A Sow's Ear

Delaware Opinion

2009-04-30T04:35:00.000-04:00

Richard L. Abbott, Esquire
The Bayard Firm
222 Delaware Avenue,
Suite 900
P.O. Box 25130
Wilmington, DE 19899

Re: Freedom of Information Act/Middletown

Dear Mr. Abbott: On March 4, 2002, our Office received your letter alleging that the Town of Middletown ("the Town") violated the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), by denying citizens reasonable access to meetings to discuss a proposed WalMart site plan. You believe that the accommodations are inadequate because past meetings to discuss the proposed WalMart store "have drawn in excess of one hundred (100) members of the public" many of whom are members of Citizens Against Route 299 Expansion. You asked the Town to hold any future meetings at the Middletown High School auditorium, which can accommodate more people than the council chambers.

By letter dated March 8, 2002, we asked for the Town's response, which we received that same day. According to the Town, state fire prevention regulations limit the number of people in the Town council chambers to 49 if there is only one exit. To accommodate up to 107 people, the Town installed a second exit. The Town further states that "there is an adjoining office, accessible through a short hallway, which will accommodate several dozen more individuals, and into which a speaker system has been installed."

In your letter, you asked our Office either to commence enforcement proceedings, or "for an opinion on the issue of whether the holding of public meetings by public bodies in facilities that are known to be insufficient in size to handle the reasonably anticipated number of members of the general public who are likely to attend are actually meetings which are 'open to the public'" under FOIA. We decline to take any enforcement action because we do not view your letter as a complaint under Section 10005 of FOIA.

In order to consider whether enforcement action is warranted, we would need to have specific facts regarding a particular meeting (date, time and place) of the Town Council at which citizens (by name or number) were turned away or unable to participate in the discussion of public business. However, because of the importance to the community of the issues you raise, and because similar circumstances are likely to reoccur, we will view your complaint as a complaint of a violation "about to occur." 29 Del. C. § 10005(e).

Relevant Statutes
FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for an authorized executive session. 29 Del. C. § 10004(a).

Legal Analysis
In 1996, a citizen complained that the Sussex County Planning and Zoning Board met to discuss land use issues, but the council chambers where the meetings were held could not always accommodate all of the members of a citizens group, Hudson Pond Preservation Society. We observed that "'[w]hen the meeting place may not be large enough to accommodate all the people who may wish to attend, the governmental unit must balance the public right of access against the burdens that providing additional public access would impose on the governmental unit.'" Att'y Gen. Op. 96-IB23 (June 20, 1996) (quoting State ex rel. Badke v. Village of Greendale, Wis. Supr., 494 N.W.2d 408, 420 (1993)). We did not find a violation of FOIA in that case because the record showed that the county changed "the place of the public meeting in response to the anticipated or actual crowd, going from the County Chambers to the courtrooms when needed and available." Id.

In Gutierrez v. City of Albuquerque, N.M. Supr., 631 P.2d 304 (1981), the city council met in chambers to consider a controversial license for a liquor store. The chambers could hold only 156 persons, and an overflow crowd arrived early to attend the meeting. Loudspeakers were set up outside the chambers to allow the citizens who could not get in to listen. Any citizen who registered with the council was able to enter the chambers at a designated time to present his or her views. The New Mexico Supreme Court held that the meeting was sufficiently open to the public.

The meeting was held in a hall designed to accommodate a large number of spectators. When the size of the crowd exceeded the capacity of the hall, every effort was made to allow those who could not gain entrance to listen to the proceedings. The City Council even went beyond the requirements of the Open Meetings Act and allowed members of the public to address the Council and present their views for over two hours. A meeting could hardly be more open or more public.631 P.2d at 307.

The Town has installed a speaker system in the room adjacent to the council chambers, and the Mayor has represented "that should an occasion arise where individuals wishing to participate in the hearing want to be heard, they would be afforded that opportunity prior to the meeting adjourning. That individual merely has to notify Council of his or her wish to be heard." We think those accommodations allow for adequate public access in the event of an unanticipated overflow of citizens who want to attend a meeting.

As a general rule, we do not think that speaker systems satisfy the open meeting requirements of FOIA if an overflow of citizens can reasonably be anticipated. "The personal contact that is so often an effective ingredient of a meeting is absent" if citizens can only listen to a meeting at another location State v. Vermont Emergency Board, Vt. Supr., 394 A.2d 1360, 1361 (1978). "Not only the 'right-to-know' is protected by the statute, but also the right to be present, to be heard, and to participate." Id.

We conclude that if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.

Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED

Malcolm S. Cobin, Esquire
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Robert E. Daley, Esquire
Phillip G. Johnson, Opinion Coordinator

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

2009-04-30T04:04:00.000-04:00

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.

Yada yada yada yada . . . . .

NCSBA Code of Ethics Adopted by Many School Systems - Except Burke?

2009-04-28T13:51:00.000-04:00

NCSBA Code of Ethics:

The board recognizes collectively and individually, all members of the board must adhere to an accepted code of ethics in order to improve public education. The board accepts the code of ethics established by the North Carolina School Boards Association. In accordance with this code, each member of the board will commit to the following:

attend all regularly scheduled board meetings insofar as possible, and become informed concerning the issues to be considered at those meetings;
endeavor to make policy decisions only after full discussion at publicly held board meetings;
render all decisions based on the available facts and any independent judgment, and refuse to surrender that judgment to individuals or special interest groups;
encourage the free expression of opinion by all board members, and seek systematic communications between the board and students, staff and all elements of the community;
work with other board members to establish effective board policies and to delegate authority for the administration of the schools to the superintendent;
communicate to other board members and the superintendent expressions of public reaction to the board policies and school program;
learn about current educational issues by individual study and through participation in programs providing needed information, such as those sponsored by the state and national school boards associations;
support the employment of those persons best qualified to serve as school staff, and insist on a regular and impartial evaluation of all staff;
avoid being placed in a position of conflict of interest, and refrain from using the board member’s position on the board for personal or partisan gain;
take no private action that will compromise the board or administration, and respect the confidentiality of information that is privileged under applicable law; and
remember always that a board member’s first and greatest concern must be the educational welfare of the students attending the public schools.

All newly elected board members are expected to sign a code of ethics statement that includes these provisions at the organizational meeting of the board.