By Kate Martin, originally published by Carolina Public Press. Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.
A coalition of media outlets that includes Carolina Public Press took legal action Monday against the city of Asheville to open a meeting to the public that its attorney says should not be considered a meeting at all.
Buncombe County Special Superior Court Judge Steve Warren will issue his decision Tuesday, and the event in question — a retreat — is currently scheduled to be held Wednesday at the city-owned Harrah’s Cherokee Center -Asheville.
According to provided retreat information, Asheville City Council members will talk with two facilitators hired by the city about “building a solid foundation for success” during the first of a two-day retreat. The session is currently slotted to take five hours.
During Monday’s hearing, Asheville attorney Brad Branham asserted that the retreat should not be considered a meeting at all, rather, an informal gathering — which, he said, is not subject to the state’s open meeting laws.
Branham said the city has the “sacred obligation” to adhere to the open meetings law.
From 2016-19, the city of Asheville held similar retreats, which were all open to the public. In 2020, the team-building portion of the retreat was canceled due to the coronavirus pandemic.
“This is not an attempt to have a closed session,” Branham said. “The statute says a social meeting or other informal assembly or gathering of members does not constitute an official meeting.”
If it were a wedding or other purely social event, she would agree, said Amanda Martin, the attorney for CPP, Mountain Xpress, the (Asheville) Citizen Times and Blue Ridge Public Radio.
“This is clearly not a purely social gathering, nor do we believe that it is in any manner an informal gathering,” Martin said. “I never once invited a facilitator to any social gathering that I had. The facilitators will be paid with public money and the meeting will take place in a public facility — and is all part and parcel of an official retreat.”
Two facilitators paid by the city of Asheville — Nicholas Beamon of One Team Leadership and Kimberly Hunter — will lead council members through the agenda topics.
According to the retreat agenda, City Council members will discuss “strengthening alignment, teamwork and trust,” “forming a success compact,” and “forming working agreements.” The agenda was released to CPP after the hearing concluded. The fact that the retreat has an agenda at all is evidence of the gathering’s formal nature, Martin added.
After the plaintiffs suggested city officials seek the advice of the state attorney general, Branham opted instead to ask the opinion of a UNC School of Government professor with expertise in open meetings law, Frayda Bluestein.
Bluestein opined that the “planned meeting constituted public business that could not be conducted in closed session,” according to the plaintiffs’ complaint.
Bluestein said she and Branham disagreed on their interpretations of law.
“I have my opinion based on statutory provisions, and he has his,” Bluestein said in an email exchange with CPP. “It’s reasonable for the board to go with their attorney’s opinion.”
What if, Judge Warren asked Monday, during the course of the discussion, the facilitator asked about each person’s interesting government work, and someone responded with “I am here because of my interest in housing issues.”
“Is that not of vital interest to the public?” Warren asked.
Branham told the judge that the city would record the session. Martin responded Monday that that was a new offer, not one previously made to the media organizations despite requests.
“Even if we open (the meeting) to the public, they would not be able to participate,” Branham said. “They would only be able to listen.”
He said topics of an “important and private nature” will be discussed as a justification to keep the meeting closed, as well as the ongoing coronavirus pandemic, and the possibility of “someone that could be disruptive” could show up.
Branham said Asheville has four relatively new council members, and the “get to know you” session may include disclosures of information council members would prefer to remain private — questions about one’s siblings, family and background.
“It strains credulity to say it is anything other than public,” Martin said. “If someone runs for public office, they have signed up for a certain amount of public exposure and sometimes scrutiny.”
Judge Warren asked both attorneys to file stipulations of fact with his office. A decision is expected Tuesday, a day before the start of the official retreat.