Brad Branham, city attorney for Asheville, argues the public should not have access to a City Council retreat in March 2021. WebEx screenshot from hearing.

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A coalition of media organizations, including Carolina Public Press, scored a court victory last week when Buncombe County Superior Court Judge Steve Warren ruled the city of Asheville must pay legal fees related to a proposed closed meeting in March.

Judge Warren awarded the media coalition’s attorneys nearly $4,200 for their efforts, a move allowed under state law granting attorney fees and costs to the winning party.

Earlier this year, the city of Asheville proposed keeping a five-hour stretch of a two-day retreat off-limits to the public, calling it a team-building exercise. State law says “informal gatherings” need not be open to the public — a designation Asheville City Attorney Brad Branham argued in court as he attempted to shield that portion of the meeting from public scrutiny.

The media coalition — CPP, Mountain Xpress, the (Asheville) Citizen Times and Blue Ridge Public Radio — sued the city and prevailed in a hearing a day before the meeting.

Last week’s ruling closed the loop on the issue — namely reimbursement of attorney fees and other costs for the media coalition, led by attorney Amanda Martin.

The order requiring the city of Asheville to pay the coalition’s bills said members of the media had exhausted all other avenues to resolve the meeting dispute and were forced to file a lawsuit in Superior Court.

“The decision to initiate litigation was not an easy one due to the formidable fiscal environment for media organizations,” Warren’s ruling states. “Nevertheless, the importance of the issue left them no choice.”

Before filing the lawsuit, the media organizations encouraged the city to seek guidance from the state attorney general. Instead, Branham emailed professor Frayda Bluestein of the UNC School of Government, the ruling states.

“Professor Bluestein offered her opinion that the meeting was an ‘official meeting’ within the meaning of the Open Meetings Law and should be open,” the ruling states. “Notwithstanding the opinion, the City insisted that legally the public could be refused access to the meeting.”

Last week, Branham doubled down and said he disagreed with the judge’s ruling.

He said by his reading of the state’s open meetings law, that part of the retreat did not have to be public because the purpose of an “official meeting” was “conducting hearings, participating in deliberations or voting upon otherwise transacting public business.”

“None of those actions occurred during the initial session of the City Council retreat,” Branham wrote late last week in response to CPP’s questions. “For these reasons, it was the opinion of the City Attorney’s office that the team building session was not an official meeting, and therefore the open meetings law requirements did not apply to that setting.”

Though he disagrees with Warren’s ruling, he said an appeal would be an inefficient use of public funds, and the city will comply.

Branham’s office did not have an estimate for how much time it took to negotiate with the media organizations, prepare for and respond to hearings, other than to say it was minimal.

Branham receives $189,625 per year as the city attorney.

Martin, counsel for the media coalition, said the city of Asheville meeting was conducted in a city-owned events center, and the presence of a facilitator indicated something more formal was afoot.

“I do think the ruling by the court will act as a deterrent, not only to stop public bodies from trying to skirt the open meetings law but also to discourage public bodies from forcing the public to take legal action,” Martin said. 

“Members of the public should not have to file suit in order to get their rights under the law.”

Brooks Fuller, director of the N.C. Open Government Coalition, said the law encourages mediation and considers lawsuits a last resort.

“Litigation always favors people in power,” Fuller said. “So, if there’s going to be a statutory fix, it probably lies in expediting more of these cases and stiffening the penalties for violation of the law.” 

One such solution could be making public officials personally liable for their violations of the open meetings law, he said.

“I think you’d probably see lawmakers and public servants be a lot more careful with their actions around opening and closing meetings if they were individually on the hook for judgments,” Fuller said. 

“Because right now, the payer (who) is on the hook when someone violates the open meetings law is ultimately still the taxpayer.”

While the single trial court ruling does not create a legal precedent, it may give other government or agency officials pause before trying to close their public meetings in a similar fashion, said Bluestein, the UNC School of Government professor.

“To the extent that other governmental officials and their attorneys are aware of the case, however, it might give them something to consider in their planning,” Bluestein said.

Asheville Mayor Esther Mannheimer said because the meeting was public, she thinks council members were not as forthcoming as they would have been in a private setting.

“I think that’s human nature,” she said. “In my experience, people tend to share more personal information about themselves when it’s not a conversation that the public is listening to.”

Kate Martin

Kate Martin is lead investigative reporter for Carolina Public Press. Email her at kmartin@carolinapublicpress.org.