of the tape as trampling the privacy rights of government personnel. The judge will need to decide whether the concept of government openness enshrined in the state constitution trumps the state’s employee secrecy laws.
Davis said his group is alarmed that the commissioners did not include Lamb’s pay raise from $101,725 to $144,000 and travel allotment increase from $6,000 to $9,000 annually
in minutes of the Aug. 17, 2009, public meeting at which they were approved. Minutes of the closed meeting during which the beefed-up compensation was discussed have not been released.
The action was not discovered until 18 months later. Davis characterized that as the last straw to an ongoing problem of obtaining minutes of closed sessions.
“There’s some minutes that didn’t get released for 80 months” after the county commission met in closed session, Davis said in explaining the decision to file suit. Friends of Bertie alleges the county has not released any minutes of closed sessions since January 2008. In July 2011 there were 57 sets of closed session minutes not released for public inspection.
Friends of Bertie earlier collected “thousands of signatures” on a petition condemning Lamb’s huge pay hike at a time of national and local recession, Davis said. The petition also demanded that the county commissioners to rescind the raise and asked the General Assembly to order a recall election of the county commissioners if they didn’t. The raise remained in effect, and no recall was ordered.
He hopes the case focuses a public spotlight on what he contends is a pervasive government practice in North Carolina of thwarting the state’s public records statutes – and the need to strengthen them.
“I think public servants should be accountable to people,” Davis said. “If nobody takes a stand, these things are going to continue to happen all across North Carolina.”
Attempts to contact Bertie County Board of Commissioners Chairman Lewis C. Hoggard III and County Attorney Lloyd C. Smith Jr. were not successful.
“I can’t comment on that right now because it’s pending in court,” J. Wallace Perry, commission vice chairman, said of the lawsuit. Asked to talk about matters not specifically related to the suit itself, such as public response to the legal showdown, he declined. “Our lawyer told us not to comment,” Perry said.
Raleigh-based attorney John Bussian, a First Amendment and media law expert and lobbyist for the North Carolina Press Association, believes the state’s public record law is flaccid and in need of a fix.
“We’ve been running bills every session to try to get it changed, and we’re going to do it again this session” once sponsors are secured, Bussian said. “This whole notion that government employees have a privacy interest in their records is nuts,” he said. There are many states “where there aren’t any privacy rights and, if anything, there is an unfettered right for the public to see” employee records.
Bussian said the state Supreme Court “made a ringing affirmation” of the principle of open government in 2010 when, for the first time in 20 years, it issued a lengthy ruling on public records law declaring public boards must disclose the reason for an employee’s termination. The decision was in a case brought by the State Employees Association of North Carolina against then-state Treasurer Richard Moore.
The justices “came down foursquare in favor of the idea … that everything is open unless there is a law that says they’re not, so anything that’s not specifically addressed is open, including recordings,” Bussian said.
But the General Assembly has confounded that principle. “By statute they’ve locked it down here, but that’s archaic and it needs to be changed,” he said. “The public owns all the records that government has and the only reason that they can’t see some records is because the General Assembly says so, and then only in narrow circumstances.”
The state has made things such as board discussion of the qualifications of a job candidate, misconduct, and disciplinary action off-limits under personnel privacy statutes.
Frayda S. Bluestein, a lawyer with open meetings and public records expertise who is associate dean for faculty development and professor of public law and government at the UNC School of Government, views the situation differently.
“It seems to me it’s pretty clear under statute that minutes under a closed session that related to a personnel matter would not be subject to open records,” Bluestein said. Releasing the tape could put the county commissioners in conflict with the law, she said.
“It’s not a question of erring on the side of transparency,” Bluestein said. The commissioners could be committing a misdemeanor offense if they release the tape.
“What’s clearly not confidential is that they gave him a raise, and the amount of the raise,” which should have been in the open meeting minutes, she said.
“I don’t know of any sanction” for creating poor minutes, she said. “I don’t know what the remedy should be except this is wrong and you need to do better next time.”
However, she said, if the judge determines the county deliberately withheld the raise information and stymied a public records request for the information, attorneys fees could be awarded to the Friends of Bertie.
“Is there any rule of thumb” for when closed session minutes must be released, said Robert E. Hornik Jr., an attorney with the Brough Law Firm in Chapel Hill who represents Friends of Bertie.
“That’s what might be important in this case, will the courts help to define what’s too long or what’s long enough,” he said.
“There’s no question in my mind that it’s a public record,” he said. “The Bertie County case may offer some insight into where the courts think the line between open government and personnel privacy should be drawn.”
If the judge does not release the tape, Hornik said, he will ask the judge to listen to it privately in chambers and determine whether some or all of it should be released, or a transcript be provided.
According to Davis’ records, the county has spent $13,160 on the suit through October; and Friends of Bertie has spent $16,000 in contributions through December. Lamb is now county manager in Chowan County.
Dan Way is a contributor to Carolina Journal.