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Questions about whether UNC Board of Governors violated open meetings law

Most of the focus at Friday’s University of North Carolina’s Board of Governors meeting was on a unanimous decision to close three academic centers, including an Chapel Hill law school center focused on poverty and run by a controversial law professor who has been a fierce critic of state Republican leaders

A student speaks up in protest at Friday's Board of Governors meeting.

A student speaks up in protest at Friday’s Board of Governors meeting.

But, questions have been also raised about whether the UNC board violated North Carolina’s open meeting law after Chairman John Fennebresque shut down the meeting because disruptions by student protesters. Members of the public were excluded from the remainder of the meeting, after Fennebresque moved the board of members and university staff to another room to continue the meeting.

The general public was kept out of the smaller meeting room, though members of the press and some individuals, including Republican state Sen. Bob Rucho, were allowed in the more select meeting. Video of the meeting was streamed to another room for the public to observe. The student protesters continued to chant outside the meeting room, yelling statements like “Let us in!,” and their protests frequently drowned out discussion at the actual meeting.

Jonathan Jones, the director of the N.C. Open Government Coalition, based out of Elon University, wrote an article this weekend questioning whether including the press in the second meeting room and streaming video was sufficient to keep the meeting in line with open meeting laws. It hasn’t been in other cases, Jones wrote.

Another transparency concern brought up in the piece was a resolution, apparently passed in closed session in January, to not speak to the press about the firing of the UNC system President Tom Ross. N.C. Policy Watch has made a public records request for a copy of that resolution, but has yet to receive a response from the UNC system.

Here’s more about the open meeting concerns, from the N.C. Open Government Coalition:

N.C. Press Association Attorney Amanda Martin told The Charlotte Observer and the News & Observer newspapers that the actions of the board violated the law since there was clearly an effort to exclude the public. Ross, the system president, told the papers that the video and audio feeds complied with the meetings law and the move was made so the meeting could move forward.

The Open Meetings Law states that meetings “shall be open to the public, and any person is entitled to attend.” It does not address excluding the public when the audience is disruptive. The Court of Appeals addressed the question of what it means for “any person … to attend” a public meeting in Garlock v. Wake County Board of Education. In that case the Wake County Board of Education’s regular meeting room could not accommodate large crowds that were wanting to attend meetings, so the board developed a lottery system for which it provided short notice. The board also used smaller meeting room for a committee of the whole meeting, as opposed to its larger meeting room, and excluded the public. People excluded could view the meetings in an adjacent room on video and audio feeds.

The Court of Appeals first found that “the legislature’s purpose for N.C. Gen. Stat. § 143-318.10 is to ensure that public bodies receive public input regarding the substance of the public body’s actions, that the public has the opportunity to have knowledge and understanding of the public body’s deliberations and actions, and that public bodies to act in good faith in making provision for the public’s knowledge and participation in its meetings.” The court then said that the appropriate standard is to examine whether or not the public body took “reasonable measures to provide for public access to its meetings.”

In dealing with the committee of the whole meeting, from which the public was excluded, the court stated that “media coverage alone does not render a meeting open; a reasonable opportunity for access by members of the public must be made. The complete exclusion of members of the public from the COW meeting for a significant portion of the meeting is the most obvious violation of the Open Meetings Law in this case.”

The Board of Governors meeting Friday is most similar to the Wake County Board of Education’s committee of the whole meetings in which the public was excluded, the press was included and video feeds were made available. The Court of Appeals found that to be a violation of the meetings law in Garlock, given in part that a larger meeting room was available next door.

It seems unlikely that the Board of Governors concerns about disruptions would be sufficient to distinguish this situation from Garlock. The Board of Governors had a room available sufficient to handle the public who wanted to attend, and had other means available to it, as evidenced by UNCC police escorting protestors out of the room, to control outbursts.

This is the second Open Meetings Law question to arise in a Board of Governors meeting in as many months. Last month the board met in executive session to discuss the performance of President Tom Ross, and then announced that his contract would only be renewed for this year. After the meeting, The Chronicle of Higher Education reported on emails that it had obtained through records requests. The emails of board member emeritus Hannah Gage revealed that the board passed a resolution in closed session “not to comment” on Ross’ departure. No such resolution was disclosed or affirmed, according to the minutes from that meeting.

You can read the entire article here.

Note: This post has changed from the original to reflect the correct name for Elon University. The original post incorrectly referred to the private university in Burlington as Elon College.

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