Wednesday, October 4, 2023

Carolina Beach appears to violate open meeting law as it announces emergency, closes beaches, Freeman Park, and more [Free read]

The Town of Carolina Beach appears to have violated the law by entering a closed session on Friday to consult with their attorney on general policy issues. (Port City Daily/File)

CAROLINA BEACH — The Town of Carolina Beach apparently violated open meeting law on Friday afternoon after calling an emergency meeting of the Town Council to discuss the possible declaration of a state of emergency and the closure of the beaches. At the outset of the meeting council promptly went into closed session.

State law does allow elected bodies to conduct some business outside of the public eye but only for a few select reasons. One such reason is to discuss information protected by attorney-client privilege — but that does not simply mean the town can enter closed session to just ask their attorney a general question.

According to state law, municipalities can enter a closed session, “… 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. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant [italics added].”

The law also requires a public body to cite the reason they were entering into a closed session.

“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 [italics added]. 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,” according to the law.

But it appears the Town of Carolina Beach and its attorney were unaware of this requirement.

When entering into the closed session the council simply stated it was entering into it based on attorney-client privilege — but what happened in this closed session does not appear to be classified information.

Town Attorney Noel Fox explained why the council entered into a closed session after the elected body entered into a public session (and Port City Daily sent several text messages to council members while they were in closed session).

According to Fox, “Just for those who are wondering why the town went into closed session, the purpose of the closed session was to seek the advice of the town attorney on the limitations and potential liability for the town declaring a state of emergency, according to 166A 19.22 and what it authorizes you to do.”

However, Fox did not cite what would be confidential or privileged about explaining general policy to the Town Council. Town Council was also asked to justify their entering into the closed session but at the time of publication, no responses were received.

Action taken

When the Town Council entered back into a public session, they discussed the closing of the beaches, parks, Snow’s Cut Bridge and the island as a whole — but council members were in disagreement with what to do but eventually, a motion to close the beaches to the public was taken.

The motion was made by Mayor LeAnn Pierce to close access to the beaches, public parking lots, and Freeman Park to prevent visitors from coming to the beach.

“We understand you want to be on the beach, but we can’t restrict and say you can be there but you can’t,” Mayor Pierce said.

Councilman JoDan Garza was the sole dissenting vote on the motion.

You can watch the entire meeting here.

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