WINDSOR – Bertie County will answer a lawsuit filed by the Friends of Bertie.

Last week, Bertie County Attorney Lloyd Smith told the Bertie County Commissioners they had 30 days from April 13 to answer the suit, which asks for the audio tape from the closed session meeting of August 17, 2009.  The closed session was the one in which commissioners discussed Bertie County Manager Zee Lamb’s new contract, which was later approved with a salary increase of 42 percent.

The group requested and received the written minutes of the meeting after Lamb and Assistant County Manager Morris Rascoe signed documents allowing for the minutes to be released.

The commissioners did not release the audio tape of the closed session under the advice of Smith, who said there are multiple reasons the tapes should not be made available.

“I’ll be asking each of you to do an affidavit that you didn’t release the tape on my advice,” Smith said. “You are following my legal opinion.”

Smith said there were some differences of opinion about whether or not audio tapes were public record, but he did not believe they are.

“I don’t think they are public record any more than the notes I take,” he said. “(Clerk to the Board) Misty (Deanes) audio tapes the meetings, then erases them. They are fact-finding instruments only.”

He also said it was a Class III Misdemeanor for the board members to release the audio tape when it contains information that is confidential based on North Carolina General Statutes relating to personnel laws.

Smith said the lawsuit also contended a 14-page document in which commissioners released as their reasoning for the raise contained information that was confidential and therefore, the tapes could be made public.

“I don’t know where that came from because I drafted it,” Smith said, referencing the group’s contention. “All of it came from public information. There was no theory of waiver.”

He said Bertie County board members worked to do as much as possible in open session and that is why the lawsuit was being in that element. He said there were times, however, when information could not be released because of General Statutes.

Smith also told the board there was a mandatory mediation clause in this type of lawsuit, but both sides could waive the mediation if they did not believe it would help.

He said he would be asking commissioners to make a decision about requesting a waiver before the lawsuit was answered.