News & Observer Publishing Co. v. Interim Board of Education

223 S.E.2d 580 (1976) 29 N.C. App. 37

The NEWS AND OBSERVER PUBLISHING COMPANY, a corporation, et al.
v.
INTERIM BOARD OF EDUCATION FOR WAKE COUNTY, a Body Politic and Corporate, et al.

No. 7610SC24.

Court of Appeals of North Carolina.

April 7, 1976.

Lassiter & Walker by William C. Lassiter, Raleigh, for plaintiffs-appellees.

Robert L. Farmer, Raleigh, for defendants-appellants.

Wade H. Hargrove, Raleigh, amicus curiae.

SCOPE OF REVIEW

BRITT, Judge.

The record recites that defendant appellants' sole exception "is the rendering and signing of the Order" by Judge Bailey dated 31 December 1975. That being true, appellate review is limited to the question of whether error of law appears on the face of the record. While this permits us to review the conclusions of law and to determine if the facts found or admitted support the order, it does not present for review the findings of fact or the sufficiency of the evidence to support them. 1 Strong, N.C. Index 2d, Appeal and Error § 26, and cases therein cited. Therefore, defendants' contentions that certain findings of fact are not supported by the evidence will not be considered.

PERTINENT STATUTORY PROVISIONS

This action involves an interpretation of portions of the North Carolina Open Meetings Law enacted by the 1971 General Assembly. Ch. 638, 1971 Session Laws, codified as Art. 33B of Ch. 143 of the General Statutes.

G.S. 143-318.1 provides as follows:

"Public policy.—Whereas the commissions, committees, boards, councils and other governing and governmental bodies which administer the legislative and executive functions of this State and its political subdivisions exist solely to conduct the peoples' business, it is the public policy of this State that the hearings, deliberations and actions of said bodies be conducted openly."

G.S. 143-318.2 requires in substance that all official meetings of the governing and governmental bodies of the State and its political subdivisions, including all county, city and municipal committees and boards which have or claim authority to conduct hearings, deliberate or act as bodies politic and in the public interest, shall be open to the public.

G.S. 143-318.3 sets forth those instances in which the bodies coming within the ambit of the law may hold executive sessions and exclude the public from their deliberations. G.S. 143-318.4 specifies certain agencies or groups that are excluded from the provisions of G.S. 143-318.2.

BOARD MEMBER NOT AN "OFFICER" OF BOARD

Defendants contend first that the executive session complained of here was authorized by G.S. 143-318.3(b) which provides in pertinent part as follows: "This Article shall not be construed to prevent any governing or governmental body specified in G.S. 143-318.1 from holding closed sessions to consider information regarding the appointment, employment, discipline, termination or dismissal of an employee or officer under the jurisdiction of such body. . .." Defendants argue that a member of the Board is an "officer" under the jurisdiction of the Board, therefore, a closed session to consider information regarding the appointment of such officer is authorized. We reject this argument.

Ordinarily a strict or narrow construction is applied to statutory exceptions to the operation of laws, and those seeking to be excluded from the operation of the law must establish that the exception embraces them. 73 Am.Jur.2d, Statutes § 313, pp. 463-64 (1974). While neither our Supreme Court nor this Court has spoken on the question of strict construction as it pertains to our open meetings law, courts of other states have held that exceptions to their open meeting statutes allowing closed meetings must be narrowly construed since they derogate the general policy of open meetings. See Illinois News Broadcasters Ass'n v. Springfield, 22 Ill.App.3d 226, 317 N.E.2d 288, 290 (1974); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Times Publishing Company v. Williams, 222 So. 2d 470 (Fla.App., 1969); Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla., 1974). We are convinced that these principles are sound; that exceptions to our open meetings law should be strictly construed and that those seeking to come within the exceptions should have the burden of justifying their action.

We think the term "under the jurisdiction of" implies one subordinate to the Board. For the most part, defendant Board is the aggregate of its members, who are coequal. Applying a strict construction to subsection (b), we hold that a member of defendant Board is not an "officer" of the Board within the contemplation of the open meetings law.

COMMITTEE OF THE WHOLE

Defendants next contend that the trial court erred in concluding that the closed session complained of was not authorized by G.S. 143-318.4(7) when defendants attending the meeting were constituted a committee of the whole.

G.S. 143-318.4 specifies certain agencies or groups that are excluded from the open meetings law, subsection (7) providing as follows: "All study, research and investigative commissions and committees including the Legislative Services Commission". Defendants argue that the individual defendants attending the meeting in question became an investigative committee as envisioned by Subsection (7).

Dictionaries we have consulted define "committee of the whole" in terms of a legislative body. Plaintiff submits the Century Dictionary definition as follows: "— COMMITTEE OF THE WHOLE, a committee of a legislative body consisting of all the members present, sitting in a deliberative rather than a legislative character, for formal consultation and preliminary consideration of matters awaiting legislative action". 1 Century Dictionary 1131 (1889).

We think the term is entitled to a broader reach and that utilization of the concept is warranted by groups other than legislative. By way of illustration, a brief look at the modus operandi of the House of Representatives of our State might be helpful.

Due to the large volume of proposed legislation, our House performs a major part of its work in a regular session through standing committees, finding it impossible for every member to participate in hearings and the careful scrutiny of every bill that is introduced. However, in a special or extra session, which usually considers only one or two questions, and usually lasts only a few days, the House often utilizes its rule providing for a Committee of the Whole House. See Journals for 1963 Extra Session dealing with Congressional redistricting; 1965 Extra Session dealing with the "Speaker Ban Law"; and 1966 Extra Session dealing with Congressional and Legislative redistricting and reapportionment. The Journals reveal that during those extra sessions practically all committee work was done by the House sitting as a committee of the whole.

The reasons for this procedure in an extra session are numerous. These include the fact that the House is dealing with a single subject, all of its members are available at the same time to meet as a committee for purpose of hearing statements from people who are not members of the House, and time is minimized by having every member receive full information on which to base a judgment.

In like manner much of the routine work of city councils, boards of county commissioners, and boards of education, particularly in larger cities and counties, may be performed more efficiently by committees of fewer members than the entire board. However, there arise major or unusual problems or duties that require the combined and expeditious attention of the entire body and on those occasions the body could well utilize the committee of the whole procedure.

With respect to a board of education, we can envision instances in which the board would need to function as a committee of the whole in closed session in order to investigate certain matters. An example would be the theft or embezzlement of property when the board did not have proof as to the wrongdoer and means to determine the unknown culprit would have to be devised. Obviously, a discussion of the matter in a public meeting could destroy any plan to determine the wrongdoer. While an investigative committee composed of fewer than all members of the board might suffice, the gravity or complexity of the matter might justify the input and best judgment of every member. We can also envision instances in which a board of education would be justified in meeting as a committee of the whole and in closed session to investigate persons who are under consideration for appointment to the Board.

At the same time, we do not think a board can evade the provisions of statutes requiring its meetings to be open to the public merely by resolving itself into a committee of the whole. 56 Am.Jur.2d, Municipal Corporations, Inc., § 161, p. 214 (1971); Beacon Journal Publishing Co. v. Akron, 3 Ohio St. 2d 191, 209 N.E.2d 399 (1965); Acord v. Booth, 33 Utah 279, 93 P. 734 (1908). In our opinion, defendants failed to justify their closed session in the instant case.

As indicated above, the burden is on defendants to show that they came within one or more of the exceptions provided in the statutes. The findings of fact disclose: Prior to the closed session the names of eight persons were placed in nomination to fill the vacant position. Following the passage of a motion authorizing same, defendant Danielson proceeded to appoint the members of the Board as a committee of the whole to study and investigate the names recommended. At the resumed meeting following the closed session, the names of the eight persons previously nominated were presented again.

We hold that defendants failed to show that their closed session came within the exception provided by G.S. 143-318.4(7).

VOTING BY SECRET BALLOT

Defendants contend the trial court erred in concluding that they violated G.S. 143-318.1 and G.S. 143-318.2 in voting by secret ballot. This contention relates to conclusion of law 7 and finding of fact (7) set forth above. We find no merit in the contention.

G.S. 143-318.1 declares the public policy of this State that deliberations and actions by bodies covered by the statute shall be conducted "openly". Clearly, voting for a person to fill a vacancy is "action" and we are unable to reconcile voting by secret ballot with "openly". See State ex rel. Wineholt v. LaPorte Superior Court No. 2, 249 Ind. 152, 230 N.E.2d 92 (1967), in which the Supreme Court of Indiana held that a secret ballot vote by a county council was in violation of the Indiana Open Meetings Statute. No doubt we would have a different situation here if it had been disclosed how the individual defendants attending the meeting voted in their secret ballots. We hold that the trial court ruled properly on this point. People ex rel. Hopf v. Barger, 30 Ill.App.3d 525, 332 N.E.2d 649 (1975).

NOTICE OF MEETINGS

Defendants contend the court erred in ordering that defendant Board "cause a notice to be given to the public of every official meeting of the Interim Board" at least 48 hours in advance of each such meeting, by posting on the outside of the door to the principal office of the Board a written notice stating the time and place of such meeting. This contention has merit.

Art. 33B of G.S. Ch. 143 contains no requirement with respect to notice of meetings. We perceive no problem with respect to regular meetings where the Board publicizes that until further notice its regular meetings will be held on a specified date or dates of each month and at a specified hour and place. G.S. 115-28 authorizes a board of education to meet in special session upon the call of the chairman or of the secretary as often as the school business of the administrative unit may require, but contains no provision regarding notice of special meetings. Neither party has cited, and our research fails to disclose, any statute that specifically provides for notice of a special meeting.

Nevertheless, it is obvious that the open meetings law would be meaningless unless the public had notice of meetings of the bodies covered by it. At the same time, we can envision emergencies that would mandate a special meeting of a board of education with considerably less notice than 48 hours.

We are aware of G.S. 153A-40 which requires 48 hours' notice of special meetings of boards of county commissioners, but that requirement does not apply to special meetings dealing with emergencies. In the absence of statutory provisions for notice, we think defendant Board should give reasonable notice of its meetings, taking into consideration the urgency of the matter necessitating the meeting. While we agree that the one-hour notice given by telephone to the office of two newspapers in the instant case was insufficient, we hold that 48 hours' notice for all meetings is unreasonably long.

We decline to specify the number of hours that would be "reasonable" but, considering modern means of communication, including newspapers, radio, etc., we feel that in a real emergency as little as six hours' notice to the public would be sufficient.

CONCLUSION

We affirm the order of the trial court except in the following respects:

(1) Paragraph numbered 2 of the final portion of the order (requiring at least 48 hours' notice to the public of every official meeting) is vacated.

(2) Paragraph numbered 4 of the final portion of the order (enjoining defendant Board from designating itself as a committee of the whole and meeting in closed session as such to study and investigate nominees to fill a vacancy on the Board) is vacated.

Modified and affirmed.

PARKER and CLARK, JJ., concur.