A Polk County commissioner said he felt like he was kicked out of the Feb. 17 closed session meeting after the other four commissioners said they refused to continue the discussion in his presence.
Commissioners met Feb. 17 and added to the agenda a closed session for matters relating to personnel issues. Upon returning to open session, the board made no decisions.
Following the meeting, commissioner Ray Gasperson told the Bulletin he was forced to leave the meeting.
“I was kicked out of the Polk BOC (board of commissioner) closed session on Feb. 17,” Gasperson said. “Let me explain. At the end of the county commissioner meeting that night, I and the other four commissioners, the county attorney and the clerk to the board went into closed session. After attorney (Jana) Berg gave an explanation of the issue before us, she made it clear that she needed direction from the board. That’s when the other four commissioners said they refused to continue with me present.”
Gasperson said he protested to other commissioners and told them he wanted to express his opinion on the issue with everyone present, which he did with no objection.
Gasperson said with commissioners Ted Owens, Keith Holbert, Tom Pack and Michael Gage still pressuring him to leave, he stepped out and waited nearby. The next morning, Berg gave Gasperson a detailed report by phone of what happened, Gasperson said.
According to the N.C. Institute of Government’s Frayda Bluestein, who is an expert in local government law, public records, open meetings, municipal annexation and city attorneys, there is no specific statute that addresses a situation where a board has concerns about a member participating in a meeting.
“The assumption is that all members of the board have a right to attend all meetings of the board,” Bluestein said. “There are statutes about members being excused or prohibited from voting because of a statutorily recognized conflict of interest, but even these do not limit the member’s ability to attend the meeting.”
Bluestein also said if a board member leaves voluntarily or does not attend a board meeting there is no legal problem with the remaining members carrying on without him or her.
“And the board may request that a person refrain from attending if they feel it is in the best interest of the unit to do so,” said Bluestein. “But I know of no legal obligation of a board member to comply with this request.”
The Bulletin emailed commissioners on Feb. 19 questioning if Gasperson was asked to leave the meeting, why he was asked to leave and if the discussion would have taken place if Gasperson hadn’t left voluntarily.
None of the commissioners responded, so the Bulletin sent attorney Berg an email on Saturday, Feb. 22 asking if Gasperson was requested to leave: if so, why: and if a commissioner can be left out of a discussion.
“The questions you have asked are premised upon your understanding of events purportedly occurring during the Feb. 17, 2014 board of commissioners meeting closed session,” Berg responded. “The minutes of this closed session have not been made public record. Further, the closed session at issue was called for and involved matters of attorney-client privilege.  As the attorney for the board and for the reasons stated above, I am unable to respond to your inquiry.”
Gasperson said the other commissioners accused him of talking openly to the public about what happens in closed sessions.
“That is absolutely untrue,” Gasperson said. “In my six years on the BOC I have never disclosed to anyone matters that were legitimately discussed under closed session rules. If anyone believes otherwise, I challenge them to give me an example.
“However, I do refuse to keep secret any discussions that I know should never have been discussed in a closed session at all – such as creating a new position in county government for a specific person without consideration of other applicants.”
Gasperson is referring to the majority considering the creation ofw a new position for an assistant county manager, which was taken off the agenda at the last meeting.
Gasperson voted against the agenda approval on Feb. 17. Gasperson told other commissioners he had great concerns about some issues being discussed in closed session. He said he spoke to Bluestein, who confirmed that creating a new position is not covered in reasons governments can hold closed sessions. Because the attorney was present, it made it improper, Gasperson said, but not illegal.
Bluestein has written a blog titled, “What happens in closed session, stays in closed session…or does it?”
She says elected officials and others are usually surprised to learn that there is no general law that prohibits board members from disclosing information obtained in a closed session. There are separate statutes that prohibit confidential information from being disclosed, whether the information comes from a closed session or any other context, she said.
“So long as confidential information is not involved, board members are free to exercise their First Amendment rights to communicate about matters that are discussed in closed session,” Bluestein said in her blog.
Bluestein said public bodies have limited authority to meet in closed session. In several cases, closed sessions are authorized in order to prevent unlawful disclosure of confidential information, she said, but in other cases the authorization to meet in closed session is optional, and reflects more practical concerns, such as allowing private consultation with an attorney and avoiding disclosure of a negotiating position.
“Trade secrets and many types of personnel information are examples of information that is confidential under state law,” Bluestein said. “So when matters involving these types of information are discussed in closed session, it’s the underlying statutes that prohibit disclosure, not the fact that it was discussed in closed session. In other cases, such as those involving consultations with the board attorney, or discussions about economic development incentives (assuming no trade secrets are disclosed), there is no statutory prohibition on communications to the press and the public about what transpired.”
To see Bluestein’s blog, visit canons.sog.unc.edu/?p=1463.