A lot of folks had questions about how Raleigh’s city council members came to their 7 to 1 determination that the council delay the municipal election scheduled for this fall until November 2022, effectively giving everyone on council an extra year to serve in office.
Turns out Wake’s and Raleigh’s leaders in the state legislature had questions, too, and there’s some confusion around whether the city council, in voting to delay the election, violated North Carolina’s open meetings law.
According to a report from The News & Observer, state senators, including Sen. Dan Blue, yesterday voiced their opposition to a portion of a bill in the legislature that would bump the city’s elections from October of this year to November of next year due to delays in receiving census data. Blue said he wasn’t opposed to moving the election, but had a problem with the way that decision was made–in a closed meeting, without any public input, without ever being put to a public vote.
Raleigh’s city attorney Robin Tatum says a vote in open session to move the election was not required. After the council made its decision, an amendment was added to Senate Bill 722 to move the election date. The bill passed unanimously in the state House last week and passed in the Senate last night–but all five senators who represent Wake County voted against it.
Brooks Fuller, the director of the N.C. Open Government Coalition, told the N&O the state’s open meeting law “is designed to make it so any official act occurs in public.”
“Voting by a city council is unequivocally an official act. So anytime a city council wants to vote on anything they have to do so in open session,” Fuller said. “Closed session voting is not something our law contemplates. If they have discussion in closed session and they want to take official action then they need to come out of closed session and do a vote that is recorded in public and in the minutes, full stop.”
“If you’re asking your attorney for advice as to your exposure regarding a lawsuit that is an attorney-client privilege conversation,” Fuller said. “If you are discussing among members of a city council whether it’s a good idea for the city of Raleigh to take a particular action, that is not attorney-client privilege discussion and that is the difference.”
But matters of attorney-client privilege are exempt from open meetings laws, and it is that attorney-client privilege that the city attorney cites in the council’s reaching its June 1 decision to move the election.
Still, the government experts seem to say in the report, a final vote should have been made in open session, and never was.
“And I think they have authority to come to a tentative consensus as to what they want to do about the issue,” said Frayda Bluestein, a professor of public law and government at UNC-Chapel Hill. “A final vote should be made in open session.”
So did the council violate the state’s open meeting law in the way it decided to move the election? It’s hard to say. Before the council sent its request to state lawmakers to move the election, each council member’s position on the issue was clarified in a public meeting, and most council members seem to think they were following the proper process to request the legislature to change the election date.
“I will say there was a closed session meeting, then there was a public meeting where we addressed this,” said Raleigh Mayor Mary-Ann Baldwin at a Raleigh city council meeting Tuesday afternoon. “We did take a vote, the vote was announced, and now we will wait to see what happens. But the fact is we cannot have an election in October, it’s legally not possible, and if this doesn’t move forward we will have to reexamine our options.”
Council member David Cox, who changed his position on moving the election after the closed door vote was taken, called the process the council took to decide to move the election date “not transparent.” Several speakers at the meeting also criticized the council for a lack of transparency in its actions around moving the election date.
“We didn’t have a public discussion or take public input about our action,” Cox said at the council meeting. “The reason cited was that there were legal implications, but as I stated, everything the council does has legal implications. Regrettably we are now in a position where the public simply can’t really understand the conversation, discussion, or reasons of our decision and I think that really is unfortunate and that hurts democracy.”
Correction: Council member David Cox was not the lone vote against moving the election in the council’s closed session vote as an earlier version of this story stated but asked to change his position during the public meeting on June 8, when the council made its formal request to the legislature to move the election date.
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