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Open Meetings Provisions: Analysis and Interpretation of the Law for Campus Groups Operating under the Provisions of Administrative Memorandum 363

I. Background Information

Administrative Memorandum Number 363 requires university-wide "authorities, boards, commissions, committees,councils or other multi-person bodies" (hereinafter referred to as "Committees") of the University that meet the requirements set forth below to operate in accordance with the State's Open Meetings Act.

A. The Committee is established by or at the direction of:

1. the Board of Governors
2. the President
3. a Vice President
4. a Chancellor
5. a Vice Chancellor
6. any combination of the foregoing.

B. The membership does not consist exclusively of administrative officers of the University

C. the Committee's designated function or subject matter jurisdiction is either University-wide or Constituent Institution-wide

D. the Committee is expressly authorized or directed

1. to legislate, make policy, adjudicate or take administrative action or
2. to make findings concerning or to recommend legislative, policy-making, quasi-judicial or administrative action.

II. General Policy

A. All official meetings of a majority of the committee must be conducted during open session unless the subject matter of the meeting is specifically permitted to be conducted in a closed session.

B. An official meeting is a meeting, assembly, or gathering at any time or place in person or by simultaneous communications by electronic means of a majority of the committee for the purpose of deliberating, voting, conducting hearings or otherwise transacting business within the jurisdiction (real or apparent) of the committee.

III. Public Notice of Meetings (G.S.143-318.12))

All affected committees must give public notice of their official meetings. Notice is required even if the committee is meeting solely to review matters authorized for consideration in a closed session as well as all changes in regular meeting schedules, intentions to hold unscheduled meetings and notices of emergency meetings should be posted.

A. Regular Meetings. The schedule of regular meetings must be posted. If the schedule is subsequently revised, the revision must be posted at least seven calendar days before the first meeting held pursuant to the revised schedule." The Act does not establish a deadline for filing the original schedule, but it should be assumed that the original schedule should be posted at least seven calendar days before the first meeting held pursuant to that schedule.

B. Special Meetings. Special meetings are official meetings held other than according to the posted schedule of regular meetings. They include (a) adjourned or recessed meetings, (b) unscheduled meetings, and (c) emergency meetings.

1. Adjourned or recessed sessions of any official meeting. Where notice of the original meeting was properly given and the time and place of the adjourned or recessed meeting is announced in open session, no further notice is required. If an official meeting is adjourned or recessed without establishing the time and place of the next session, the notice required is as set forth below for unscheduled meetings.

2. Unscheduled meetings (other than emergency meetings). An unscheduled meeting is any meeting of a non-emergency nature that is not on the committee's schedule of regular meetings as it may be revised from time-to-time. Notice of an unscheduled meeting must be posted at the statutorily appropriate place and must be mailed (or delivered) at least 48 hours before the time of the meeting to any news media and any person (including a corporation) that had filed written request for such public notices. News media may be required to annually renew their requests for written notice. A fee may not be charged for serving such notices to the news media. However, other persons (other than the media) are to be charged $10.00 per calendar year for this service and may be required to renew their request to be notified quarterly.

3. Emergency Meetings. An "emergency meeting" is a meeting "called because of generally unexpected circumstances that require immediate consideration by the public body." Local news media that in their written requests for notice of meetings have included their telephone numbers must be notified of emergency meetings "either by telephone or by the same method used to notify the members of the committee." This notice must be given "immediately after the notice has been given to those members" but is to be given "at the expense of the party notified." (Persons other than news media have no right under the Act to notice of emergency meetings.) The agenda of a meeting noticed under this procedure is restricted to "business connected with the emergency." The term emergency meeting shall be interpreted so that emergency meetings shall be called only in response to extreme urgency and, thus, infrequently.

IV. Minutes

Every Committee must keep full and accurate records of official meetings including any closed sessions. Minutes may be kept as a writing, audio recording, or video and audio recording. Minutes are public records within the meaning of the Public Records Law. However, minutes of a closed session may be withheld from public inspection so long as public inspection would frustrate the purposes of a closed session.

V. Procedures for Going into Closed Session (G.S. 143-318.11(c))

A committee may go into closed session only upon a motion made and adopted at an open meeting. Every motion to close a meeting must cite, specifically, one or more of the permissible purposes listed in Section VI. Furthermore, the motion must state the name or citation of the law that renders the information to be discussed privileged or confidential.

VI. Closed Sessions

Closed sessions may be held for the following matters:

A. Information Privileged or Confidential Pursuant to State or Federal Law (G.S. 143-318.11(a)(1)). The following are examples of state and federal laws requiring confidentiality:

1. The Privacy of State Employees' Personnel Records Act (G.S. 126-22 et seq.). This law protects from public inspection all but statutorily identified elements of a state employee's "personnel file" and prescribes the conditions under which protected elements of the file may be disclosed to one or another statutorily protected party. This part of the State Personnel Act applies to both EPA and SPA personnel.

2. The Family Educational Rights and Privacy Act of 1974 P.L. 93-380, amended by P.L. 93-568, the Buckley Amendment). This law protects a student's education records by excluding them from public view except in prescribed contexts. It assures a student access to most of his or her own records, in part to allow the student to ascertain that the contents are appropriately part of the records.

3. The Privacy Act of 1974 (P.L. 93-579, amended by P.L. 94-455). This law protects from involuntary disclosure (except for specified purposes) an individual's social security number.

B. Honorary Degrees, Scholarships, or Prizes (G.S. 143-318.11(a)(2). The committee may convene in closed session to identify candidates for, assess the candidates' worthiness for, and choose the recipients of honors, awards, honorary degrees, or citations. This authorizes a closed session to select recipients of awards, for example, for teaching excellence, distinguished alumni, and student achievement in academic and nonacademic matters.

C. Consult with an Attorney and to Preserve the Attorney-Client Privilege (G.S. 143-318.11(a)(3). General policy matters that would otherwise be subject to discussion in open session may not be discussed in closed session merely because an attorney is a participant in the discussion. A closed session may only be held to receive legal advice from the attorney which advice would be subject to the attorney client privilege.

D. Location or Expansion of Industries or Businesses (G.S. 143-318.11(a)(4). A committee may convene in closed session to discuss matters relating to the location or expansion of industries or other businesses in the area served by the committee.

E. Real Property Acquisition and Employment Contracts (G.S. 143-318.11(a)(5)). A committee may convene in closed session to consider negotiations of (a) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (b) the amount of compensation and other material terms of an employment contract or proposed employment contract. The acquisition of real property by gift or bequest and the acquisition of personal property by any means must be conducted in open session. The disposition of real property by any means must be conducted in open session.

[Note: The restrictions on property transactions do not apply to endowment funds authorized by G.S. 116-36 and 116-238 which are exempt from the Act under G.S. 143-318.18(8).]

F. Personnel Matters (G.S. 143-318.11(a)(6)). There is no general exemption of personnel matters from the open-meetings requirements. However, certain specified aspects of personnel matters may be the subject of closed sessions. In several contexts, the Act distinguishes between "consideration" or "discussion" (permitted in closed session) and final "action" (required to be taken in public session).

1. A committee in closed session may consider "the qualifications, competence, performance, character, fitness, conditions or appointment, or conditions of initial employment" of either an incumbent public officer or employee or a prospective public officer or employee. General personnel policy issues may not be considered in a closed session.

2. A committee having "final authority" to appoint, discharge, or remove a public officer or employee may not exercise that authority except in open session. Thus, a clear distinction is to be made between consideration and exercise of such final authority, with the latter to be accomplished only in public session. [The phrase "final authority" includes the power of "approval" as used in The Delegations of Duty and Authority of Boards of Trustees in the Appendix of The Code; the phrase does not include the exercise of appellate review of personnel decisions reached by a lesser body.]

3. A committee in closed session may "hear or investigate a complaint, charge, or grievance by or against a public officer or employee." The Act makes no reference to the "disposition" of such complaints, charges, or grievances, following the "hearing" or "investigating." However, if the disposition is a "final action" by the "final authority" and such disposition involves the discharge of the officer or employee, such action must be taken in public session. The disposition of a nonreappointment appeal would not be subject to report in open session because it is not an appointment, discharge, or removal of an employee.

4. A committee may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. The phrase "another body" is not defined by the Act: presumably, therefore, the phrase embraces both "public bodies" and other "bodies" with respect to which the authority to appoint or remove members exist (e.g., an appointment of a foundation board member by a board of trustees).

G. Alleged criminal misconduct (G.S. 143-318.11(a)(7)). A committee may convene in closed session to plan, conduct, or hear reports concerning "investigations of alleged criminal misconduct." The board of trustees of a constituent institution could, for example, independent of its police department or security office, undertake its own investigation of alleged auto theft on campus by institution employees, doing so in closed session whether or not the inquiry fits a category of personnel matters identified in E(6), above, and whether or not the investigation called into use the contents of personnel files rendered confidential by law discussed in E(1)(b), above.

VII. Conduct of official meetings.

The Act has several significant provisions concerning the conduct of official meetings of committees.

A. Electronic meetings (G.S. 143-318.13(a)). A committee may hold an official meeting by conference telephone or other electronic means including closed circuit television. If it does so, it must give the public access by providing and announcing a place for listening to and/or seeing the meeting. Notice of such arrangements must be given through the notice otherwise required for the public meeting. If a public meeting not initially planned for electronic convening is later set as an electronic meeting, that meeting becomes a "special" meeting with the attendant special notice and fee requirements. Each listener may be charged up to $25.00 "to partially defray the cost of providing the necessary location and equipment."

B. Written ballots (G.S. 143-318.13(b)). Committees may act or vote by written ballot only if (a) the ballots are signed by the individual voter, (b) the minutes of the meeting record the individually cast votes, and (c) the ballots are "available for public inspection in the office of the clerk or secretary to the committee immediately following the meeting at which the vote took place and until the minutes of that meeting are approved, at which time the ballots may be destroyed."

C. Acting by reference (G.S. 143.318.13(c)). A committee may not act, deliberate, or vote by reference merely to a letter, number, or other designation or secret device to prevent public understanding of the business being conducted. But a committee may act by reference to an agenda if copies of the agenda are available at the meeting for public inspection and if the agenda is "sufficiently worded to enable the public to understand what is being deliberated, voted, or acted upon."

D. Broadcasting or recording meetings (G.S. 143.318.14)). "Any person may photograph, film, tape record, or otherwise reproduce any part of a meeting required to be open," and any radio or television station may broadcast all or any part of the meeting. However, a public body, to prevent interference with the meeting, may reasonably regulate placement and use of equipment as long as the equipment as long as the equipment is placed within the meeting room in such a way as to allow its intended use. The ordinary use of such equipment cannot be declared to constitute undue interference. If the committee should (in good faith) decide that, due to the size of the meeting, all of the broadcasting, filming, and tape-recording equipment and personnel cannot be accommodated in the meeting room without unduly interfering with the meeting, and if an adequate alternate meeting room is not readily available, then the public body may require the pooling of such equipment and the personnel operating it. If the news media, to facilitate news coverage, requests an alternate site for the meeting, and that request is granted, then "the news media making such request shall pay any costs incurred by the public body in securing an alternative meeting site."

Caveat. The recording and broadcast privileges extended by G.S. 143-318.14(a) exceed rights conferred by the federal Copyright Act of 1976. The committees of the university should avoid this problem by not scheduling the presentation of copyrighted works at open meetings being broadcast or recorded for broadcast, absent an executed release.