Shot down: Commissioners tangle over transparency resolution

Tensions ran high at the Buncombe County Board of Commissioners’ April 7 meeting, as board members butted heads over a proposed policy change concerning closed sessions.

The dispute traced back to a March 17 emergency closed session in which the board discussed a potential economic development project with an undisclosed company.

After a public hearing on April 7, the board approved the purchase of a $6.8 million Bent Creek property on a 4-3 vote. But the three Republican commissioners took issue with the entire way the matter was handled: the hasty closed session, the way it was recorded in the minutes, and board Chair David Gantt’s subsequent statements to the media before there’d been a public hearing or a formal vote from Buncombe County.

According to the meeting minutes, “The county manager presented a possible property acquisition as part of an economic development offer for a company bringing 100-plus jobs to the area. After discussion of the details of the acquisition and options moving forward, a majority of the board gave consensus to proceed with the acquisition and economic development offer.”

And soon after, Gantt made public details that weren’t included in the closed session’s minutes, telling the media that the county was buying the 137-acre parcel from Henderson County. However, that information was already public on Henderson County’s end, when, the day after Buncombe’s closed session, Henderson voted to sell the land.

“We didn’t have a vote,” Commissioner Mike Fryar told Gantt during the April 7 regular meeting. “But when you went to [the media], you basically stated to the news that the county would be purchasing this land. So by saying that, [you’re] stating that there’s enough votes to be able to purchase. The fact that you’re speaking to newspapers like it’s a done deal [means] it’s basically been voted on beforehand.”

A long-standing concern

The resolution by Republicans Fryar, Miranda DeBruhl and Joe Belcher proposed recording all future closed sessions, using audio or video, and making those records available to the public as long as releasing them wouldn’t “frustrate the purpose of a closed session.”

DeBruhl told Xpress that she’s felt frustrated by the secrecy surrounding closed sessions, both as a commissioner and as a member of the public, for quite some time. “The purpose of the resolution is not specifically about just this one issue,” she explained. “The public has been frustrated for years about closed sessions and transparency in government. This situation came up and served as a reminder that things could be done differently — and better and more efficient.”

After reading the resolution aloud at the April 7 meeting, she said: “For a long time now, I’ve heard folks on both sides of the aisle, even current commissioners, talk a lot about transparency. And this is really very simple.

“The purpose of the minutes in closed session is to let people know what happened, without getting into specifics of what happened,” she explained to Xpress later. “In this situation, I don’t believe they’re technically wrong. They just weren’t complete enough, and they could have been misleading. It’s just in the nature of, ‘Hey, we can do this better.'”

Quick action

The other four commissioners on the seven-member board, however, strongly disagreed with recording closed sessions and making them public, saying it would deter businesses from working with the county. “Public transparency is great,” said Commissioner Brownie Newman. “And there’s a number of different ways that we could improve openness in government, but I think this is definitely not one of them.

“We can only go into closed session for very specific reasons that are authorized by state law,” he continued. According to the North Carolina Public Records Act, those reasons are: legally confidential information; honorary degrees, awards or prizes; attorney-client discussions; location or expansion of a business; personnel matters; contract negotiations and criminal investigations.

“With economic development projects coming into Buncombe County, in some cases investing tens of millions or hundreds of millions of dollars … a lot of what is disclosed in these sessions includes highly proprietary business information,” Newman pointed out. “So if we tell every business thinking about coming to Buncombe County that the discussions in these sessions are going to be recorded and released, and you can watch it on the 6 o’clock news, I think that would be one of the worst decisions we could possibly make if we take economic development in this community seriously.”

County Attorney Bob Deutsch and longtime Clerk to the Board Kathy Hughes agreed. “In 2010, I was a part of the Clerks Association that fought [a similar policy] statewide,” noted Hughes. “It’s a gift of the Legislature to be given certain reasons to go into closed session. In a closed session, you know you can hear and say things that, when I push the record button, you’re not going to say.

“It [would] just change the whole dynamic,” she continued. “I record the session in pretty great detail [in notes], and every bit of information that we can release — every piece that we can — is released when it can.”

Deutsch added: “Consider the case we had the other day, which was a very lengthy and detailed presentation. As an attorney, I would be a little reluctant to [speak] as much as I would have if … it was going to be confidential. Cases get settled, and you don’t put your cards on the table when you settle the case. I’m afraid, from the lawyer’s side, it would be a bit chilling.”

Commissioner Holly Jones said that while she’s all for transparency, “I think this is all about trust. This motion is on the [agenda] because three people don’t trust the process and don’t trust the staff and don’t trust [the people on] the other side of the aisle.

“I’m assuming I’m one of the ones targeted for saying ‘transparency’ a lot, because I believe in transparency,” she continued. “And, for goodness’ sake, if there’s something in the minutes that is wrong or that we want to disclose appropriately, let’s amend the minutes and fix it. I want your voices to be heard appropriately and accurately.

“But if we devise a process that in itself denotes distrust … we’re developing a process that will, I think, undermine trust in our possibilities of going forward.”

Gantt asked Hughes how many closed sessions in the last five years had dealt with economic development projects. Seventeen out of 23, said Hughes. Gantt then asked: After a project has been through a public hearing and voted on, what part of the closed session discussion hasn’t been released?

Hughes responded: “By the time the public hearing is held, everything has been said. Everything can be released at that point.

“Interestingly enough,” she added, “This last [session] is probably the first in a long time that has been controversial, so I did record who was for and who was against. Normally I don’t have to, because … it’s normally unanimous.”

And sometimes, economic development decisions need to be hasty to keep up with the fast-paced world of business, said Ben Teague, executive director of the Economic Development Coalition for Asheville-Buncombe County, during the April 7 meeting. “If you understand the process that companies go through, it’s not site selection: It’s site elimination.” Companies, he explained, “make microdecisions throughout the elimination that can affect whether you continue in the process or not. And those microdecisions are made very, very quickly.

“And to be honest,” he continued, the time frame given was not ideal. “It was forced upon us [in order] to continue in the process. We did as much as we possibly could to make a good decision, and I feel good about the decision. … It’s a very quick sport, and Buncombe has done well in the past.”

Public confusion?

The dissenting commissioners also emphasized the potential for misinterpretation by the public.

“Going back and reading over the closed session minutes that Kathy wrote, I understand she can only put X amount out,” said Fryar. But the minutes, he continued, state “that there’s enough votes to go ahead and [purchase the property]. And there’s nothing saying here that it’s only a possibility of 100 jobs. We don’t need to discuss who it is and what it is, but there’s areas where we can put ‘maybes'” and include other information the public needs to know in advance of a public hearing.

The resolution, said DeBruhl, “is one way to take any gray out of the closed session meetings and provide black-and-white, accurate information if it’s needed and if it’s allowed to be released.”

The resolution to record closed sessions failed on a 3-4 vote along party lines. But the idea of improving the system might still be on the table.

“I was definitely disappointed by the vote,” DeBruhl told Xpress. “The resolution was published a week before the meeting, and I didn’t hear any suggestions or feedback at all from the people that voted against it. And nobody offered an amendment either. If they’re willing to work with me, I would be more than happy to look at it again. I don’t have to home-run; I would be happy just with a base hit. I’m willing to work toward a solution or a way to improve the process to move toward better government transparency.”