Agenda - 11-10-94 - III - Laserfiche WebLink

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Open Meetings Legislation [From a draft copy of David M. Lawrence, "Local Government and Local Finance," in John L. Sanders, ed.,North Carolina Legislation 1994 (Chapel Hill:Institute of Government, University of North Carolina at Chapel Hill, forthcoming,] Chapter 570 (H 120) enacts legislation making significant revisions to the open meetings law, particularly in the definition of groups subject to the law and in the occasions for which executive, or closed, sessions are permitted. In 1993 both the Senate and the House adopted versions of the bill, but they could not in that session resolve the differences in the two versions, especially their differences regarding closed sessions for personnel decisions. In 1994, however, the Senate accepted the House version of the contested provision, and the legislation was enacted. It becomes effective October 1, 1994. Public Bodies. The changes modify the definition of"public body," with the result of expanding considerably the groups subject to the statute. The definition of public body has centered on the mechanics of how a group was established, with five qualifying methods set out in the statute. If a group was established in one of those ways it was a public'body and thus subject to the statute; if it was not, it was not a public body. Chapter 570 deletes the provisions concerning the methods of establishment, so that any body of state or local government with two or more members is now subject to the open meetings law. The one possible exception centers on a provision that states that "'Public body' does not include a meeting solely among the professional staff of a public body." This appears to mean that if a group is comprised solely of professional staff, that group is not a public body. One of the effects of this change in definition is that it is now likely that a variety of nonprofit, nongovernmental groups are subject to the open meetings law. In interpreting the state's public records law, the Court of Appeals has extended that law to nonprofit entities with significant connections to one or more local governments. If, for example, a nonprofit entity's board is appointed by local government, if a nonprofit entity receives most of its funding from local government and is subject to local government fiscal supervision, or if a nonprofit entity operates a publicly-owned facility, these ties may be sufficient to cause a court to characterize its board of directors as a local government agency for public records purposes. It would not be surprising if the same sorts of tests were applied to determine if such entities should be subject to the open meetings law as well. • Closed Sessions. Most of the attention drawn by the new law has been to its provisions about what it now calls "closed" sessions. The occasions for which closed sessions are permissible have been completely revised, and some of the procedural aspects of closed sessions have been modified as well. Closed sessions are now permitted for only nine subjects (grouped in seven paragraphs in the rewritten law), down from 20 in the earlier law. These numbers are slightly misleading, however, in that one of the new subjects--confidential records--encompasses two or three f- ^ provisions of the former law. The permitted subjects for closed sessions are as follows: