By Sally Kestin, Asheville Watchdog
For at least five years, Asheville City Council members have debated and grappled with some of the most pressing issues facing Asheville in regularly scheduled private meetings with city staff — meetings that are outside of public view.
In “check-in” sessions, which appear to be structured to avoid the requirements of the state’s open meetings law, small groups of Council members meet the week before each public Council meeting in closed sessions with no minutes or recordings taken.
They discuss controversial and weighty topics of vital interest to the public, including homeless encampments and shelters, development projects and the proliferation of hotels, according to meeting agendas reviewed by Asheville Watchdog.
Most recently, Council members received a detailed briefing of the holiday water system failures that left tens of thousands of Asheville homes and businesses waterless — five days before Council’s first public airing of what happened.
“I definitely think it creates issues with trust,” said Patrick Conant, an Asheville software developer and open-government advocate. “People have expressed concerns,” he said, that important city proposals are “being worked out behind closed doors.”
At least one other city council in North Carolina, Raleigh, holds similar closed sessions. But many other public governing bodies, including other cities and the Asheville Board of Education, discuss pending or upcoming business as a group in “work sessions” that are open to the public.
“It’s understandable that elected officials need to discuss ideas, review upcoming topics and talk with staff,” said Conant, whose company created and runs Sunshine Request, a platform for filing and tracking public records requests.
But “many other government entities do that in a public work session where the public and the press are able to see these discussions happen,” Conant said. “The city of Asheville has chosen instead to create this, in my opinion, complex process to have these same discussions, but to do it entirely behind closed doors.”
Homelessness, hotels, hot-button issues
North Carolina law requires all official meetings of a public body to be open to the public and minutes recorded. But an official meeting is defined as a “majority of the members.”
By design, Asheville’s check-ins consist of no more than two Council members and the mayor in each — not enough for a quorum and therefore, according to the city attorney, not an official meeting.
Check-ins are held the Thursday before a Tuesday City Council meeting and are attended typically by the city manager, city attorney and key staff. Three separate 90-minute check-ins are scheduled on the same day, each session covering the same agenda and the same material.
Asheville City Clerk Maggie Burleson said the practice appears to have started about five years ago under interim City Manager Cathy Ball. Ball, who is now the city manager in Johnson City, Tenn., did not respond to requests for comment.
Council members review business on upcoming agendas of the Council and committees, confidential legal matters and “other issues/concerns.” According to check-in agendas — typically the only public record of the meetings — Council members have discussed “homelessness,” a proposal for a “camping village,” affordable housing and other contentious issues before they came up for a public vote.
The check-in agenda for Feb. 3, 2022, for instance, included limiting “food distribution in parks,” a proposal that had rankled homeless advocates and generated a petition in opposition. Another item up for discussion was “Memorial Stadium,” the city-owned stadium behind McCormick Field that had become a source of friction with residents of the historically Black East End/Valley Street neighborhood over a promised new track that wasn’t being delivered. The next month, the Council approved stadium improvements that included a six-lane track.
The controversial Merrimon Avenue “road diet,” reducing a portion of the main thoroughfare in North Asheville to three lanes from four, was on the agendas of at least three check-in meetings before Council voted in public to approve it in May 2022.
Conant, who has submitted several public records requests to the city for check-in documents, said he was dismayed to learn how much discussion had occurred outside of public view about how the city should spend federal COVID-19 relief money.
“The way the city decided to allocate those funds was either discussed in the check-in meetings or by Council members ranking and basically voting on the projects they wanted to fund via a shared Google spreadsheet,” Conant said. “It was nearly $20 million, a once-in-a-decade, once-in-a-generation opportunity for the city to have this infusion of additional funding.”
He added, “Who knows if the same projects would have been selected if the public actually had the opportunity to weigh in more on the process?”
Gauging Council’s temperature
The city maintains that no votes are taken in check-ins and that all decisions are made in the public meetings. But the check-in discussions do include polling Council members for their views and shaping the proposals that will come up for a vote, as one recording of a January 2021 meeting on the city’s hotel moratorium shows.
Normally, the city takes no minutes and does not record check-ins, but the hotel moratorium virtual meeting was recorded at the request of a Council member who was unable to attend. The city made the recording public in response to a records request from Conant.
At the end of a staff presentation on a new zoning overlay district that would allow the city to impose more conditions on hotel developers, Mayor Esther Manheimer and City Manager Debra Campbell summarized Council members’ views.
“It sounded like a majority of folks were ready to do something with this new concept,” Manheimer said. She asked staff, “Do you feel like now that we’ve completed these check-ins, you know what you’re bringing back to Council?”
Legality up for debate
Asheville City Attorney Brad Branham contends the check-ins are legal and points to the “Open Meetings and Local Governments in North Carolina” book by professors at the UNC School of Government.
“It says individual public officials do have the right to meet with their colleagues individually and in small groups, and the law requires public access only when a majority of the board is gathered together simultaneously,” Branham said. “The limitation on this is the board can’t rely on these individual meetings to take official action, which we don’t.”
The law also says an informal gathering of elected officials is not an official meeting “unless called or held to evade the spirit and purposes of this Article.”
And that is precisely what critics of the check-in process say is going on.
Hugh Stevens, general counsel emeritus of the N.C. Press Association, said the Asheville procedure is “clearly contrary to the intent of the open meetings law,” which he helped draft more than 40 years ago.
Breaking a meeting into segments doesn’t change its result, Stevens said.
“It’s just another version of the underhanded attempts to get around the law and have decision-making done out of public view,” he continued. “It’s almost impossible to imagine any other purpose than to avoid public transparency.”
Stevens shifted his voice to a drawl: “We have a phrase in North Carolina: ‘It may be legal, but it ain’t right.’”
Brooks Fuller, executive director of the N.C. Open Government Coalition, said that while check-in briefings may not violate the law, “They tip-toe up to the line.”
‘Opaque and Inefficient’
By limiting each check-in to no more than two Council members and the mayor, the city says, the meeting does not constitute a majority of the council. But often, those two Council members serve on the same committee, which does constitute a quorum.
“They’re bringing together, in many cases, quorums of their Council committees discussing either topics that will come before those committees or reviewing the agenda for those committees’ upcoming meetings,” Conant said.
And he noted that during check-ins, the city attorney briefs Council members on legal and personnel matters. The law allows elected officials to discuss those matters in closed sessions of official meetings, but the minutes become public once the matter is resolved. In check-ins, no minutes are taken.
“They have to do the same meeting at least three times to repeat the same information to each group of Council members,” he said. “In my opinion, it’s an opaque and inefficient way for City Council to do public business.”
At a minimum, Conant said, the check-ins are inefficient.
Not ready for prime time
Check-ins apparently began and have continued because a majority of Council favors them over public work sessions. The topic came up at an annual retreat in March 2022.
“There’s definitely some concern in the community about transparency,” Mayor Manheimer said. “I can understand that perspective.”
At a time when the city has limited resources, Council member Kim Roney said, “We’re spending upwards of six to eight hours of staff time” on check-ins — with no official minutes.
Then-Council member Gwen Wisler said she needed to be able to ask questions and have staff answer honestly, and that often her first question was not “well thought through. … I probably wouldn’t want to see it on the front page of the paper.”
Check-ins, said Council member Sheneika Smith, provided an opportunity for the elected officials to “be a little raw and more candid.”
“We can kind of show that we don’t know a lot about an issue,” Smith said. “But when we’re in public, ‘lights, camera, action,’ you want to appear refined and knowledgeable, and that holds people back from asking questions.”
Other cities weigh in
Asheville Watchdog asked officials with North Carolina’s largest cities about their communications with elected officials. Of the five that responded, four, including Winston-Salem, said they do not hold meetings similar to check-ins.
Cary holds work sessions “where all members of Council and public are present” on a quarterly basis and as needed for specific topics, said Town Manager Sean R. Stegall. “In addition, I send out a weekly report to the Council as a means of communication.”
The Greenville City Council holds monthly workshops “for the Council to get an update on various topics, discuss the topics, and provide feedback to staff,” said spokesperson Brock Letchworth. “No action is taken during these workshops, and they are open to the public and televised.”
Asheville’s check-ins are “kind of unique,” said Jeron Hollis, spokesperson for High Point, where Council members communicate through the city manager.
“As far as High Point, we don’t do anything like that,” he said. “It just sounds like it would be time-consuming, if nothing else.”
Branham, Asheville’s city attorney, said Charlotte had something similar to check-ins when he worked there before coming to Asheville in 2019. Charlotte officials did not respond to requests for comment.
Raleigh appears to have a process similar to Asheville’s. The city manager meets with groups of Council members in private sessions called manager’s briefings.
“There’s not a formal schedule of those,” said Lou Buonpane, chief of council services. “They are not in advance of a specific Council meeting. … They’re really generally discussing topics that the city manager wants to get some feedback from Council on.”
Buncombe County: a hybrid
The Buncombe County Board of Commissioners used to hold regular closed meetings with small groups of commissioners called “three-by-threes” but switched to public work sessions about four years ago, said Commission Chair Brownie Newman.
“These three-by-three type communications were the primary way that commissioners and county management would kind of huddle on issues before issues were addressed in formal meetings,” he said.
Following the 2019 sentencing of former County Manager Wanda Greene and three other county employees on federal corruption charges, “a self-reflection process took place in county government,” Newman said. “How do we do better? How do we make all this more open and accessible to the public?”
Now, in briefing meetings held the same day before a regular commission meeting, “we preview a lot of issues that are going to be on the commission’s agenda … or take time for informational presentations and things like that,” Newman said.
Agendas are published on the county’s website, and the meetings are open to the public and recorded.
“It just seems like a much better use of the staff’s time rather than sitting in a whole bunch of separate meetings all day long,” Newman said. “And I did feel like, hey, these are interesting public policies that are being discussed. I think the community would be very interested to hear this information as well and to hear how the elected officials are discussing them.”
The commission still has “three-by-threes” — not open to the public — about four or five times a year on specific topics like personnel policies or the comprehensive plan, he said.
“I do think from time to time there might be some topics where it makes sense to have a smaller meeting,” Newman said. “It shouldn’t be the normal way that deliberations and communications happen around commission discussions, in my opinion.”
Time for a change?
Asheville’s mayor would like to see the Council switch to public work sessions and is trying to build support for that.
“If these check-ins are a barrier to folks having confidence that they’re getting all the information that the Council is receiving before it makes a decision, then I think we need to move away from that process,” Manheimer said. “We continue to discuss this as a Council, and there’s not yet a majority support to do that.’’
The mayor said she is now talking to Council members and the city manager “to get some momentum” and that Council will revisit check-ins at the upcoming retreat in March, if not sooner.
Council member Roney said she supports a switch to public sessions, as does Maggie Ullman, the Council’s newest member.
“The intention of having the Council informed before public meetings is appreciated, but I honestly just think it got out of hand,” Roney said.
“I understand that some folks feel really concerned about the privacy that’s happening and that there’s mistrust,” Ullman said. “Doing everything in good faith to demonstrate good will towards trust and transparency is important, so I’m totally comfortable and eager and open to pursue trying something different.”
Council member Smith said she is open to more work sessions, “especially around topics with lots of public interest, but not to replace check-ins.”
She called check-ins highly useful and said that “the smaller group setting allows time for individual members to delve deep into issues of interest without the burden to share space for others’ concerns.”
At least one more Council member would have to support the change, and the mayor may now have the votes.
Council member Sage Turner said that while check-ins “can be a tool for greater communication and efficiency,” she understands concerns about transparency.
“Asheville has very active, very engaged residents,” Turner said. “I support moving to work sessions and utilizing check-ins or briefings as needed.”
The remaining two Council members, Sandra Kilgore and Antanette Mosley, did not respond to Asheville Watchdog’s requests for comment.
Stevens, who consulted closely with legislators when the current open meetings law was written, said he has no patience for elected officials who claim to see no connection between secret check-in briefings and the law’s requirement to make policy in public view.
“I think the response to that is ‘bullshit,’ or some nicer version of that word,” he said.
Conant said he hopes the Council will eliminate check-ins.
“I would love to see them switch to a more transparent way of doing business,” Conant said. “There’s no reason that the city couldn’t simply do this work and have discussions in view of the public.”
Tom Fiedler contributed to this report.
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and surrounding communities. Sally Kestin is a Pulitzer Prize-winning investigative reporter. Email firstname.lastname@example.org. Tom Fiedler is a Pulitzer Prize-winning political reporter and former executive editor of The Miami Herald. Email email@example.com.