Hildebran Heritage & Dev. Ass'n

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-568
Filed: 21 March 2017
Burke County, No. 15 CVS 180
HILDEBRAN HERITAGE & DEVELOPMENT ASSOCIATION, INC., and
CITIZENS UNITED TO PRESERVE THE OLD HILDEBRAN SCHOOL, Plaintiffs
v.
THE TOWN OF HILDEBRAN and FOOTHILLS RECYCLING & DEMOLITION,
LLC, Defendants
Appeal by plaintiffs from judgment entered 11 August 2015 and order entered
14 September 2015 by Judge Joseph N. Crosswhite, in Burke County Superior Court.
Heard in the Court of Appeals 4 October 2016.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason White and Amber R.
Mueggenburg, for plaintiff-appellants.
Byrd, Byrd, McMahon, & Denton, P.A., by Lawrence D. McMahon, Jr. and G.
Redmond Dill, Jr., for defendant-appellee Town of Hildebran.
The Starnes Law Firm, by James B. Hogan, for defendant-appellee Foothills
Recycling & Demolition, LLC.
Engstrom Law, PLLC, by Elliot Engstrom, for amicus curiae Engstrom Law,
PLLC.
CALABRIA, Judge.
Where the meeting of the town council was held openly and in view of the
public, the trial court did not err in concluding that it did not violate the Open
Meetings Law. Where the only evidence of unreasonable limitation of opportunity
for access to the meeting was the fact that the venue could not accommodate all
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN
Opinion of the Court
present, the trial court did not err in concluding that the town council did not violate
the Open Meetings Law.
Where the trial court declared the contract for demolition of a building null
and void, and the building was subsequently destroyed in a fire, the issue of whether
the trial court erred in granting a partial directed verdict is moot. Where plaintiffs
failed to demonstrate an abuse of discretion, the trial court did not abuse its
discretion in declining to award attorney’s fees. We affirm in part, and dismiss in
part.
I. Factual and Procedural Background
The Old Hildebran School (“Old School”) was built in 1917, and has since been
viewed as a town landmark. Two additions to the Old School were completed in 1924
and 1937, and in the 1950s a breezeway was added to connect the older portions of
the building to the newer high school structures. The Old School functioned as both
a Junior High and High School from its opening in 1917 until 1987, when new school
buildings were built in town. The Town of Hildebran (“Town”) acquired the Old
School from the Burke County Board of Education in 1988.
The Old School was first discussed at a 22 September 2014 special meeting of
the Hildebran Town Council (“Town Council”). At this meeting, Council Member Lee
Lowman (“Lowman”) brought up the physical state of the school, expressing his belief
that the Old School was beyond repair and was both a safety and fire hazard. Council
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Member Jamie Hollowell (“Hollowell”) then requested that “hard copy bids” be
solicited for costs of both demolition and repair of the school, in order to make an
informed decision. Virginia Cooke (“Cooke”), Council Member and town mayor,
stated that she had solicited a quote for costs to demolish the school.
The Town Council next discussed the Old School at its 27 October 2014
regularly scheduled meeting. There were two discussions concerning the Old School
at the 27 October 2014 meeting. First, the Town Council considered a resolution that
would exempt it from following the formal bidding process for projects costing less
than ninety thousand dollars, which failed. Second, the Town Council entered into a
closed session to “discuss matters relating to the location or expansion of industries
or other businesses in the area served by the public body, including agreement on a
tentative list of economic development incentives that may be offered by the public
body in negotiations” citing N.C. Gen. Stat. § 143-318.11(a)(4). Later, at trial, the
evidence showed that the Old School’s future was discussed during the closed session
rather than a discussion pertinent to “the location or expansion of industries or other
businesses[.]”
The Town Council next discussed the Old School at the regularly scheduled
meeting on 24 November 2014, where a presentation was given regarding the
possibility of historic rehabilitation. The Old School was otherwise not discussed any
further at the 24 November 2014 meeting.
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Public interest in the fate of the Old School began to grow in late November
and early December of 2014. The trial court found that “at least one Council member
and the Mayor knew that public interest in the fate of the old school building was
very high[.]” At the Town Council’s December 2014 regular meeting, Cooke
announced that there would be a public forum to allow citizens to discuss options for
the Old School, and the forum was scheduled for 8 January 2015, as a special meeting.
At the 8 January 2015 special meeting, Cooke announced which portions of the
school would be “affected” by demolition. Twenty-one members of the public spoke,
each addressing opinions as to the fate of the school, with nineteen of the twenty-one
speakers in favor of saving the Old School. The Town Council held another special
meeting on 23 January 2015, at which the school was not discussed.
The Town Council’s next meeting was its regularly scheduled meeting on 26
January 2015. The Town Council posted the agenda for this meeting, as was its
routine, on its website. The published agenda for the 26 January 2015 Town Council
meeting showed that the Town Council would discuss the Old School, but there was
no indication that the Town Council would vote upon the Old School’s fate at the
meeting. Even though there was no vote scheduled on the agenda, the meeting room
was full for the 26 January 2015 meeting. Around twenty to twenty-five members of
the public were permitted to enter the meeting room to voice their opinions, however
they were not permitted to remain in the room once having done so. At least one
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member of the public and one Council Member requested the meeting to be relocated
to the Town auditorium, a standalone structure adjacent to the Town Hall complex.
The relocation request was denied. The reason for denying the request was that a
change in location would have required the Town Council to give at least forty-eight
hours public notice, pursuant to N.C. Gen. Stat. § 143-318.12(a).
The evening before the 26 January 2015 meeting, Lowman communicated with
Cooke and all members of the Council, except for Councilman Wendell Hildebran
(“Hildebran”). The purpose of the conversations between Lowman and the others was
to (1) discuss his intention to amend the agenda and call for a vote as to the fate of
the school and (2) determine whether the Council Members would support his effort
to amend the agenda and call for a vote. Lowman did not contact Hildebran because
he knew he would not support Lowman’s amendment to the agenda, and Lowman
believed that Hildebran would inform the public of the plan to amend the agenda.
Based on Lowman’s conversations with Cooke and other Town Council
members, Lowman made a motion to amend the agenda at the 26 January 2015
meeting from “Original School Building Discussion” to “Original School Building
Discussion/Vote[.]” The trial court found that “[p]rior to the meeting held on January
26, 2015, the public did not have knowledge that the agenda would be amended or
the nature of the amendment to the agenda.” Hildebran requested that the vote be
tabled until the Town’s 23 March 2015 meeting.
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The motion to amend the agenda passed, and Hildebran was the only member
to oppose the amendment. The agenda was further amended to add “Old School
Building Demolition Quotes under Old Business” because Cooke had informed
Lowman, prior to the 26 January 2015 meeting, that she had received demolition
quotes. The Town voted to demolish the Old School and to award the demolition
contract to Foothills Recycling & Demolition, LLC (“Foothills”) on 26 January 2015.
On 24 February 2015, Hildebran Heritage & Development Association, Inc.
(“HHDA”), and Citizens United to Preserve the Old Hildebran School (“Citizens
United”) (collectively, “plaintiffs”), filed a complaint against the Town and Foothills
(collectively, “defendants”), alleging breach of contract, failure to comply with N.C.
Gen. Stat. § 143-129 et seq. (the procedure for government bodies taking bids on public
contracts), and failure to comply with N.C. Gen. Stat. § 143-318.9 et seq. (the “Open
Meetings Law”). In addition, plaintiffs sought a temporary restraining order and a
preliminary injunction to prevent the demolition of the Old School. On 20 March
2015, Foothills filed its answer and motions to dismiss, alleging failure to state a
claim upon which relief can be granted, lack of capacity by Citizens United to file a
lawsuit, and plaintiffs’ lack of standing. On 24 April 2015, the Town filed its answer.
A bench trial was held before the Superior Court of Burke County. At trial, at
the conclusion of plaintiffs’ evidence, defendants moved for a partial directed verdict
on the issue of the validity of the contract between the Town and Foothills. On 3
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September 2015, the trial court entered an order on this motion, granting it in favor
of defendants, and holding that “the evidence . . . is insufficient as a matter of law to
establish that the contract between the Defendants to demolish the School Building
is invalid[.]”
On 11 August 2015, the trial court entered its judgment on plaintiffs’
complaint. It first noted that plaintiffs had alleged four different violations of the
Open Meetings Law: (1) that the Town Council had discussed remodeling or
destroying the Old School during the 27 October 2014 closed session meeting; (2) that
the Town Council had failed to provide reasonable access to the 26 January 2015
meeting; (3) that Lowman had engaged in one-on-one discussions outside of the open
sessions; and (4) that the Town Council had voted to amend its agenda at the 26
January 2015 meeting. With respect to the first allegation, the trial court
acknowledged that the discussion during the closed session meeting on 27 October
2014 constituted a violation of the Open Meetings Law. Nonetheless, the trial court
concluded that, notwithstanding this violation, “the vote of the Defendant’s Town
Council to demolish the old school building and the award of the demolition contract
to the Defendant Foothills should not be declared null and void.”
With respect to plaintiffs’ remaining allegations, the trial court concluded that
the measures taken to make the 26 January 2015 meeting accessible to the public
were “reasonable under all the circumstances existing at that time and substantially
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complied with the Open Meetings Law[,]” that the evidence with respect to the one-
on-one discussions and vote to amend was “insufficient as a matter of law to establish
that any of these other acts were in violation of the Open Meetings Law[,]” and that
therefore defendants were entitled to a directed verdict with respect to these
allegations.
The trial court then considered whether to award attorney’s fees. The court
concluded that, as both parties had succeeded on a substantial issue in the case, both
were “prevailing parties” under statute. In its discretion, the court declined to award
attorney’s fees to either side.
From the trial court’s order granting a partial directed verdict, and from the
trial court’s judgment, plaintiffs appeal.
II. Directed Verdict
In their third argument, which we choose to address first, plaintiffs contend
that the trial court erred in entering a directed verdict in favor of defendants as to
the claim that the demolition contract was null and void. Due to newly revealed
information, however, we hold that this issue is moot.
At oral arguments before this Court, it was revealed by the parties that the
Old School, during the pendency of the appeal, had caught fire and burned down. The
fact that the parties did not consider this information to be pertinent to be brought to
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the attention of this Court is itself troubling. This information would not have been
brought to the attention of the Court, but for a fortuitous question from the Court.
Where parties contract with reference to specific property
and the obligations assumed clearly contemplate its
continued existence, if the property is accidentally lost or
destroyed by fire or otherwise, rendering performance
impossible, the parties are relieved from further
obligations concerning it. . . . Before a party can avail
himself of such a position, he is required to show that the
property was destroyed, and without fault on his part.
Sechrest v. Forest Furniture Co., 264 N.C. 216, 217, 141 S.E.2d 292, 294 (1965)
(citation and quotations omitted). In the instant case, it is clear that the Old School
was completely destroyed by fire, through no fault of either party. Likewise, the
contract for the demolition of the Old School clearly contemplated its continued
existence, at least until the contract was completed.
Had this information been available at trial, it would clearly have supported
the trial court’s determination that the contract was null and void. Performance of
the contract was rendered impossible by the destruction of the Old School by fire.
However, the record contains no evidence as to when the Old School was destroyed
by fire; moreover, the trial court’s order on the motion for a directed verdict seems to
imply that, as of the entry of that order, the trial court was unaware of the Old
School’s destruction, had the fire even occurred at that time. As such, this new
information has no bearing on the trial court’s order.
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It does, however, have bearing on the ultimate disposition of this issue. The
destruction of the Old School renders performance under the contract impossible.
Certainly, even if the contract was not null and void when the trial court entered its
order, the contract is null and void now. Even were we to agree with plaintiffs’
contentions and remand this issue, the outcome would be the same; the trial court
would grant a directed verdict, holding the contract to be null and void as a result of
the destruction of the Old School. We therefore hold that this matter is moot, and
dismiss this argument accordingly.
III. The Open Meetings Law
In their first and second arguments, plaintiffs contend that the Town violated
the Open Meetings Law, both by purposefully conducting sub-quorum meetings, and
by failing to provide reasonable public access. We disagree.
A. Standard of Review
“Issues of statutory construction are questions of law, reviewed de novo on
appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).
“Whether a violation of the Open Meetings Law occurred is a question of law. We
therefore apply de novo review to this portion of the decision of the trial court.”
Knight v. Higgs, 189 N.C. App. 696, 700, 659 S.E.2d 742, 746 (2008).
B. One-on-One Meetings
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First, plaintiffs contend that the Town violated the Open Meetings Law by
permitting Lowman to conduct one-on-one meetings.
It is the public policy of our State that “hearings,
deliberations, and actions of [public] bodies be conducted
openly.” N.C. Gen. Stat. § 143-318.9 (2005). Accordingly, as
a general rule, “each official meeting of a public body shall
be open to the public, and any person is entitled to attend
such a meeting.” N.C. Gen. Stat. § 143-318.10(a) (2005).
Gannett Pac. Corp. v. City of Asheville, 178 N.C. App. 711, 714, 632 S.E.2d 586, 588
(2006); see also N.C. Gen. Stat. §§ 143-318.9 and -318.10(a) (2015). Plaintiffs contend
that the Town, a public body, violated this public policy, in that Lowman contacted
members of the Town Council individually and in private, rather than openly.
Plaintiffs attempt to analogize these facts with those in News & Observer
Publishing Co. v. Interim Bd. of Educ., 29 N.C. App. 37, 223 S.E.2d 580 (1976). In
that case, the defendant created a special “committee of the whole” in order to enact
business without invoking the Open Meetings Law. This Court acknowledged that
certain grounds might exist to form a closed session committee of the whole, such as
theft or embezzlement, but held that “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.” Id. at 49, 223 S.E.2d at 588.
We hold, however, that plaintiffs’ analogy is inapplicable. In News & Observer,
the defendant board met to conduct votes in closed session, in violation of the Open
Meetings Law. Plaintiffs do not allege, however, that Lowman conducted any
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business during these one-on-one meetings. Rather, Lowman discussed with other
members of the Town Council his plan to present a motion to amend at the meeting
proper. Even assuming arguendo that Lowman’s conduct was designed to avoid the
protections of the Open Meetings Law, the vote itself took place at the 26 January
2015 meeting, at which the public was present, minutes were taken, and the votes of
the Town Council were recorded. Unlike News & Observer, in which a closed session
was held in violation of the Open Meetings Law, this meeting was held in view of the
public, with members of the public able to speak, and with records taken of the
proceedings. As such, we hold that the trial court did not err in concluding that the
Town did not violate the Open Meetings Law.
C. Reasonable Public Access
Plaintiffs further contend that the Town failed to provide reasonable public
access to the 26 January 2015 meeting.
Pursuant to the Open Meetings Law, the court must consider a defendant’s
actions “according to the standard of reasonableness of opportunity for public access
to the meetings.” Garlock v. Wake Cty. Bd. of Educ., 211 N.C. App. 200, 201, 712
S.E.2d 158, 162 (2011). Plaintiffs contend that the venue used for the meeting was
inadequate to address the public’s interest, that between twenty and twenty-five
people were forced to stand outside the meeting room, and that no equipment was
available to permit these excess attendees to observe or hear what transpired during
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the meeting. Plaintiffs contend that whether the opportunity for public access was
reasonable is a question of fact for the jury, and that the trial court erred in ruling on
it as a matter of law.
However, “[w]hether a violation of the Open Meetings Law occurred is a
question of law.” Knight, 189 N.C. App. at 700, 659 S.E.2d at 746. As such, it was
appropriate for the trial court to determine this issue on a motion for directed verdict.
The trial court’s order set out numerous facts, which are supported by the evidence,
in support of its determination as a matter of law that opportunity for public access
was reasonable, and that no violation of the Open Meetings Law resulted. We agree.
We decline to find that a lack of overflow seating or external speakers, absent more,
constitutes an unreasonable failure of access. We therefore hold that the trial court
did not err in holding, as a matter of law, that there was reasonable opportunity for
access to the meeting under the Open Meetings Law.
IV. Attorney’s Fees
In their fourth argument, plaintiffs contend that the trial court erred in
declining to award attorney’s fees based upon defendants’ purported violation of the
Open Meetings Law. We disagree.
A. Standard of Review
“When an action is brought pursuant to [the Open Meetings Law], the court
may make written findings specifying the prevailing party or parties, and may award
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the prevailing party or parties a reasonable attorney's fee, to be taxed against the
losing party or parties as part of the costs.” N.C. Gen. Stat. § 143-318.16B (2015).
“Such an award is discretionary under the statute.” Knight, 189 N.C. App. at 704, 659
S.E.2d at 748.
B. Analysis
In its judgment, the trial court found that both plaintiffs and the Town
succeeded on significant issues in the litigation, and therefore found that “the
Plaintiffs and the Defendant [Town of] Hildebran are both prevailing parties.” In an
exercise of its discretion, the trial court declined to award attorney’s fees, and ordered
each party to bear its own costs. On appeal, plaintiffs contend this ruling was an
abuse of discretion.
Plaintiffs’ argument is premised on the fact that “the directed verdict granted
in favor of the Town was erroneous.” However, we have already held that the trial
court did not err in granting a directed verdict in favor of defendants. Plaintiffs
present no additional arguments to support their contention that the trial court
abused its discretion in declining to award attorney’s fees. We hold, therefore, that
the trial court did not abuse its discretion.
V. Conclusion
The trial court did not err in concluding as a matter of law that the Town
substantially complied with the Open Meetings Law, including providing reasonable
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access to the 26 January 2015 meeting. The trial court did not abuse its discretion in
declining to award attorney’s fees. We dismiss plaintiffs’ arguments with respect to
the trial court’s order for a partial directed verdict.
AFFIRMED IN PART, DISMISSED IN PART.
Judge TYSON concurs.
Judge BRYANT concurs in part and dissents in part.
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No. COA16-568 – Hildebran Heritage & Dev. Ass’n, Inc. v. The Town of Hildebran
BRYANT, Judge, concurring in part and dissenting in part.
Because I believe the trial court erred in directing a verdict when it concluded,
contrary to the facts, that one-on-one meetings conducted by Councilman Lowman
did not violate the Open Meetings Law, I respectfully dissent from that portion of the
majority opinion.
In determining the sufficiency of the evidence to withstand
a motion for a directed verdict, all of the evidence which
supports the non-movant’s claim must be taken as true and
considered in the light most favorable to the non-movant,
giving the non-movant the benefit of every reasonable
inference which may legitimately be drawn therefrom and
resolving contradictions, conflicts, and inconsistencies in
the non-movant’s favor.
Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989) (emphasis added)
(citation omitted).
Allegations that a party violated the Open Meetings
Law are considered by the Superior Court in its role as a
trier of fact.
“It is well settled in this jurisdiction that
when the trial court sits without a jury, the
standard of review on appeal is whether there
was competent evidence to support the trial
court’s findings of fact and whether its
conclusions of law were proper in light of such
facts.” Shear v. Stevens Bldg. Co., 107 N.C.
App. 154, 160, 418 S.E.2d 841, 845 (1992). If
supported by competent evidence, the trial
court’s findings of fact are conclusive on
appeal. Finch v. Wachovia Bank & Tr. Co.,
156 N.C. App. 343, 347, 577 S.E.2d 306, 308–
09 (2003). “Conclusions of law drawn by the
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN
BRYANT, J., concurring in part and dissenting in part
trial court from its findings of fact are
reviewable de novo on appeal.” Food Town
Stores v. City of Salisbury, 300 N.C. 21, 26,
265 S.E.2d 123, 127 (1980).
Gannett Pacific Corp. v. City of Asheville, 178 N.C. App.
711, 713, 632 S.E.2d 586, 588 (2006). Whether a violation
of the Open Meetings Law occurred is a question of law. We
therefore apply de novo review to this portion of the
decision of the trial court.
Knight v. Higgs, 189 N.C. App. 696, 699–700, 659 S.E.2d 742, 745–46 (2008).
North Carolina’s public policy requires that hearings, deliberations, and
actions of public bodies be conducted openly. N.C. Gen. Stat. § 143-318.9 (2015). As
a general rule, “each official meeting of a public body shall be open to the public, and
any person is entitled to attend such a meeting.” N.C. Gen. Stat. § 143-318.10(a)
(2015). A “public body” is defined as
any elected or appointed authority, board, commission,
committee, council, or other body of [North Carolina], . . .
or other political subdivisions or public corporations in
[North Carolina] that (i) is composed of two or more
members and (ii) exercises or is authorized to exercise a
legislative policy-making, quasi-judicial, administrative, or
advisory function.
Id. § 143-318.10(b).
An “official meeting” is defined 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 . . . .” Id. § 143-
318.10(d). “By the plain language of the statute, in order to be an official meeting, a
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majority of the members of the public body must be present.” Gannett Pac. Corp.,
178 N.C. App. at 715, 632 S.E.2d at 589. “However, a social meeting or other informal
assembly or gathering together of the members of a public body does not constitute
an official meeting unless it is called or held to evade the spirit and purposes of this
Article.” N.C.G.S. § 143-318.10(d) (emphasis added).
At trial, Councilman Lowman was called as a witness by plaintiff and testified
at length about the propriety of the “one-on-one” discussions with council members
and the mayor:
Q. Have you had any occasions at any -- at any point in
time . . . to discuss a matter pertaining to the demolition of
the old school building one-on-one with, say, the mayor?
A. I have talked one-on-one with the mayor and one-on-one
with the council.
Q. And are there also examples where other members of
the council have talked one-on-one with the mayor about
the fate of the old school building?
A. Yes.
Q. And those would be one-on-one discussions that were
had individually, rather than calling a meeting to talk
about it collectively?
A. Correct. A meeting is considered three, three of us
together, three council or two council and the mayor -- or
three of us and the mayor.
Q. And you’re aware, then, that you can have those one-on-
one discussions --
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BRYANT, J., concurring in part and dissenting in part
A. Uh-huh.
Q. -- and avoid calling a meeting.
A. Correct.
Q. And if the mayor’s having discussions or if you’re having
discussion one-on-one with a council member about the fate
of the old building, you can do that individually and avoid
having to call a meeting and have the public sit in and
listen, correct?
A. That is correct.
Q. And that’s happened, has it not, with regard to the
demolition of the old school building?
A. It has, both, demolition and rehab.
Q. But, but, in particular, it has in terms of demolition,
correct?
A. That is correct.
Q. And, again, no member of the public’s going to be privy
to those one-on-one discussions that you’re having
regarding demolition of the building, for example, with the
mayor, correct?
A. That is correct.
Q. No member of the public’s going to be privy to the
information you’re discussing . . . one-on-one with
members of the council with the mayor, correct?
A. That is correct.
Q. Have you had meetings where you met with two of the
other council members?
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BRYANT, J., concurring in part and dissenting in part
A. No.
Q. The reason you haven’t done that is because that would
constitute a meeting, correct?
A. That is correct.
Q. And you don’t want to do that, correct?
A. That is correct.
....
Q. And you didn’t want to have it be a matter of public
record, that you planned on amending the agenda, did you?
A. I didn’t make that call until the week of the meeting.
Q. But you certainly had enough time to discuss that one-
on-one with those council members.
A. I asked them if they were ready to vote, yes.
Q. And that was outside of the public meeting.
A. Correct.
Q. And that was pertaining specifically to the demolition
of the old school building.
A. Demolition versus the rehab. I was not swaying their
votes. It was just were they ready.
Q. And you had that discussion.
A. Yes.
Q. Outside of a public meeting.
A. Yes.
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BRYANT, J., concurring in part and dissenting in part
Q. And you knew that there would be no record of that that
would be available to the public.
A. That is correct.
....
Q. And, ultimately, the council decided and voted to allow
you to amend the agenda, correct?
A. That is correct.
Q. And did each of those members that you had those one-
on-one conversations with -- did they vote in support of
amending the agenda?
A. As far as I know, yes. Except for one.
Q. Did you have a one-on-one conversation with Mr.
Hildebrand [sic] beforehand?
A. No, I knew where he stood.
Q. So the reason you didn’t have a conversation with him
is because you knew he’d be opposed to amending the
agenda.
A. There was -- He was opposed and I was for. It was plain
as day, yes.
Q. Okay. So you avoided having that conversation with
him based upon that.
A. I don’t speak to Mr. Hildebrand [sic].
Q. Well, whether you do or not, the reason you didn’t have
the discussion with him, as you did with the others that
voted for your position to amend the agenda, was because
you knew he wouldn’t be in favor of it, correct?
6
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN
BRYANT, J., concurring in part and dissenting in part
A. That is correct.
Q. And he would let the public know about it, correct?
A. Correct.
The trial court made the following relevant findings of fact:
14. Prior to the meeting on January 26, 2015, Councilman
Lee Lowman contacted certain other Council members one-
on-one to inquire about amendment of the agenda for the
January 26, 2015 meeting to include a vote to demolish the
old school building.
15. Councilman Lee Lowman contacted certain other
Council members one-on-one to avoid holding an official
meeting and to prevent such communications from being
open to the public.
16. Councilman Lee Lowman intentionally did not contact
the one Council member that he knew held an adverse
position to his own.
17. Councilman Lee Lowman indicated that it was typical
for Council members to have one-on-one communications
to conduct the business of the Town of Hildebran.
(Strike-outs in original) (emphasis added).
The trial court’s findings of fact, particularly that Councilman Lowman (1)
contacted other council members one-on-one specifically “to avoid holding an official
meeting,” and (2) did not contact Councilman Hildebran as he knew he held an
adverse position, are clearly based on evidence in the record that the other council
members were called “to ensure that they had the vote to amend the agenda, which
would allow them to vote on the school building demolition without any prior notice
7
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN
BRYANT, J., concurring in part and dissenting in part
to the public.” Councilman Lowman admitted that he didn’t contact Councilman
Hildebran because he knew Hildebran held an adverse position, and if Lowman asked
Hildebran about voting to amend the agenda, he would alert the public. The only
reasonable inference to be drawn from these facts is that Councilman Lowman’s
action of contacting other council members individually was to evade the purpose of
the Open Meetings Law.
Thus, because the findings by the trial court support a conclusion that
Councilman Lowman’s actions were purposeful and undertaken in order to evade the
purpose and spirit of the Open Meetings Law and the council’s obligation to conduct
meetings in public, I submit the trial court erred in concluding the above-described
actions did not amount to a violation. Therefore, I respectfully dissent.
8