State Appeals Court allows Pinehurst open meetings lawsuit to proceed

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  • The NC Court of Appeals will allow a former Pinehurst Village Council member to proceed with his open-meetings lawsuit against the village. The decision reverses a trial judge.
  • Plaintiff Kevin Drum accuses Pinehurst officials of conducting business through email that should have been conducted in open session.
  • The disputed activity involved questions of possible ethics violations involving Drum and another council member.

The NC Court of Appeals will allow a lawsuit to move forward alleging open-meetings violations by the Pinehurst Village Council in 2021. The unanimous decision reverses a trial court’s decision to dismiss the suit.

Former council member Kevin Drum and his group, NC Citizens for Transparent Government, 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.