UPDATE: On March 16, Mitchell County staff reported that the county’s board of commissioners held no closed sessions during 2014. And on March 17, Clay County staff reported that its board of commissioners held nine closed sessions in the same period, all of which were to discuss personnel matters that remain sealed. Parts of the story below have been updated to include this new information.

In 2014, the Polk County Board of Commissioners met privately to discuss spending almost $180,000 to end the county manager’s contract early, causing one board member to leave the proceedings, claiming others tried to “engineer a scheme” to block him from the discussion.

The same year, Henderson County’s board closed their meetings dozens of times to consider tax breaks for businesses thinking of expanding in the county, incentives that totaled nearly $200,000 for the county of about 109,000 people.

All of that — and much more — happened in local governments’ closed sessions last year. Officials can close a public meeting and effectively exclude the public, according to state law, under certain conditions.

In the 17 counties where closed session numbers were made available, boards of commissioners held a total of 303 closed sessions, the investigation showed.

Only fragments of these back-room conversations ultimately go public, in procedures that seem arbitrary at times, our investigation of county board meetings found. For 75 percent of the closed meetings, the minutes remain sealed and away from public scrutiny.

Of those that were unsealed, some were released in response to records requests. County boards proactively released others. See the documents released to CPP thus far here.

Where the sun rarely shines

Today is the first day of 2015’s Sunshine Week, an annual push by media outlets and open-government advocates for transparency, an occasion that sparked this investigation.

To track how local governments operate behind closed doors, Carolina Public Press surveyed the 18 counties about closed sessions held by their boards of commissioners.

We asked: how many closed sessions they held in 2014 and for what reasons; that they describe their procedures for unsealing closed session minutes; and that they release minutes of as many of last year’s closed sessions as they could.

Most of the counties completed the survey. Others had much of the requested information available on their websites. A few said are they are still reviewing the closed minutes for potential release.

One county — Swain — didn’t answer the survey and doesn’t provide even basic closed session information online, so no data from Swain appears in this report.

“When you’re dealing with anything in closed session, that means there’s no easy fix,” said Charlie Messer, a veteran Henderson County commissioner. “A lot of these are personnel matters that you just can’t open up.”

At the same time, our survey found that one county’s secret might be another’s public matter, depending on the county’s political environment and resources.

When will we know what happened?

Every “public body” in North Carolina — local governmental boards, commissions, councils and such — is allowed to, and sometimes required to, go into closed session, according to state law.

In practice, the investigation found, closed sessions in Western North Carolina most often focused on four areas: personnel issues, economic development, property acquisition and legal matters including lawsuits.

The law dictates that, prior to entering a closed session, public bodies must announce that they’re doing so in a public meeting and specify which statutory exception allows them to talk behind closed doors.

“I get called with some frequency” about closed sessions, said Amanda Martin, an attorney for the North Carolina Press Association, which advocates for government openness on behalf of the state’s media outlets.

While open meetings law is extremely complex, it doesn’t leave many gray areas, Martin said.

According to case law that has developed over the years, “the statutes are to be construed broadly in favor of openness and narrowly in favor of exemptions,” she said.

Commissioners aren’t allowed to go into closed sessions simply because they want to have a private discussion, she added, and any member of the public can mount a legal challenge to suspect closed meetings.

“You can sue to get a determination that violations have occurred and stop them from recurring,” she said, adding that that’s a route rarely taken.

Once in closed sessions, public bodies are prohibited from letting the discussion drift to matters other than those announced, which can prove a challenging restriction.

Mark Swanger, chair of the Haywood County Board of Commissioners, has helped lead the board's ongoing push for transparency about its meetings, closed and otherwise. Courtesy Haywood County
Mark Swanger, chair of the Haywood County Board of Commissioners, has helped lead the board’s ongoing push for transparency about its meetings, closed and otherwise. Courtesy Haywood County

“If you’re in a long closed session meeting, it’s human nature sometimes to stray,” said Mark Swanger, Haywood County’s board chair. “But we police each other and our board attorney polices us. We’ll give each other warnings if we start to stray off target.”

The law also says that minutes of closed session discussions can be publicly released if doing so won’t “frustrate the purpose of a closed session” or reveal confidential information such as certain personnel matters.

For example, once a county board awards an economic incentives deal to a company, minutes regarding the secret negotiations can be unsealed.

Minutes of closed sessions should be prepared in a way “that a person not in attendance would have a reasonable understanding of what transpired,” the law says. But it doesn’t further define that standard.

Carolina Public Press’s review of the unsealed meeting minutes found that some board’s minutes offer substantial detail while others are skeletal summaries.

New county commissioners are often unversed in public meetings law and unsure about its parameters. To help them get up to speed, UNC-Chapel Hill’s School of Government offers classes on the subject. Frayda Bluestein, a professor at the school, teaches many of those classes.

“One misconception that’s pretty common is that they can go into closed session to talk about the relationship among themselves,” she said. “That if they’re having problems with a board member or the mayor or something like that, that’s something you can go into closed session to talk about. The statute specifically says they can’t.

“Probably the most common misconception is that it’s illegal to talk (publicly) about what happens in closed sessions, and that’s not entirely true.”

Why WNC boards close their doors

While they’re all bound by the same rules, WNC’s boards of commissioners vary substantially in their use of closed sessions.

This chart shows the number and type of closed sessions held in 15 area counties in 2014. Place your cursor over the bars to see the specific numbers for each type. Graphic: the Asheville Citizen-Times. Research: Jon Elliston/Carolina Public Press

Last year, Henderson County’s board discussed 52 agenda items in closed session (sometimes more than one item is taken up in a closed session), while Yancey’s discussed only two and Mitchell’s held no closed sessions at all.

Although Graham is WNC’s smallest county, it held 31 closed sessions last year, a relatively high number. And while Buncombe is the largest county in the region, it held only 16 closed sessions.

David Gantt, chair of Buncombe’s board of commissioners, attributes that partly to the fact that the board members consult each other frequently outside of official meetings.

“I meet with each commissioner at least once a month just to go over things and talk about them one-on-one,” he said. “And I think most of the commissioners also meet with the county manager, so we don’t come across many shockers that require a closed session.”

What’s more, he said, “there are some closed sessions that we could have but that we choose not to have, because we try to err on the side of having things out in public.”

Personnel: Hiring, firing and buyouts

Frayda Bluestein
UNC School of Government professor Frayda Bluestein teaches an elective class for local officials on how to comply with open meetings law — and how to avoid some of the common misconceptions about closed sessions. Courtesy UNC SOG

A look at the survey responses and recently released minutes sheds at least a little light on the four main reasons WNC commissioners meet in secret.

Public bodies can enter closed session to discuss personnel issues including job applicants, employment contracts, an employee’s competence or job performance, and complaints or charges against employees.

The mountain area’s boards of commissioners rarely release minutes of personnel discussions, but when they do, the records can reveal splits that grew heated not just in public debates but in closed sessions as well.

That was the case in Polk County’s most-controversial recent personnel change, the minutes show. In February 2014, then-County Manager Ryan Whitson instructed the commissioners that he’d be returning to his job after a year on active duty with the U.S. Army Reserves. But the board’s four Republican members were intent on replacing him and offered to buy out the rest of his contract, which ran through 2015.

In a closed session, the board’s sole Democrat, Ray Gasperson, resisted the plan, which hadn’t been publicly aired. At that point, the meeting took an unusual turn, according to the minutes.

One board member, Tom Pack, “said he did not feel comfortable sharing his view on this issue in Commissioner Gasperson’s presence, as he does not believe Commissioner Gasperson keeps closed meetings confidential,” the minutes record.

Pack then proposed that each commissioner meet separately with the county attorney and the board’s chair and clerk to weigh in on the potential buyout.

Gasperson responded by saying “he had no problem sharing his opinion with the assembled group, and went on to say that he strongly disagreed” with replacing Whitson, the minutes say.

Gasperson “then left the room and spent the rest of the closed session in the main meeting room.”

Polled individually in the ongoing closed session, the remaining board members expressed their agreement with most of the plan to pay Whitson to leave his post. Back in open session, the board voted 4-to-1, with Gasperson dissenting, to spend $178,590 to buyout Whitson.

At the board’s next public meeting, on March 17, Gasperson sounded off about how the meeting had unraveled and made an already closed session even more secretive.

“Why did they engineer a scheme to take the meeting away from me?” he asked.

“Knowing at that point the meeting had been physically moved away from me and that I would be unable to hear what the others had to say, and unable to participate with any discussion, I left the room.”

Minutes show how commissioners woo businesses

Such political fireworks are a rarity in closed session accounts. But when they are released, the minutes do often show the calculus of boards that convened to discuss offering economic incentives to companies seeking a new home or planning a local expansion.

In Henderson County, which staged the area’s highest number of closed sessions last year, almost half were devoted to economic development offers.

That should come as no surprise, said Messer, co-chair of the county’s board of commissioners, as he and fellow board members publicly supported tax incentives.

“As long as we’re in the running for an economic development, we have to sit on that,” Messer said of the need to maintain secrecy during negotiations.

Minutes that were unsealed after incentive packages were approved by the board last year detail the behind-the-scenes competition for business:

  • In February, Henderson’s board offered $42,693 in tax incentives over seven years to entice Elkamet to expand its East Flat Rock auto-parts operation. The company, the minutes say, was considering an alternative facility in Germany.
  • Also in February, the board offered $55,776 in tax incentives over four years to Mona Lisa Foods to expand its decorative chocolates manufacturing in Henderson County. The company said it was considering expanding in California instead.
  • In May, the board offered $34,175 in tax incentives over seven years to Cane Creek Cycling Components to develop a new product line at its Fletcher factory instead of in Taiwan.
  • And in August, the board offered $64,687 in tax incentives over four years to Warm Products, Inc. to expand its Henderson County fabric mill instead of one in Washington state.

All four companies took the county up on its offers, agreeing to expand in Henderson.

Closed sessions to negotiate with and make confidential offers to the businesses were crucial to the process, Messer said. He credited the county’s low unemployment rate — now at 4 percent — in part to the business brought in with tax incentives.

Messer added that the numbers of closed sessions on economic incentives can be a little deceiving, as oftentimes the board will enter into several brief closed sessions simply to receive updates on the status of negotiations with a company, without taking any action.

In those cases, “we don’t necessarily get into a lot of detail, we just hear about whether we’re still in the running,” he said.

Seeking real estate deals

Like many other matters aired in closed session, the public often only finds out about potential county real estate purchases after a board of commissioners has made a decision. If no deal is reached, discussion of a potential purchase might never go public.

Last year, for example, the Jackson County Board of Commissioners held eight closed sessions to discuss property acquisition, and the records of all of them remain sealed.

However, in the case of some deals that don’t go down, unsealed minutes can unveil part of the board’s decision-making about a given property.

Last February, for example, Transylvania County’s board of commissioners declined to accept a tract of donated property, closed session minutes reveal.

In that case, a local property owner passed away after instructing his trustee to convey his property, off Williamson Creek Road, to an unspecified nonprofit to preserve it as green space. However, the owner didn’t allocate funds for accomplishing that process, and the trustee asked the county to consider accepting the property and using it as a public park.

“Staff has visited the property and determined it is not suitable or feasible for the county’s use and it would be difficult to convert the property into a park,” the minutes recorded. “There is also a house on the property that would need to be demolished because it has mold issues and other damages.”

After visiting the site and coming to the same conclusion, the board passed on the property, the minutes said.

Legal matters: Attorney-client privileges

County boards use the attorney-client privilege exception to discuss a wide range of legal matters in closed session, from lawsuits involving the county or its employees to criminal investigations involving county staff.

While all local boards are allowed to invoke this exception, some do so sparingly. The reason, many times, is that they lack a full-time staff attorney who’s readily available to provide advice, says Bluestein, the UNC Chapel Hill professor.

“If you have a small city that doesn’t have very many employees, and everybody gets along and they’re not firing people very often, a lot of towns have contract attorneys that they don’t consult very often because it costs them a lot of money every time they do,” she said.

Opening records on closed sessions

Amanda Martin in her Raleigh copyright law office
North Carolina Press Association attorney Amanda Martin says that numerous court decisions have ruled that the exemptions in open records and open meetings laws should be narrowly construed. Katie Bailey/Asheville Citizen-Times

Bluestein said that there’s no precise direction in state law for how county boards should release minutes of their closed sessions.

“My own view is that the assumption is that they are public” from the get-go, she said of closed session minutes, “and that they can be sealed as long as [releasing them] could frustrate the purpose of the meeting. I think what some people do is seal them, and then if they get a request, then they would review them” for release.

“There are definitely different practices and the statute is not clear” on this question, Bluestein said.

For years, Graham County has proactively unsealed minutes, explained county clerk Kim Crisp. When she took the position in 2008, she said, “there was an issue with people in the public asking questions about the closed minutes.”

Consequently, the board instituted a new policy of reviewing closed session minutes a couple of times a year and releasing those they could.

Similar policies prompt the release of closed session minutes in Buncombe, Haywood, Henderson, Jackson, Polk and Transylvania counties.

In Haywood, the goal is to be as transparent as possible about closed sessions, according to board chair Swanger.

“The very best thing you can do is to, very promptly and on a regular basis, review your closed session minutes, and when there’s no longer a need to keep them closed, release them and let the public know what you did,” he said.

“We are conducting the people’s business and we understand that,” he added. “And with very few exceptions, personnel and some legal matters, the public has an absolute right to know.”

Join the conversation

NEWSMAKERS: The Best & Worst of WNC’s Open Government

In conjunction with this investigative report, Carolina Public Press will hold a Newsmakers forum during Sunshine Week, the annual nationwide celebration of access to public information and what it means for you and your community. In North Carolina, the week is an opportunity for journalists, open government advocates, public officials and community members to discuss open government and its importance to a transparent and vibrant democracy.

Eventbrite - NEWSMAKERS: The Best & Worst of WNC's Open Government

Tuesday, March 17, 2015
6:30 – 7:30 p.m.
Jackson County Public Library
310 Keener Street, Sylva

Featuring a live interview and public Q&A with:
Jon Elliston, Investigations and Open Government Editor, Carolina Public Press
Quintin Ellison, Reporter, The Sylva Herald
Jonathan Jones, Director, NC Open Government Coalition

The forum is free and open to the public.

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Jon Elliston is the lead contributing open government reporter at Carolina Public Press. Contact him at jelliston@carolinapublicpress.org.

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