• Elliot Engstrom

Engstrom Explains: The Open Meetings Law

North Carolina law sets forth a broad policy generally requiring that "the hearings, deliberations, and actions of [public] bodies be conducted openly." In pursuance of making this broad policy a reality, the General Assembly has enacted the "Open Meetings Law." Below are a few points explaining what this law is and how it works:

(1) The Open Meetings Law requires that public bodies conduct public business openly.​

Official meetings of public bodies must be open to the public, with limited exceptions specifically enumerated in statute. The Court of Appeals has found that the purpose of this requirement is to “promote openness in the daily workings of public bodies.” Any exceptions to this rule must be strictly construed in favor of openness in government.

If "official meetings of public bodies" must be open to the public, then the obvious question is what constitutes an "official meeting." State law defines such meetings as occurring whenever a majority of the members of the public body gather in person or remotely for the purpose of conducting public b usiness. The only place that a public body may conduct public business other than an open meeting is in a closed meeting entered into pursuant to one of nine specific exceptions to the Open Meetings Law.

To summarize: a public body may not meet and discuss public business unless it is (a) conducting an official open meeting or (b) entering into a closed meeting for one of the reasons listed by statute. Any other method of carrying out public business by a public body is in violation of the Open Meetings Law.

(2) The Open Meetings Law requires public bodies to provide reasonable public access to public meetings.

Public bodies must keep a schedule of their regular meetings and otherwise provide notice of any meetings that fall outside of the regular meeting schedule. A town that has a website must provide notice of both regularly scheduled and specially scheduled meetings. When the location of a scheduled meeting is changed, it must post a public notice on its bulletin board or the door of the location of its regular scheduled meeting at least 48 hours prior to the relocated meeting. The Court of Appeals has found that when a meeting is held "in secret" or "without prior notice," a violation of the Open Meetings Law has clearly occurred.

However, merely complying with the letter of the law is not enough for a public body to meet its burden of compliance with the Open Meetings Law. If a public body's meeting notice does not include "any information reasonably necessary to give members of the public the opportunity to attend the meeting," then it has not provided the reasonable public access required by the Open Meetings Law.

(3) Actions that are the product of an Open Meetings Law violation may be set aside under certain circumstances.

A trial court has jurisdiction to enter a judgment declaring that any action of a public body was taken, considered, discussed, or deliberated in violation of the Open Meetings Law. Upon finding that an action was made in violation of the law, a trial court may declare such an action null and void.

In considering whether to set aside an action that was found to be in violation of the Open Meetings Law, the trial court must consider six factors enumerated by statute. These factors include the extent to which the violation affected the substance of the challenged action, thwarted or impaired access to meetings that the public had a right to attend, and prevented or impaired public knowledge of the people’s business. They also include whether the violation was an isolated occurrence or was committed in bad faith, as well as the extent to which persons relied upon the validity of the challenged action.

When a trial court fails to make conclusions of law demonstrating that it considered the relevant statutory factors in connection with a plaintiff’s allegations that a public body violated the Open Meetings Law, it has committed a reversible error.

(4) A trial court may award a "prevailing party" in an Open Meetings lawsuit its attorney's fees.

When entering judgment in a suit brought under the Open Meetings Law, a trial court may make written findings specifying the prevailing party or parties. The question of which party is the prevailing party is a legal determination that an appellate court reviews "de novo," or "from the beginning" without considering the decision of the lower court.

North Carolina courts use the “merits test” to determine which parties prevail in a lawsuit brought under the Open Meetings Law. Under this test, a party must prevail on the merits of at least some of its claims to be a “prevailing party.”

A trial court has discretion when deciding whether to award attorney’s fees under the Open Meetings Law. However, when a trial court commits reversible error, an appellate court may direct it to reconsider whether it should have made a discretionary award of attorney’s fees.

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