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Editor’s Note: This article was been substantially updated from a version that published on March 29, following a judge’s ruling in the case on March 30. After the publication of this version on March 30, the city further announced that it will live-stream most of the event due to public interest, despite saying the day before that it would no longer do so. The team-building portion of the meetings, which were the subject of the lawsuit, will not be part of the livestream. The text of the article does not reflect this latest development.
A team-building exercise among Asheville City Council members is an “official meeting” and not an “informal gathering” under the law, according to a Buncombe County judge’s ruling on Tuesday.
The ruling requires that the public be allowed to observe the event under the state’s open meetings law, but city officials canceled a livestream of the meeting, leaving in-person attendance as the only real-time option for the public and press.
A coalition of media outlets sued the city to allow public viewing of that five-hour portion of the two-day retreat, which will start Wednesday at the city-owned Harrah’s Cherokee Center-Asheville.
After Buncombe County Special Superior Court Judge Steve Warren issued his ruling Tuesday afternoon, Asheville City Attorney Brad Branham’s office released a statement: “Mr. Branham respects the court’s ruling and will abide accordingly. There are no changes to the agenda.”
Branham argued Monday that the team-building exercise was not part of a meeting at all, rather, more akin to an “informal gathering” where public business would not be discussed.
Amanda Martin, the attorney for Carolina Public Press, Mountain Xpress, the (Asheville) Citizen Times and Blue Ridge Public Radio, said if it were a social event — such as a wedding — she would agree.
“This is clearly not a purely social gathering, nor do we believe that it is in any manner an informal gathering,” Martin said.
“I never once invited a facilitator to any social gathering that I had. The facilitators will be paid with public money and the meeting will take place in a public facility — and is all part and parcel of an official retreat.”
The judge agreed with Martin and the media coalition. Martin said it is in the public interest for citizens to get to know their elected officials better, and she is glad for the judge’s ruling, but she admonished the city for its decision to cease its plans to live stream the meeting.
“I am disappointed the city has canceled plans to stream the meeting live. It is a shame to waste that capability and seems contrary to a spirit of transparency,” Martin said.
When asked by CPP late Tuesday why the meeting would not be streamed live, Mayor Esther Manheimer said the meeting was going to be streamed online initially because in-person attendance was not allowed.
At the time the meeting was planned, she said, the governor’s restrictions were more stringent against in-person gatherings.
“Now, everyone can attend in person,” Mannheimer said. “I was a participant in that decision because, and my rationale was, now we’re doing a full, in-person meeting. Going back to the typical days before the pandemic, that’s how we would’ve done it.”
But the City Council live streamed their retreat last year.
Three days before last year’s retreat, Gov. Roy Cooper declared a state of emergency. A day later, the World Health Organization officially declared COVID-19 a pandemic.
On March 13, the Asheville City Council’s retreat included guests in the audience, and it was live streamed on YouTube. Nobody wore masks — the Centers for Disease Control and Prevention had not yet recommended them — and people sat in the audience shoulder-to-shoulder.
Those who choose to show up in-person this year will adhere to the state’s COVID-19 guidelines, including wearing a mask and remaining physically distant from others.
Both days of the retreat will be recorded and uploaded to the city’s YouTube Channel by 5 p.m. Friday, the city said.
According to provided retreat information, Asheville City Council members will talk with two facilitators hired by the city about “building a solid foundation for success” during the first of a two-day retreat. The session is currently scheduled for five hours.
The need for transparency
During Monday’s hearing, Asheville attorney Brad Branham asserted that the retreat should not be considered a meeting at all, rather, an informal gathering — which, he said, is not subject to the state’s open meeting laws.
Branham said the city has the “sacred obligation” to adhere to the open meetings law.
From 2016-19, the city of Asheville held similar retreats, which were all open to the public. In 2020, the team-building portion of the retreat was canceled due to the coronavirus pandemic.
“This is not an attempt to have a closed session,” Branham said. “The statute says a social meeting or other informal assembly or gathering of members does not constitute an official meeting.”
If it were a purely social event, she would agree, Martin said.
Two facilitators paid by the city of Asheville — Nicholas Beamon of One Team Leadership and Kimberly Hunter — will lead council members through the agenda topics.
According to the retreat agenda, City Council members will discuss “strengthening alignment, teamwork and trust,” “forming a success compact,” and “forming working agreements.” The agenda was released to CPP after the hearing concluded. The fact that the retreat has an agenda at all is evidence of the gathering’s formal nature, Martin added.
After the plaintiffs suggested city officials seek the advice of the state attorney general, Branham opted instead to ask the opinion of a UNC School of Government professor with expertise in open meetings law, Frayda Bluestein.
Bluestein opined that the “planned meeting constituted public business that could not be conducted in closed session,” according to the plaintiffs’ complaint.
Bluestein said she and Branham disagreed on their interpretations of law.
“I have my opinion based on statutory provisions, and he has his,” Bluestein said in an email exchange with CPP. “It’s reasonable for the board to go with their attorney’s opinion.”
What if, Judge Warren asked Monday, during the course of the discussion, the facilitator asked about each person’s interesting government work, and someone responded with “I am here because of my interest in housing issues.”
“Is that not of vital interest to the public?” Warren asked.
Branham told the judge that the city would record the session. Martin responded Monday that that was a new offer, not one previously made to the media organizations despite requests.
“Even if we open (the meeting) to the public, they would not be able to participate,” Branham said. “They would only be able to listen.”
He said topics of an “important and private nature” will be discussed as a justification to keep the meeting closed, as well as the ongoing coronavirus pandemic, and the possibility of “someone that could be disruptive” could show up.
Branham said Asheville has four relatively new council members, and the “get to know you” session may include disclosures of information council members would prefer to remain private — questions about one’s siblings, family and background.
“It strains credulity to say it is anything other than public,” Martin said. “If someone runs for public office, they have signed up for a certain amount of public exposure and sometimes scrutiny.”
Judge Warren asked both attorneys to file stipulations of fact with his office before he issued his ruling on Tuesday.
Correction: This story was updated to reflect that the 2020 retreat did not include team-building activities.
Some of these board members were on the board that sold naming rights to the civic center behind closed doors a few years ago, a flagrant and indefensible violation of the Open Meetings Law. Unbelievable. The law requires that they keep minutes of closed meetings. Will they do that at their “retreat” where they will “deliberate” on issues they would not be involved in if not council members?