Secrecy, settlements and staffing: Inside NC school boards' closed meetings
Posted March 12, 2018 5:00 a.m. EDT
Raleigh, N.C. — When North Carolina school board members retreat behind closed doors to discuss sensitive public business, the amount of information they share with the public afterwards varies greatly. While some release detailed notes of their closed-door discussions, others conceal large portions of their meetings, refuse to say how board members voted or release nothing at all.
In honor of Sunshine Week, an annual effort to highlight the importance of public records and open meetings laws, a coalition of 10 North Carolina news organizations requested a year’s worth of closed session minutes from nearly 50 public boards across the state, including nearly a dozen school boards.
The goal was to test their transparency and learn what kinds of public business and decisions are discussed behind closed doors. What do board members talk about? How detailed are their meeting minutes? And how much information do they release?
In Charlotte-Mecklenburg Schools, the nine-member Board of Education routinely schedules time for closed session before its regular meetings twice a month. With a $1.4 billion annual budget, the board’s decisions affect more than 146,000 students and 19,000 employees in the state’s second-largest school system.
In January, a reporter requested all closed session minutes from the board’s meetings in 2017. For more than two months, the school system refused to release anything, saying the closed meeting minutes are “protected from disclosure by law” and arguing that revealing them to the public would “frustrate the purpose of the closed session.”
The reporter pushed back, asking board leaders and their attorney to reconsider. Last week, more than two months after the initial request, the school system released 74 pages of heavily redacted minutes covering Jan. 10 to July 27, 2017.
Most of the records contained only the date, location and purpose of the closed session, the list of attendees and the vote to adjourn, with everything in between blacked out. A closed session held during a special meeting on July 3, which included approval of contracts for top administrators, was not among the minutes provided.
General Counsel George Battle III said the minutes stopped in July because there had been a change in board clerks and the board has not yet approved minutes for the more recent meetings. Battle said CMS originally declined to provide any documentation of closed sessions because "there was confusion in the way I saw the request." He said most of the content involves student or employee matters that are protected by law.
More than 200 miles east in Wilmington, the New Hanover County school board was also secretive with its closed-session minutes. The district refused to release any records to a reporter, saying the minutes “contain confidential information and cannot be released.”
Asked to cite the legal basis for the denial, the district pointed to the state’s closed session law, which covers, among other things, discussions about students, employees and attorney/client privilege.
By law, school boards are allowed to meet in private to discuss confidential issues, but records of those meetings are supposed to be available to the public so that a person not in attendance would have a reasonable understanding of what happened.
Amanda Martin, an attorney at the Raleigh-based law firm Stevens Martin Vaughn & Tadych, which often represents media organizations including WRAL News, took issue with boards saying they do not have to release any closed-session minutes.
"As a blanket statement, that's just not true," Martin said. “I'm very skeptical of the idea that everything that happened in every closed session in 2017 still has to be kept from public view.”
Jonathan Jones, director of the N.C. Open Government Coalition at Elon University, called the response from New Hanover County schools and the initial response from Charlotte-Mecklenburg “wholly inadequate.” He said even if all the meetings required redactions because of issues like student discipline or personnel action, there would still be basic information that needs to be public.
“They can't just get out of it and say, ‘We're not going to give you anything,’” Jones said.
One thing boards sometimes refuse to reveal is how individual members voted in closed session.
That was the case with the State Board of Education. On Dec. 28, 2016, the board had a big decision to make. Should it sue the state over House Bill 17? The law, in part, stripped the board’s powers and shifted them to new State Superintendent Mark Johnson. After half an hour in closed session, the board emerged with a decision – they would file a lawsuit.
Kari Travis, associate editor for Carolina Journal, wanted to know which members supported the lawsuit and which ones, if any, opposed it, so she put in a request to find out.
State board Chairman Bill Cobey confirmed the closed-session vote but refused to disclose the voting record, citing attorney/client privilege, Travis reported. A majority of board members voted to file the suit, Cobey said, declining to be more specific.
Travis requested minutes from the board’s meeting and found that they failed to include details about the closed session. The document said members “went into Closed Session to discuss matters of attorney/client business on confidential and privileged matters.” The minutes then immediately skipped to a record of adjournment, according to Travis’ report.
WRAL News reviewed the state board’s closed session minutes from 2017 and found that nearly all of their meeting minutes were blacked out and hidden from public view.
More than a year later, Travis said she still has not been able to find out how board members voted on the lawsuit, which is currently before the North Carolina Supreme Court. Last week, WRAL News asked for the board’s voting record from that December 2016 closed session and was also denied.
“According to the State Board of Education’s attorneys, how individual board members voted on the motion in question is not a public record,” Drew Elliot, communications director for the N.C. Department of Public Instruction, said by email.
When asked to provide the overall vote breakdown, Elliot said he would ask the board’s attorneys. They have not yet provided that information.
Martin, the attorney who specializes in open records and meetings issues, acknowledged there's no explicit legal requirement that public boards note and publish specific votes, but “the spirit of the law says we should know who voted, how,” she said.
"Closed session votes should be very rare and be reported out by public officials,” Martin said.
While some boards reveal little or nothing about their closed sessions, others are far more transparent. Of all the closed-session minutes reporters reviewed for this story, Chapel Hill-Carrboro City Schools provided some of the most detailed records of their private meetings.
The board released 23 pages, which were lightly redacted to protect names and other specific private information. The records included:
- Possible litigation about the confederate flag
- Reference to a negotiation with the Town of Chapel Hill
- Possible legal issue with the structure of the PTA Thrift Shop
- School safety plans and the need for a full-time director of school safety
- Legal advice that text messages between the board and superintendents must be retained
- Discussion with four high school principals about free speech policies and to what degree the board can limit speech
Also included in Chapel Hill-Carrboro’s records were a handful of potential settlements totaling nearly $300,000. The largest of those was approved Aug. 17, when the board unanimously agreed to pay up to $200,000 to settle a case, the details of which were not included.
(Redacted) Settlement: Carolyn Waller, a Tharrington Smith attorney, reviewed the (redacted) settlement. The settlement amount could be up to $9,000 to $10,000 per month. There is $12,000 in attorneys fee as of this week and it will go higher. Ms Waller asked the Board for authorization to settle an amount up to $200,000. The Board asked that (redacted) be requested. The Board requested that a contract be entered into with (redacted) instead of making payments directly to the (redacted). On a motion by Ms Dasi, seconded by Mr. Heinrich, the Board voted 7-0 to approve a settlement up to $200,000 with the provisions stated above being requested.
On May 18, the Chapel Hill-Carrboro school board discussed a settlement involving a child with a disability, or an EC student (Exceptional Children). The board offered $4,325 in the hopes of avoiding litigation, but the minutes do not say what happened with the case.
EC [Exceptional Children] Settlement: Ms. Tate reviewed the information regarding the (redacted) involved in the settlement. (Redacted). The (redacted) has had the same homebound teacher for (redacted) (this should not have occurred.) There has not been an evaluation of this student except by the teacher and the mom. CHCCS EC department is trying to get the (redacted) does not want this to happen. A pre-litigation offer has been made of $4,325 with a full release of the school system for all claims arising up to the date of the agreement.
On Nov. 2, the board reached a settlement with an unknown person for $84,846. Details of the case were not included, but the board voted 6-0 to make the payment.
Chapel Hill-Carrboro schools officials declined an interview request for this story.
Staffing and personnel issues
The most common reason school boards go into closed session is to discuss staffing and other personnel issues, according to attorney Ken Soo, who specializes in education law for the Raleigh-based Tharrington-Smith. The law firm works with more than 20 North Carolina school boards.
“Speaking for the boards I work with, they try to use closed session for the purposes that are authorized by law and that are about fairness to individuals and not disclosing confidential information,” Soo said.
When WRAL News requested Durham Public Schools’ closed-session minutes earlier this year, Soo personally reviewed the records and chose what to redact.
“The approach that I took was that if something was about an individual personnel matter … rather than just taking out the names and leaving everything else in, I’m going to usually take all of that out,” he said.
Soo said attorneys use their best judgment when deciding what can be revealed to the public. In Durham’s 49 pages of closed-session minutes, Soo allowed several personnel matters to be disclosed, such as a principal recommendation for Githens High, because the candidate was chosen and that information is now public record.
The Durham board’s closed meeting minutes also included details about a raise for the superintendent, as well as his resignation announcement, various principal and vice principal hires and a recommendation for deputy superintendent and what her salary should be – $162,500.
Martin said it’s hard to know if boards and their attorneys are appropriately redacting records because the public is not able to see what has been hidden from public view. But she’s not deaf to the concerns of school board lawyers, who have to balance transparency with the risks of violating the privacy rights of students and employees.
"What frustrates me is when they are absurdly overbroad in their interpretation," Martin said.
In Cumberland County, the board of education released information from 15 closed meetings. Nearly all the information from 14 of the sessions was blacked out, other than the time, those present and the reason for the meeting.
Thirteen of the meetings with nearly no information provided involved discussions of personnel issues, with some also including legal matters. The other was a discussion between the board’s personnel committee and the board’s lawyer.
The only substantive information released was discussion about a proposal to buy property near a school from a church.
The board’s lawyer, Nickolas Sojka Jr., said in a letter accompanying the documents that the information provided were “general accounts” of the meetings. He said the redactions were needed and cited a 2009 University of North Carolina School of Government document that said local governments often permanently seal minutes of closed meetings held to discuss personnel issues.
In Wake County, the school board has faced criticism this year for its secretive search for a new superintendent. The board said it does not plan to release the names of finalists who want to lead the country’s 15th-largest school district, although it made the process public five years ago, according to The News and Observer. Some board members said this time is different because political tensions aren’t as high as they were in 2013.
Charlotte-Mecklenburg schools sparked some controversy of its own last year with several closed-session personnel matters.
In 2017, CMS hired a new superintendent, Clayton Wilcox, who restructured administrative staff. On July 3, the board held a brief special meeting to swear in Wilcox, then adjourned to closed session to discuss administrative contracts.
When they returned to open session for a vote, they revealed only the names of people who were up for contract approval, then voted unanimously to approve those contracts. They also disclosed that they had approved hiring the husband of Wilcox's new chief of staff in a newly created $85,000-a-year-job.
The Charlotte Observer immediately requested copies of all contracts approved, but they were not released until three months later, in September. CMS contended the draft contracts that were approved in July were not public until they were signed and finalized.
The hires sparked controversy because several top administrators got large raises, topping out at more than $45,000 in additional pay. The contracts revealed additional compensation, such as $10,000 in relocation expenses for the chief of staff.
The remaining records
When the coalition of news organizations requested closed-session minutes earlier this year, the goal was to give boards more than two months to provide them.
At last check, several boards were unable to produce anything but said they were working on producing the documents, including the Wake County Board of Education.
Wake County schools spokesman Tim Simmons said their board’s minutes will be available soon.
“We expect to send you the first several months of records early next week,” he said in an March 2 email to a reporter. “We are still compiling the remaining records.”
One holdup, Simmons said, was that in meeting the request, the school system uncovered a backlog of minutes that had yet to be transcribed from handwritten notes.
In Wake County, the secretary to the school board takes notes of closed sessions by hand. They’re later transcribed and forwarded to the board’s attorneys for any needed redactions.
When asked to explain the backlog, Simmons said transcribing minutes of closed sessions had simply not been a priority.
“I am told that requests for closed-session minutes are unusual and, when requested, would rarely cover an entire year,” he said. “Open-session minutes were a higher priority because they are more likely to be requested. That said, we agree that all minutes should be up to date and we are working to complete that process.”
Simmons said the school system expects to provide minutes of 74 closed sessions. Two dozen of those meetings, he said, coincided with regularly scheduled school board meetings and covered such topics as personnel appointments, land acquisition and legal matters.
“The remaining meetings are closed-session meetings for the purpose of student assignment, discipline or transportation hearings,” Simmons said. “The contents of these meetings include information protected by student privacy laws and would be redacted.”
Frayda Bluestein, professor of public law and government at the University of North Carolina at Chapel Hill, said there are no clear rules governing how much can or can’t be redacted. However, records can’t be kept private just because releasing them would be inconvenient.
“I don't think it's fair to say, ‘Well, the purpose was not to let the public hear what we were talking about,’” Bluestein said. “I feel like what the statute says is that [the minutes are] presumptively public and they have to make a case to withhold.”
Jonathan Jones, director of the N.C. Open Government Coalition, said he’s not surprised to find such variation between school boards, but he’s undecided on whether anything needs to be changed to clarify what the public is and isn’t allowed to see.
“I'm always reticent to say, ‘Let's change the law,’ because we could end up changing it for the worse. We should be judicious when we do,” Jones said. “There are best practices here. Some school boards and towns are following those policies.”
But Martin says she sees a need for clarification from state lawmakers because, in her view, the courts often misinterpret laws on open and closed sessions.
"I think the General Assembly should come back and make it plain: there needs to be a memorable account of what's in a closed session," Martin said.