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Board may meet with attorney behind closed doors

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    NMU         NORTH CAROLINA         Freedom of Information         Feb 28, 2000    

Board may meet with attorney behind closed doors

  • No pending or threatened legal action is required for a public board to meet in private with an attorney under the state Open Meetings Law.

A public board may meet in private with an attorney to discuss a proposed law without violating the Open Meetings Law, a state appeals court ruled in late February.

While the mere attendance of a municipal attorney at a government meeting is not sufficient to close the proceeding, the meeting need not be in response to a pending legal matter either, the court ruled.

The Asheville Citizen-Times alleged that the Henderson County Board of Commissioners violated the meetings law when it met in private with counsel in November 1998 to discuss a proposed ban on racetrack and speedway construction in the county.

In a matter of first impression, the court interpreted a 1994 amendment to the Open Meetings Law exemption that allows government commissions and boards to meet secretly to discuss legal matters with counsel. The previous version of the “attorney-client” exemption required pending or threatened legal action before a board could meet privately without counsel but allowed private meetings with counsel at any time for confidential attorney-client discussions.

The newspaper charged that the revised law, which no longer contains language about pending or threatened legal action, nonetheless allows a board to meet in private with counsel only in such circumstances and not merely to discuss proposed ordinances. A trial court in Henderson County rejected the newspaper’s request for the minutes from the secret meeting and for an order preventing the board from using the “attorney-client” exemption to meet secretly in the future.

In its Feb. 15 opinion, the Court of Appeals in Raleigh vacated the lower court ruling and remanded for a new trial. In so doing, the court ruled that the 1994 amendment allows a board to meet in private with an attorney to discuss both pending litigation and actions that may result in litigation — subjects that typically are protected by the attorney-client privilege.

“Discussions regarding the drafting, phrasing, scope, and meaning of proposed enactments would be permissible during a closed session. Discussions regarding their constitutionality and possible legal challenges would likewise be so included,” Judge John Lewis wrote for the court. “But as soon as discussions move beyond legal technicalities and into the propriety and merits of proposed enactments, the legal justification for closing the session ends.”

Whether the board’s meeting in this case involved privileged communication is unclear, the court said. On remand to the lower court, the board must show that its meeting with counsel was appropriate under the attorney-client exemption.

“On meeting its burden, government bodies may not simply treat the words ‘attorney-client privilege’ or ‘legal advice’ as some talisman, the mere utterance of which magically cast a spell of secrecy over their meetings,” Lewis wrote. “Rather, the government body can only meet its burden by providing some objective indicia that the exception is applicable under the circumstances.”

(Multimedia Publishing of North Carolina v. Henderson County; Media Counsel: James Rowe, Asheville)


© 2000 The Reporters Committee for Freedom of the Press

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