News: CJ Exclusives

Experts: Military commission not following open meetings laws

Restoring item to agenda after public left meeting and apparent failure to provide notice of meetings could violate state laws governing openness

Brig. Gen. Bud Martin, at left, chairman of the N.C. Military Affairs Commission, asked a Carolina Journal reporter not to write about a presentation that was on the agenda at the Feb. 7 meeting of the commission. When the reporter refused, the presentation was removed from the agenda and then restored to it after the reporter and other members of the public left the room. (CJ photo by Dan Way)
Brig. Gen. Bud Martin, at left, chairman of the N.C. Military Affairs Commission, asked a Carolina Journal reporter not to write about a presentation that was on the agenda at the Feb. 7 meeting of the commission. When the reporter refused, the presentation was removed from the agenda and then restored to it after the reporter and other members of the public left the room. (CJ photo by Dan Way)

Media law experts believe the North Carolina Military Affairs Commission violated the spirit —  if not the letter — of state laws requiring the conduct of public meetings in a transparent manner.

“I feel like a judge would say this is a violation of the law,” Raleigh-based media attorney Amanda Martin said of Commission Chairman Brig. Gen. Mabry “Bud” Martin’s decision to pull a controversial item from the Feb. 7 meeting agenda for rescheduling to a later date because a Carolina Journal reporter and two members of the public showed up for the presentation.

The item was placed back on the agenda and presented to the committee once outside members of the public left, raising concerns by public watchdogs. Questions also arose about whether the Military Affairs Commission is posting legally required notices of its public meetings. (See update below.*)

“The actions of this board appear to violate the open meetings law. The public has a right to be present for proceedings of any public body, and it certainly is improper for any public official or public body to trick members of the public in order to avoid their presence,” Amanda Martin said.

Jonathan Jones, director of the North Carolina Open Government Coalition, and an instructor at the Elon University School of Communications, would not characterize Bud Martin’s action “absolutely a violation of the law,” but said “it certainly is an egregious violation of the intent of the law.”

Bud Martin and Larry Hall, Gov. Roy Cooper’s nominee as secretary of veterans and military affairs, expressed unease about media presence at the commission’s Executive Steering Group meeting to hear a presentation urging the committee to make a series of recommendations to the General Assembly to address security concerns about placing large wind farms near military installations. The Amazon Wind Farm near Elizabeth City has fueled a debate over whether the wind turbines interfere with a nearby radar facility that is responsible for tracking ships and aircraft that may be transporting illegal drugs and other contraband to the United States.

“I couldn’t agree more” that the wind farm issue is of urgent public interest, said Senate Majority Leader Harry Brown, R-Onslow, a member of the Military Affairs Commission who was unable to attend Tuesday’s meeting. “Obviously, I’ve been very interested in it.”

Brown was among legislative leaders who signed a letter to Homeland Security Secretary John Kelly raising concerns about the Amazon Wind Farm’s potential negative effects on the radar installation’s effectiveness.

Because he was not at the meeting, Brown was reluctant to judge the actions of Bud Martin and Hall.

However, Brown said, “They are open meetings, so anybody’s welcome to come at any time.”

At Tuesday’s meeting Bud Martin said he would allow the presentation to be made in open session if the Carolina Journal reporter agreed not to write about it. When the reporter refused, Martin pulled the item from the agenda, and said he would reschedule it at a future date that he did not specify.

After the reporter and interested members of the public left, Martin returned the item to the agenda, and the presentation went forward.

“It’s appalling,” Jones said. “The whole notion of nondisclosure of something that occurs in a public meeting is just ludicrous.”

A public body can set a meeting schedule whenever it wants, and can conduct any business that is under its authority at a regularly scheduled meeting, Amanda Martin said. There is no requirement for a public body to provide specific notice of the topics that will appear on the agenda.

“However, the fact that they affirmatively said that they were taking it off the agenda is what leads me to conclude it was a violation of the law because they clearly intended for [the journalist] and other members of the public to leave in reliance on that,” Martin said.

“That is what, I think, is at a minimum in violation of the spirit of the law,” she said. “But I [also] would argue it’s in violation of the law.”

The commission also did not post a public notice of the meeting, another violation of state public meeting laws. (*UPDATED, Monday, 12:15 p.m. A commission spokeswoman told CJ the meeting was not posted, attributing the failure in part to a change in administrations. She said the commission would be more attentive to notice requirements from now on.)

“It’s clear that every public body has an obligation to post notice of meetings, and if there was no notice — or not proper notice — that certainly is a violation of the Open Meetings Law,” Martin said.  

State law reads: “If a public body has established, by ordinance, resolution, or otherwise, a schedule of regular meetings, it shall cause a current copy of that schedule, showing the time and place of regular meetings, to be kept on file as follows: (1) For public bodies that are part of state government, with the Secretary of State.”

A check of the calendar of public meeting notices on the Secretary of State’s website showed no entry for the Feb. 7 Military Affairs Commission meeting. A spokeswoman in that section said it had been a year or more since the office had received a public notice from the commission.

A check of the Military Affairs Commission website turned up no notice of the meeting, either.

The last meeting notice on the commission’s web site was for a Nov. 15, 2016, full commission meeting. There was another notice for an Aug. 16, 2016, full commission meeting. The only other meeting posted on the website was for the executive steering group on May 3, 2016.

By not providing a legally required annual schedule of meetings, and not posting a meeting schedule on its own website, the commission is not complying with the law, Jones said.

Any meetings that were conducted “then would not be properly called meetings, and any action they took in those meetings could potentially be challenged,” Jones said.

That means any action taken at an improperly called meeting could be overturned by a court, “or could result in a court telling them that you need to be in compliance in the future or you could be subject to contempt,” Jones said. It’s also possible for both of those sanctions to be imposed.

Jones said the public’s right to know is under assault across the state. A much more common variation of what happened at the Military Affairs Commission occurs when a public body legally goes into closed session at the end of a meeting, and waits until the public leaves to reconvene publicly to discuss and vote on a matter, Jones said.

Amanda Martin said she has received serious complaints in the past week about potential public meeting violations at other agencies.