Pamlico Fights and Wins More Access

On Friday afternoon, October 29, 1999, Frieda Hudson, the publisher of The Pamlico News, called the NCPA Hotline for help. On the previous Wednesday, The News had published a story unflattering to the Commissioners of Hyde County. Sandy Semans, author of the story and managing editor of The News, was on her way to a meeting of the Hyde County commission and had been threatened with ejection because of what she had written.

Semans’ story chronicled renovation contracts for county buildings that the commissioners had let without plans or a bid process to a straw man for one of their own. Renovations which were not to exceed $132,000 ended up costing the farmers, fisherman and other residents the county $289,000. Sandy and Frieda had been trying to get public records on the project but were only able to get portions of what they needed to see. The records they did get didn’t fit with what they were being told in the community.

Hugh Stevens happened to be in my office discussing another case and I put Frieda on the speaker phone. Hugh and I listened to Frieda tells us about the story and what The News had been told would happen to Sandy. We armed Frieda as best we could and wished them luck. When we hung up the phone, Hugh looked at me and said, “this job is fun isn’t it?”

I heard from Frieda again on Monday, November 1. Sandy was at the commission meeting. The threat of removal had not been carried out but the commissioners announced a closed session “to discuss legal matters” which the county attorney stated was permissible under the attorney-client privilege. While making everyone else leave for their closed-door meeting, the commissioners kept Janet Waters, a CPA they’d hired to conduct the annual audit of Hyde County’s books, behind. Frieda and Sandy wanted to know what to do. I was puzzled how an independent auditor ended up in a closed meeting over which the commissioners had asserted an attorney-client privilege. It was clear the meeting was illegal and something was afoot.

Sandy put her questions about the propriety of the closed session on record with the commission when the open session resumed. Janet Waters, who was to have made a presentation about her audit during the open meeting said little. Draft audits had been distributed to the commission during the closed session but were “unavailable” to those who wanted one.

“Is that Hyde County or Hide County?”. . . .or so I joked with Sandy when she called the Hotline looking for more help after getting back to the paper. We decided to ask for the minutes of the closed session we believed to be illegal. Sandy was also frustrated with the runaround she’d suffered through while trying to get the documents which supported the forms submitted to the county by the contractor for payment. She’d done a lot of legwork but kept coming up short. It became clear that The News would have to file suit to get a straight answer on the renovation projects.

Get out your map of North Carolina. I’m in Wake County. From my vantage point, Hyde County is on the way to Bermuda. Perhaps more than halfway. There was no economically feasible way for Hugh, Amanda and me to represent The News in bringing this suit. Could they do it on their own? Sure, several have with much success. However, the intimidation factor is quite high for the unindoctrinated wishing to take on “County Hall.” The News needed a lawyer. We would coach.

“A lawyer in Hyde County? Hmmm. My directory lists three.” One in Ocracoke and two in Swan Quarter – not including Resident Superior Court Judge William Griffin. Sandy and Frieda talked with Tom Davis from Swan Quarter. He’d never done anything like it, wasn’t very familiar with the law surrounding open meetings and public records and was doing some foreclosure work for the county so he’d have to get permission to sue them. To my surprise, the county gave its okay. Tom was on board.

I faxed Tom model complaints, motions, briefs and the like. I answered his questions about how he could use the statutes to make his case. I pointed him to our website and others that could give him guidance. We talked about cases supporting his cause. I helped him revise the documents he would file with the Court. I talked to him about the ongoing problem of public bodies not complying with the closed session minute requirements and that he might ask the court to require the commissioners to record their closed sessions from now on. Tom was ready to go.

In November 1999, The News filed its complaint and gave notice of an immediate hearing as the Open Meetings law permits. At the hearing a few days later, Judge Griffin listened to the county attorney’s concerns that they hadn’t had enough time to address the issues raised in the complaint. Judge Griffin decided to give the County until December 17 to prepare. My recollection is that they wanted to put it off 90 days or more. December 17 arrived. The trial was going well. Frieda called to ask me for the authority on which the court could require the commission to record its closed sessions. “General Statute 143-318.16(a),” I responded. “Besides the statute, what case says that the court can do it? The judge wants a case,” she added. I looked and didn’t find any. Amanda and Hugh weren’t aware of one. “There isn’t any Frieda. The statute allows it. If the judge is going to do it, he will have to rely on his authority to issue a mandatory injunction which is provided in the statute,” I told her. “Okay,” she said and hung up.

Judge Griffin relied on the statute. After determining the Hyde County commissioners violated the open meetings law, he issued a mandatory injunction requiring the Hyde County Commissioners “to make, keep and preserve a legible or distinct, verbatim record of the entirety of all of its closed sessions.” Go ahead and correct your maps to read to H-I-D-E and not H-Y-D-E.

Talking with Tom Davis a few days later I learned more of the details of what had happened (see Sandy Semans’ article included in this issue). He had a wonderful time in court bringing out what the commissioners were up to. Tom said that after more than five hours of testimony the evidence was in. He said, “I was standing up to make my absolutely blistering closing argument when the judge said to me, ‘Mr. Davis, draw your order.’” The judge understood what had gone on. In addition to a mandatory injunction, Hyde County will pay Tom’s legal fees and all the costs of the action.

I asked Tom if he thought the county would appeal. He said, “no, I don’t think they want this case anywhere near Raleigh.” I asked if the county had learned anything. He said, “I hope not, I sure did enjoy working for them!” Tom and I are in agreement. The answer to Hugh’s question is a resounding, YES! This job is fun!