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Government ADR: North Carolina Appeals Court Finds County Mediation Doesn't Violate (Web)

In Gannett Pacific Corp., et al. v. City of Asheville and County of Buncombe, No. COA05-1304 (Aug. 1, 2006)(Also available at a North Carolina appellate court upheld a trial court's decision that a mediation proceeding involving the defendants didn’t violate the North Carolina open meetings law.

The defendants, Asheville, N.C., and Buncombe County, N.C., were involved in negotiations concerning the termination of the Regional Water Authority Agreement between the defendants, dealing with the city and county’s water supply, as well as other services.

On April 21, 2005, the city announced that it would hold a special meeting to participate in mediation with the county about terminating the agreement.

On April 26, city council members and the county commissioners met in separate rooms at the Asheville Renaissance Hotel, consulting with their respective attorneys about the mediation. Only one mediation representative from each of the city and the county was sent, along with one or more of its attorneys, to meet with John Stephens, who was a mediator from the Institute of Government at the University of North Carolina in Chapel Hill, N.C. The other city council members and county official “either stood in recess or discussed no official business,” the opinion notes.

The mediation and the defendants’ separate closed meetings were closed to the public.

When the plaintiffs, a newspaper publisher and local television station, were not allowed into the closed meetings or into the closed mediation, they hand-delivered a letter to defendants about four hours into the sessions. They demanded that defendants cease the closed meetings and the closed mediation, alleging that the defendants were violating North Carolina's Open Meetings Law.

The plaintiffs filed a complaint the same day, seeking declaratory judgment and injunctive relief, including a temporary restraining order and preliminary injunction. The plaintiffs’ TRO request was denied on April 28, on grounds that the mediation and the meetings had concluded, and the preliminary injunction request was turned down on May 4, because, the court stated, that the defendants did not violate the Open Meetings Law.

On the plaintiff's claims for injunctive relief and declaratory judgment, the trial court, two months later, concluded

1) that the April 26 mediation process was not an official meeting and was not covered under the definition of "open to the public," as stated in North Carolina General Statute 143-318.10(d),

2) the defendants’ procedure during the mediation process was permitted in N.C.G.S. 143-318.11(a) (3), and,

3) that the defendants’ conduct did not violate the North Carolina open meetings law.

On appeal, the plaintiffs argued that the trial court's three conclusions of law were not properly based on those findings and contended that mediation constituted an official meeting as defined by statute. N.C.G.S. § 143-318.10(a) (2005)) and thus should have been open to the public. The plaintiffs further argued that mediation was "called or held to evade the spirit and purpose of the statute" and should be considered an official meeting.

The defendants contended that the mediation’s function was to negotiate agreement terms. In their oral argument, the agreement could be accepted only by a majority vote of the city council members, and county commissioners.

The Court of Appeals relied on an attorney-client privilege exception in allowing the closed sessions, as codified in N.C. G.S.143-318.11 (a)(3)(2005), and as established in Multimedia Pub'g of N.C. Inc. v. Henderson Cty., 550 S.E.2d 846 (2001). It held that the meetings in the separate rooms were official meetings that fell squarely within the attorney-client exception.

The court further interpreted the definition of official meeting as stated in N.C.G.S 143-318.10(d) , and held that in the mediation in question, at no time did more than one member of the city council or the county participate in the proceeding.

The court finally concluded that the mediation attended by only one representative from each defendant party was not an “official meeting” as defined by N.C.G.S. 143-318.10(d), as there was no gathering of a majority of the defendants’ members. Further, the mediation was not a social meeting or other informal assembly or gathering, and was not called or held to evade the spirit or purpose of the Open Meetings Law.

--Ongmu Tshering, CPR Intern