Media coalition backs lawsuit over Pinehurst business conducted via email

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  • Major North Carolina media outlets are backing a lawsuit at the state Court of Appeals against the village of Pinehurst.
  • The suit argues that a majority of the Pinehurst council violated state open-meetings requirements in 2021 by conducting business via email.
  • Former council member Kevin Drum and his group NC Citizens for Transparent Government accuse the council of evading public scrutiny when debating censure votes against Drum and another council member.

Major North Carolina media outlets support a lawsuit accusing Pinehurst officials of skirting open-meetings requirements by conducting public business through email. A media coalition filed paperwork Friday to submit a friend-of-the-court brief to the state’s second-highest court.

Former Pinehurst Village Council member Kevin Drum and his group NC Citizens for Transparent Government accuse the council of breaking the state open-meetings law in 2021. A lawsuit at the state Court of Appeals claims that Pinehurst elected leaders used a series of emails to discuss censuring two council members.

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 a coalition supporting the plaintiffs.

“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 the 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.

Judges John Tyson and John Arrowood joined Murphy’s opinion. As an “unpublished” opinion, the case has limited value as a precedent for future legal disputes.