In a lawsuit filed today in Durham County Superior Court, Deborah Friedman, a Durham resident who opposed the city council’s April resolution instructing the police department not to enter into exchange programs with foreign countries, alleges that Mayor Steve Schewel violated the open-meetings statute in crafting the controversial measure, which drew accusations of anti-semitism.
The crux of the complaint are two emails Schewel sent from his personal account shortly before 1:00 a.m. on April 5, two days after the group Demilitarize Durham2Palestine asked council members to place a resolution on their April 5 work-session agenda condemning police-training exchanges with foreign countries, especially Israel. (Read the complaint at the bottom of this post).
The first email—sent at 12:54 a.m., according to the lawsuit—was addressed to council members DeDreana Freeman, Jillian Johnson, and Mark-Anthony Middleton. The second, nearly identical email was sent two minutes later to Vernetta Alston, Charlie Reece, and Javiera Caballero.
The emails read: “Please see two attachments prior to the work session. First is Chief [C.J.] Davis’ memo to [city manager] Tom Bonfield. Second is a statement I have written and will introduce today during the Announcements section of the work session. I have labored long and hard over it and I hope it meets your approval. My plan is to introduce it at the work session and put it on the agenda for council approval on April 16. I am sure the public will want to discuss it then. Thanks to all of you for your one-on-one discussions this past week. Best wishes, Steve.”
The council did not discuss the exchanges at its April 5 work session, though it did hear from several speakers on the issue. But on April 16, after several hours of public comment, it approved the statement Schewel had introduced. (The city’s police department wasn’t involved in any exchanges, so the resolution had no tangible impact.)
According to Friedman’s lawsuit—filed by attorney Jonathan Jones, the former director of the N.C. Open Government Coalition—those emails constituted a government meeting, and under state law, the council had to provide “adequate notice” to the public.
“The Open Meetings Law defines an ‘official meeting’ as ‘a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business,’” the lawsuit says.
There are seven members of the council. Including Schewel, the lawsuit says, each of those emails comprised a majority and thus an official meeting.
The issue, Jones says, isn’t just that there was no notice, but because Schewel sent the email to the council members’ personal emails, there also wasn’t public access; emails sent to the city council email addresses are automatically public records accessible through a public portal.
The law specifies that “simultaneous communication by conference telephone or other electronic means” requires notice. Jones argues that this applies even though an email isn’t “simultaneous” in the way a conference call or Slack conversation would be. He told the INDY that at least one city council member responded to Schewel’s early-morning email later in the day.
“According to information and belief,” the lawsuit continues, “city council members continue to transact city business via personal email. … Irreparable injury to the Plaintiff and the public through further impairment of their knowledge and understanding of the people’s business as alleged above will occur unless the defendants are enjoined from continuing and recurring violations of the Open Meetings Law.”
In essence, the lawsuit asks the court to order the city council to no longer conduct official business through email. “In addition,” the complaint adds, “pursuant to the Open Meetings law, this Court is authorized to declare that any action taken, considered, discussed, or deliberated in violation of the Open Meetings Law to be null and void.”
That would include the police-exchange resolution.
The city council was meeting Thursday afternoon and members could not immediately be reached for comment. City attorney Patrick Baker told the INDY that he hadn’t seen the lawsuit, “but I know there have been concerns that are being raised about communication between council.”
“Anytime there’s a complaint about council communications that are going on—official public communications going on outside of public meetings—is always a concern,” Baker added. He said the question of whether a mass email is considered a “simultaneous communication” hasn’t come up before, so his office doesn’t have a position on it.
“My recommendation would be that any council communications take place in a public meeting,” Baker said, adding that he couldn’t comment on the specifics of the case without seeing the lawsuit itself.
The lawsuit is the second over the policing statement. As the Herald-Sun reported, two Israeli volunteer police officers filed a lawsuit in October against the city and Davis saying the resolution creates a policy that discriminates on the basis of national origin.
This is a breaking story. The INDY will update as more information becomes available.
(Update: Schewel declined to comment to the INDY, saying he had not seen the complaint.)