Tale of the ‘tape’

Published 9:40 am Tuesday, January 24, 2012

WINDSOR – A Superior Court Judge ruled in favor of Bertie County here Monday.

The Judge, however, agreed with the Friends of Bertie that the audio tape of an Aug. 17, 2009 closed session meeting is a public record.

Monday morning, the 10-month legal battle over the tape of a closed session meeting of the Bertie County Board of Commissioners was heard by Special Superior Court Judge Richard L. Doughton.

The plaintiffs – John Davis, Ron Wesson, Fen Rascoe and Tim Phelps and the Friends of Bertie – contended the tape was public record and should be released by the commissioners. The tape contained the closed session discussion by that board about granting then Bertie County Manager Zee Lamb a raise of more than $40,000 per year.

The county said the tape was not a part of the public record as it was used simply as a means of recall in providing accurate minutes. In fact, all tapes of closed session were erased after the minutes were transcribed except the one in question which was kept because of the lawsuit.

Ironically, Doughton said the fact the tape was kept made it public record and said the county would have been able to erase the tape as they did others had they chosen to do so.

In rendering a summary judgment for Bertie County, Doughton said the information contained on the tape was confidential under North Carolina General Statutes and thereby were not permissible to be released to the public.

“The court has reviewed the tape,” the judge said. “The court is of the view the county could have destroyed the tape after the written minutes had been compiled had they chosen. Since they didn’t it is a public record.

“I think it does contain confidential employee information and I don’t think the county is required to release it,” he added.

Doughton ordered the tape sealed as Court Exhibit 1 and ordered that it remain so until litigation in the case is over or until it is ordered unsealed by a court of competent jurisdiction.

The session began with Doughton hearing an argument about an amendment the plaintiffs wished to add to the lawsuit.

Attorney Robert E. Hornik Jr. had filed a motion to add a complaint concerning the lack of minutes being released by the county for closed sessions. He argued that over the past 12 years the minutes of closed sessions whose purpose was no longer protected had only been released four times.

Doughton asked if the amendment was filed after the original court date in October of 2011 and Hornik said it was because the plaintiffs were unaware of the situation at that time.

Hornik said the release of those minutes were not consistent with the North Carolina General Statutes which says they should be released after the purpose of the session can no longer be frustrated.

Bertie County Attorney Lloyd Smith said that was not the case and that no one had ever been kept from seeing minutes of a closed session when they were sought as long as the minutes had been properly reviewed and released.

He further argued that the court had no jurisdiction to demand the release of the minutes of a closed session as that was left solely in the purview of the county commissioners.

After hearing both arguments, Doughton dismissed the amendment and said the hearing would move forward on the original claims.

Doughton initially said he wanted to listen to the audio tape before hearing arguments, but changed his mind after talking to both attorneys. He told them to each argue their case and then he would decide if he should listen to the tape at all.

Hornik contended the NC General Statutes were clear that the audio tape was a public record, but Doughton asked if that were true then why did the statutes clearly allow for the release of minutes or in lieu of that, an audio tape.

Hornik said he believed the minutes were “the floor and not the ceiling.”

Doughton also said the General Statues were clear that the minutes should contain a general account of what occurred so that anyone who had not attended the meeting would still know what happened. He said an audio tape was not a general account, but a very specific account.

Hornik said North Carolina law was clear the tapes of a meeting of a public body were public record. He added that the only recourse for the county not releasing the tape was that it contained private personnel information.

He added that Lamb signed a waiver of those rights, but Doughton said the waiver was specific to the written minutes of the meeting and not for any other purpose.

When provided his opportunity, Smith argued the tape was in fact not a matter of public record. He said it was impossible for every audio tape and note taken to be a matter of public record.

He quoted case law that said the minutes required were a general account and did not call for specifics or require that “who said what” was provided. Smith contended the General Statutes required the public body to take action to make the tape part of the public record, which Bertie County has never done.

Smith also provided documentation from the North Carolina Department of Cultural Archives which showed the tapes had been destroyed in the past with the department’s permission.

Smith said the county also maintained the audio tape could not be released because it contained personnel information, which couldn’t be released under North Carolina law.

After the arguments, Doughton said he wanted to listen to the audio tape himself. He asked both parties whether they were concerned about him listening to the entire tape or just the information about Lamb’s raise.

Hornik said the plaintiffs were only concerned with the portion concerning the raise, but both counsels said the judge should do what he believed was best.

Upon finishing the audio tape, Doughton returned and rendered his ruling.

While siding with the county that the tape could not be released, Doughton did not award the county reimbursement for lawyers fees in connection with the case.

Both sides were at least partially pleased with the outcome.

“We knew all along we hadn’t done anything wrong,” Bertie County Commission Chairman L.C. Hoggard III said. “The court and the law showed that was true. We had confidence in our judicial system.”

Speaking on behalf of the Friends of Bertie, Wesson said they were pleased with part of the ruling.

“While we are pleased that the judge ruled that the tape we requested is in fact a public record, we are, however, displeased that he did not allow the citizens of Bertie an opportunity to listen to the discussion of our elected leaders,” he said. “We are pleased that the judge denied the county’s motion to have the Friends of Bertie pay their costs.”

As for the future, Wesson said the group has not decided if they will appeal the decision.