North Carolina Lawyers Weekly
Garlock v. Wake County Board of Education. (Lawyers Weekly No. 11-07-0401, 55 pp.) (Donna S. Stroud, J.) Appealed from Wake County Superior Court. (William R. Pittman, J.) N.C. App. Click here for the full text of the opinion.
Holding: Since the defendant-school board took reasonable measures to provide for public access to its meeting, the fact that not every member of the public who wished to attend the meeting was able to do so was not in itself a violation of the Open Meetings Law.
We reverse the trial court’s conclusion that defendants violated the Open Meetings Law by failing to accommodate a disabled person. Otherwise, we affirm.
Facts
The defendant-school board expected a heavy turnout for its meeting and the meeting of its Committee of the Whole (COW) on March 23, 2010. Defendants instituted a ticket policy but changed it without notice to the public.
Plaintiffs are members of the public who were unable to attend the meetings. They sought and received a declaratory judgment that defendants violated the Open Meetings Law, but the trial court denied any further relief.
‘Immediate Hearing’
The trial court held a hearing on the merits eight days after plaintiffs filed their complaint.
G.S. § 143-318.16C reads, “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.”
We find no prior case in which the trial court has heard an entire case on the merits quite so “immediately” as here. Yet in this case, we need not determine whether the trial court erred by hearing the case on the merits “immediate[ly]” after filing of the action because, to the extent that this was error, the error was invited by plaintiffs and was not prejudicial to the defendants.
Although it may have been the better practice for the trial court to hear only the motion for preliminary injunction on May 14, 2010 and then to permit some time for development of the case by discovery before a full hearing on the merits, the plaintiffs have no right to complain that the trial court did exactly what they asked.
Plaintiffs’ argument that the trial court “dismissed” their complaint ex mero motu is a misapprehension of the trial court’s order. The trial court made findings of fact and conclusions of law and ruled upon the merits of plaintiffs’ claims, and as there were no further claims to be determined, dismissed the case. This is no different than a judgment which “dismisses” a plaintiff’s claim based upon a jury verdict which has found that the plaintiff is not entitled to the relief sought.
Defendants did object to hearing the entire matter on the merits, but defendants suffered no prejudice from the “immediate” hearing, as the judgment is predominantly in their favor and denies the most significant relief sought by plaintiffs.
Defendants ask that we affirm the substance of the order dismissing plaintiffs’ claims but remove from the order the parts they do not like. We reject this request as inconsistent with the fundamental precept of Anglo-American jurisprudence that you cannot have your cake and eat it, too.
Plaintiffs’ Appeal
The trial court concluded that three of the school board’s actions were “unreasonable”: (1) a ticketing procedure requiring a ticket holder to remain on the premises for hours preceding a meeting; (2) complete exclusion of members of the public from the COW meetings; and (3) failure to make accommodations for a disabled member of the public. The trial court also concluded, “The Board is required by North Carolina General Statute §143-318.9 et.seq. (the Open Meetings Law) to take reasonable measures to provide for public access to its meetings.”
Although the order concludes that certain actions were “unreasonable,” it does not specifically state that these actions were violations of the Open Meetings Law, despite its conclusion that the Open Meetings Law requires defendants to “take reasonable measures to provide for public access to its meetings.”
The issue presented by this case is whether the March 23, 2010, meetings were “open to the public.” This also requires us to consider the meaning of the provision that “any person is entitled to attend such a meeting.” These are issues of first impression under North Carolina’s Open Meetings Law.
The situation we address here may perhaps be best described as an allegation of insufficient “openness” of the meeting.
It is undisputed that proper public notice of the time and location of the meetings was given, substantial numbers of members of the general public attended the board meeting and were given adequate time and opportunity to comment, and media outlets covered both meetings. It is also undisputed that due to heightened public interest in the issues before the board, attendance at the COW and board meetings had been increasing and, in fact, the board expected a high attendance for the March 23, 2010 meetings. It is undisputed that substantially more members of the public than could be legally admitted to the meeting rooms wanted to attend, so many were excluded from the meeting rooms.
Plaintiffs do not clearly articulate the standard by which they claim a court should determine whether an Open Meetings Law violation has occurred but imply that exclusion of any person who wishes to attend is a violation, as the statute says that “any person is entitled to attend such a meeting.” G.S. § 143-338.10(a).
Defendants cite Ann Taylor Schwing & Constance Taylor, Open Meetings Laws, § 5.90 (1994): “The exclusion of those who arrive when the adequately sized meeting room is full … does not convert an open meeting into a closed one.”
G.S. § 115C-51(iii) recognizes that at times, the number of people who want to attend a meeting may exceed the “capacity of the hall” and makes specific provision for the board to consider the comments of those with opposing viewpoints in this situation. If the exclusion of even one person from a school board meeting because of the capacity of the room would render the meeting illegal under the Open Meetings Law, G.S. § 115C-51(iii) would be unnecessary.
In Gutierrez v. City of Albuquerque, 96 N.M. 398, 631 P.3d 304 (1981), the New Mexico Supreme Court said, “To “attend and listen” is equally susceptible of an interpretation that persons desiring to attend shall have the opportunity to do so, that no one will be systematically excluded or arbitrarily refused admittance, and that the meeting will not be “closed” to the public.”
Although our statute does not include the words “and listen” after “attend,” We find the New Mexico court’s analysis of its statute to be persuasive authority in our analysis of the N.C. statute.
Both the requirements for meetings of public bodies to be open and statutory exceptions to the open meetings are construed in favor of public access.
The legislature’s purpose for G.S. § 143-318.10 is to ensure that public bodies receive public input regarding the substance of the public body’s actions, that the public has the opportunity to have knowledge and understanding of the public body’s deliberations and actions, and that public bodies to act in good faith in making provision for the public’s knowledge and participation in its meetings.
Therefore, we reject the plaintiffs’ literal reading of G.S. § 143-318.10 as providing that the exclusion of “any person” because a meeting room of appropriate size is at capacity would cause a meeting not to be “open” as contemplated by the Open Meetings Law. We instead hold that the trial court used the correct legal standard in evaluating the actions of the defendants, as it concluded, “The Board is required by North Carolina General Statute §143-318.9 et. seq. (the Open Meetings Law) to take reasonable measures to provide for public access to its meetings.”
To the extent that the board permitted reasonable public access to the March 23, 2010 meetings, it substantially complied with G.S. § 143-318.10, and no Open Meetings Law violation has occurred. To the extent that defendants acted unreasonably as to public access to the March 23, 2010 meetings, it did violate the Open Meetings Law.
The trial court was required to consider the reasonableness of the board’s actions as to the alleged violations of the Open Meetings Law, and the trial court did, in fact, make these factual determinations and conclusions of law. Plaintiffs have not argued in their brief that the trial court’s findings of fact were not supported by the evidence.
Defendants’ Cross-Appeal
Defendants do challenge some findings of fact.
Ticket Policy Defendants do not dispute that they adopted a policy on the morning of March 23 to issue tickets for the meetings; that the board originally required ticketholders to stay on the premises but later eliminated this requirement; that notice of the change was given only to those persons on the premises and was not published on the board’s website; that some people were unable to attend the meetings for lack of sufficient space; or that plaintiff Garlock suffered from a medical condition which made it difficult for her to stand for long periods of time and she did not attend the March 23, 2010 meeting because of her prior experience of having to stand for a long time before getting a seat in the meeting room at the March 2, 2010 meeting. Thus, the real issue is whether the findings of fact support the conclusions of law.
The trial court properly found that the ticketing procedure was unreasonable in the manner in which it was used on March 23, 2010.
G.S. § 143-318.12(a) provides that that if a public body has established a “schedule of regular meetings,” it must keep this schedule on file, and if “a public body changes its schedule of regular meetings, it shall cause the revised schedule to be filed as provided in subdivisions (1) through (4) of this subsection at least seven calendar days before the day of the first meeting held pursuant to the revised schedule.”
G.S. § 143-318.12(b) provides that “If a public body holds an official meeting at any time or place other than a time or place shown on the schedule filed pursuant to subsection (a) of this section, it shall give public notice of the time and place of that meeting as provided in this subsection.”
One of the requirements of the notice in the change of “time or place” of an official meeting is that the “notice shall be posted and mailed, e-mailed, or delivered at least 48 hours before the time of the meeting.” G.S. § 143-318.12(b)(2). But notice of the location and time of the meeting is worthless if a person planning to attend a meeting is not also informed that a ticket will be required.
Thus, under G.S. § 143-318.12, a public body’s meeting notice must include any information reasonably necessary to give members of the public the opportunity to attend the meeting, if information beyond the time and location is necessary, as it was here.
COW Meeting Defendants do not dispute that there was no seating available for members of the public for at least the portion of the COW meeting addressing the budget, as all seats were filled by staff members; only after some staff members left were members of the public permitted to enter.
The parties also agree that there was media coverage of the entire COW meeting. Yet media coverage alone does not render a meeting open; a reasonable opportunity for access by members of the public must be made.
The complete exclusion of members of the public from the COW meeting for a significant portion of the meeting is the most obvious violation of the Open Meetings Law in this case. The trial court found the board’s rationale of convenience of holding the COW meeting in a smaller room to be unreasonable under the circumstances, and we agree, particularly as there was a larger room immediately available in the same building, so that a last-minute change in the location of the COW meeting would not violate the statutory notice requirements as to the location of the meeting. The convenience of the members of the COW and staff was not a sufficient reason to deny public access.
Disabled Attendee The Open Meetings Law does not include any provision regarding accommodation at public meetings of a disabled member of the public as opposed to a non-disabled member of the public. If we were to accept plaintiffs’ argument that a disabled person’s need to sit must be accommodated by giving that person a seat in preference to a non-disabled person who also wants to attend the meeting, this would change the “first come, first served” nature of access to public meetings to a rule which favors members of the public who claim to have a superior right to attend the meeting for some reason not addressed by the Open Meetings Law.
Where a meeting room is filled to capacity, giving a seat to one person necessarily means that another person who is also standing in the hall and who also wants to attend the meeting will not be allowed to sit.
Certainly, a public body may provide specially modified seating areas to accommodate disabled members of the public; this type of accommodation may well be required by other state and federal laws, but that is not the claim presented by plaintiffs in this case.
Plaintiff Garlock’s alleged medical need was for a place to sit, but she claims that “reasonable accommodation” entitles her to a seat only in the meeting room, not somewhere else in the board’s building, even though all of the seats in the meeting room were filled by other members of the public who had an equal right to attend the meeting. Although we have great sympathy for plaintiff
Garlock’s situation, her medical condition is simply not relevant to the determination of whether an Open Meetings Law violation occurred.
We therefore find that the trial court committed an error of law, as there was no legal difference between plaintiff Garlock and the other plaintiffs, or any other member of the public, for purposes of the Open Meetings Law.
Remedy
The trial court found three violations of the Open Meetings Law: the ticketing procedure as practiced on March 23, 2010; exclusion of the public from the COW meeting; and failure to accommodate a disabled person. As discussed above, the trial court erred as to the third violation, as disability is not a consideration under the Open Meetings Law, but the trial court properly found violations as to the ticketing procedure and exclusion of the public from the COW meeting.
The trial court addressed each of the applicable factors under G.S. § 143-318.16A and found no basis for invalidation of the board’s actions or any other affirmative relief, so the trial court ordered none.
Plaintiffs argue that there is a need for a declaration by the court that a violation occurred, even if no relief is granted, so that defendants will not repeat the violations in the future. We agree, but we also find that the trial court did just that.
The trial court did not abuse its discretion in denying additional relief.
Affirmed, except as to the trial court’s conclusion that defendants unreasonably failed to accommodate disabled members of the public.
