Note: This is a draft AND it has not been filed AND the form did not "cut and paste" well from the original

STATE OF NORTH CAROLINA

COUNTY OF BURKE

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

JOE Q. PUBLIC,
Plaintiff,
vs.

BURKE COUNTY BOARD OF EDUCATION,
Defendants

VERIFIED COMPLAINT FOR MANDATORY AND PROHIBITORY INJUNCTIVE AND DECLARATORY RELIEF
_____________________________________________________________________________________


Dated this 28th day of April, 2009




CLARENCE DARROW




PRELIMINARY STATEMENT

1. Plaintiff, Joe Q. Public, brings this action for declaratory and injunctive relief pursuant to the Meetings of Public Bodies Act (“the Open Meetings Law”), Chapter 143, Article 33C, North Carolina General Statutes. By this action, Plaintiff brings this action for injunctive and declaratory relief to (a) compel the Defendants to hold Burke County Board of Education official open meetings in a venue that allows the Public to attend pursuant to its mandatory, non-discretionary obligation as per N.C.G.S. § 143-318.10(a) and 115C-4, and for (b) and entry of judgment declaring all actions null and void that were taken at official open meetings in violation of N.C.G.S. § 143-318.10(a).

2. Plaintiff requests an accelerated hearing pursuant to N.C.G.S. § 143-318.16(c).

VENUE AND JURISDICTION

3. Venue is proper in Burke County as Defendants are based in Burke County, and all of the events and omissions complained of below occurred in this county. Jurisdiction is proper in the Superior Court as the action for injunctive and declaratory relief are authorized by N.C.G.S. §§ 143-318.16(a) and 143-318.16A(a).

PARTIES

4. Plaintiff Joe Q. Public is a resident of Burke County, and a regular attendee of Burke County Board of Education (“school board”) meetings. As a member of the public, she and the public’s right to attend open school board meetings has been directly and adversely affected by Defendant’s failure to comply with mandatory, non-discretionary statutory requirements critical to ensuring the public’s attendance at official open meetings.

5. Defendant Burke County Board of Education (“BCBOE”) is established pursuant to N.C.G.S. § 115-35 and North Carolina General Assembly Session Law 1967, Chapter 1100, Senate Bill 1366. It has the capacity to sue and be sued pursuant to N.C.G.S. § 115C-40. Defendant is a governmental agency to whom the State has delegated its duties to educate its students. As a public school board, Defendant is considered a municipality under North Carolina law.

6. Defendant was, at all times relevant to this complaint, acting under color of law, to wit, under color of the statutes, ordinances, regulations, policies, customs and usages of the State of North Carolina and/or the County of Burke.

Factual Allegations

7. Defendant Burke County Board of Education operates the Burke County School System (“school system.”).

8. Defendant began limiting public attendance at official open meetings on or before April 6th, 2009 when it announced it would hold an open meeting to review the Superintendant’s contract in the Media Center at Patton High School.

9. Prior to April 6th, 2009 citiznes asked Defendant to move the venue of these meetings to larger areas to accommodate the expected crowd. Defendant declined to move the meetings. (reference C.A.’s email or letter here).

10. The Media Center at Patton High School accommodates 100 people.

11. Upon information and belief, Defendant was aware days before that more than 100 people would attend the open meeting. In fact, Defendant had prepared the Patton High School auditorium which holds over 300 people to be the venue for the meeting once matters concerning the superintendent’s contract were completed.

12. Approximately 150 people attended the meeting to witness the discussion of the superintendent’s contract and Defendant’s vote.

13. Approximately 50 people were not able to enter the Media Center and attend this portion of the meeting.

14. Defendant did not make provisions for the public to hear or view the meeting in real time electronically.

15. Defendant recessed the meeting on April 6th and scheduled an open official meeting for April 20, 2009 at 1:00 in the afternoon in the Board Room of the Central Office at 700 East Parker Road, Morganton, NC 28655 (“Board Room”).

16. The meeting scheduled for April 6th, 2009 was for the purpose of continuing the discussion of and vote on the superintendent’s contract.

17. The Board Room accommodates approximately 93 people, including the 7 board members.

18. Upon information and belief, Defendant knew that more than 86 people were likely to attend the meeting.

19. Defendant requested and received assistance from the Morganton Fire Marshall and Morganton Public Safety so as to control the overflow that they expected would attend the meeting.

20. Approximately 120 people attended the meeting April 20th, 2009 meeting.

21. Approximately 34 people were detained outside of the building by the Fire Marshall because the capacity had been reached in the meeting area.

22. Defendant made no provision for the public who could not enter the room to hear or view the meeting in real time electronically.

23. The audio recording from the April 20, 2009 meeting indicates that Defendant voted to terminate the superintendent’s contract as of June 30, 2009. (Minutes for that meeting have not been published.)

24. Defendant scheduled an open official meeting for April 27, 2009 at 5:00 p.m. in the Board Room.

25. Upon information and belief, Defendant knew that more than 86 people would attend the meeting.

26. Defendant requested and received assistance from the Morganton Fire Marshall and Morganton Public Safety so as to control the overflow that they expected would attend the meeting.

27. Approximately 150 people attended the meeting. Approximately 64 people were detained outside the building by the fire marshall because the meeting room’s capacity had been reached.

Claims for Relief
First Claim for Relief

28. Plaintiff incorporates and re-alleges by reference all preceding paragraphs.

29. In adopting the Open Meetings Act, the legislature declared that it is the policy of the State of North Carolina that the hearings, deliberation and actions of public bodies be conducted openly. N.C.G.S § 143-318.0.

30. All official meetings of a public body shall be open to the public, and any person shall be entitled to attend such a meeting absent specific circumstances. N.C.G.S. § 143-318.10(a).

31. An “official meeting” means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. N.C.G.S. § 143-318.10(d).

32. The April 6th, 2009 meeting resulted in the deliberation of the superintendant’s contract and a recess of the meeting to continue deliberation at a later date.

33. By holding the April 6th Board meeting in the Media Room at Patton High School and therefore excluding members of the public, Defendant violated the Open Meetings Act. N.C.G.S. § 143-318.9, et seq.

34. The actions of Defendant, by refusing to provide an adequate venue for open official meetings, have substantially interfered with the public’s right to attend said open official meetings in direct violation of N.C.G.S. § 143-318.10(a) and 115C-4.

35. Defendant engaged in official policy and/or custom of denying the public access to official meetings.

36. Defendant’s continued refusal to hold open official meetings in a larger forum causes continued harm to the public who cannot attend the meetings due the small size of the venue.

37. Plaintiff has no adequate remedy at law.

Second Claim for Relief

38. Plaintiff incorporates and re-alleges all preceding paragraphs.

39. The April 20th, 2009 Burke County Board of Education meeting resulted in the decision to terminate the superintendent’s contract on June 30, 2009.

40. By holding the April 20h, 2009 Board County Board meeting in the board room and therefore excluding members of the public, Defendant violated the Open Meetings Act. N.C.G.S. § 143-318.9, et seq.

41. Plaintiff has no adequate remedy at law.

Third Claim for Relief

42. Plaintiff incorporates and re-alleges all preceding paragraphs.

43. The April 27th, 2009 Burke County Board of Education meeting resulted in the decision to adopt policies that affect the school system, including but not limited to a controversial “Media Review Policy.”

44. By holding the April 27h, 2009 Board County Board meeting in the board room and therefore excluding members of the public, Defendant violated the Open Meetings Act. N.C.G.S. § 143-318.9, et seq.

45. Plaintiff has no adequate remedy at law.

Prayer for Relief

Wherefore, Plaintiff prays the court:

A. Enter a declaratory judgment that Defendant violated the North Carolina Open Meetings Act, N.C.G.S. § 143-318.9, et seq. by continually failing to provide adequate space for the public to attend meetings on April 6th, 2009, April 20, 2009 and April 27 2009., thereby excluding public attendance.

B. Enter a declaratory judgment that any deliberations, decisions, or public policy made during the April 6th, April 20th and April 27th Board of Education Meetings be null and void pursuant to N.C.G.S. § 143-318.16A.

C. Enter preliminary and thereafter permanent injunctive relief , pursuant to N.C.G.S. § 143-318.16 (a) requiring Defendant to provide adequate public access to open meetings by means of moving the open meetings to a venue that can accommodate all public attendees.

D. Award the prevailing parties a reasonable attorney’s fees pursuant to N.C.G.S. § 143-318.16B.

E. Such other, further or different relief as the court deems equitable and just.


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