Two Durham residents are suing the city and four council members for violating the state’s open meetings law during a public appearance in which the members discussed funding cuts to the police department. 

At the crux of the complaint filed last week in Durham County Superior Court are claims that mayor pro tem Jillian Johnson and fellow council members Javiera Caballero, Charlie Reece, and Pierce Freelon violated the law by appearing together in a virtual town hall in which the members pledged to redirect 10 percent of the police department budget to alternative budgets.  

Four council members constitute a quorum, and by law, that would require advanced public notice of the gathering; two other council members and Mayor Steve Schewel were not present at the town hall.   

The complaint was filed by Durham attorneys Daniel Meier and Jonathan Jones on behalf of Deborah Friedman and Mark Rodin. 

Durham city attorney Kim Rehberg told the INDY that her office is evaluating the complaint.

“The City Attorney’s Office needs an opportunity to review the complaint and discuss the allegations with our clients before publicly commenting on the substance of the suit,” Rehberg wrote in an email. 

“Based on what we know at present, again, without the benefit of conversations with our clients, I fully expect that we will present a vigorous defense against this lawsuit, and I look forward to presenting that defense in court.”

On May 17, City Manager Wanda Page presented her proposed 2021-2022 budget to the council. The proposal included the creation of a Department of Community Safety and the reallocation of five positions from the police department, including four officers.

Three days later, Johnson, Caballero, Reece, and Freelon appeared together at a virtual town hall, pledging to reallocate funds that had been earmarked for the hiring of 60 police officers. The event was hosted by Durham For All and the Durham Beyond Policing coalition, according to the five-page complaint.

The council has taken no action this year to significantly reduce the size of the police department or transfer resources to the not-yet-existent Department of Community Safety.

According to the complaint, Johnson indicated “she had a plan to reallocate 20 [officer] positions each year for the next three years to the Department of Community Safety,” and “Cabellero, Freelon and Reece all indicated agreement with Johnson’s plan.”

The complaint claims “irreparable injury” to Friedman and Rodin, the plaintiffs, and the public at large “through impairment of their knowledge and understanding of the people’s business.”

Meier, the plaintiff’s attorney, said the open meetings law is quite broad in its definition of an official meeting.

“It goes well beyond voting to including deliberation and the transaction of public business,” Meier said in an email to the INDY. “That’s to prevent public bodies, such as a city council, from making decisions out of the public eye.

“There are very few circumstances where a majority of the city council can meet and it would not be considered an official meeting. In this instance four members of the council were discussing public policy and committing to vote in a particular way on an issue that was scheduled to come before them in just a few days. It is our contention that more than satisfies the requirements of an official meeting that requires proper notice and access to the general public.”

Meier added that open meetings laws may seem onerous, but they exist for a reason. 

“It may not seem fair that if four are friends, they can’t get together for a cookout and discuss their plans, but they can’t,” Meier said. “It comes with the job and positions they chose to take.”

Meier says his clients do not support the reallocation of positions from the police department to the new Department of Community Safety and don’t understand why the city can’t fund both the police positions as well as the new community safety department. 

But his clients’ position is irrelevant to the complaint, he said.

“Open meetings laws exist to protect against corruption, back-office dealing, and control by special interests,” he explained. “This lawsuit is simply about making sure the City Council conducts itself in accordance with the law. Despite the headlines, it’s not in response to any particular policy position.”

Follow Durham Staff Writer Thomasi McDonald on Twitter or send an email to tmcdonald@indyweek.com.

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