Fayetteville council may have violated law

From the Fayetteville Observer (11/19/08): The Fayetteville City Council may have violated the North Carolina Open Meetings Law when it met behind closed doors to discuss personnel matters, according to two advocates for open government.

On Nov. 3, the council discussed in closed session whether to hire aconsultant to review the city manager’s salary, according to an e-mailabout the meeting obtained by The Fayetteville Observer. The councilalso talked about whether to hire a third assistant city attorney, thee-mail says.

Public bodies are allowed to meet behind closed doors when talkingabout employee performance. But Amanda Martin, a lawyer for the NorthCarolina Press Association, said they are prohibited from discussingconsultants or independent contractors. Those talks are supposed to bein public, she said.

The City Council also should limit talks about budget matters — such as creating a new position — to open meetings, Martin said.

Karen McDonald, the city attorney, said she agreed with Martin’sassessments about which business should be conducted in public. ButMcDonald stands by the council’s decision to talk about these specificcases behind closed doors.

“The substance of the conversation was about the manager’sperformance, which is a permissible basis to go into closed session,”McDonald said.

As for the council’s discussion of hiring a third assistantattorney, the conversation included the performance of her office,McDonald said.

According to sources, the council did not have enough votes to giveCity Manager Dale Iman another raise or fund the new position forMcDonald.

The Observer first reported about the council’s closed-sessiondiscussions on Nov. 8. Sources said the council debated whether toraise Iman’s salary, which is $166,566. Councilman Bill Crisp made thepitch for a salary consultant.

After the story was published, some on the council decried the leaksabout the meeting, according to e-mails they sent to one another. Butone councilman, Ted Mohn, questioned the validity of the closedsession, the e-mails show.

“That is a budget issue and not a personnel issue,” he wrote, referring to the hiring of an additional attorney.

Mohn’s e-mail was not meant to be public. When the Observerrequested copies of the council’s e-mails under the state publicrecords law, McDonald furnished only a portion of Mohn’s e-mail. Shecited personnel laws for why part of the e-mail was redacted.

The Observer later obtained an unredacted version of the e-mail.

In an interview, Mohn said he has since changed his opinion aboutthe closed session after consulting with McDonald last week. Thecouncil did the right thing, he said.

“She is very good about the statues and the legalities,” he said. “I never question what Karen McDonald tells us.”

Mayor Tony Chavonne referred questions about the meeting to McDonald.

Trend develops

Less than two months ago, members of the council met with two orthree members of the Cumberland County Board of Commissioners in small,private meetings to discuss public business.

Without a quorum present, the gatherings did not fall under the Open Meetings Law.

At the time, Dale Harrison, assistant director of the SunshineCenter at Elon University, said the two governing boards were violatingthe spirit of the law, which requires meetings to be open when quorumsare present.

Harrison said the council erred again with its Nov. 3 closed session. He found the council’s trend toward secrecy disturbing.

“Unfortunately, any circumvention of the Open Meetings Law isserious,” he said. “Where there is one transgression, there is likelyto be others. And, quite frankly, one is enough.”

McDonald’s office has two assistant city attorneys. The departmentfends off lawsuits against the city, reviews contracts and ordinanceschanges and does legal research.

She requested an additional attorney during the May budget talks. Inan open meeting then, the council briefly discussed the request. Imanrecommended against it, and the council followed suit when it approveda budget in June.