Graham’s city council improperly entered into a closed session last month to discuss the so-called “performance” of one of its own members, based on details that emerged during the council’s latest monthly meeting Tuesday night.
Graham may-or Chelsea Dick-ey asked this week for one of the 12 items to be pulled from the consent agenda – which is reserved for ostensibly non-controversial matters that are typically approved in a single vote – for a discussion Tuesday night.
The closed session had been added to the agenda for the meeting on April 14 at the request of councilman Jim Young.
After polling her fellow council members to see whether they wanted to pull anything from the consent agenda for discussion, Dickey pointed out that the purpose of the closed session was to discuss her performance as mayor.
“This closed session was supposed to be for a personnel meeting, but in actuality was [for my performance review] but was an improper use of a closed session,” the mayor revealed Tuesday night. “All of the performance reviews of our council should be done in the open. Because of that, a performance review of me, I vote that these should not be sealed for closed [session] minutes.
One of the city’s attorneys, Bob Ward, told the council Tuesday night that the matter should be discussed during yet another closed session scheduled later in the evening, which was to discuss an ongoing lawsuit that the city of Mebane has filed against Graham.
“With respect to the closed session minutes, given rise to legal issues, I would ask that that be disclosed in closed session, at the same time to discuss the lawsuit,” Ward said. “There’s something else I need to advise the council about.”
Graham city manager Megan Garner told the council Tuesday night, “I would like it noted that I do not waive any right to my confidentiality regarding my personnel file, as I’m entitled to under the law.”
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Alamance News publisher Tom Boney, Jr., who was present to cover the council meeting, stepped to the podium to register his concern about what appeared to have been an improper closed session discussion.
“Madam mayor, I’m a little concerned, based on your description, whether it qualifies for a closed meeting,” Boney said Tuesday night. “If the discussion was about any council member, that is not allowed under the statute.”
The portion of North Carolina’s Open Meetings Law that allows public bodies to enter into closed sessions explicitly prohibits discussions about any of their own members or members of other public bodies. Public bodies also are barred from discussing how to fill a vacancy on their boards, commissions, or councils in closed session.
‘You need to sit down’
Council member Bonnie Whitaker interrupted Boney, asking rhetorically whether the consent agenda item had been scheduled for a public hearing.
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Young, for his part, told the publisher he needed to sit down.
Boney continued to cite the statute for the council and the attorneys. “It says, ‘A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy [among its own membership except in an open meeting].”
“I think I asked this at the time,” Boney added, “if this was regarding an employee, which is allowed, versus a member of the council, which is never allowed.”
Young replied, “The meeting was a continuation of a previous closed session we had that was concerning a personnel issue. With all due respect Mr. Boney, this is not an open session right now. You need to sit down because you’re not allowed to speak right now.”
Ward interjected, “Let me tell you just for the record: I’m perfectly familiar with the law that Mr. Boney recites. This is a legal issue, not necessarily what he has identified as a legal issue that I need to talk with you about in that context.”
The city’s attorney offered no explanation Tuesday night for why he had allowed the improper discussion of the mayor’s so-called “performance” during the closed session on April 14.
The council subsequently voted 4-1 to approve the consent agenda, including the closed session minutes for April 14, with Dickey opposed.
Mayor says discussion should’ve taken place in open session
In a subsequent interview with The Alamance News, Dickey recalled the talking points from the closed session discussion on April 14, which she maintains should’ve been conducted in public, in open session, as state law requires. The closed session lasted for half an hour, from 8:44 p.m. until 9:17 p.m., on April 14.
The mayor said that Young had asked for a “personnel” closed session to be added to last month’s agenda. “I asked Jim what it was about, and he said he couldn’t give any context because we were in open session,” Dickey said in an interview Wednesday afternoon.
Young opened the discussion by asking Dickey what she believed her role as mayor was, and the other council members began listing ways they believed that she’d acted improperly, Dickey said in the interview. She noted that mayor pro tem Ricky Hall “didn’t really say much” during last month’s closed session.
“They said I was calling department heads but couldn’t give an example,” the mayor told the newspaper Wednesday. “They said I was undermining [the city manager] by asking for the phone number of someone who had spoken at a public hearing and by asking that we edit the budget process. I understand that I’m not the budget officer; I just wanted more information, additional information so I can make the best decision possible.
“The last one is totally on me,” Dickey conceded. “There was a community member asking for help with an issue involving the [police department]. They had referenced body cam footage, and I had asked Megan [and assistant city manager Aaron Holland] if I could see the footage, but I didn’t push it.”
In retrospect, Dickey said she now realizes the impropriety of her request.
State law stipulates that police body cam footage must be obtained by filing a “Petition for Release of Custodial Law Enforcement Agency Recording” with the clerk of superior court. Police body cam footage can only be obtained if a superior court judge orders it to be released.
She hadn’t learned about that dimension of state law during the training she received, for newly-elected municipal officials, through the UNC School of Government earlier this year, Dickey confirmed for the newspaper Wednesday.
Meanwhile, neither of the city’s attorneys, Ward and Bryan Coleman, had interrupted the closed-door discussion on April 14 to inform the council that the mayor’s “performance” was not a permissible topic for closed session, Dickey said. That was the only topic covered during last month’s closed session, she said.
“The meeting was about me, so I feel I can share that,” she added. “I’m not looking to get anybody in trouble. I just want the city of Graham to follow [the law].” The council members have since been informed about what topics that state law permits them to discuss in closed session, Dickey said Wednesday.
Open Meetings Law outlines permissible purposes for closed sessions
North Carolina’s Open Meetings Law permits public bodies to enter into a closed session for nine purposes but prohibits any discussion of their own members. State law doesn’t classify elected and/or appointed members of public bodies as “personnel,” and they’re not afforded the “confidentiality” provisions for public employees and certain portions of their employment files.
Specifically, the Open Meetings Law permits public bodies to enter into a closed session to: prevent the disclosure of information that is not considered public under the state’s Public Records Law; prevent premature disclosure of an honorary degree, prize, or some other award; consult with an attorney on matters protected by attorney-client privilege or instruct the attorney on the handling or settlement of a claim or judicial action; discuss the potential location or expansion of industry or business within the area served by the public body, including economic incentives; and instruct the staff or attorneys on the position to be taken in negotiating the price or terms for the acquisition of real property.
The statute also permits public bodies to enter into closed session to: consider the qualifications, performance, or fitness of a prospective or existing employee and/or investigate a complaint or grievance by or against an employee; plan, conduct, or hear reports concerning investigations of alleged criminal misconduct; and develop plans for responding to potential terrorist activity. It also permits North Carolina school boards to enter into closed session to develop the school safety components of their school improvement plans.
