The amendment, proposed by commissioner Holly Jones and supported only by Board Chair David Gantt, was defeated by a 3–2 vote later that evening.
However, at the meeting and in the days since, several prominent observers have raised questions over the legality of discussing the amendment in a closed session before the vote.
Before moving to go in to closed session at the Aug. 7 meeting, Karen Oelschlaeger, president of the League of Women Voters of Asheville-Buncombe County, warned the commissioners during the public hearing that N.C. Statute states: "General personnel policy issues may not be considered in a closed session.”
Oelschlaeger, as well as former publisher of the Black Mountain News, Jim Aycock, subsequently wrote commentaries published by the Asheville Citizen-Times that cited the statute, making the case that the commissioners may have broken the law. WWNC News Radio talk show host Pete Kaliner also cited the statute during several subsequent broadcasts, slamming the commissioners for potentially breaking the law.
In addition, observers questioned the legality of going into closed session to discuss an issue that doesn't involve pending litigation.
Law on their side
However, in an interview with Xpress, Assistant County Attorney Curt Euler — who had been filling in for County Attorney Michael Frue during the meeting — defends his legal advice to the board. And a review by North Carolina Press Association attorney Amanda Martin, as well as the Aug. 15 release of the closed session's minutes, reveal that the commissioners are likely on solid legal ground — although questions remain.
Under the advisement of Euler, the board moved to go in to closed session that night based on a North Carolina statute that allows for "attorney-client privilege." And the law permits commissioners to seek legal advice behind closed doors about amending its personnel ordinance, according to Martin. "If they were getting legal advice, about potential liability if they did or didn't include that provision, then the lawyer could give that advice," she notes. But she cautions that under attorney-client privilege rules, any closed session deliberations must be limited strictly to legal advice.
"Let's say that they say, 'We need to know, do we have legal exposure, if we don't make make this amendment, are we going to get sued?' They can get that answer in a closed session," she explains.
Euler echoes that argument. "They couldn't go back there and talk about whether homosexuality is good or bad," he says. "That has nothing to do with the legal ramifications. That would be inappropriate. Or talking about the financial repercussions. The cost. If they said, '[County Manager] Wanda [Greene], how much is this going to cost us?' That would be inappropriate to talk about in a closed session," he explains.
Martin also notes, "There doesn't have to be any pending litigation" to justify going in to a closed session. Although "if there is pending litigation, then they have to identify it," she adds. When moving to go into closed session to discuss the amendment to the personnel ordinance, Euler and Gantt have both said there was no pending litigation.
Burden of proof
Other than taking the commissioners' words for it, the only documentation of what was discussed behind closed doors on Aug. 7 are the minutes recorded by Kathy Hughes, clerk to the board and public relations director. There are no audio or video recordings of the session, she says.
A draft of those minutes was posted on the Buncombe County website on Aug. 15. However, Hughes' record is short on details, stating only: "The Board heard from the County Attorney regarding the legal implications of including sexual orientation in the County’s Personnel Ordinance. No action was taken."
The commissioners will need to vote on the draft of the minutes before they become part of the official record; that vote's scheduled to take place at the commissioners' next meeting on Aug. 21. It's listed on the consent agenda, which usually passes unanimously with little or no discussion.
However, the scant documentation of what happened behind closed doors is already frustrating those looking for more clarity on the matter.
"If, during closed session, the commissioners moved beyond legal technicalities, then the commissioners violated the law," said Oelschlaeger in a Aug. 16 written statement from the local League, which advocates for government transparency. "Though the minutes do not indicate any such illegal discussions, I am not confident that the minutes meet the legal standard of 'full and accurate.'"
She adds that the League has been in touch with an attorney from the N.C. Open Government Coalition to help advise the best course of action.
"The Multimedia Publishing v. Henderson County ruling clearly states that "the burden is on the Board to show that the attorney-client privilege applied," she maintains. "I am not yet confident that the county has met its burden of proof."
Meanwhile, Euler says that, "Ultimately the minutes preserve what's back there.
"Ultimately, everything we talk about is hypothetical until a judge looks at it," he adds.