News: CJ Exclusives

Appeals Court Ordered To Hear School Records Case

Lawsuit involves payment of settlement to fired Alamance school chief

RALEIGH — The North Carolina Court of Appeals has been ordered to expedite review of a lawsuit involving a newspaper’s request to see records detailing the firing of the superintendent of the Alamance-Burlington Board of Education, a dispute invoking a precedent set when the media exposed misdeeds in the N.C. State University basketball program under the late coach Jim Valvano.

The state Supreme Court on Jan. 28 assigned emergency status to the case, slashing the Appeals Court’s timetable for bringing the case to court from roughly nine months to a few weeks — marking the first time the emergency-status provision of the open records law has been sought or granted.

The Times-News of Burlington sued the school board to obtain minutes from closed meetings at which the board voted 4-0 to fire former superintendent Lillie Cox before she resigned. Cox was awarded more than $200,000 in severance. The school board has provided only partial minutes.

The newspaper lost the first round in Alamance County Superior Court. In its appeal to the Court of Appeals, the Times-News argues that by dismissing the suit the trial court created a new exemption to the statutes that imperils public access to public business.

If the school board loses the case, it would be responsible for paying the newspaper’s legal fees and could face other monetary penalties.

The newspaper filed its brief to the Court of Appeals soon after the Supreme Court’s order. The school board has a few more days to respond, and then the appeals court must hear the case on the first available calendar date after the school board’s response is filed.

The lawsuit tests a prior Supreme Court ruling stating that public records laws must be interpreted broadly, not restrictively, to ensure the public knows what the government is doing.

The North Carolina Association of Broadcasters and the North Carolina Press Association filed a friend of the court brief supporting the Times-News, citing the statewide impact the case portends for the public’s right to know.

Just six months after receiving a three-year extension of her $200,000 annual contract, the school board terminated Cox. The separation occurred “about the time the board’s lawyers concluded an investigation of improprieties, at enormous taxpayer expense,” the lawsuit claims.

“It was an issue that created a lot of discussion in our community,” Times-News Executive Editor Madison Taylor said.

“Because it created so many questions, and because there seemed to be a gap in the way information was being released, we felt it was important to pursue the case” to prevent erosion of public records law and court precedents, Taylor said.

“The records that they are seeking — as they described them, in fact — are not public records. They’re personnel records, which are not available for disclosure under the Public Records Act. There’s a specific exception for personnel records. So that’s the essence of the case,” said Debra Stagner, an attorney with the Raleigh-based Tharrington Smith law firm representing the school board.

“We believe the board complied fully with the law,” Stagner said. “In the trial court Judge Inman agreed with us, and dismissed the case,” Stagner said of former Wake County Superior Court Judge Lucy Inman, who was elected to the Court of Appeals in November.

John Bussian, the newspaper’s Raleigh-based attorney, called the school board’s secrecy in withholding information about Cox’s departure “a serious violation of the public records act.”

Should such official conduct not be challenged, “The Alamance-Burlington school board and all other public school boards across the state would be free to hide the reasons for terminating a public school superintendent or other hiring official, and paying hundreds of thousands of public dollars to do it,” Bussian said.

A hearing on the complaint was set for Dec. 15 before an Alamance County judge, and the newspaper’s lawyers scheduled depositions of three school board members.

But the school board filed a motion to dismiss. That matter was transferred to Inman, a Wake County judge, and heard Dec. 3 in Raleigh. She dismissed the suit before it ever came to a hearing without even reading the disputed minutes, according to court filings.

Bussian and fellow media attorney Mark Prak of Raleigh unsuccessfully petitioned the state Court of Appeals to hear the case on an expedited, emergency basis. The media attorneys then appealed immediately to the state Supreme Court, based on a statutory provision that mandates expedited handling of public records fights.

The Supreme Court returned the case to the Court of Appeals and ordered expedited review. However, the Supreme Court did not grant Bussian and Prak’s request that it take the case directly, as the justices did in the 1992 News and Observer v. Poole case related to the investigation of Valvano’s N.C. State basketball program.

The Poole Commission was appointed by UNC system President C.D. Spangler to investigate allegations of wrongdoing in the N.C. State basketball program. Chancellor Bruce Poulton and Valvano lost their jobs in the aftermath.

The commission argued it didn’t have to release the records because they involved investigations by the State Bureau of Investigation, which are exempt from disclosure under public records law. The newspaper’s lawyers argued that once the records were handed over to the Poole Commission, they became public records.

In a 7-0 decision, the Supreme Court sided with the newspaper. The court ruled that minutes of official business must be kept, and may be withheld from public inspection so long as the need for secrecy exists. Once the investigation concluded, the justices ruled, there was no need to keep the records sealed.

Bussian and Prak argue that same principle applies to the Alamance-Burlington school board case. An investigation was conducted, a final report was prepared, and the school board discussed it at one or more closed-door meetings.

Bussian argues in the Appeals Court brief that defendants in the Poole case based refusal to release closed meeting minutes on a state employee personnel file exemption statute that is “virtually identical to the public school employee ‘personnel file’ secrecy statute relied upon by the defendants in this case.”

Stagner disagrees. She reads the Supreme Court decision to say the Poole Commission could release the records because N.C. State (rather than the Poole Commission) was Valvano’s employer, and once the Poole Commission had the documents, they no longer were protected by the exemption covering personnel records.

By contrast, the school board’s defense “has been based on the fact that these documents are personnel records within the possession of the Board of Education,” which was Cox’s employer, Stagner said, “so it’s a distinguishable case.”

The Alamance-Burlington case has similarities to a successful open records challenge in 2010 waged by Bussian and Prak. The State Employees Association of North Carolina sued state Treasurer Richard Moore to obtain performance and other records involving state pension fund investments.

A trial court dismissed the case, and the Court of Appeals upheld the decision.

But the Supreme Court overturned the ruling in what Bussian called “a glowing opinion extolling the virtues of open government in our culture, and citing 100-, 200-year-old cases.”

In SEANC v. Moore, the justices made clear that North Carolina’s public records law is supposed to be read liberally to afford access, and exceptions are to be construed narrowly, Bussian said.

In light of that and other precedents, the Alamance-Burlington school board makes “a mockery of North Carolina open government law” by arguing the state’s personnel file secrecy statute obliterates a well-established right of public access to closed session meeting minutes, Bussian argues in the Appeals Court brief.

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.