The following are excerpts from Open Meetings and Local Governments in North Carolina: Some Questions and Answers (Fifth Edition 2002), by David M. Lawrence of the Institute of Government at the University of North Carolina at Chapel Hill.
- Q. What kinds of groups are subject to the open meetings law?
A. The law extends to any “public body.”
- Q. Is “public body” defined?
A. Yes, and the definition is very broad. In general, a public body is any authority, board, commission, committee, council, or other body of state or local government that meets both of two conditions. First, it must have at least two members. And second, it must be authorized to exercise at least one of the following five functions: legislative, policy-making, quasi-judicial, administrative, or advisory. It is hard to imagine a formal group that is not authorized to exercise at least one of the listed functions.
- Q. What about committees of public bodies, such as the finance committee of a city council?
A. They are also public bodies; the statute specifically extends to “committees.”
- Q. What is the status of a joint board or committee established by two local governments?
A. It is a public body. The statute includes in the definition of public body boards and commissions of “one or more” local governments.
- Q. If a group of public officials meet together informally, do they constitute a public body? For example, what if all the mayors in a particular county got together for lunch to talk about common problems?
A. The kind of “group” involved in the example is probably not a public body. There needs to be some minimal amount of structure to a group before it meets the statutory conditions. In addition, it’s not clear that such a discussion group is exercising even one of the five required functions listed in Question 2.
- Q. Are all meetings of public bodies subject to the open-meetings law?
A. No. Only “official meetings” are subject to the statute.
- Q. Well, what’s an “official meeting”?
A. An official meeting occurs whenever a majority of the members of a group meet - in person or by some electronic means, such as conference telephone call - in order to do any of the following:
- conduct a hearing,
- take action, or
- otherwise transact public business.
- Q. Holding a hearing and taking action are both fairly clear. But what does it mean to “deliberate”?
A. In one court’s words, “to ’deliberate’ is to examine, weigh and reflect upon the reasons for or against” a possible decision. “Deliberations thus connote not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.”
- Q. What about a briefing, when the board is simply receiving information and not discussing it?
A. This amounts to deliberating, too. Again, the board is collectively acquiring the information on the basis of which it will act, which is part of the deliberative process.
- Q. Are there exceptions to the basic requirement that all meetings be open?
A. Yes, several. The exceptions fall into two categories. The first, includes subjects that may be discussed in a closed session, that is, a session from which the public is excluded. The second, type of exception removes several kinds of groups from the statute altogether; these groups need never meet in public nor give public notice of their meetings.
- Q. What are the subject-matter exceptions?
A. There are nine, eight of which are likely to be used by local governments. The eight are as follows:
- Confidential information
- Consultations with an attorney
- Business location or expansion
- Real property acquisition
- Employment contracts
- Certain personnel matters
- School violence response plans
- Q. Are there special procedures for going into closed session?
A. Yes. The statute provides that a closed session may be held only on a motion adopted in open session by a majority of those present and voting. The motion must state the purpose set out in the statute that permits the closed session, such as "to consider matters relating to the location or expansion of industry." In addition, two of the purposes require a more detailed motion. First, if the purpose is to discuss some matter that is confidential by law, the motion must cite the law that makes the matter confidential. For example, if an area authority meets to consider matters relating to a specific patient, the motion to go into closed session would have to cite G.S. 122C-52, the statute that makes patient information confidential. Second, if the purpose is to discuss pending litigation, the motion must identify the parties to the litigation.
- Q. Can action be taken in a closed session, or is the session restricted to discussion only?
A. For some of the subjects for which closed sessions are permitted, the law clearly permits action to be taken in closed session. For others, it clearly requires that action be taken in open session. Thus it will be necessary to look at each authorization to hold a closed session in order to determine whether action may be taken with regard to that subject in the closed session.
- Q. If action cannot be taken in a closed session, may a board reach a tentative consensus in such a session and then take formal action in open session?
A. Yes. The North Carolina Supreme Court has construed the law to permit such a procedure.