Wednesday, July 24, 2024

Surf City attorney with history of questionable closed meetings calls for another

Surf City attorney Brian Edes urged Council to enter a closed session on Tuesday, citing a couple items “legal in nature.” (Port City Daily photo/Mark Darrough)

SURF CITY — Surf City’s town attorney Brian Edes urged Council to enter a closed session Tuesday morning, but failed to state the specific purpose for doing so as required by state law. For Edes, who represents other towns in the Cape Fear region, this isn’t the first time this has happened.

In general, town business is the business of its people, and for that reason meetings are held in public. There are some instances where elected officials can enter into a closed session, outside of the public eye, but when doing so strict guidelines must be followed. 

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

During the virtual meeting Tuesday, councilmembers discussed proposals to require face masks at indoor public establishments — including grocery stores, pharmacies, and other private businesses — and to lift the moratorium on vacation rentals by Friday if Governor Roy Cooper chose to enter Phase 1 of a statewide reopening, as was soon expected. (On Tuesday evening, he did just that.)

Councilmember Dwight Torres urged council to lift the moratorium sooner than Friday, to allow vacationers enough time to book rentals before the weekend.

“The economic livelihood of our tourism is just as important as the livelihood of our people,” he said.

Edes then asked the mayor if the town could enter a closed session.

“There’s a couple items that I think I would prefer to address to the entire council, but they are legal in nature,” Edes said.

Nearly two hours later, Torres made a motion to go into a closed session, citing North Carolina General Statute 143-319.11(a)(3) — “attorney-client privilege,” he said. No specifics were given, despite the statutory requirement that “[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.”

Council voted unanimously to do so, and when it re-opened the meeting publicly 30 minutes later, all councilmembers voted to recess until 10 a.m. Wednesday morning.

Apparent disregard of state law

Brian Edes, councilmembers, Mayor Doug Medlin, and town administrators held a virtual town council meeting on Tuesday, at which time it entered a closed meeting upon Edes’ request. (Port City Daily photo/Courtesy YouTube)

Town attorneys are allowed to suspend the rules and add a closed meeting to an agenda once it is adopted through a motion by councilmembers; however, they must state the specific reason for doing so.

When Council voted to enter a closed session based on the law’s attorney-client privilege clause (Section A(3)), it faced specific state-mandated requirements for doing so.

The law states that if the attorney-client privilege is used to call for a closed-door meeting, a public motion must “cite one or more of the permissible purposes,” which in the case of Section A(3) is identifying “the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.” 

No such lawsuit was identified, and nothing beyond items “legal in nature” was further elaborated by Edes.

Section A(3) also states: “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.”

Edes did not return a phone call and email sent earlier this week. The email asked: What was the specific purpose of calling the closed session, and why was no purpose, beyond discussing items “legal in nature,” addressed publicly?

The mayor and each councilmember were also emailed the same questions, and additionally asked to explain Council’s justification for entering a closed session as it pertains to the attorney-client privilege. No responses were received by time of publication.

When the meeting resumed on Wednesday morning, Town Manager Kyle Breuer summarized the governor’s Phase 1 re-openings of certain businesses while maintaining social distancing guidelines.

Mayor Doug Medlin mentioned he had discussed short-term rentals with Topsail Beach and North Topsail Beach and said they were looking to lift their own moratoriums on Friday or Saturday.

Councilwoman Teresa Batts then made another call for a closed sessoin, citing the same Section 3(a), but this time explained that the closed-door meeting was necessary to consult with Edes “regarding potential legal implications of the state emergency restrictions and to seek the town attorney’s advice.”

But because “[g]eneral policy matters may not be discussed in a closed session,” according to the law, it appears Council again consulted with its attorney for legal advice that is not confidential.

History of questionable closed meetings

Edes has a history of apparently violating open meeting laws and has delayed public records requests from Port City Daily sent to other towns in the region which he also represents.

Port City Daily has run into various issues with Edes while acting as attorney for both Wrightsville Beach and Oak Island.

Last November, Edes instructed the elected leaders of Wrightsville Beach to not respond to Port City Daily when it was discovered the town apparently failed to comply with open meeting laws, which required it to publicly list the parties involved in any lawsuit before going into closed session.

The requirement ensures the public is at least made aware of any possible issues facing the town. The failure to do so is an example of non-transparency. When confronted, Edes unknowingly copied Port City Daily while responding to the Wrightsville Beach Board of Aldermen, where he instructed officials to not respond to emails. Later, he claimed the town had acted in good faith and had done nothing wrong, despite having apparently violated the letter of the law.

Edes also attempted to redact public information from a public document that linked former Oak Island Mayor Cin Brochure’s home to child pornography charges filed against her son. When Port City Daily protested the redaction, Edes held firm, saying he would defend his decision in court. After Port City Daily reached out to the District Attorney’s office and the Attorney General’s Open Government Unit, Edes released the information.

Last fall and winter, Surf City took more than two months to respond to a public records request for emails concerning the misbehavior of Marines on the town’s beach. Edes began his role as the new town attorney last August. Port City Daily sent the request on October 11 and received the emails on December 31. 

In mid-December, the town said the request had been forwarded to Edes for his review. Although the state’s public records law states there is no specific time limit for a response, it also says a custodian of public records shall make them available “at reasonable times and under reasonable supervision by any person.”

The town clerk, Stephanie Hobbs, said in an email that Edes “has the list of emails under review to ensure the town does not cross any legal or ethical boundaries before releasing such requested emails.” 

She also provided a document published by the UNC School of Government examining the state’s open records law, in response to the town’s long-delayed response. Although Hobbs did not clarify the specific section of the 11-page document that pertained to her response, one section said “the law does not set a specific time within which an agency must respond.” 

But the document also states “a prompt response to a fairly simple records request ranges from immediate, within a few hours, or within a day or two.”

“Unless a request is extraordinary … a custodian probably should respond within a week or two at most,” the article suggested.


Send tips and comments to the reporter at Mark@Localvoicemedia.com, @markdarrough on Twitter, or (970) 413-3815

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