By David Rogers. December 18, 2016. BLOWING ROCK, NC — When the host of a holiday party says, “Good night, everyone. Merry Christmas. Thanks for coming” — and ushers everyone out the door — there is a high probability that the party is over. And when everyone has gotten in their cars and driven away — and the host has no history of restarting festivities after cleaning up and going to bed — well, there is a good chance that you are not going to miss any more fun by going home, too, whomever you are.
Blowing Rock’s Town Council (the Board of Commissioners plus the Mayor) sailed through Tuesday evening’s regular meeting agenda with little in the way of discussion, much less controversy. The only speakers at the end were a non-agenda report from Police Chief Tony Jones on speed enforcement along Valley Blvd., as well as high praise from Commissioner Jim Steele for the emergency services personnel locally, regionally, statewide and even nationally who fought the Horton Fire and kept it from being worse than it was. (We’ve heard more than one person ask rhetorically, “What if the Horton Fire had seen the winds they had in Gatlinburg?” The consequences are unthinkable.)
But at the presumed end of the regular meeting, Mayor Pro Tem Albert Yount read the mandated statement announcing that the Council would enter into closed session. I don’t recall whether Mayor J.B. Lawrence said, “Meeting adjourned” after Yount’s reading, but he did say something along the lines of “Good night, everyone. Merry Christmas. Thanks for coming.”
With or without an official adjournment, it sounded like the public portion of the meeting was done. Since the Blowing Rock town council has no history (at least in recent memory) of re-opening a public meeting after a closed session without that intention being announced beforehand, it was a reasonable assumption that the public policy party was over for the evening.
However misleading it might appear, the Town Council did nothing wrong — unless…
So it was with more than a little bit of surprise and dismay that we learned two days later that the Board of Commissioners came out of closed session Tuesday night by declaring to themselves (and to the pictures of Town Councils from yesteryear hanging on the Chamber walls) that they were going back into open session that very same evening. Then they took a “public” vote on an issue that had been discussed in closed session, and then adjourned.
So What Is Right?
On the surface, it is annoying that the Council would tell everyone good night and usher us out the door as if there would be no more public business — and then have them come back into open session and take a so-called “public” vote. A jilted news editor looking for a COMPLETE story on the December Town Council meeting did not get all of it in his report. Something was left out, and the subject issue is actually an interesting story, as well as a lesson in civics.
On the surface, it is misleading to make everyone think all the “action” is done for the night (when in fact it wasn’t), but in reality Tuesday’s sequence of events was also a civics lesson. However misleading it might appear, the Town Council did nothing wrong — as long as Mayor Lawrence did not actually adjourn the regular meeting at the end of that first open session.
I queried Frayda S. Bluestein for an explanation on this issue. She is the David M. Lawrence Distinguished Professor of Public Law and Government at the University of North Carolina at Chapel Hill School of Government. She is arguably one of the foremost authorities on open meeting laws in North Carolina and she explained in response to my question, “The open meetings law requires that official meetings of public bodies must begin and end in open session. There is no authority for a board to adjourn a meeting in closed session, so it should be assumed by the board and the public that the board will come out of closed session before ending the meeting.”
…official meetings of public bodies must begin and end in open session.
Bluestein added, “The board certainly has the authority to come out of a closed session and take action before adjourning the meeting. It may be misleading for the board to suggest that the meeting is over when they go into closed session, especially if it has intentions of taking action after the closed session. The board may, however, expect that it won’t take any action, but determine during the closed session that it is necessary to do so. The board also has authority to take up matters even if they are not on the agenda, so a person who wants to make sure they don’t miss anything simply (needs) to stay until adjournment.”
So shame on local journalists and citizens alike for not being aware that the Board of Commissioners MUST come back into open session after a closed session in order to adjourn a regular meeting and that some sort of action, including a vote, MIGHT occur during that final open session.
Then again, we are apparently not alone in being aware of that requirement and those possibilities.
After hearing back from Bluestein of the School of Government, we were able to reach Mayor Pro Tem Albert Yount and interviewed him about the procedures followed Tuesday night by the Blowing Rock Board of Commissioners. Like us, he did not recall whether Mayor Lawrence declared that the regular open meeting was “adjourned” before the Council retired to closed session, but he did explain that after the closed session issues were discussed and it became clear that a decision about the final issue had been agreed upon by the commissioners, “Everyone was getting up to leave for the evening and I said, ‘Wait a minute, we have to make this decision in open session.’ After Town Attorney Allen Moseley agreed with me, we reconvened in open session and took our vote.”
According to the feedback I received from Ms. Bluestein, the Town Council ended up doing everything right — unless Mayor Lawrence declared the first open session “adjourned” before going into closed session. My audio recording ran out of battery about a third of the way through the regular meeting, it turns out, so I’ll have to wait until we can review what the official recording has to offer. But if it turns out that hizzoner did say something like, “Meeting adjourned” with his Christmas wishes and “good night,” then we would argue that the entire closed session was improper, and the subsequent open session, too.
‘Wait a minute. We have to make this decision in open session.’
When we pressed Mr. Yount for what normally happens after a closed session of the Blowing Rock Board of Commissioners, he replied, “We generally just pack up and go home (without re-convening the required open session before adjourning).”
I understand that the primary issue Tuesday night was consideration of a proposal by Blowing Rock Civic Association (BRCA) to purchase the “air rights” above the 0.7 acre parcel owned by the Town where a primary water storage facility is sited in the middle of Green Hill Circle. BRCA’s desire to control the air rights makes sense since almost three years ago the Town sent a letter to certain parties with connections to the Civic Association that given the pushback from Green Hill Circle residents and neighboring taxpayers in Blowing Rock, the Town would never again pursue the erection of a communications tower on that town-owned property. But only a about a year later the proposed communications tower had come back to life with certain town officials active in its pursuit. So to eliminate the potential of a tower on Green Hill Circle once and for all, BRCA’s proposal was to purchase the air rights for a specified sum and then transfer ownership of those rights to Blue Ridge Conservancy, a non-profit organization dedicated to preserving the High Country’s natural assets.
I understand that the Board’s decision was to tell BRCA that there is no interest in selling air rights to that parcel of land at the present time. For now, that strikes us as the most appropriate decision. According to research I have conducted at the UNC School of Government website, a public body such as a town council has a fiduciary responsibility to maximize the value received for such a sale of assets and is not permitted to exhibit favor or preference to any individual or organization in the disposing or gifting of such property. The value to the Town in the sale of air rights is more likely to be maximized if the opportunity is put out to competitive bid — if there is a willingness to sell the property at all.
At any rate, guess who will be hanging out in the lobby when Town Council goes into closed session from now on? Since the meeting must be continued after closed session if only for purposes of adjournment, anyone interested would be well-advised to bring a book to read or some “homework” — just in case the Town Council members get long-winded in a closed session.