HomeMy WebLinkAboutAgenda - 11-10-94 - III ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
Item No. a
ACTION AGENDA ITEM ABSTRACT
Meeting Date: NOVEMBER 10, 1994
SUBJECT: OPEN MEETINGS LAW
DEPARTMENT: COUNTY COMMISSIONERS PUBLIC HEARING YES: NO: x
ATTACHMENT(S) : MEMO FROM JIM INFORMATION CONTACT: MOSES CAREY
BLACKBURN, HOUSE BILL 120, AND
PAPER WRITTEN. BY DAVID LAWRENCE TELEPHONE NUMBER -
Hillsborough - 732-8181
Chapel Hill - 968-5401
Durham - 688-7331
Mebane - 227-2031
PURPOSE: To receive a report from County Attorney Geoffrey Gledhill on the
changes to the Open Meetings Law and more specifically "Closed Sessions" .
BACKGROUND: Amendments to the North Carolina's Open Meetings Law were
approved during the 1994 legislative session and became effective on
October 1, 1994 . The "Executive Session" is now called "Closed Session"
and the reasons for going into a "Closed Session" must be more specific.
The 20 permitted subjects for going into an "Executive Session" were
replaced with nine subjects for which "Closed Sessions" are permitted.
RECOMMENDATION(S) : Receive as information
°PAN °1," NORTH CAROLINA ASSOCIATION OF
= ' COUNTY COMMISSIONERS
-.4, ,:::1903., ';_'
°F`°uN Received
MEMORANDUM JUL 2 0 IBM
TO: County Managers and Attorneys • Managers Office
FROM: Jim Blackburn, General Counsel
SUBJECT: Amendments to North Carolina's Open Meetings Law enacted in 1994
Chapter 570 of the 1993 Session Laws (Regular Session 1994), introduced in 1993 as House Bill
120, was ratified by the North Carolina General Assembly June 23, 1994 and becomes effective
October 1,' 1994. The legislation amends the Public Records Law as it relates to the Hospital
Licensure Act and the Joint Municipal Electric Power and Energy Act. It also makes changes
in five general areas of the Open Meetings Law.
I. Definition of "Public Body."
The bill expands the definition of public body by specifically including constituent institutions
of the University system and by removing a list of five criteria that had involved the method
through which the body was established to determine whether it was a public body. In place of
this list of five "establishment criteria" is a definition that includes any "elected or appointed"
group that exercises or is authorized to exercise a legislative, policy-making, quasi-judicial,
administrative, or advisory function" but "does not include a meeting solely among the
professional staff of a public body,..." This expanded definition could cause confusion on the
part of smaller advisory or working groups that may include some staff and some elected
officials, particularly when such a group does not enjoy staff support or continuing legal advice.
Notice and record keeping requirements may also create a hardship for such groups.
II. Minutes of Executive or Closed Sessions.
Until passage of this legislation, G.S. 143-318.10(e) specifically excluded "executive sessions"
from the requirement that "Every public body shall keep full and accurate minutes of all official
meetings." Chapter 570 specifically includes a requirement that minutes be kept of what are
redefined as "closed sessions," but provides "that minutes of a closed session conducted in
compliance with G.S. 143-318.11 (the list of subjects about which closed sessions maybe held)
' may be withheld from public inspection so long as public inspection would frustrate the purpose
of a closed session."
III. Closed Sessions, Permitted Purposes.
The 1994 legislation repeals the 20 permitted purposes delineated in G.S. 143-318.11 and
replaces them with seven purposes for which "closed sessions" are permitted. The list is prefaced
with a statement that "It is the policy of the state that closed sessions shall be held only when
required to permit a public body to act in the public interest as permitted in this section." The
list includes: .
• OVER •
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ALBERT COATES LOCAL GOVERNMENT CENTER • 215 NORTH DAWSON STREET
P. O. BOX 1488, RALEIGH, NORTH CAROLINA 27602-1488 • TELEPHONE(919) 715-2893 • FAX(919) 733-1065
A. "When a closed session is required to prevent the disclosure of information that is
privileged or confidential pursuant to the law of this state or of the United States, or not
, ,cgii ..idered a public record within the meaning of Chapter 132 of the General Statutes.
(The Public Records Law)." Note specific requirements relative to motions to go into
closed session pursuant to this provision. (See below).
B, "When a closed session is required to prevent the premature disclosure of an honorary
" ` degree;'saholarship, prize, or similar award."
C. "When a closed session is required to consult with an attorney employed or retained by
the public body in order to preserve the attorney-client privilege between the attorney and
the public body, which privilege is hereby acknowledged." This subdivision prohibits
discussion of "general policy matters" in closed session and declares that it shall not "be
construed to permit a public body to close a meeting that otherwise would be open merely
because an attorney employed or retained by the public body is a participant." The
subdivision permits a public body to "consider and give instructions to an attorney
concerning the handling or settlement of a claim, judicial action, or administrative
procedure," with terms of any settlement to be made public within a reasonable time.
Note specific requirements relative to motions to go into closed session pursuant to
this provision (see below).
D. "When a closed session is required to discuss matters relating to the location or expansion
of industries or other businesses in the area served by the public body."
E. When a closed session is required to establish, or to instruct the public body's staff or
negotiating agents concerning the position to be taken by or on behalf of the public body
in negotiating (i) the price and other material terms of a contract or proposed contract for
the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount
of compensation and other material terms of an employment contract or proposed
employment contract."
F. "When a closed session is required to consider the qualifications, competence;
performance, character, fitness, conditions of appointment, or conditions of initial
employment of an individual public officer or employee or prospective public officer or
employee; or to hear or investigate a complaint, charge, or grievance by or against an
individual public officer or employee." This subdivision prohibits discussion of "general
personnel policy issues" or considerations of the qualifications, competence, performance,
character, fitness, appointment, or removal of a member of the public body or another
body or consideration of (or filling of) a vacancy among its own membership in closed
session.
G. "When a closed session is required to plan, conduct, or hear reports concerning
investigations of alleged criminal misconduct."
IV. Motions for Closed sessions.
Chapter 570 retains the requirement that a closed session be held "upon a motion duly made and
adopted at an open meeting." The bill also, however, adds two additional requirements with •
respect to motions calling for closed sessions for purposes related to privileged or confidential
information (III A. above) and attorney-client consultation (III C. above).
The bill requires that a motion to close a meeting because of privilege or confidentiality "also
state the name or citation of the law that renders the information to be discussed privileged or
confidential." This requirement is particularly cumbersome because the use of the word"law"
in the authorization subdivision contemplates common law, thus making citation particularly
difficult for a member of a public body making a motion based on this provision.
The bill also requires that a motion to go into closed session to consult with an attorney in order
to, preserve the attorney-client privilege "identify the parties in each existing lawsuit concerning
which the public body expects to receive advice during the closed session." Since the closed
session provision is not restricted to discussion of "existing lawsuits," this motion requirement
only makes sense when a specific existing g lawsuit is to be the subject of discussion.
V. Attorneys' fees and other remedies.
Prior to passage of Chapter 570, the Open Meetings law permitted a court to award a prevailing
party reasonable attorneys' fees. The 1994 amendments provide "The court may order that all
or any portion of any fee as assessed be paid personally by any individual member or members
of the public body found by the court to have knowingly or intentionally committed the violation;
provided, that no order against any individual member shall issue in any case where the public
body or that individual member seeks the advise of an attorney, and such advice is followed."
These provisions apply in actions brought under G.S. 143-318.16 (seeking injunctive relief
through mandatory or prohibitory injunctions) or under G.S. 143-318.16A providing for actions
seeking to declare a public body's action null and void based on a declatory judgement that the
action "was taken, considered, discussed, or deliberated in violation of this Article."
Chapter 570 also provides that actions brought under G.S. 143-318.16 or -318.16A "shall be set
down for immediate hearing, and subsequent proceedings in such actions shall be accorded
priority by the trial and appellate courts."
GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
RATIFIED BILL
CHAPTER 570 •
HOUSE BILL 120
AN ACT TO AMEND •THE OPEN MEETINGS LAWS AND TO AMEND THE
• PUBLIC RECORDS LAW AS IT RELATES TO THE HOSPITAL LICENSURE
ACT AND THE JOINT MUNICIPAL ELECTRIC POWER AND ENERGY ACT.
The General Assembly of North Carolina enacts:
Section 1. G.S. 143-318.10 reads as rewritten:
"§ 143-318.10. All official meetings of public bodies open to the public.
(a) Except as provided in G.S. 143-318.11, G.S. 143-318.14A, G.S. 143-318.15, and
G.S. 143-318.18, each official meeting of a public body shall be open to the public,
and any person is entitled to attend such a meeting.
(b) As used in this Article, `public body' means any elected or appointed
authority, board, commission, committee, council, or other body of the State, or of
one or more counties, cities, school administrative units, constituent institutions of
The University of North Carolina, or other political subdivisions or public
corporations in the State that is composed of two or more members; and
(1) Exercises or is authorized to exercise a lc -islativc, policy making,,
(2) - • - -: - - - : - • - _ . . _ - _ -
of the General Assembly, (iii) a resolution or order of a State
agency, pursuant to a statutory procedure under which the agency
establishes a political subdivision or public corperation, (iv) an
political subdivisions er publie cerperatieas, er (v) an executive
a principal State office or dep-par-tment, ss elefified in G.S. 143A 11
and G.S. 143B 6, or of a division thereof.
members and (ii) exercises or is authorized to exercise a legislative, policy-making,
quasi-judicial. administrative, or advisory function. In addition, `public body' means
(1) the governing board of a `public hospital' as defined in G.S. 159-39 and (2) each
- - --• : - : - :a z . , - - : : : -• -- • - - he governing board of a public
this Article `public body' means any nonprofit corporation to which a hospital facility
has been sold or conveyed pursuant to G.S. 131E-8, any subsidiary of 4 a+ such
nonprofit corporation, and any nonprofit corporation owning the corporation to
which the hospital facility has been sold or conveyed.
(c) `Public body' does not include and shall not be e: - - -= _ • - - - = - (1)
a meeting solely among the professional staff of a public body body,
or (2) the medical staff of a public hospital. unless the staff members have been
appointed to a f t-4 a w e i meet-g as a i authority, board, e: -- --- •_ -, -- -- -- - - ', -a. - "
•
•
or other body established by one of the met-hods lfstteel in sIseetie c (b)-(2) of this -
section, or (2) meetings among the medical stuff of a public hospital.
(d) `Official meeting' means 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 within the jurisdiction, real or apparent, of the public
body. 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 called or
held to evade the spirit and purposes of this Article.
(e) Every public body shall keep full and accurate minutes of all official meetings,
exclud-ing any executive sessions including any closed sessions held pursuant to G.S.
143-318.11. Such minutes may be in written form or, at the option of the public
body, may be in the form of sound or video and sound recordings. Such minutes
• shall be public records within the meaning of G.S. 132 6. the Public Records Law,
G.S. 132-1 et seq.: provided, however. that minutes of a closed session conducted in
compliance with G.S. 143-318.11 may be withheld from public inspection so long as
public inspection would frustrate the purpose of a closed session."
Sec. 2. G.S. 143-318.11 reads as rewritten:
"§ 143-318.11. - • . - --- - . Closed sessions.
(a) Permitted Purposes. -- It is the policy of this State that closed sessions shall be
held only when required to permit a public body to act in the public interest as
permitted in this section. A public body may hold an executive session a closed
session and exclude the public: public only when a closed session is required:
{'1) To prevent the disclosure of information that is privileged or
confidential pursuant to the law of this State or of the United
States, or not considered a public record within the meaning of
Chapter 132 of the General Statutes.
Lal To prevent the premature disclosure of an honorary degree,
scholarship, prize, or similar award;
f3) To consult with an attorney employed or retained by the public
body in order to preserve the attorney-client privilege between the
attorney and the public body, which privilege is hereby
acknowledged. General policy matters may not be discussed in a
closed session and nothing herein shall be construed to permit a
public body to close a meeting that otherwise would be open
merely because an attorney employed or retained by the public
body is a participant. The public body may consider and give
instructions to an attorney concerning the handling or settlement of
a claim, judicial action, or administrative procedure. If the public
body has approved or considered a settlement, other than a
malpractice settlement by or on behalf of a hospital, in closed
session, the terms of that settlement shall be reported to the public
body and entered into its minutes as soon as possible within a
reasonable time after the settlement is concluded:
(4) To discuss matters relating to the location or expansion of
industries or other businesses in the area served by the public
body.
(5) To establish, or to instruct the public body_ 's staff or negotiating
agents concerning the position to be taken by or on behalf of the
public body in negotiating (i) the price and other material terms of
a contract or proposed contract for the acquisition of real property
by purchase, option, exchange, or lease: or (ii) the amount of
•
Page -' House Bill 120
compensation and other material terms of an n-employment contract -
or proposed employment contract.
OA To consider the qualifications, competence performance,
character, fitness, conditions of appointment, or conditions of
initial employment of an individual public officer or employee or
prospective public officer or employee: or to hear or investigate a
complaint, charge, or grievance by or against an individual public
officer or employee. General personnel policy issues may not be
considered in a closed session. A public body may not consider
the qualifications competence, performance, character, fitness.
appointment, or removal of a member of the public body or
another body and may not consider or fill a vacancy among its
own membership except in an open meeting. Final action making
an appointment or discharge or removal by a public body having
final authority for the appointment or discharge or removal shall
be taken in an open meeting.
al To plan, conduct, or hear reports concerning investigations of
alleged criminal misconduct.
shall be given at an open meeting.
- . : - - . . - - : - : . :
- - . : :: : • : - a:: : - - _: • -
which it is a part.
(--3) To consider and authorize the by an - means of
and papers, and similar- rCieles and ebjeets that ere er will be part
of thc collections of a museum, library, or archive.
(4 To consider the validity,settlement, Si" other disposition of a claim
against or on behalf of th-e public 43edy er an efficer or employee
of the public body or in which the public body finds that it has a
finds that it h-as a substantial interest. During such an executive
session, thc public body -may- give i truetions to an attorney or
other agent concerning the handling- or settlement of a claim,
•• ;;.'.; . - ': -, : : : -- - . : --: - . • . . -.- • • -
settlement shall be reported to the p-ublit beds and entered into its
minutes within a reasonable t -e after the-set-Clement is concluded.
E) : -: - . : - ; : - - . - -- : : . -: - - - -: - - -
public body, to the o ctent ti at eenfidenti-ality is required in order
the public body.
(�)- To discuss matters rela•t rg to the leestien er expansion of
industries or other bus-in-eases in the area served by the public
bbd.
not limited to all aspects of `.Sel-ntissien, treat-merit, and discharge; all
House Bill 120 Page 3
, . - : . . - . . . - : :
(8) To consider the qualifications, eompetenee, performance,
public officer or employee; or to he or i-iestiga-e a complaint,
charge or grievance by or against a public e€fteer or employee. A
meeting.
discharge or rcvnoval shell be taken in an open meeting. If a public
body considers an appointment to another body, except a
committee composed of memrs of the public body, in executive
open meeting a written list of the per:,ons than being considered
for the appointmen-t, and that list shrill en the same day be made
available for public inspection in the office of the clerk or secretary
to the public body. The ptrblie body may net make the
appointment before the seventh day after the day on whieh the list
was presented.
(9)- To consider the employment, performance, or discharge of an
employment or discharging or directing the discharge of an
To hear, consider, and decide (i) disciplinary cases involving
under G.S. 115 178. -
(11) : - .':: - - - - - . - ' - -
- - S. - - - - :'- : - - - . •. . : . : . - - - :
citations bestowed
the information be kept confidential or (ii) makes the
•
(13) To consider and adopt contingency plans for dealing with, and
(1-4} To consider and take- action necessary to deal with a riot or civil
disorder or with conditions that indicate that a riot or civil
disorder is imminent.
(15) t, er kca reports concerning investigations of
alleged criminal misconduct.
(-1-g-} ; -: - .: : ; - . - -- - -- - : - - - - -
_
co: - - -- - - - . :: - - - - -- - - '- - • - - _
(17) - -
discipline, or termination of members of the medical staff of a
public hospital. Final action on an admission or termination shall
be reported at an open meeting.
(4-8-} To consider and give instructions relating to the setting or
Page 4 House Bill 120
• - . : : : _ • . ; - - - ; , - • -: - • • : • - - -
an open meeting.
(l-9} To plan investigations and receive investigative- reports rcqn-ested
by a board of elections e-eneerning election f s, it egularitics,
public hearing during ' h it is alleged err op-patent drat any
public record.
To consider and au - - - = 'i - , - :- , = - - • - ,
yed pursuant to
has been sold or conveyed;- or ( ti) -any strbsidrary of either
nonprofit corporation.
(c(b) Repealed by Session Laws 1991, c. 694, s. 4.
) Calling : - . -- • - - -. a Closed Session. -- A public body may hold an
executive session a closed session only upon a motion duly made and adopted at an
open meeting. - - . ': - - . - - - - - : • :: - : - - - - - - - = - : - 6
6 - • i i ; -z : - . ; - -- , - • ; - - ; Every motion
to close a meeting shall cite one or more of the permissible purposes listed in
subsection (a) of this section. A motion based on subdivision (a)(11 of this section
shall also state the name or citation of the law that renders the information to be
discussed privileged or confidential. A motion based on subdivision (a)(3) of this
section shall identify the parties in each existing lawsuit concerning which the public
body expects to receive advice during the closed session.
(d) Minutes of Lxecn-tive Session. Notwithstanding the provisions of G.S. 132 6,
session."
Sec. 3. G.S. 143-318.16B reads as rewritten:
"§ 143-318.16B. Atto-i ncy's fees awarded to prevailing—party. Assessments and awards
of attorneys' fees.
In any When an action is brought pursuant to G.S. 143-318.16 or G.S.
143-318.16A, the court shall may make written findings specifying the prevailing party
or parties, and snail may award the prevailing party or parties a reasonable attorney's
fee, to be taxed against the losing party or parties as part of the costs. The court may
order that all or any portion of any fee as assessed be paid personally by any
individual member or members of the public body found by the court to have
knowingly or intentionally committed the violation: provided, that no order against
any individual member shall issue in any case where the public body or that
individual member seeks the advice of an attorney, and such advice is followed."
Sec. 4. Article 33C of Chapter 143 of the General Statutes is amended
by adding two new sections to read:
"§ 143-31.8.16C. Accelerated hearing; priority.
Actions brought Pursuant to G.S. 143-318.16 or G.S. 143-318.16A shall be set
down for immediate hearing. and subsequent proceedings in such actions shall be
accorded priority by the trial and appellate courts.
House Bill 120 Page 5
"§ 143-318.I6D. Local acts. _
Any reference in any city charter or local act to an `executive session' is amended
to read `closed session'."
Sec. 5. G.S. 143B-282.1(a)(3) reads as rewritten:
"(3) Deliberations of the Commission shall be conducted in its public
meeting unless the Commission determines that consultation with
its counsel should be held in an executive session a closed session
pursuant to G.S. 143-318.11."
Sec. 6. G.S. 90-16 reads as rewritten:
"§ 90-16. Board to keep record; publication of names of licentiates; transcript as
evidence; receipt of evidence concerning treatment of patient who has not consented to
public disclosure.
The Board of Examiners shall keep a regular record of its proceedings in a book
kept for that purpose, together with the names of the members of the Board present,
the names of the applicants for license, and other information as to its actions. The
Board of Examiners shall cause to be entered in a separate book the name of each
applicant to whom a Iicense is issued to practice medicine or surgery, along with any
information pertinent to such issuance. The Board of Examiners shall publish the
names of those licensed in three daily newspapers published in the State of North
Carolina, within 30 days after granting the same. A transcript of any such entry in the
record books, or certificate that there is not entered therein the name and proficiency
or date of granting such license of a person charged with the violation of the
provisions of this Article, certified under the hand of the secretary and the seals of
the Board of Medical Examiners of the State of North Carolina, shall be admitted as
evidence in any court of this State when it is otherwise competent.
The Board may in an executive a closed session receive evidence involving
or concerning the treatment of a patient who has not expressly or impliedly
consented to the public disclosure of such treatment as may be necessary for the
protection of the rights of such patient or of the accused physician and the full
presentation of relevant evidence. All records, papers and other documents
containing information collected and compiled by the Board, or its members or
employees as a result of investigations, inquiries or interviews conducted in
connection with a licensing or disciplinary matter shall not be considered public
records within the meaning of Chapter 132 of the General Statutes; provided,
however, that any notice or statement of charges against any licensee, or any notice to
any licensee of a hearing in any proceeding shall be a public record within the
meaning of Chapter 132 of the General Statutes, notwithstanding that it may contain
information collected and compiled as a result of any such investigation, inquiry or
interview; and provided, further, that if any such record, paper or other document
containing information theretofore collected and compiled by the Board, as
hereinbefore provided, is received and admitted in evidence in any hearing before
the Board, it shall thereupon be a public record within the meaning of Chapter 132
of the General Statutes.
In any proceeding before the Board, in any record of any hearing before the
Board, and in the notice of the charges against any licensee (notwithstanding any
provision herein to the contrary) the Board may withhold from public disclosure the
identity of a patient who has not expressly or impliedly consented to the public
disclosure of treatment by the accused physician."
Sec. 7. G.S. 90-270.15(c) reads as rewritten:
"(c) Except as provided otherwise in this Article, the procedure for revocation,
suspension, denial, limitations of the license, or other disciplinary, remedial, or
rehabilitative actions, shall be in accordance with the provisions of Chapter 150B of
the General Statutes. The Board is required to provide the opportunity for a hearing
Page 6 House Bill 120
under Chapter 150B to any applicant whose license is denied or to whom licensure is -
offered subject to any restrictions, probation, disciplinary action, remediation, or
other conditions or limitations, or to any licensee before revoking, suspending, or
restricting a license or imposing any other disciplinary action or remediation. If the
applicant or licensee waives the opportunity for a hearing, the Board's denial,
revocation, suspension, or other proposed action becomes final without a hearing
having been conducted. Notwithstanding the foregoing, no applicant or licensee is
entitled to a hearing for failure to pass an examination. In any proceeding before the
Board, in any record of any hearing before the Board, in any complaint or notice of
charges against any licensee or applicant for licensure, and in any decision rendered
by the Board, the Board may withhold from public disclosure the identity of any
clients or patients who have not consented to the public disclosure of treatment by
the licensee or applicant. The Board may close a hearing to the public and receive in
executive session closed session evidence involving or concerning the treatment or
delivery of psychological services to a client or a patient who has not consented to
the public disclosure of such treatment or services as may be necessary for the
protection and rights of such patient or client of the accused applicant or licensee
and the full presentation of relevant evidence. All records, papers and other
documents containing information collected and compiled by or on behalf of the
Board, as a result of investigations, inquiries or interviews conducted in connection
with licensing or disciplinary matters will not be considered public records within the
meaning of Chapter 132 of the General Statutes; provided, however, that any notice
or statement of charges against any licensee or applicant, or any notice to any
licensee or applicant of a hearing in any proceeding, or any decision rendered in
connection with a hearing in any proceeding, shall be a public record within the
meaning of Chapter 132 of the General Statutes, notwithstanding that it may contain
information collected and compiled as a result of such investigation, inquiry, or
hearing except that identifying information concerning the treatment or delivery of
services to a patient or client who has not consented to the public disclosure of such
treatment or services may be deleted; and provided, further, that if any such record,
paper or other document containing information theretofore collected and compiled
by or on behalf of the Board, as hereinbefore provided, is received and admitted in
evidence in any hearing before the Board, it shall thereupon be a public record
within the meaning of Chapter 132 of the General Statutes, subject to any deletions
of identifying information concerning the treatment or delivery of psychological
services to a patient or client who has not consented to the public disclosure of such
treatment or services."
Sec. 8. G.S. 90-390(c) reads as rewritten:
"(c) Except as otherwise provided in this Article, the procedure for revocation,
suspension, refusal, or other limitations of the certificate shall be in accordance with
the provisions of Chapter 150B of the General Statutes. In any proceeding or record
of any hearing before the Board, and in any complaint or notice of charges against
any certified fee-based pastoral counselor or certified fee-based pastoral counseling
associate and in any decision rendered by the Board, the Board shall endeavor to
withhold from public disclosure the identity of any counselees or clients who have
not consented to the public disclosure of treatment by the certified fee-based pastoral
counselor or certified fee-based pastoral counseling associate. The Board may close a
hearing to the public and receive in executive session a closed session evidence
concerning the treatment or delivery of pastoral counseling services to a counselee or
a client who has not consented to public disclosure of. treatment or services, as may
be necessary for the protection of the counselee's or client's rights and the full
presentation of relevant evidence. All records, papers, and documents containing
information collected and compiled by or on behalf of the Board as a result of
House Bill 120 Page 7
•
investigations, inquiries, or interviews conducted in connection with certification or •
disciplinary matters are not public records within the meaning of Chapter 132 of the
General Statutes. However, any notice or statement of charges against any certified
fee-based pastoral counselor or certified fee-based pastoral counseling associate, any
notice to any certified fee-based pastoral counselor or certified fee-based pastoral
counseling associate of a hearing in any proceeding, or any decision rendered in
connection with a hearing in any proceeding is a public record within the meaning of
Chapter 132 of the General Statutes, except that identifying information concerning
the treatment or delivery of services to a counselee or client who has not consented
to the public disclosure of such treatment or services may be deleted. Any record,
paper, or other document containing information collected and compiled by or on
behalf of the Board, as provided in this section, that is received and admitted in
evidence in any hearing before the Board shall be a public record within the meaning
of Chapter 132 of the General Statutes, subject to any deletions of identifying
information concerning the treatment or delivery of pastoral counseling services to a
counselee or client who has not consented to public disclosure of the treatment or
services."
Sec. 9. G.S. 120-131(b)(4) reads as rewritten:
"(4) Bill, resolution, memorandum, written analysis, letter, or other
document resulting from a drafting or information request and it
has been distributed at a legislative commission or standing
committee or subcommittee meeting not held in executive session
session, closed session, or on the floor of a house."
Sec. 10. Article 5 of Chapter 131E of the General Statutes is amended by
adding a new Part to read:
"Part F. Confidential Information.
"§ 131E-97. Confidentiality of patient information.
(a) Medical records compiled and maintained by health care facilities in
connection with the admission, treatment, and discharge of individual patients are not
public records as defined by Chapter 132 of the General Statutes.
(b) Charges. accounts, credit histories, and other personal financial records
compiled and maintained by health care facilities in connection with the admission,
treatment, and discharge of individual patients are not public records as defined by
Chapter 132 of the General Statutes.
"§ 131E-97.1. Confidentiality of personnel information.
(a) Except as provided in subsection (b) of this section, the personnel files of
employees or former employees, and the files of applicants for employment
maintained by a public hospital as defined in G.S. 159-39 are not public records as
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defined by Chapter 132 of the General Statutes.
(b) The following information with respect to each employee of a public hospital,
as defined by G.S. 159-39, is a matter of public record: name; age; date of original
employment or appointment; beginning and ending dates, position title, position
descriptions. and total compensation of current and former positions; and date of the
most recent promotion, demotion, transfer, suspension, separation, or other change in
position classification. In addition, the following information with respect to each
licensed medical provider employed by or having privileges to practice in a public
hospital shall be a matter of IN.,',tic record: edv ational history and qualifications,
date and jurisdiction or original and current licensure: and information relating to
medical board certifications or other qualifications of medical specialists.
§ 131E-97.2. Confidentiality of credentialing information.
Information acquired by a public hospital. as defined in G.S. 159-39. or by a State-
owned or State-operated hospital. or by persons acting for or on behalf of a hospital,
in connection with the credencialing and peer review of persons having or applving
Page 8 House Bill 120
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for privileges to practice in the hospital is confidential and is not a public record -
under Chapter 132 of the General Statutes; provided that information otherwise
available to the public shall not become confidential merely because it was acquired
by the hospital or by persons acting for or on behalf of the hospital.
"§ 131E-97.3. Confidentiality of competitive health care information,
Information relating to competitive health care activities by or on behalf of
hospitals shall be confidential and not a public record under Chapter 132 of the
General Statutes; provided that any contract entered into bv_ or on behalf of a public
hospital, as defined in G.S. 159-39, shall be a public record unless otherwise
exempted by law."
Sec. 11. Article 2 of Chapter 159B of the General Statutes is amended by
adding a new section to read:
"§ 159B-38. Confidentiality of contract discussions.
Discussions of a proposed or existing contract to which a joint agency may be or is
a party for the construction, ownership, or operation of works, plants, and facilities
for or incident to the generation, transmission, or use of electric power and energy or
the purchase, sale, exchange, interchange. wheeling, pooling. transmission. or use of
' electric power and energy shall be confidential and information relating to such
discussions shall not be a public record under Chapter 132 of the General Statutes;
provided that any contract entered into by or on behalf of a joint agency as defined
by G.S. 159B-3 shall be a public record unless otherwise exempted by law."
Sec. 12. This act becomes effective October 1, 1994, and shall not affect
pending litigation.
In the General Assembly read three times and ratified this the 23rd day
of June, 1994.
DENNIS A WICKER
Dennis A. Wicker
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives
House Bill 120 Page 9
Open Meetings Legislation
[From a draft copy of David M. Lawrence, "Local Government and Local Finance,"
in John L. Sanders, ed.,North Carolina Legislation 1994 (Chapel Hill:Institute of
Government, University of North Carolina at Chapel Hill, forthcoming,]
Chapter 570 (H 120) enacts legislation making significant revisions to the open meetings
law, particularly in the definition of groups subject to the law and in the occasions for which
executive, or closed, sessions are permitted. In 1993 both the Senate and the House adopted
versions of the bill, but they could not in that session resolve the differences in the two versions,
especially their differences regarding closed sessions for personnel decisions. In 1994, however,
the Senate accepted the House version of the contested provision, and the legislation was enacted.
It becomes effective October 1, 1994.
Public Bodies. The changes modify the definition of"public body," with the result of
expanding considerably the groups subject to the statute. The definition of public body has
centered on the mechanics of how a group was established, with five qualifying methods set out in
the statute. If a group was established in one of those ways it was a public'body and thus subject
to the statute; if it was not, it was not a public body. Chapter 570 deletes the provisions
concerning the methods of establishment, so that any body of state or local government with two
or more members is now subject to the open meetings law. The one possible exception centers on
a provision that states that "'Public body' does not include a meeting solely among the professional
staff of a public body." This appears to mean that if a group is comprised solely of professional
staff, that group is not a public body.
One of the effects of this change in definition is that it is now likely that a variety of
nonprofit, nongovernmental groups are subject to the open meetings law. In interpreting the
state's public records law, the Court of Appeals has extended that law to nonprofit entities with
significant connections to one or more local governments. If, for example, a nonprofit entity's
board is appointed by local government, if a nonprofit entity receives most of its funding from
local government and is subject to local government fiscal supervision, or if a nonprofit entity
operates a publicly-owned facility, these ties may be sufficient to cause a court to characterize its
board of directors as a local government agency for public records purposes. It would not be
surprising if the same sorts of tests were applied to determine if such entities should be subject to
the open meetings law as well.
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Closed Sessions. Most of the attention drawn by the new law has been to its provisions
about what it now calls "closed" sessions. The occasions for which closed sessions are
permissible have been completely revised, and some of the procedural aspects of closed sessions
have been modified as well.
Closed sessions are now permitted for only nine subjects (grouped in seven paragraphs in
the rewritten law), down from 20 in the earlier law. These numbers are slightly misleading,
however, in that one of the new subjects--confidential records--encompasses two or three
f- ^ provisions of the former law. The permitted subjects for closed sessions are as follows:
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Confidential information and records. Closed sessions are permitted to prevent disclosure _
of information that is confidential or privileged under state or federal law or to consider
information that is not subject to the public records law. This provision will permit closed
sessions to consider a variety of matters: medical information about patients in public hospitals
and other public health care facilities, and patients in mental health and other area authority
facilities; financial information about hospital and other health care facility patients; information
about the competitive activities of public hospitals; information about individual public school
students; information about recipients of public assistance; and information about proposed
contracts involving electric power generation and transmission.
Honorary degrees, prizes, and other honors. Closed sessions continue to be permitted to
consider award of various honors. This provision is mostly useful to university public bodies..
Attorney-client consultations. Closed sessions are permitted for communications between
the public body and its attorney that are within the attorney-client privilege. This authorization
permits communications both from the public body to the attorney and from the attorney to the
public body. It does not, however, allow closed sessions simply because the attorney is present in
the meeting room,
Claims and litigation. Closed sessions continue to be permitted to consider the handling or
settlement of claims, litigation, or administrative proceedings. The law also continues to require
that any settlement discussed in closed session be entered into the minutes of the public body once
the settlement is finalized.
Economic development. Closed sessions continue to be permitted to discuss the location
and expansion of businesses.
Real property acquisition. Closed sessions are permitted to discuss and establish the
public body's negotiating position as to price and other terms of a contract to acquire real
property. The law has permitted executive sessions, in addition, to select a site for acquisition,
but there is no comparable language to that in the law as amended.
Employment contracts. Closed sessions are permitted to discuss and establish the
compensation and other terms of employment contracts to be entered into by the public body.
This has also been possible under the existing law.
Personnel. Closed sessions continue to be permitted to discuss individual public officers
and employees. The Senate version of the bill had required that the hiring process for certain
persons, including city and county managers and school superintendents, be conducted in open
session, but that provision was not acceptable to the House and is not in the enacted law. The
principal differences between the new provision and the existing law are that it will no longer be
possible for a public body, in closed session, to discuss the performance of its own members, nor
will it be possible for one public body to discuss in closed session appointments to another public
body.
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Investigations. Closed sessions continue to be permitted to conduct or hear reports about
investigations of alleged criminal activity.
Probably the two most important provisions that have permitted closed sessions that were
not continued by Chapter 570 are that permitting discussion of site selection for government
projects and that permitting discussion of independent contractors.
Closed session procedures. The amended law continues the requirement that a public
body go into closed session only after voting to do so in open session. For two of the subjects,
however, the motion to hold the closed session must be more detailed than has been the case.
First, if the closed session is to consider confidential information or information in records not
subject to the public records law, the motion must cite the law that makes the information
confidential or that exempts the record from the public records law. Second, if the closed session
is to discuss pending litigation, the motion must name the parties to the litigation.
Closed session minutes. The amended law requires that public bodies keep "full and
accurate" minutes of all closed sessions. This does not mean, however, that these minutes must
summarize everything that is said at closed sessions. The phrase "full and accurate minutes" is
used in G.S. Chapters 153A and 160A to state the requirement that city councils and boards of
county commissioners keep minutes of all their meetings, and in those two contexts the phrase has
a well-accepted meaning That meaning is that the minutes must show any actions taken and any
conditions, such as the presence of quorum, necessary to take action, but that they need not show
any more. Therefore, unless a public body takes action in a closed session, "full and accurate"
minutes need only show that the closed session has taken place. If action has been taken, the law
continues to permit a public body to seal the minutes if necessary to avoid frustrating the purpose
of the closed session.
Attorneys fees. The open meetings law has required the court in any action to enforce
the law to award attorneys fees to the prevailing party. The amendments make the award of
attorneys fees optional with the court. They go on to permit the court to require that any
attorneys fees awarded be paid personally by members of the public body, rather than by the
government that they represent. In order for an award to be made against individuals, the court
must find that they knowingly or intentionally committed the violation. If the public body acted
upon the advice of an attorney, no such personal award can be made.
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