Wednesday, 15 January 2020 13:15

Lawsuit no guarantee UNC will change its approach toward records

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RALEIGH — The plaintiffs in a lawsuit challenging the University of North Carolina System over transparency issues hope their case will pave the way for greater openness and accountability at UNC.

But even if UNC loses the case — which could take months or longer to resolve — there’s no guarantee the administration will change its approach to public records and open meetings laws, some experts say.

DTH Media Group, publisher of UNC-Chapel Hill’s student-run newspaper The Daily Tar Heel, sued the UNC Board of Governors on Jan. 7, citing a violation of the state’s open meetings law. The UNC board is scheduled to meet Jan. 16-17 in Chapel Hill.

The case is an outgrowth of controversy that escalated in August 2018, when protesters illegally toppled Confederate monument Silent Sam on UNC Chapel Hill’s campus. More than a year later, five members of the UNC System’s board struck a deal with the Sons of Confederate Veterans to take possession of the monument. The university agreed to put $2.5 million into a trust for the group to maintain the monument. In another agreement — which wasn’t revealed until weeks after the Silent Sam deal with SCV was closed — the BOG paid an additional $74,999 to prevent the group from displaying its banners or flags on UNC property for five years.

Both deals with the SCV were blocked from public view, the lawsuit claims, and should be voided due to violations of public meetings law.

Public records and meetings cases take priority over others at the trial level, and it’s likely the case will be heard by an Orange County Superior Court within the next 60 days, said John Bussian, an attorney who specializes in media litigation and whose firm has represented Carolina Journal. But if the case is sent to the N.C. Court of Appeals and the N.C. Supreme Court afterward, the process could take more than a year due to an excessive case backlog.

As the case slogs its way through the courts, the power of public opinion — which has been prolific since news broke of UNC’s deal with SCV — is “tremendously important” to the lawsuit’s outcome, said media attorney Amanda Martin, who represents the N.C. Press Association. Martin’s law firm, Stevens, Martin, Vaughn, and Tadych, is representing DTH Media in the case. 

“The university has lost or settled multiple cases and does not seem to change its ways,” Martin said. “But if there’s some chance public pressure could be brought to bear, that might be different.”

The DTH has sued UNC before, and Bussian is confident the media company won’t back down anytime soon. In another transparency case pending before the state Supreme Court, the DTH argues UNC should be required to disclose names of students and employees found responsible for rape, sexual assault, or related offenses. The DTH lost that argument in Wake County Superior Court, only to have the state Court of Appeals reverse the decision.

Notably, that Superior Court ruling was handed down by Judge Allen Baddour, the same judge who approved the settlement between UNC and the SCV. But that ruling is no indicator of what will happen with the present DTH lawsuit regarding the Silent Sam settlement, Bussian said.

UNC plans to respond to plaintiffs’ claims in court, UNC spokesman Josh Ellis, says in an emailed statement to Carolina Journal.

“The University is committed to the spirit and purpose of the Open Meetings Act and UNC Board of Governors meetings are conducted in full accordance with all state laws,” he wrote.

Notably, CJ has been in a public records dispute with UNC since late 2018, when the university refused to release a performance review of the then-chancellor of East Carolina University. Lawyers for UNC said the record fell under a legal exception that shields personnel information from the public. Bussian, who represented CJ in the matter, challenged the university’s broad use of the personnel exemption. He said the exemption didn’t apply to the entire performance review and the university was obligated to release the parts of the review that clearly are a public record.

UNC still hasn’t complied with CJ’s request.

In the Silent Sam dispute, UNC’s lawyers choreographed settlement matters down to the letter, Bussian said, from the handling of meeting minutes, to the sequencing of time between the lawsuit’s filing and the judge’s approval.

The BOG defended its Nov. 27 closed meeting, saying the SCV had threatened them with a lawsuit. The problem was, they emerged from that meeting with a lawsuit filed only 45 minutes afterward and a signed settlement fewer than 10 minutes after that.

“I’ve never seen it done in such a surreptitious fashion,” Bussian said. “It’s breathtaking the way in which secrecy was secured here.”

Complicating the matter is whether the BOG can cite attorney/client privilege. If the meeting involved consulting with lawyers for the purpose of settling a legal action, then closing the meeting to the public would be acceptable, said Brooks Fuller, director of the N.C. Open Government Coalition and Sunshine Center.

Much of the defense arguments will come down to splitting hairs. With regard to the closed meeting, the lawsuit notes board members had copies of the motion to be considered in their folders. But that motion wasn’t recorded in the minutes. Instead, the minutes say the board held a closed session, pursuant to various open session law provisions.

“You can see anyone challenging this throwing their hands up saying, ‘I can’t tell anything you did with that kind of description,’” Bussian said. “That has to violate the open meetings law because no one knows what’s going on.”

North Carolina law allows the winning party in a court proceeding to recover legal expenses from the losing party.

But if the DTH wins, it’s unclear whether UNC would respond to the loss by urging transparency among members of the BOG.

An example is the academic fraud scandal of the past decade, involving athletes who received credit for phony classes they never attended. The Raleigh News & Observer pushed repeatedly for access to court records regarding the courses.

After losing the case, UNC used money from its athletic endowment fund to pay the legal fees. The funds were not tax dollars, UNC argued.

But that’s just “political smoke and mirrors,” Bussian said. Whatever the fund was, it was dedicated to education, not paying off a lawsuit.

“People will bend over backwards to argue they’re not using tax dollars,” he said. “They’ll go all the way to say, ‘If you obstruct the public, it won’t cost the public anything.’”

Florida’s laws are superior to North Carolina’s when it comes to transparency incentives, Bussian said. Not only does the losing party pay legal expenses, but they’re also subject to criminal penalties.

“When public officials go to jail, it’s a powerful deterrent,” he said. “We need North Carolina to add criminal penalties. It would put this ball in a different court right way.”

If UNC wins the current case, meeting transparency probably won’t improve, Bussian concluded. 

“Right now, the Daily Tar Heel lawsuit is the public’s best hope to restore its right to know.”