‘Tape’ lawsuit settlement was offered

Published 10:30 am Tuesday, April 3, 2012

WINDSOR – The lawsuit between Bertie County and the Friends of Bertie could have reached the same conclusion months earlier.

Monday morning, the Bertie County Commissioners released closed session minutes relating to the lawsuit as the purpose of those four closed door meetings would no longer be frustrated by their release.

The minutes revealed the county had offered to settle the suit along nearly the same parameters set forth in the Jan. 23 ruling of the Special Superior Court Judge Richard L. Doughton.

The Friends of Bertie, represented as plaintiffs by John Davis, Fen Rascoe, Tim Phelps and Ron Wesson, sued Bertie County to obtain the tape of the closed session meeting in August of 2009 in which the board discussed granting then Bertie County Manager Zee Lamb a new contract which included a substantial raise in pay.

Doughton, who assigned the case after Resident Superior Court Judge Cy Grant recused himself, ruled the tape was public record, but that all the information it contained was protected by state statues regarding the release of personnel information.

The minutes of the board’s September 12, 2011 closed meeting reveal County Attorney Lloyd Smith suggested the county commissioners offer a settlement in the case. While maintaining the tape was not public record and that the county commissioners had “done nothing wrong in this matter,” Smith suggested a settlement.

The settlement would have allowed Grant to listen to the tape and make public any portion of it that was not personnel related in addition to the portion that had already been released.

The minutes said Commission Chairman L.C. Hoggard III stated that he felt the county had done nothing wrong, but saw the benefit of saving “a large amount of attorney’s fees and costs.”

The minutes reflect that Vice Chairman J. Wallace Perry echoed those thoughts.

“There followed a discussion by all of the commissioners and the county attorney as to the advantages of an early resolution of this matter,” the minutes read.

The minutes further stated the board instructed Smith to present the settlement proposal at the mediation of the matter, which was scheduled for September 15.

Included among the information released by the board is a copy of the proposed settlement. The proposal says the Bertie County Commissioners do not agree the tape is a public document and that if it is, it contains personnel information that is privileged.

It adds, however, that the board would deliver the tape and the minutes of the closed session to Grant for an “In Camera review” and that if he determines there are matters that have not been released which are not personnel or privileged, he could order their release.

The settlement went on to propose neither party pay court cost nor attorney’s fees and that neither would appeal the decision rendered by Grant.

The minutes of the next closed session meeting, which was held on September 19 of the same year, indicate the Friends of Bertie had rejected the settlement and that the commissioners “expressed their sorrow that their settlement offer had been rejected because of the additional attorneys fees and costs both sides would incur.”

The county made another attempt to settle the situation during their December 19, 2011 closed session.

After Lamb, Assistant County Manager Misty Deanes and Bertie Ledger-Advance Associate Editor Vernon Fueston were deposed in the case, Smith said he thought the county could make another offer.

Smith characterized Lamb and Deanes, both county employees at the time, as “truthful and good witnesses.”

He then suggested making a settlement offer as an Offer of Judgment allowing the presiding Superior Court Judge to review the tape as had been offered in mediation.

The minutes reported that Commissioner Norman M. Cherry Sr. asked if the offer would save taxpayers money in attorney’s fees and Smith said it probably would.

Hoggard asked if the offer would be an admission of wrong doing on the part of the county and Smith “emphatically told him no.”

The board discussed the matter further and then approved making the offer of judgment.

The two sides did not settle and ended up appearing in Bertie County Superior Court on Jan. 23.