05/07/14 — School board: Each picked

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School board: Each picked

By Steve Herring
Published in News on May 7, 2014 1:46 PM

The Wayne County Board of Education lived up to the letter of the state's Open Meetings Law even though informal discussions between candidates seeking appointment to the District 3 seat and individual board members took place outside of any kind of meeting, Chairman John Grantham said.

The law requires that all discussion about such appointments and votes take place in open session.

However, there was no public discussion Monday night when the board appointed Patricia Burden to complete the unexpired term of the late Thelma Smith.

Grantham was asked if he thought the procedure had violated the law.

"If you had a discussion by the whole board, that would be true," he said. "We put the notification out for people to contact the school board if they were interested in the seat.

"All of the people who were interested sent in resumes that were sent to all of the board members individually to do their own fact-finding and talking individually to the candidates to come up with their choice."

Grantham said there were no collaborative or "back door" meetings and that, as such, the board had lived up to the letter of the law.

"There is no process that is called out by law, or by board policy, because it is the first time that we have ever done it," he said. "We can't commit a future board to the process either.

"But I think it was fair, too. Each board member had a chance to read the resumes, contact the individuals on their own and have a one-on-one discussion with them and make their best choice."

But Brandon Huffman, an attorney for the N.C. Press Association, disagrees.

Since those discussions took place outside of a public meeting, they violated the spirit of the state's Open Meetings Law, he said

"There could certainly be an issue with the Open Meetings Law," Huffman said. "The law prohibits a public body, like a school board, from considering 'the qualifications, competence, performance, character, fitness, appointment, or removal' of a member outside of a public meeting. It provides that the board 'may not consider or fill a vacancy among its own membership except in an open meeting.'

"Here, (the school board) has fulfilled the obligation to vote on the appointment in an open meeting, but it seems they considered the potential nominees outside the meeting. Individual members of the board talking to potential members of the board behind closed doors is at odds with the law's provision that the board 'may not consider' the appointment except in an open meeting."

Although there is no indication that a challenge is warranted in this case, or that one is in the offing, violations of the Open Meetings Law can have real consequences, the attorney said.

Actions by any board improperly taken in a closed meeting can be voided through a civil suit, Huffman said.

The law provides that any person can file suit in superior court for a judgment that an action "was taken, considered, discussed, or deliberated" in violation of the Open Meetings Law and that "upon such a finding, the court may declare any such action null and void," he said.

The law also provides that in determining whether to nullify and void an action, the court must consider several enumerated factors and any other relevant factors:

* The extent to which the violation affected the substance of the challenged action

* The extent to which the violation thwarted or impaired access to meetings or proceedings that the public had a right to attend

* The extent to which the violation prevented or impaired public knowledge or understanding of the people's business

* Whether the violation was an isolated occurrence, or was a part of a continuing pattern of violations of this Article by the public body

* The extent to which persons relied upon the validity of the challenged action, and the effect on such persons of declaring the challenged action void

* Whether the violation was committed in bad faith for the purpose of evading or subverting the public policy embodied in this Article.

"Because the remedies provision includes discussion, consideration and deliberation, the board's action may be subject to nullification," Huffman said. "The court would weigh the factors and determine whether nullification is appropriate."