Public meetings with no public? COVID excuses may violate NC transparency law.

·7 min read

The meeting looked a lot like government running in COVID-19 times.

Board members were spaced out, all wearing masks. A public live-stream was running. Speakers were limited to entering one at a time. News reporters and members of the public were made to wait outside, strewn on the pavement in front of the school district building.

The problem? Times have changed.

Unlike most of 2020 and even earlier this year, public bodies — for example, school boards and city councils — are increasingly holding in-person sessions.

This week’s school board meeting in Gaston County — where all nine board members attended, none joining virtually — likely violated North Carolina’s requirement that all public bodies must allow the public inside when meetings are taking place, according to Beth Soja and Kym Hunter, two attorneys who specialize in transparency laws.

Although Gov. Roy Cooper’s COVID-19 emergency order allows government bodies to conduct remote meetings, barring public attendance is not allowed if every public official attends in person, the attorneys said. There are no current capacity or social distancing requirements in the state.

Citing the desire to have social distancing, the Gaston school board only allowed one person into the room at a time. On Monday night, about 20 people came to the meeting, some to speak and some to show support. They were there to lobby the board to remove the Red Raider mascot at South Point High School.

If even one member of the school board had chosen to attend the meeting virtually instead of in-person, the meeting restrictions on Monday would clearly be allowed under North Carolina law and the state’s pandemic emergency order, which is set to expire next month. During the height of COVID-19, most local governments held all-remote or partially-remote public meetings and North Carolina’s laws allow for the public to be shut out in those instances, as long as an alternative viewing option is available, such as a video live-stream.

“It’s understandable that there’s going to be confusion about this,” said Soja, an attorney with Stevens, Martin, Vaughn & Tadych. “The problem is going to be if and when boards are going to be informed and they don’t choose to comply.”

An Observer reporter on Monday attended the school board’s meeting and attempted to enter but was told she could not. A district employee controlling access to the board’s meeting room cited COVID-19 restrictions, and told the reporter to take up access issue with their lawyer.

An attorney for the school district did not return phone calls or an email asking for information about the board’s meeting this week. Todd Hagans, a spokesperson for Gaston County Schools, said Wednesday in a statement the setup used during the pandemic “unfortunately limits the amount of space available in the room.” The board is looking to return to its normal formatting in the “near future,” Hagans said.

The issue raises larger questions about how local governments can follow transparency laws as the pandemic winds down.

COVID and public meetings

In Charlotte and elsewhere, public officials are debating how to best move forward.

An overwhelming majority of local municipalities have returned to in-person meetings, said Scott Mooneyham, a spokesperson of the N.C. League of Municipalities.

Though COVID-19 rules have limited access for some, the opportunity for remote engagement has opened other doors for others: parents who want to attend meetings, but can’t because they have to care for their children; people with disabilities; and people living in rural areas, far from their county seat.

Still, the virus “can’t be a pretext to violate the open meetings law,” said Brad Kutrow, an attorney and partner in the law firm McGuireWoods.

“We are in an environment now where the public health authorities think it’s safer to gather, and gather in larger groups,” he said. “This ought to be one of the opportunities, one of the important ways that people can gather.”

The Charlotte City Council is in the midst of a debate on how to maximize the positive impacts of remote access while still complying with the Open Meetings Act, said Councilman Ed Driggs, a Republican who represents Charlotte’s 7th District.

Under the council’s current policy, members of the public and the press are allowed to attend full council meetings, but not committee meetings. Members are allowed to attend virtually or in person. The council is expected to discuss their plans for the expiration of the emergency order during its upcoming meeting on Monday.

“How will the transition back to a more normal life occur?” Driggs said. “It is tricky.”

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Barred from entry

In Gaston County on Monday, the public hearing was dominated by those weighing in on the contentious issue of replacing South Point High School’s Red Raider mascot, which many deem offensive to Native Americans. Many in attendance were members of the Lumbee Tribe.

The meeting was live-streamed on the district’s YouTube page, so some attendees were able to pull the video up on their phones while they waited outside.

Though a video of the board meeting was being shown in a small viewing room outside the board chambers, only two speakers were in that room — the mayor of Belmont and his wife, both of whom advocated for keeping the Red Raider mascot.

The board room — which normally can accommodate about 80 people — had members spread around tables set up on the floor in a U shape. The addition of tables for board members, instead of them sitting in chairs in close proximity behind the dais, left no space for a public in-person audience.

At the beginning of the pandemic, citizen comments could be sent via email to the board who would then read them aloud. By summertime last year, the board began allowing people to speak in-person, according to an Observer review of meeting footage.

Just three months ago, the public was allowed inside the building to hear their peers speak in real time, according to multiple attendees.

“It was a better experience because we in real time could hear somebody was going up and be like ‘good luck,’” said Lena Ware, a student at Gaston Early College who has attended three board meetings.

Government transparency

Though Monday’s meeting may be just a single example, all public bodies face a looming problem: How will local and state governments prioritize transparency laws as vaccination rates increase?

Courts have repeatedly held open meetings and open records laws in high regard. In a June opinion from the North Carolina Supreme Court, Chief Justice Paul Newby called the right to petition the government “fundamental” and “foundational to our political system.”

“If every single member of the board is meeting together then the public should also be allowed in that meeting,” said Hunter, a lawyer and president of the North Carolina Open Government Coalition.

“The spirit of the law and the way that it’s written is that the public should be hearing the same thing that the board is hearing.”

Hunter said that barring the public from attending in person creates an increased risk of inadvertently stifling the speech of the public, and of accidentally keeping portions of meetings secret. If the members of a government body are all meeting in person while the public can only view proceedings remotely, the public is reliant on teleconferencing and streaming technology that can fail or glitch.

A system that bars public entry while allowing members to meet in person also increases the possibility of deliberate, unlawful secrecy. A school board could, for example, only begin streaming its meeting 10 minutes after it started.

“You can’t set a situation where the board has one experience — a live experience — and the public is having a remote experience,” Hunter said. “We can’t always trust that technology to work.”

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