Was Cape Fear Community College's most recent closed session justified?
Last week, members of Cape Fear Community College Board of Trustees (BOT) pushed Trustee Ray Funderburk III into a closed session, after he said he wanted to make a public statement about the removal of former Trustee Jimmy Hopkins by New Hanover County Commission Chair Julia Olson-Boseman.
Funderburk told WHQR he couldn’t disclose his statement(s) since they were discussed in executive session, also known as closed session.
“I cannot make any comment on it, nor can I finish saying what I started to address in the open meeting,” he wrote.
So what does public records law say about the legality of both the Board of Trustees and Board Attorney Ken Gray of Ward and Smith making this decision?
Amanda Martin of Duke Law School’s First Amendment Clinic addressed Vice-Jason McLeod’s motion to go into closed session through North Carolina General Statute 143-318.11(a)(3).
“If the lawyer was giving advice about legal issues related to the county commissioner's removal, or something like that, then the closed session may have been legal. Consider, for example, if the advice was whether the BOT could block the commissioners’ removal. That would be legal advice authorized under the statute,” Martin said.
However, Martin, noted, “with that said, any discussion (as opposed to receiving legal advice) would need to have been in open session.”
No discussion ever took place while Gray was sitting among the trustees instead of in the audience.
Gray sent a statement to WHQR through Christina Hallingse, CFCC’s director of media relations: “The BOT entered closed session to discuss confidential legal issues with legal counsel so that the BOT could preserve privileged attorney-client communications. If the BOT had not entered closed session, it would have impaired the ability of legal counsel to provide frank assessment of legal issues. Therefore, the specifics of what was covered is privileged and not disclosable."
Attorney General Josh Stein’s Open Government Guide on Closed Sessions
The main impetus for the closed session that McLeod cited was ‘attorney-client privilege to discuss ‘personnel’ issues.
Public records law does state that a public body may hold this type of closed session “to consider and give instructions to an attorney in the handling or settlement of a claim, judicial action or administrative procedure.”
Hopkins has since dropped the threat of a lawsuit against the college and New Hanover County — but it’s plausible that Gray is advising the college that despite Hopkins’ statement, a lawsuit in the future isn’t ruled out.
Public records law is clear that a board may not go into closed session simply because an attorney is present:
“In a closed session, the public body may not discuss general policy matters. If the body holds a closed session to receive advice from its attorney about an existing lawsuit, the body must state the names of the parties in the lawsuit when the motion is made to hold the closed session.”
And, since Hopkins is no longer on the board, it’s not clear how the closed-session clause for personnel would apply — even if Hopkins had been considered personnel and not a board member. Gray’s statement did not clarify this issue.
In terms of holding a closed session to discuss personnel matters, “[a] public body must be in open session of an official meeting to take final action on the appointment, discharge or removal of employees or officers. These provisions apply only to employees and officers. They do not apply to members of the public, itself or members of other public bodies.”
Meanwhile, Board Chair Bill Cherry, along with the college, continues to state they had nothing to do with Hopkins’ removal. They have publicly said that his removal needs to be taken up with New Hanover County.
However, the main contention that Funderburk brings up is that the trustees are not following their own by-laws by allowing the county to remove Hopkins. He maintains that general statutes govern the removal of a trustee, not the body that appointed them.
Further, while Olson-Boseman unilaterally removed Hopkins and notified him by email, the law also states that the removal of one of its own members has to be done in public:
“A public body may not hold a closed session to consider the qualifications, competence, performance, character, fitness, appointment or removal of one of its own members or members of any other public body. A public body may not hold a closed session to consider or fill a vacancy among its own membership or the membership of other public bodies. All of these things must be considered and acted upon in open session. A public body also is not permitted to consider general personnel policy issues in a closed session.”
WHQR also reached out to the University of North Carolina Chapel Hill’s School of Government for comment and has yet to hear back.
To view what the public records law states about open and closed sessions, click here.