UNC BOG chair says group working to be more open

Published November 19, 2015

by Mark Binker, WRAL, November 18, 2015.

The acting chairman of the University of North Carolina Board of Governors defended the decision to award raises to 12 system chancellors behind closed doors but told the legislature's Joint Commission on Governmental Operations that the board would likely amend how it handles similar actions in the future.

"There is no provision in the open meetings law that all votes of a public body need to be taken in open session," said Lou Bissette, the board's vice chairman who took over in October when former chairman John Fennebresque of Charlotte stepped down.

While correct in a very technical sense, that idea runs contrary to how public bodies are supposed to approach open meetings, according to lawyers specializing in open government.

That approach is the major reason House Speaker and Senate President Pro Tem summoned Bissette and university general counsel Thomas Shanahan to appear before the legislative oversight committee. On Oct. 30, the Board of Governors met behind closed doors and voted to award raises to North Carolina State University Chancellor Rodney Woodson, UNC-Chapel Hill Chancellor Carol Folt and 10 other top system officials.

Typically, public bodies in North Carolina will discuss personnel matters behind closed doors but take action on raises and contracts in public. Those raises were never discussed or voted on in public.

Bissette told the committee that the closed session vote and three-day delay in unveiling the salary changes were done so that chancellors would hear about pay changes from UNC President Tom Ross rather than from media reports.

However, Bissette said that the group "made an error" in not being more transparent.

"It would have been better if we had come out of the closed session, gone into open session and voted on these salary increases," he told the committee, which is comprised of the General Assembly's highest-ranking lawmakers.

After the meeting, asked why the board would consider changing its procedure, Bissette said that the nature of the meeting had become too much the focus of public scrutiny, rather than the overall effort to retain top executive talent.

"We don't need to be spending all this time on that," he said.

Lawmakers had demanded that the Board of Governors turn over recordings of the Oct. 30 closed session for review. While the board complied with that request, no material from the recordings was used during questioning Wednesday. Rep. , R-Gaston, said the hours of tape had taken too long to review.

During the meeting, neither Torbett nor any other member of the General Assembly challenged Bissette on his statement that public bodies don't have to conduct their votes in the open, but he did ask whether the board would be receiving a refresher course on open meetings policy. Bissette said that they would.

Outside the meeting, Torbett was asked what he thought when he heard that Bissette's understanding of open meetings law would allow for closed-door votes.

"There needs to be a provision in the law that more clearly defines the operations of an open and closed session," Torbett said. "It's always been a pet peeve of mine when I consult an attorney about law and hear a response that says, 'Well, the law is kind of unclear.'"

Disputing the law

North Carolina's Open Meetings Law is fairly explicit as written to say, "it is the public policy of North Carolina that the hearings, deliberations, and actions of these (public) bodies be conducted openly." There are provisions for public bodies to meet behind closed doors but only for nine specific purposes.

While one of those purposes does deal with discussing the qualifications of an employee, the statute emphasizes that a board may "consider" or "hear or investigate" the qualifications of an individual.

"The exemption for discussion of personnel does not include setting compensation," said Jonathan Jones, a lawyer with the North Carolina Open Government Coalition, based at Elon University.

Outside the meeting, Shanahan defended the board's action and stood by the interpretation of the open meetings law.

"The open meetings law, Chapter 143, does not contain a requirement that says every vote taken by a public body must be taken in open session," Shanahan said.

Pressed on the point that the law gives a specific set of exemptions for business conducted behind closed doors, he said, "I think it's pretty well established in case law in North Carolina that public bodies can vote on certain matters in closed session. That's not a groundbreaking principle."

Mike Tadych, a lawyer who specialized in open government and works for news organizations, including WRAL News, disagreed that case law backs up Shanahan's view.

"There's more than a dozen cases that say you're supposed to err on the side of openness," Tadych said.

He pointed out North Carolina open government laws require public bodies to be able to point to a specific exception that allows them to hold records or discussions out of public view.

"There is no permission in the law to do what they did," he added.

Bissette said that the UNC Board of Governors was slated to meet on Dec. 10 and would receive a briefing on open meetings and open records law at that time.

"We're going to have this discussion in open session," he assured lawmakers.

Just to be sure, the committee voted to require the Board of Governors to report back once that briefing was conducted.