Commissioner's new pen has a point

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Mecklenburg County commissioner Bill James had a secret.

He taped portions of a recent board meeting – including talks during a private session – with an audio recorder hidden in a writing pen, a contraption he'd bought for about $100 off the Internet.

James said he's always been obsessed with gadgets. But he is also using the pen to make a bigger point: that the public should know more about what happens behind closed doors.

The tactic just may work.

Commissioners could vote sometime in the next month on a formal policy of taping their closed meetings. Chair Jennifer Roberts, who said she doesn't have a problem with the recordings, said she wants board members to first be briefed on any legal implications and would prefer to have the board clerk manage the recordings.

Over the weekend, James e-mailed commissioners a minute-long snippet he'd secretly recorded at their Dec. 2 meeting.

James told the Observer he would keep using the recorder until the board agrees to tape the meetings.

“I have the ability to do it myself,” he said. “I'd rather not, but if you insist … then fine.”

Officials have long debated how to handle what is discussed in closed sessions. State law allows, but doesn't require, public bodies to meet in private to discuss a limited set of topics like personnel matters, or to consult with their attorney.

It also requires minutes to be kept of the meetings, though the records only have to give someone a “reasonable understanding of what transpired” and don't have to be immediately released to the public. Some local governments have been criticized for putting too little information in the closed minutes.

Over the years, there have been various calls to record closed meetings. Some efforts, including those coming before state lawmakers, have failed. Mecklenburg commissioners have voted twice since 2001 not to record their private sessions.

In other communities, boards tape portions of the closed meetings but only to help with taking notes from the talks. The recordings are later destroyed. And a few commissioners have made their own recordings.

Swain County commissioner David Monteith started using a recorder about seven or eight months ago to help him keep better notes of what is said during the meetings. He said he didn't try to keep the recording a secret, but he stopped using it in closed meetings after other members protested.

Monteith still takes notes during the meetings, and later reads them into his recorder.

He said he wouldn't make the recordings public unless they are cleared by the county attorney. “I took an oath to follow the laws of North Carolina and the United States and the Constitution,” he said.

Open government experts have said that, with the exception of personnel matters, there generally aren't any expressed rules on whether public leaders can reveal information from closed sessions. Mecklenburg commissioners are split on whether to let the public know about other talks, with some fearing the disclosure could hurt possible business deals.

It is unclear how the tapings could work. Roberts said having the clerk tape the meetings would be better than having an individual commissioner do it on his or her own.

“It takes it out of politics, it takes it out of partisanship to have the clerk officially managing it,” she said, “to make sure you're complying with the law and not worry about people misusing that.”

She and others said there ought to be clear guidelines on how to deal with sensitive issues. “It's not the taping of the meetings that concerns me,” said commissioner George Dunlap. “It's whether or not information that is taped is released in violation of the law.”

James said he checked in with the county attorney and manager before using the device, but did not tell other commissioners. North Carolina law allows recordings if at least one party consents.

James said he would respect the law, and generally wouldn't release any recordings unless he felt doing so was in the public's best interest.

He's glad commissioners could take up the closed meeting recordings again.

“I'm trying to change the policy,” James said. “I've tried lots of different ways to accomplish that that didn't involve buying James Bond or Barney Collier spy pens, but the thing of it is, I haven't really gotten much of a response.”

Charlotte Observer – Editorial Page

Tape elected officials when they meet privately

Incomplete minutes don't tell the public all that's going on.

Posted: Sunday, Dec. 07, 2008

Bill James

In Mecklenburg County and across North Carolina, elected officials meet privately to discuss certain matters, as state laws allows them to do. But they are not always making public the complete details of those discussions once the need for confidentiality has passed, as state law requires.

That's why we back a proposal to tape closed sessions of the Mecklenburg County commissioners, and believe the legislature should make it a statewide practice. Elected officials represent you, and are doing your business, even when they are allowed to do it behind closed doors. Once the need for privacy has passed, as it almost always does, the public has a right to know precisely what went on.

Current law requires that complete and accurate minutes of such meetings be kept, and that they eventually be made public. But the quality and specificity of those minutes vary from public body to public body. The public's ability to get a detailed understanding of the discussions from those minutes is frequently compromised.

A tape recording, on the other hand, would capture exactly what was said, and who said it. It would provide the sunlight and accountability necessary for good government.

Opponents argue that taping closed meetings would discourage an open and honest discussion. But closed meetings are not permitted in order to promote vigorous debate. Their purpose is to let officials discuss things like potential real estate deals and hiring decisions that would be compromised if their talks were held in the open.

Republican commissioner Bill James is pushing the board to tape its closed sessions. We rarely agree with James, but on this point he is on rock-solid ground.

He is threatening to tape the sessions himself, with a James Bond-like recording pen, to force the other commissioners' hands. His gamesmanship is not our preferred approach, but after years of his being rebuffed on this point, it's understandable. Better for the county to tape the sessions and keep the tapes in the county clerk's control than to have James playing them to whomever he likes.

From: Marvin A. Bethune [mailto:mbethune@rbcwb.com]
Sent: Wednesday, December 03, 2008 4:59 PM
To: 'William F. James, Jr.'
Subject: RE: Closed session contemporaneous record - Confidential

Bill,

I am answering your question about the legality of your secretly recording closed sessions without having done any research, based solely on my present recollection of Board policy and the two portions of the General Statutes noted below:

• There is nothing in the Open Meetings Law (Article 33A of Chapter 143, which set of statutes governs closed session) that would specifically prohibit such an action. However, David Lawrence in his book on the Open Meetings Law has opined, without citation of authority, that a member of a board "probably" cannot tape a closed session based on a Texas case. Attached are pages from the 7th edition of his book, Open Meetings and Local Governments in North Carolina, on this subject. I have marked the relevant portions.
• There is nothing in Chapter 153A (the primary chapter of the General Statutes that governs county government) that would prohibit such an action.
• Such an action might be construed to be inconsistent with certain language in the Mecklenburg County Code of Conduct, adopted by the Board on February 15, 2000, a copy of which is attached, but I leave it to you to make that decision as you indicated that I need not answer the question of whether such actions might be construed to be unethical.

I have not done any research on any other possible statutory provisions or case law holdings (of either a civil or criminal nature) that might be applicable to such actions as I cannot answer your question with respect to anything other than the three bullet points above without doing significant research of the nature that would require approval of either the County Manager or the Board under Board policy.

Mr. Lawrence has also opined in another publication that "if a public employee makes notes to help with his or her job, these notes are probably the personal property of the employee and not government documents subject to the public records law". I believe that this opinion is also based on case law from other states. This might also be applicable to this matter.

Marvin A. Bethune
Mecklenburg County Attorney