Saturday, April 1, 2023

Wrightsville Beach in apparent violation of open meeting law, town claims it did nothing wrong

Wrightsville Beach sees an increase in water needed during summer months, but after a well in the town was taken off-line, the town entered into an agreement with CFPUA (Port City Daily/Courtesy Town of Wrightsville Beach)
The Town of Wrightsville Beach appears to be in violation of open meeting laws in North Carolina (Port City Daily/Courtesy Town of Wrightsville Beach)

WRIGHTSVILLE BEACH — The Town of Wrightsville Beach appears to be in direct violation of state law regarding how exactly they enter into closed-door meetings — specifically when it comes down to discussing lawsuits the town is facing. The town’s attorney disputes this, saying the town has acted in ‘good faith.’

The right to an open and transparent government is written into both state and federal law and except under special circumstances, meetings held by an elected or appointed board must be open to the public. One such special circumstance is to discuss legal matters that would be covered under attorney-client privilege like pending lawsuits but in order to make sure the public is apprised of legal actions being taken against the town.

But governments are still required to follow the rules set out in state statute and inform the public as to why they are entering a closed session, and if it is to discuss legal matters like pending lawsuits, they have to tell the public who the parties in the lawsuits are.

State law for government meetings

State Statute § 143-318.11 lays out nine specific reasons a governmental body can meet in private.

One such reason reads, “To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged.”

But there is a caveat.

“A public body may hold a closed session only upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in subsection (a) of this section. A motion based on subdivision (a)(1) of this section shall also state the name or citation of the law that renders the information to be discussed privileged or confidential. A motion based on subdivision (a)(3) of this section shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session [emphasis added],” the law concludes.

But meeting minutes from Wrightsville Beach, along with meeting videos, show an apparent failure to follow this statute.

First, during several meetings, the motion to enter into a closed session is never qualified with the reason for entering into a closed session. In fact, meeting minutes show Mayor of Wrightsville Beach Bill Blair stating the reason for closed session after entering into a closed meeting. Notably, the meeting minutes do not indicate the parties involved in the litigation; in general, videos of town meetings end after closed session, so it is frequently impossible to determine what was actually said at the end of these meetings.

Meeting minutes show the Board of Alderman entering into closed session for reasons relating to litigation, but never mention the parties involved (Port City Daily/Courtesy Town of Wrightsville Beach)

But this is not the only instance where Blair did this.

Meeting minutes from March 14 also show Blair asking the record to show the reasons why the board entered into a closed session after the closed session took place. It is also likely that there was nobody in the audience since closed sessions are often the informal end to meetings and members of the public generally leave.

It might seem like it is not a big deal since the meeting is closed to the public anyways, but there is a reason the law is written to ensure party names are included when discussing lawsuits — so the public is aware of pending litigation against the town.

The town itself might be the entity facing a lawsuit, but it is the taxpayers who end up footing the bill for suits against the town as well as legal fees for attorneys. Without listing the parties or the reason for a closed session, elected leaders keep residents, visitors, and the media in the dark as to issues the town is facing — and their potential costs.

The town’s (accidental) response

Initially, the town attorney requested town leaders not respond to Port City Daily’s email (Port City Daily/File)

On Thursday, Port City Daily reached out to the town’s leadership, Town Manager Tim Owens, and Town Attorney Brian Edes asking for a comment on the discrepancy.

In that email, Port City Daily also stated it would be reaching out to the State Attorney General’s Office for guidance on the perceived violations.

Edes, in response, emailed the Board of Alderman and town manager and requested they not to respond to the email request. He also said he would be speaking with former Town Attorney John Wessell and decide what the response should be — if they issued a response at all.

However, Edes apparently did not realize that members of Port City Daily were included on the email chain and sent his response directly to them.

“I have forwarded Michael Praats’s email below to John Wessell. I plan to speak with John later today as to what response, if any, the Town should provide to Praat’s [sic] email. In the meantime, I am requesting that you refrain from responding to his email until John and I have discussed the matter.  FYI, the Attorney General’s office has absolutely no jurisdiction over alleged violations of the North Carolina Open Meetings law.  I have seen Praat [sic] do this before to other Town’s and put simply, it is quite silly for him to make this type of threat as it shows his ignorance of the law,” Edes wrote.

The Attorney General’s office does, in fact, have an open government unit and does prosecute officials who violate the public’s trust.

According to the Attorney General’s own website, “Government employees and elected officials have a responsibility to obey and respect the law, act ethically and conduct their work in an open manner.  Attorney General Stein and the Department of Justice help citizens know their rights and responsibilities under the law. We actively prosecute officials who violate the public’s trust.”

Port City Daily did not allude to any sort of litigation or charges coming from the Attorney General’s Office, rather stated they would be reaching out to the Attorney General’s Office for an opinion on the issue.

So while the issue of jurisdiction in open meetings law does technically fall under the purview of Superior Court, the state does provide resources to the media and general public in dealing with violations.

It is also worth noting the last time Port City Daily has used this resource in the past as Edes stated. The last time Port City Daily staff reached out to the Attorney General’s Office for assistance with Edes, he ultimately agreed to release information he had been attempting to redact after getting the state and District Attorney’s office involved in the issue.

Edes claims compliance

The town’s actual response regarding the perceived violations was received later with Edes claiming the town followed the law.

“It is my opinion that the Town has substantially complied with the North Carolina Open Meetings law in each of these meetings. Each motion to go in to closed session was premised on a vote pursuant to  N. C. Gen. Stat. § 143.318.11,” Edes wrote.

“The closed sessions at issue here were appropriate and authorized under NC law.  As noted in the motions, they were either for personnel discussions or to consult with the Town Attorney on legal matters/litigation. All of these closed sessions substantially complied with the Open Meetings Law and were held in good faith,” he said.

Yet, meeting minutes are not verbatim representations of what happened during the meeting — but the town does video and audio record many of its meetings which does show exactly what was said.

According to meeting minutes for March 14, 2019, “Mr. Wessell expressed the need for a Closed Session to discuss several legal matters and a personnel matter. Mayor Pro Tem Mills made the motion at 6:10 p.m. to go into Closed Session for advice from the Town Attorney and for a personnel matter pursuant to G.S. 143.318.11. The motion was seconded by Alderman Miller and unanimously approved.”

Listen here to audio from the March 14 meeting where Mayor Pro Tem Mills makes a motion to enter into closed session failing to cite any reason for doing so.

But the recording tells a different story.

“I move we go into closed session,” Mills said.

“Reluctantly, I second,” Miller said next.

While the meeting minutes shows that Mills made the motion for legal and personnel reason, the video recording shows neither he nor any other council member discusses the reason for the closed session and no docket numbers or parties in the litigation are mentioned.

Wrightsville Beach does record and broadcasts its meetings, however, they are sporadically posted on the town’s Vimeo account. On September 12, once again a motion to enter closed session was made and seconded without ever citing the reasons or the law allowing the town to do so. The meeting minutes for this meeting have not yet been approved so it is unclear if the minutes will accurately reflect the actual motion made.

[Editor’s note: While Edes addressed closed session protocol in general, he did not directly address the apparent failure to state the parties in ongoing litigation. Port City Daily has reached out to him for clarification on this issue, and will update this article with any response on that issue.]

Federal lawsuit against jetski rental company

Unrelated to the possible violations, Edes also provided an update on the pending federal lawsuit against the town stating that the case had been dismissed from court.

“On a more positive note, I have attached the Order entered in federal court yesterday granting our Motion to Dismiss the Mangum case (that has been in the news this week).  I find it both ironic and humorous that the [sic] within 24 hours of Buscemi’s borderline slanderous statements to the media, a federal judge threw his clients’ case out,” Edes wrote.

Port City Daily will provide an update on the case in a separate article.

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