Articles
Circumvention by Delegation? An Analysis of North Carolina's Open Meetings Law and the Byrd Loophole
March 10, 2009
Campbell Law Review
Spring, 2009
31 Campbell L. Rev. 535
NAME: Samuel David Fleder
SUMMARY:
… Justice Exum’s dissent in Byrd argued that the majority’s failure to hold
the faculty of a state-funded academic institution within the ambit of the
North Carolina Open Meetings Law created a legal “backdoor,” whereby any
state-sponsored agency or other governing body could potentially circumvent the
clear intent of the law. … In light of the Byrd precedent and the various
amendments to the law over the past thirty years, this comment will address two
concerns: first, whether the North Carolina Supreme Court’s logic in deciding
Byrd was sound, especially in view of the seemingly clear intent of North
Carolina’s Open Meetings Law; and second, given the present-day version of North
Carolina’s Open Meetings Law, whether state agencies and other governmental
bodies may still operate through the purported Byrd loophole. … It has been
argued, however, that the proclivity of reviewing courts to simply enjoin the
public body from any further non-compliance with the requirements of the Open
Meetings Law may have an ultimately detrimental effect on the statutory rights
of an agency to hold a closed session when necessary and as allowed by the law’s
exceptions and exemptions: A board under a flat injunction not to violate the
statute is likely to be very careful in any gray area of the statute, preferring
to meet in public rather than run the risk of being held in contempt. … The
court initially discussed the delegated-power hierarchy of the University of
North Carolina system, wherein the court found that the General Assembly had in
fact vested the Board of Governors of the University of North Carolina with “the
general determination, control, supervision, management and governance of all
the affairs of all of the … constituent institutions of the University.” …
In essence, by excluding the official meetings of “components” of otherwise
publicly accountable bodies through its two-prong test, the Byrd majority
allowed bodies subject to the Open Meetings Law to delegate their more sensitive
and questionable functions to subordinate bodies, thereby removing any
discussion or deliberation of such actions from the public purview.
TEXT:
[*535] Introduction
On February 27, 1976, six elected Student Bar Association representatives at the
University of North Carolina at Chapel Hill School of Law requested permission
to attend an official meeting of the law school faculty. n1 Dean Robert Byrd
summarily denied the students’ petition, declaring the meeting to be a closed
“private faculty session.” n2 Not to be deterred by an uncooperative
administration, and apparently eager to test their budding legal acumen, the
students cited what they claimed to be their statutorily protected right to
attend any meeting of a “public body” of a state institution pursuant to the
North Carolina Open Meetings Law and promptly filed suit against their own law
school. n3
One and a half years of litigation later, the students, who had thus far
successfully petitioned for a permanent injunction to be entered against Dean
Byrd and the law school and defended a challenge at the North Carolina Court of
Appeals, saw their case holding reversed without remand by the North Carolina
Supreme Court. n4 The law school’s surprise victory is especially notable due
to the supreme court’s narrow interpretation of North Carolina’s seemingly broad
Open Meetings Law and the court’s requirement that a subsidiary of a public body
need only constitute a “governing and governmental” n5 entity in order to fall
within the law’s purview. The fact that the law school ultimately prevailed at
the supreme court in Student Bar Ass’n v. Byrd, even though it had failed to
file any sort of an answer or other responsive pleading in the matter prior to
the court’s review, is also highly intriguing. n6
[*536] Justice Exum’s dissent in Byrd argued that the majority’s failure to hold
the faculty of a state-funded academic institution within the ambit of the
North Carolina Open Meetings Law created a legal “backdoor,” whereby any
state-sponsored agency or other governing body could potentially circumvent the
clear intent of the law. n7 Although a public body would normally be required to
comport with the Open Meetings statutes and allow the public to attend its
meetings and observe its deliberations and voting record, the precedent set by
Byrd allowed any delegated subsidiary parts of such bodies to operate as though
exempt from the law. This potentially meant that any discussion, deliberations,
or voting taking place at the subordinate level would be effectively cordoned
off from public view and scrutiny, thus allowing public agencies to eviscerate
the very purpose of the law. n8
North Carolina’s Open Meetings Law has been changed substantially since the
supreme court’s 1977 decision in Byrd, n9 and yet Byrd still appears to remain
good law in North Carolina. n10 In light of the Byrd precedent and the various
amendments to the law over the past thirty years, this comment will address two
concerns: first, whether the North Carolina Supreme Court’s logic in deciding
Byrd was sound, especially in view of the seemingly clear intent of North
Carolina’s Open Meetings Law; and second, given the present-day version of North
Carolina’s Open Meetings Law, whether state agencies and other governmental
bodies may still operate through the purported Byrd loophole. Considered within
the context of the relevant statutory and case law of the time, the Byrd
decision was tenuous at best – decided without full consideration of the effect
the holding would have in creating a backdoor to the Open Meetings Law. This
conclusion is reinforced by the fact that the modern version of the law has
wisely abrogated the Byrd loophole, which will likely result in the overturning
of the decision should a direct challenge ever come before a North Carolina
court.
I. North Carolina’s Open Meetings Law (1977 and 2007)
A. General Principles
In 1977, Article 33B of the North Carolina General Statutes concisely explained
the public policy rationale for having an “open meetings” [*537] law: “Whereas
… bodies which administer the legislative and executive functions of this
State and its political subdivisions exist solely to conduct the peoples’
business, it is the public policy of this State that the hearings, deliberations
and actions of said bodies be conducted openly.” n11 Recognizing a “deeply
entrenched sense of entitlement on the part of the state’s citizens,” the North
Carolina General Assembly adopted a series of statutes in 1971 that sought to
ensure that all governmental organizations and their respective subdivisions
were held publicly accountable at all times, with certain circumstances
excepted. n12 No official legislative history exists. n13 Nonetheless, five
central themes of importance can be determined in analyzing Article 33B: (1)
what is considered a “governing and governmental body of the State”; (2)
enumerated, specific statutory exceptions to the openness requirements; (3)
allowances for a body subject to the law to hold a “closed session”; (4) what
(if any) public notice requirements existed; and (5) what remedies were
available to the complaining citizenry that proved a governmental body was in
violation of the law. n14
A brief statutory analysis of the 2007 version of North Carolina’s Open Meetings
Law, and particularly the amendments since Byrd, will prove an instructive
precursor to an examination of the Byrd decision and its contemporary
implications.
B. Applicability of the Open Meetings Law
North Carolina’s Open Meetings Law originally applied to all official meetings
of “governing and governmental bodies of this State and its political
subdivisions … which have or claim authority to conduct hearings, deliberate
or act as bodies politic.” n15 This definition, though deemed “very broad
coverage” by legal scholars shortly after its inception, n16 was construed so
narrowly in practice that the legislature repealed the original law in 1979. n17
The law was reconstituted with a more robust (and twice as long) scope, making
it applicable to
[*538]
any elected or appointed authority, board, commission, committee, council, or
other body of the State … [including specifically] constituent institutions of
The University of North Carolina, or other political subdivisions … that (i)
is composed of two or more members and (ii) exercises or is authorized to
exercise a legislative, policy-making, quasi-judicial, administrative, or
advisory function. n18
The first piece of the new two-part definition is reflective of the federal
version of the law, known as the Government in the Sunshine Act, which also uses
the “two or more … members” language and is inclusive of agencies where a majority
of the individual members are appointed by the President with senatorial advice
and consent. n19 It is apparent that the North Carolina General Assembly
intended, pursuant to the amended version of the law, for a court or other
interpreting body to err on the side of openness and inclusivity in determining
which bodies are subject to the law’s reach. An analogous intent is reflected to
some extent by the Supreme Court of New Mexico’s decision in Raton Public
Service Co. v. Hobbes:
Whether governing bodies of local subdivisions are reasonably included within
the term “all governing bodies of the state[]” … [poses] no difficulty in
concluding that they may be, if we consider that “governing bodies of the state”
means “governing bodies within the state,” rather than “state governing bodies.”
Government bodies of local governmental subdivisions within the state are
governing bodies of the state in the broadest sense. n20
This “within the state”-”state governing” dichotomy, interpreted by the North
Carolina Supreme Court in the opposite direction, would prove pivotal in the
Byrd decision. n21
The meaning of “official meeting” has remained fundamentally unchanged since the
North Carolina law’s 1971 inception, clearly pertaining to a “meeting,
assembly, or gathering together … for the purpose of conducting hearings, participating
in deliberations or voting upon or otherwise transacting the public business.”
n22 The only significant change in the 2007 version of the law was the inclusion
of language pertaining to telephonic and electronic forms of “meetings.” n23
[*539] On its face, the primary purpose of this statute appears to be the
facilitation of public accountability for a body politic’s voting record. It is
important to recognize, however, that the legislature intends its inclusion of
the word “deliberations” to ensure that the public is informed not only of how
votes are cast, but also as to the rationale underlying such votes, and to
“educate the public concerning the factual basis of and the issues involved in
any public question.” n24
C. Exceptions
Certain governmental bodies have been explicitly excluded from the purview of
the Open Meetings Law. Some of these bodies were excepted under both the 1977
and modern-day versions of the law, including the General Court of Justice,
grand and petit juries, and the Judicial Standards Commission. n25 Others have
seen their exception status revoked by subsequent amendments. For example, the
1977 law excepted “all State agencies … exercising quasi-judicial functions
during any meeting or session held solely for the purpose of making a decision
in an adjudicatory action or proceeding.” n26 As noted above, however, the
current version of the law’s definition of “public body” includes the
“quasi-judicial” phrasing, n27 which denotes a narrowing in statutory thinking
on this issue: the exception under 2007 law extends only to “quasi-judicial”
activity by a “public body subject to the State Budget Act” when holding an
adjudicatory meeting. n28 Agencies performing actions relating to the hiring,
investigation, or firing of state employees are also exempted, presumably due to
a combination of privacy concerns for the employee at issue and the necessity of
secrecy for effective investigative proceedings to occur at the agency level.
n29
One other substantial change between the 1977 and 2007 laws is the removal of
language which provided that “any committee or subcommittee of the General
Assembly has the inherent right to hold an executive [closed] session when it
determines that it is absolutely necessary … to prevent personal embarrassment
or when it is in the best interest of the State” to do so. n30 Generally, modern
American courts have followed the lead of landmark federal cases, such as
Chevron [*540] U.S.A., Inc. v. Natural Resources Defense Council, Inc., n31
with regard to the judicial presumption of substantial deference to agency
determinations in their respective areas of expertise (but such deference is
only appropriate where the authorizing statute is “specific” and “unambiguous”
in its empowerment of the agency to make such judgment calls, the standard
announced in Chevron). n32 The expectation of the North Carolina legislature
that any and all governmental bodies should retain the power to determine, of
their own accord, what is in the “best interest of the State” and when they may
choose to except themselves from the law to avoid their own potential
embarrassment was both overly general and ostensibly unreasonable, and therefore
patently in conflict with the Chevron precedent. The removal of this provision
from the modern version of the law is thus unsurprising.
D. Closed Sessions
While the ideal of public accountability is a noble one, even the most publicly
accountable governmental bodies need to call for non-public, closed – or,
“executive” – sessions from time to time. Cognizant of these needs, the North
Carolina legislature has maintained a series of scenario-specific exceptions to
the Open Meetings Law that are fundamentally different from the blanket
exemptions provided to particular agencies and bodies in the “Exceptions”
provisions noted above. Included in this category of specific exceptions are
matters dealing with any records that can be construed as privileged and
confidential and matters that fall under any category of legally protected
privilege (such as attorney-client or doctor-patient). n33
In many instances, a public body is required by statute to have an attorney
present at its official meetings, while under other circumstances a body may
choose when and if it will retain the services of an attorney. In such cases,
the statute circumvents the otherwise apparent [*541] ethical conflict an
advising attorney would face between keeping his client’s information
confidential and maintaining openness on the public record so as to comply with
the Open Meetings Law. In a similar vein, a body may go into a closed session
while it considers the potential hiring, firing, or investigation of a state
employee, as well as times during which a body needs to assume actions of
negotiation and strategy with regard to public services, the alienation of
publicly owned real property and other assets, and the like. n34 The only notable
change from the 1977 law to the 2007 version is the altered language of the last
section, which in the 1977 version allowed for closed sessions when necessary to
deal with “riots or [imminent] public disorders.” n35 Presently, the statute
creates specific exceptions for school board planning sessions relating to
“incidents of school violence” and other government bodies’ “plans to protect
public safety as it relates to existing or potential terrorist activity.” n36
Perhaps the most significant change to the closed-session allowances statute was
procedural in nature. The 1977 law included no language stipulating how a
government body needed to go about calling for a closed session; presumably,
the decision to enter into a closed session was entirely at the discretion of
the body’s members. In outright contradiction to the Open Meetings Law’s
purposes of openness and accountability, the number of “secret” meetings that
regularly occurred under the law’s original version is unknown, since there was
no requirement for keeping a formal record of “executive” proceedings.
This apparent omission was corrected over the next thirty years in a number of
amendments. The 2007 version of the law mandates that a body politic “may hold a
closed session only upon a motion duly made and adopted at an open meeting.” n37
The body must cite, on the record, the “permissible purposes” for which the
closed session is being called, and, where applicable, the particular law making
the information to be discussed privileged and confidential. n38 In the event
the public body is seeking legal advice on a lawsuit, it must first name the
pertinent parties to the action at an open meeting. n39 Here again exists
evidence of the North Carolina legislature amending its Open Meetings Law in
favor of increased accountability with more rigid procedural requirements and
mandatory public disclosure in situations [*542] where an agency seeks to
temporarily exempt itself from otherwise requisite public openness. n40
E. Notice Requirements
Although requiring the provision of adequate notice to the public seems endemic
to any open meetings statute – the physical presence of the public being an
essential prerequisite to keeping the public informed – the original version of
the North Carolina Open Meetings Law plainly failed to include any such
stipulation. n41 While the law explicitly prohibited “closed meetings,” its
failure to include a notice requirement appeared to allow for “secret meetings”
to occur; a meeting could be called at an irregular time or place, and while the
public would not be formally excluded, such an act would essentially equate to
an “executive session.” n42 It was not until 1976 that the North Carolina Court
of Appeals finally announced the implied existence of a notice requirement in
its decision in News & Observer Publishing Co. v. Interim Board of Education.
n43 Holding as insufficient the notice provided to a newspaper’s corporate
office only one hour prior to the commencement of a special meeting of the
Interim Board of Education regarding the selection of a new board member, the
North Carolina Court of Appeals determined that the Open Meetings Law “would be
meaningless unless the public had notice of meetings of the bodies covered by
it.” n44 The court first enunciated a “reasonable notice” standard for
governmental bodies subject to the law, and then proceeded to narrow its own
definition, declaring that “one-hour notice given by telephone … [is]
insufficient, [but] 48 hours’ notice for all meetings is unreasonably long.” n45
The North Carolina legislature eventually codified a notice requirement in 1979.
n46 The statute expands upon the News & Observer Publishing Co. holding,
requiring “at least 48 hours notice” by bulletin board posting at the meeting’s
location, as well as by telephone or mail to any person who has filed to receive
such notice for [*543] any non-emergency meeting that is held at an irregular
time or place. n47 Emergency meetings, which are only those “called because of
generally unexpected circumstances that require immediate consideration,”
require public notice to be “given immediately” after the notification of the
board’s own members. n48 Where public meetings are held at regularly scheduled
times and locations, it is compulsory for the public body to keep a copy of its
meeting schedule with the Secretary of State (for state-level agencies) or an
equivalent official at the county and local levels. n49
F. Remedies for Non-Compliance
The 1977 version of North Carolina’s Open Meetings Law included one brief
section authorizing citizens to bring complaints against non-compliant
government bodies, giving “any citizen denied access to a meeting” the “right to
compel compliance … [through the seeking of a] restraining order,
injunction[,] or other appropriate relief.” n50 Notably, the legislature did
not provide for any judicial nullification of actions already taken by a board
violating the law. Scholars at the time argued that the withholding of such a
remedial tool from a reviewing court’s power would do little to curb the actual
effects of an agency in breach of the law, even if an individual official could
be severely fined or even temporarily incarcerated. n51 It was not until 1985
that the remedial provisions of the law were more extensively fleshed out,
thanks in part to lobbying efforts by the North Carolina Press Association to
add a “voidability remedy” to the statutes. n52
The Open Meetings Law now contains three separate sections dealing with
remedies: (1) injunctive relief (probably the most commonly issued corrective
measure); n53 (2) declaratory judgments rendering particular decisions or
actions null and void (and abrogating any need for a plaintiff to show special
damages different from the public [*544] at large, a deviation from the usual
tort standard); n54 and (3) the assessment and award of attorneys’ fees at a
court’s discretion (including the possible assessment of such fees against one
or more of a board’s individual members). n55 It has been argued, however, that
the proclivity of reviewing courts to simply enjoin the public body from any
further non-compliance with the requirements of the Open Meetings Law may have
an ultimately detrimental effect on the statutory rights of an agency to hold a
closed session when necessary and as allowed by the law’s exceptions and
exemptions:
A board under a flat injunction not to violate the statute is likely to be very
careful in any gray area of the statute, preferring to meet in public rather
than run the risk of being held in contempt. As a result, some of the policy
considerations recognized by the inclusion of the exceptions in the statute
might be vitiated. More appropriate injunctive relief would be to forbid the
specific conduct that led to the lawsuit. n56
With the preceeding framework established and the significant distinctions
between the 1977 and 2007 versions of the North Carolina Open Meetings Law
identified, an informed exploration of the Student Bar Ass’n v. Byrd n57
decision, rationale, and consequent ramifications can now be undertaken.
II. The Byrd Precedent and Its Practical Effect
A. The North Carolina Court of Appeals Holding
The North Carolina Court of Appeals opinion in Byrd is not a garrulous one. The
court first commented that the defendants in the case had lost at the trial
level on essentially procedural grounds – at no time prior to the court’s ruling
did counsel for the defendants file an answer to the initial complaint or assert
any other exception to the trial court’s preliminary findings of fact. n58
Citing Rule 8 of the North Carolina Rules of Civil Procedure, the court reminded
the defendants that [*545] “averments in a pleading to which a responsive
pleading is required, other than those as to the amount of damages, are [deemed]
admitted when not denied,” and as the defendants had not entered any such
pleading, the facts as presented by the plaintiffs were deemed truthful as
alleged. n59 With no factual issues in controversy, the court then proceeded to
address the two basic legal issues presented: whether North Carolina’s Open
Meetings Law as it existed in 1977 should be generally construed in a broad or
narrow fashion; and consequently, whether the law school faculty at the
University of North Carolina at Chapel Hill fell within the scope of the Open
Meetings Law at that time. n60
The court began its concluding paragraphs by stating,
The act we consider is broad in its scope… . The General Assembly …
attempted to draft … [section] 143-318.2 [of the North Carolina General
Statutes] in such terms that it would cover (with a few specific exceptions)
every meeting where the business of the people may be conducted. We note the
broad language of that section and compare it with the narrow list of agencies
exempted from the act by [section] 143-318.4. n61
The court of appeals, like the trial court below it, understood that North
Carolina’s Open Meetings Law was intended by the state legislature to be
construed expansively, with an interpreting court expected to express a
preference towards the application of the law to more, and not fewer,
governmental agencies, state bodies politic, and their respective delegations
and subcommittee counterparts. n62
The court then turned to the question of whether or not the law school faculty
was subject to the law in the context of this broad interpretation. n63 To
decide this issue, the court first addressed the organic statute establishing
the University of North Carolina. n64 Pursuant to Article 1 of Chapter 116, the
state legislature delegated “‘the general determination, control, supervision,
management and governance’ of [*546] all of the affairs … of the University”
to a Board of Governors. n65 The Board of Governors, in turn, “is given the
authority to delegate any part of its authority over the affairs of any
institution to the Board of Trustees of a constituent institution or, through
the President of the University, to the Chancellors of the institutions.” n66 A
Chancellor functions as the “administrative head of the institution and
exercises complete executive authority therein and is subject to the direction
of the President … [and] is responsible for carrying out policies of the
Board of Governors and Board of Trustees … [and keeping them] fully informed
concerning the operation of the institution.” n67
In light of the statutory language, the North Carolina Court of Appeals
determined that “whether the Board [of Governors] has delegated any of its
governing powers in a particular instance, is a question of fact. Defendants, by
their failure to answer … the complaint appear[] to admit that the Law School
Faculty does, in fact, govern the Law School.” n68 The court listed at length
the various functions performed by the defendant-faculty that supported its
conclusion, including the faculty’s retention of final decision-making control
over the size of each enrolling class, changes to the curriculum, and rules
relating to re-admissions, none of which were ever subject to review or
ratification by any higher University of North Carolina authority (which might
otherwise relegate the faculty to an advisory, as opposed to governing, body in
the eyes of the court). n69 These facts, combined with the ascertained
legislative intent of the Open Meetings Law, led the North Carolina Court of
Appeals to conclude that the law school faculty was “delegated the authority not
only to deliberate on but to conduct the ‘people’s business’ related to the
operation of their tax supported Law School,” thus putting the defendants
squarely within the ambit of the law and requiring them to admit any and all
members of the public to any official meeting held by the faculty. n70 Further,
the court stated,
The General Assembly has established the policy that the people’s business shall
be conducted in public. That policy would be frustrated if the public is
admitted only at the highest decision-making level and is excluded at the level
where the real deliberation, debate and decision-making process takes place
before a subordinate body. n71
[*547]
The North Carolina Court of Appeals’ apparent concern was the creation of a
legal “loophole” through which a public body might circumvent the Open Meetings
Law by delegating its power to make sensitive decisions to its own subsidiary
component. n72 It was this particular portion of the appellate court’s decision
that would provoke the ire of the North Carolina Supreme Court nine months
later, leading to the reversal of the lower courts and, it would seem, the
judicial allowance of these loopholes.
B. The North Carolina Supreme Court’s Reversal – a Loophole Created
The North Carolina Supreme Court reversed the opinion below, ostensibly basing
its decision on the same legal issues considered by the court of appeals. The
court first addressed the question of whether the Open Meetings Law was
intended by the General Assembly to be interpreted as a broad or narrow set of
statutes. n73 Then, in light of the decision rendered on the first question, the
court addressed the fundamental dispute – whether the law school faculty fell
within the purview of the law. n74
[*548] The North Carolina Supreme Court’s interpretation regarding which
political bodies were subject to the 1977 Open Meetings Law represented a
fundamental about-face from the manner in which the same statutory text was
construed by the court of appeals below. In determining the meaning of the terms
“governing and governmental” and “body politic,” the majority purported to
discern an entirely different legislative intent. The court gave great weight to
the General Assembly’s use of grammar, noting that “the statute uses the term
‘governing’ and the term ‘governmental’ in the conjunctive, not the disjunctive
relation,” n75 which was taken to mean that the terms were not synonymous, and
that a governmental agency essentially had to meet two different definitions in
order to be held subject to the law. n76 In a similarly narrow construction of
the definition of “body politic,” the court required that for an agency to be
subject to the Open Meetings Law, it had to “exercise powers which pertain
exclusively to [a] government, as distinguished from those possessed also by a
private individual or … association.” n77 As the court summarized, the
language of this statute “is designed to be restrictive, rather than broadening,
and shows an intent of the legislature to limit the Open Meetings Law to
meetings of ‘governing and governmental bodies’ strictly construed.” n78 Thus,
the supreme court forged a clear deviation from the court of appeals’ notions of
the law’s “broad language,” n79 opting instead for a much narrower holding that
“the only meetings required by [section] 143-318.2 [of the North Carolina
General Statutes] to be open to the public are [the] official meetings” of a
restricted category of political bodies. n80
[*549] The majority was argumentative in justifying its asserted position on the
second question – whether a law school faculty of a state university was indeed
subject to the Open Meetings Law – from the outset of its analysis. Before ever
reaching the merits of either party’s argument, the court proclaimed that “the
statute affords no basis for distinction between the faculty of the School of
Law, the faculty of the English Department, the Athletic Department or the
football coaching staff,” and went on to suggest that it would “create
substantial consternation … if a rival school’s coach appeared and demanded
admission to a conference of the University’s football coaching staff called to
consider strategy.” n81 How could the appellate judiciary possibly hold that
the state law school’s faculty meeting constituted “the people’s business” if
it meant opening up the university football team’s playbooks to any politically
savvy rival institution? n82 The court apparently took such concerns very
seriously, noting in its concluding sentence its “failure to find” any exempting
language in the exceptions section of the law that would provide “any ground for
the denial of such a demand.” n8
[*550] Notwithstanding its athletic apprehensions, the majority did reach the
legal issue in controversy, and pursuant to its statutory analysis of the Open
Meetings Law, announced a two-part test, both prongs of which had to be met for
a “component part” of a state body to fall within the jurisdiction of the Open
Meetings Law. n84 The court held that the body must “(1) be a component part of
a ‘governing and governmental’ body of the State … and (2) the [component part
in question] must ‘have or claim authority to conduct hearings, deliberate or
act’ as a ‘body politic.’” n85 As the entire text of the test was taken directly
from the relevant statute of the Open Meetings Law of the time, n86 it appeared
that the only analytic aspect of the test left to the courts would be the
particular definitions of the terms used in the test and how they were applied
to the facts at bar. n87
[*551] The court seemed to have difficulty in arriving at a clear decision as to
whether the law school faculty of the University of North Carolina could be
considered a “component part” of a state body, pursuant to the first prong of
the test. n88 In the sentence prior to announcing the test, the court stated,
“Obviously, the faculty of the School of Law is a ‘component part’ of the
University of North Carolina at Chapel Hill. This alone does not bring its
meetings within the scope of the [law] … .” n89 The court initially discussed
the delegated-power hierarchy of the University of North Carolina system,
wherein the court found that the General Assembly had in fact vested the Board
of Governors of the University of North Carolina with “the general
determination, control, supervision, management and governance of all the
affairs of all of the … constituent institutions of the University.” n90
Thereafter, the court decided that being a “component part” of a state
institution was not analogous to being a “component part” of the governing body
of a state institution, and thus the “faculty … is not a ‘subsidiary or
component part’ of the Board of Governors, but is simply a group of employees of
the Board.” n91
The court’s analysis of the test’s second prong turned on the chosen definitions
of the test’s key phrases. After several paragraphs’ consideration of various
scholarly definitions, the court narrowly defined the term “body politic” as “a
body acting as a government; i.e., exercising powers which pertain exclusively
to a government.” n92 The phrase “governmental body” was defined as having “at
least some of the powers of government … [and] the attributes of sovereignty.
They are not possessed by individuals and private associations, as a matter of
natural right … .” n93 These were deemed to include “the power to tax, to
appropriate public money, to adjudicate controversies, to maintain a police
force,” and related matters. n94 The Byrd majority was thus able to exclude the
law school faculty from the Open Meetings Law vis-a-vis the University’s
supervising body:
[*552]
The Board of Governors … operates the educational institutions comprising the
University and has the power to do all acts incidental thereto, but so does the
“governing body” of a privately endowed and operated university. The Board of
Governors of the University of North Carolina has no governmental powers; i.e.,
no powers peculiar to the sovereign. n95
The court’s definition of the term “governing” was the most central to its
ultimate determination that the plaintiff-law students had failed to
sufficiently establish that the law school faculty satisfied the two-prong test,
which would have subjected it to the Open Meetings Law. The court held the
phrase to include only those political bodies that have the ultimate power to determine [their] policies and control [their]
activities. Such body may delegate … authority to make, initially, such
decisions, but such employee or group of employees is not the “governing body”
so long as his or its determinations are subject to review and reversal by the
higher authority, by whose permission such determination is made. n96
Thus the Byrd loophole was created. The court’s intention in so holding was
understandable and rational. Executive power is accompanied by responsibility
for the acts executed, and those who are vested with such power have the duty to
review, parse, amend, and approve (and to be ultimately accountable for) any and
all work product of their subordinate components. Thus, the law would not
understand one of these subsidiary parts as fulfilling a standard description of
a “governing” body. In so holding, however, the majority failed to heed its own
authority, as stated earlier in its opinion – “a court may legitimately consider
consequences to be anticipated from the respective possible constructions of a
statute.” n97
The statute at issue in Byrd was the Open Meetings Law – a law with an explicit
purpose of opening up to public accountability both the actions taken by a
political body at its official meetings and also why those actions were taken.
In essence, by excluding the official meetings of “components” of otherwise
publicly accountable bodies through its two-prong test, the Byrd majority
allowed bodies subject to the Open Meetings Law to delegate their more sensitive
and questionable functions to subordinate bodies, thereby removing any
discussion or deliberation of such actions from the public purview. So
delegated, these subcommittees and component parts at worst could then handle
[*553] any unpleasantries, potential embarrassments, or plain illegalities
outside the boundaries of public scrutiny; determine a course of action most
advantageous to the delegating body (which may or may not be in the best
interests of the general public); and recommend the course of action up to the
official “governing body,” which could then sign such proposals into acting
policy without the burden of public commentary and potential discord. n98 As
Justice Exum warned in his dissent to Byrd:
One purpose of the [Open Meetings Law] was to prevent at non-public meetings the
crystallization of secret decisions to a point just short of ceremonial
acceptance. Rarely could there be any purpose to a nonpublic pre-meeting
conference except to conduct some part of the decisional process behind closed
doors. The statute should be construed so as to frustrate all evasive devices.
n99
The dissent’s concerns notwithstanding, the Byrd majority reversed the trial
court and the court of appeals, applying its two-prong test and determining that
the law school faculty at a state-sponsored university was not a “body politic,”
not a “governmental” or “governing” body, and thus was not subject to the North
Carolina Open Meetings Law. n100 In so doing, the Byrd loophole was created.
[*554]
III. Byrd Abrogated? Present-Day Open Meetings Law
Could a North Carolina political body within the purview of the 2007 version of
the Open Meetings Law successfully circumvent the law by delegating certain of
its powers and responsibilities to a subdivision or component part? The state
supreme court’s opinion in Byrd remains an unchallenged precedent and has been
cited by federal and state courts both in and outside of North Carolina. n101 In
terms of how North Carolina’s Open Meetings Law is to be generally construed by
in-state courts, the 2007 version of the “Public Policy” section of the law
implies that the General Assembly has re-asserted its intent that the statute be
broadly, as opposed to narrowly, interpreted. The inclusion of all “public
bodies that administer the legislative, policy-making, quasi-judicial,
administrative, and advisory functions” is certainly more en-compassing than the
“governing and governmental” language that was so heavily stressed by the Byrd
majority. n102 However, the argument could be made (and indeed, it was – by both
the trial court and the North Carolina Court of Appeals in Byrd) that the 1977
Open Meetings Law was similarly intended to be broadly construed; yet the Byrd
loophole still resulted. Are there any measures incorporated into the
present-day version of North Carolina law that function to close these Byrd
loopholes? The answer is unambiguously in the affirmative.
By defining in the statutory text each of the key terms used in the 2007 Open
Meetings Law, the legislature sought to preclude future courts from following
Byrd and claiming any authority to construct their own definitional
determinations in interpreting the Open Meetings Law. The broad definition of
“public body” requires only that it be comprised of “two or more members” who
are exercising (or are authorized to exercise) “legislative, policy-making,
quasi-judicial, administrative, or advisory functions.” n103 Such bodies are
considered to comprise not only the obvious elected and appointed authorities,
but all other “boards, commissions, committees, councils, or other bodies of the
State.” n104 “Official meeting” is inclusive of nearly any “meeting, assembly,
or gathering together … for the purpose of conducting hearings, participating
in deliberations, or voting [*555] upon or otherwise transacting the public
business,” n105 which presumably includes any of the “pre-meeting conferences”
referred to by the Byrd dissent. n106
Further, even when closed sessions may be held by a public body via the
enumerated exceptions under the law, a “general account” of the body’s goings-on
in closed session must be recorded and maintained so that any future
allegations of non-compliance may be subject to thorough investigation. n107
Thus, although it technically remains unchallenged judicial precedent in North
Carolina, the loophole created by the majority decision in Byrd has been
sufficiently closed by the last three decades of effort by the North Carolina
General Assembly. Nonetheless, history dictates that there will always be those
who seek to circumvent publicly beneficial laws that promote relatively
unfettered accountability, and only a watchful public and a mindful judiciary
can ensure that North Carolina’s Open Meetings Law will continue to serve its
purposes in the foreseeable future.
Conclusion
It certainly appears that the University of North Carolina law students in
Student Bar Ass’n v. Byrd would have a greatly improved chance at
jurisprudential success under the modern version of North Carolina’s Open
Meetings Law. Nonetheless, as the North Carolina Supreme Court’s opinion in Byrd
awaits a facial challenge within the state, it would behoove the wary
practitioner who files an Open Meetings Law-based complaint in the state to
consider both the majority and dissenting opinions in Byrd to ensure the
thoroughness of a legal argument. For complaints regarding public authorities
that clearly fall within the “body politic” and “governing and governmental”
definitions embraced by the supreme court in Byrd, such an exercise should be
relatively straightforward, but for those public bodies that exist in the gray
area between the narrow two-prong test asserted in Byrd and those broader
definitions reiterated in the current statutes, a degree of caution is
appropriate. The proper legal definition of an adversarial public body within
one’s legal pleadings is inherent to a successful Open Meetings Law claim in
North Carolina, and although the Byrd loophole has by all intents and purposes
been occluded by statute, its [*556] unchallenged existence may still bring some
of its curious legal reasoning to bear in present-day challenges.
Legal Topics:
For related research and practice materials, see the following legal topics:
Administrative LawGovernmental InformationPublic MeetingsSunshine
LegislationAdministrative LawSeparation of PowersExecutive
ControlsGovernmentsLegislationStatutory Remedies & Rights
FOOTNOTES:
n1. Parks H. Wilson, Jr., Recent Decisions, Sunshine Statute Requires that Law
School Faculty Meetings of a State University Be Open to Members of the General
Public, 8 Cumb. L. Rev. 539, 539 n.1 (1977).
n2. Id.
n3. N.C. Gen. Stat.§§143-318.1 to .7 (1978) (repealed 1979). See N.C. Gen. Stat.
§§143-318.9 to .18 (2007).
n4. Student Bar Ass’n v. Byrd (Byrd I), 232 S.E.2d 855 (N.C. Ct. App. 1977);
Student Bar Ass’n v. Byrd (Byrd II), 239 S.E.2d 415 (N.C. 1977).
n5. Byrd II, 239 S.E.2d at 418.
n6. Id. at 427.
n7. Id. at 428.
n8.3 Id.
n9. Compare N.C. Gen. Stat.§§143-318.1 to .7 (1978) (repealed 1979), with N.C.
Gen. Stat.§§143-318.9 to .18 (2007).
n10. See infra note 86.
n11. N.C. Gen. Stat. § 143-318.1 (1978) (repealed 1979).
n12. Reporters Comm. for Freedom of the Press, Open Government Guide NC,
http://www.rcfp.org/ogg/item.php?t=short&state=NC&level=F1 (last visited Feb.
25, 2009).
n13. Id.
n14. N.C. Gen. Stat.§§143-318.1 to .7 (1978) (repealed 1979).
n15. Id. § 143-318.1.
n16. David M. Lawrence, Interpreting North Carolina’s Open-Meetings Law, 54 N.C.
L. Rev. 777, 781 (1975). An interpreting court could determine an agency to be
subject to the law in three different ways: the conducting of hearings,
deliberations, or any other action as a “body politic.”
n17. See Student Bar Ass’n v. Byrd (Byrd II), 239 S.E.2d 415 (N.C. 1977).
n18. N.C. Gen. Stat. § 143-318.10 (2007).
n19. 5 U.S.C. § 552b(a)(1) (2007).
n20. Raton Pub. Serv. Co. v. Hobbes, 417 P.2d 32, 36 (N.M. 1966).
n21. See infra notes 92-96 and accompanying text.
n22. N.C. Gen. Stat. § 143-318.2 (1978) (repealed 1979); N.C. Gen. Stat. §
143-318.10(d) (2007).
n23. The increased frequency of electronic meetings, and how to allow the public
to attend and observe such occurrences, necessitated the passage of additional
open-meetings statutes. See N.C. Gen. Stat. § 143-318.13 (2007).
n24. Lawrence, supra note 16, at 784.
n25. N.C. Gen. Stat. § 143-318.4 (1978) (repealed 1979); N.C. Gen. Stat. §
143-318.18 (2007).
n26. N.C. Gen. Stat. § 143-318.4(8) (1978) (repealed 1979)
n27. N.C. Gen. Stat. § 143-318.10(b) (2007).
n28. Id. § 143-318.18(7).
n29. Id. § 143-318.11(a)(6).
n30. N.C. Gen. Stat. § 143-318.4(10) (1978) (repealed 1979) (emphasis added).
n31. 467 U.S. 837 (1984).
n32. Id. at 842-43 (“When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court determines
Congress has not directly addressed the precise question at issue, the court
does not simply impose its own construction on the statute, as would be
necessary in the absence of administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permissible
construction of the statute.”).
n33. N.C. Gen. Stat. § 143-318.3 (1978) (repealed 1979); N.C. Gen. Stat. §
143-318.11 (2007).
n34. See supra note 33.
n35. N.C. Gen. Stat. § 143-318.3(c) (1978) (repealed 1979).
n36. N.C. Gen. Stat. § 143-318.11(a)(8)-(9) (2007).
n37. Id. § 143-318.11(c).
n38. Id.
n39. Id.
n40. For a further discussion of suggested legislative restraints upon an
agency’s exemption procedures from open meetings laws, see Joseph W. Little &
Thomas Tompkins, Open Government Laws: An Insider’s View, 53 N.C. L. Rev. 452
(1974).
n41. Lawrence, supra note 16, at 786.
n42. Id.
n43. 223 S.E.2d 580 (N.C. Ct. App. 1976).
n44. Id. at 588.
n45. Id. (referring to the forty-eight hour notice requirement established in
Chapter 153A of the North Carolina General Statutes, which covers regular and
special meetings of boards of county commissioners). See N.C. Gen. Stat. §
153A-40 (1976).
n46. N.C. Gen. Stat. § 143-318.12 (2007).
n47. Id. § 143-318.12(b).
n48. Id. § 143-318.12(b)(3).
n49. Id. § 143-318.12(a).
n50. N.C. Gen. Stat. § 143-318.6 (1978) (repealed 1979).
n51. Little & Tompkins, supra note 40, at 479 (“But merely enjoining or even
jailing public officials who violate the law does not correct the harm that may
already be done by decisions taken in secret. Consequently, courts should be
given authority to invalidate tainted actions upon petition of citizens.
Invalidation should be discretionary, however, within the constraints of what is
in the best interest of the public at the time the court makes its ruling.”).
n52. Reporters Comm. for Freedom of the Press, supra note 12.
n53. N.C. Gen. Stat. § 143-318.16 (2007); Lawrence, supra note 16, at 816-17.
n54. N.C. Gen. Stat. § 143-318.16A (2007). It should be noted that lawsuits
seeking such declaratory relief are required to be filed within forty-five days
“following the initial disclosure of the action that the suit seeks to have
declared null and void.” Id. § 143-318.16A(b). The “initial disclosure” standard
is potentially ambiguous; while the statute states that where the challenged
action is contained in the board’s formal minutes, the action is deemed
disclosed on the “date the minutes are first available for public inspection,”
and the statute leaves it to a court’s discretion to determine the date of
“initial disclosure” for any challenged non-recorded action. Id.
n55. Id. § 143-318.16B.
n56. Lawrence, supra note 16, at 817 (footnote omitted).
n57. Student Bar Ass’n v. Byrd (Byrd I), 232 S.E.2d 855 (N.C. Ct. App. 1977).
n58. Id. at 856.
n59. Id.
n60. Id. at 856-57.
n61. Id. at 858.
n62. See id.
n63. Id. at 857.
n64. Id. See N.C. Gen. Stat.§§116-1 to -44.9 (1975); see also Boney Publishers,
Inc. v. Burlington City Council, 566 S.E.2d 701, 704 (N.C. Ct. App. 2002) (“The
courts must refer primarily to the language of the enactment itself. A statute
that ‘is free from ambiguity, explicit in terms and plain of meaning’ must be
enforced as written, without resort to judicial construction.” (quoting Clark v.
Sanger Clinic, P.A., 542 S.E.2d 668, 671-72 (N.C. Ct. App. 2001))).
n65. Byrd I, 232 S.E.2d at 857 (quoting N.C. Gen. Stat. § 116-11(2)).
n66. Id. (citing N.C. Gen. Stat. § 116-11(13)).
n67. Id. (citing N.C. Gen. Stat. § 116-34).
n68. Id.
n69. Id. at 857-58.
n70. Id. at 858-59.
n71. Id. at 859.
n72. Id.
n73. Student Bar Ass’n. v. Byrd (Byrd II), 239 S.E.2d 415, 418 (N.C. 1977).
n74. Any analysis of the North Carolina Supreme Court decision in Byrd II would
be incomplete without some mention of two lesser issues referenced by the court
in the majority holding: the question of notice, and the potential exempting
issue raised by the Family Educational Rights and Privacy Act of 1974, 20 U.S.C.
§ 1232g(b)(1) (2007).
Although the question of implied notice under the Open Meetings Law was
seemingly settled in News & Observer Publishing Co. v. Interim Board of
Education, 223 S.E.2d 580, 588-89 (N.C. Ct. App. 1976), where the court of
appeals formulated a “reasonable notice” requirement more than a year before
the supreme court decided Byrd II, see supra notes 43-45 and accompanying text,
the North Carolina Supreme Court in Byrd II made no reference whatsoever to the
News & Observer precedent. See Byrd II, 239 S.E.2d 415. The North Carolina
Supreme Court asserted in Byrd II that the Open Meetings Law “contains no
provision requiring any body to give to the public notice of any meeting,” and
the court presumed that the six-hour prior notice requirement applied under the
trial court’s injunction was “derived from a similar requirement in an order
entered by the Chancery Court of Tennessee on March 31, 1976 in” Fain v. Faculty
of the College of Law of the University of Tennessee, 552 S.W.2d 752 (Tenn. Ct.
App. 1977). Byrd II, 239 S.E.2d at 418. The North Carolina Supreme Court
rejected the trial court’s six-hour prior notice requirement, stating that
“there is no comparable provision in the Open Meetings Law of this State.” Id.
The Family Educational Rights and Privacy Act of 1974 (the FERPA) withheld
federal funds from allocation to any “educational agency or institution which
has a policy or practice of permitting the release of educational records … or
personally identifiable information contained therein other than directory
information.” 20 U.S.C. § 1232g(b)(1). Because the University of North Carolina
institutions, as state schools, were entitled to and did receive significant
monies through various federal programs, the defendants in Byrd II argued that
if law faculty meetings were required to be open to the public, the school would
inherently violate the FERPA, resulting in a major financial crisis. Byrd II,
239 S.E.2d at 419. Although the court held that the issue was not “determinative
of the present appeal,” it did remark,
The possibility that all further Federal financial aid to the entire University
of North Carolina, including all its component institutions, may be jeopardized
by an interpretation of the Open Meetings Law making it applicable to meetings
of the faculty of the School of Law is an additional reason for care in so
construing the Open Meetings Law.
Id.
n75. Byrd II, 239 S.E.2d at 420-21.
n76. See infra note 85 and accompanying text.
n77. Byrd II, 239 S.E.2d at 420-21.
n78. Id.
n79. Student Bar Ass’n v. Byrd (Byrd I), 232 S.E.2d 855 (N.C. Ct. App. 1977).
n80. Byrd II, 239 S.E.2d at 419 (emphasis added). The dissent in Byrd II echoed
the North Carolina Court of Appeals’ broad interpretation of the Open Meetings
Law as well. Id. at 424 (Exum, J., dissenting) (“The spirit of this law is that
a democracy works best when the electorate knows how it is working. This kind
of law should be liberally, not stintingly, construed… . Exceptions to this
law, on the other hand, should be narrowly construed.”).
n81. Id. at 418 (majority opinion).
n82. N.C. Gen. Stat. § 143-318.1 (1978) (repealed 1979). In responding to these
seeming public policy assertions, the dissent cited at length from a speech
delivered by the Chairman of the Board of Trustees of the University of North
Carolina at Chapel Hill on campus during University Day Exercises only two
months prior to the Byrd II decision:
The University belongs … to all of the people of North Carolina … .
… .
… We owe it to that public not only to acknowledge their ownership but to
include them in our governance, to inform them, to genuinely seek their
support, to be respectful of their views, to explain our own and to be as
solicitous of their understanding as we are of their tax dollars.
Byrd II, 239 S.E.2d at 424-25 (Exum, J., dissenting) (quoting Tom Lambeth,
Speech at University Day Exercises, University of North Carolina at Chapel Hill
(Oct. 12, 1977)).
n83. Byrd II, 239 S.E.2d at 419 (majority opinion). Apparently seeking further
validation for its football-minded concerns, the court reminded the parties,
with no supporting precedent cited, that “a court may legitimately consider
consequences to be anticipated from the respective possible constructions of a
statute in determining which of these the Legislature most probably had in mind
when it enacted the statute.” Id. at 418.
The dissent, however, argued that it had managed to find the exempting language
overlooked by the majority in section 143-318.3(b) of the North Carolina General
Statutes:
[Section] 143-318.3(b) provides: “Nor shall this Article be construed to prevent
any board of education or governing body of any public educational institution,
or any committee or officer thereof, from hearing, considering and deciding
disciplinary cases involving students in closed session.” Why insert this
limitation unless such bodies were otherwise covered by the Law’s general
operative provisions?
Byrd II, 239 S.E.2d at 426 (Exum, J., dissenting) (quoting N.C. Gen. Stat. §
143-318.3(b) (1978) (repealed 1979)).
n84. Byrd II, 239 S.E.2d at 419 (majority opinion).
n85. Id.
n86. N.C. Gen. Stat. § 143-318.1 (1978) (repealed 1979). One of the substantial changes to the Open Meetings Law between 1977 and 2007 is that the present-day statute now specifically defines terms like “public body,” and does so both at greater length and in far broader terms than did its 1977 predecessor. N.C. Gen. Stat. § 143-318.10 (2007) (“As used in this Article, ‘public body’ means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of The University of North Carolina, or other political subdivisions or public corporations in the
State that (i) is composed
of two or more members and (ii) exercises or is authorized to exercise a
legislative, policy-making, quasi-judicial, administrative, or advisory function. In addition, ‘public body’ means the
governing board of a ‘public hospital’ as defined in [section] 159-39 and the
governing board of any
nonprofit corporation to which a hospital facility has been sold or conveyed
pursuant to [section] 131E-8, any subsidiary of such nonprofit corporation, and
any nonprofit corporation owning the corporation to which the hospital facility
has been sold or conveyed.”).
n87. Byrd II, 239 S.E.2d at 426-27 (Exum, J., dissenting) (recalling the
defendants’ utter failure to submit a responsive pleading or in any other way
contest the facts as alleged by the plaintiffs and determined by the trial
court, the Byrd II dissent believed that any such “analysis” was entirely
misplaced: “Whether the law school faculty is a subsidiary or component part of
the Board of Governors and whether it is ‘a body politic’ are essentially
questions of fact. The majority mistakenly treats them as questions of law
answered by reference only to its own notions of what the faculty is and its
relationship to the Board of Governors.”).
n88. See id. at 418-19 (majority opinion).
n89. Id. at 419.
n90. Id. at 421 (internal quotation marks omitted).
n91. Id.
n92. Id. at 419-20. The dissent disputed the majority’s finding that neither the
law school faculty nor the Board of Governors fit the definition of “body
politic,” pointing to section 116-3 of the North Carolina General Statutes,
which “expressly designates the Board of Governors of the University of North
Carolina to be and continue ‘as a body politic and corporate.’” Id. at 426
(Exum, J., dissenting) (quoting N.C. Gen. Stat. § 116-3 (1975)).
n93. Id. at 421 (majority opinion).
n94. Id.
n95. Id. at 422 (quoting N.C. Gen. Stat. § 116-11).
n96. Id. at 421 (emphasis added).
n97. Id. at 418.
n98. Id. at 428 (Exum, J., dissenting).
n99. Id. (quoting Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla.
1974)).
n100. The majority cited to little precedent from other state courts’ decisions,
explaining that “all of the Open Meetings Laws of the several states … vary
widely in their terms, and so decisions from the courts of those states
establishing their scope are of meagre assistance in construing the North
Carolina Act.” Id. at 422 (majority opinion). The court did find some support in
McLarty v. Board of Regents of the University of Georgia, 200 S.E.2d 117
(1973), where the Georgia “Sunshine Law” was held inapplicable to the meetings
of a teacher-student committee that formulated student-fund allocation
recommendations at the behest of the Dean of Student Affairs of the University
of Georgia, and “[did] not encompass the innumerable groups which are organized
and meet for the purpose of collecting information, making recommendations, and
rendering advice but which have no authority to make governmental decisions and
act for the State,” id. at 119. See Byrd II, 239 S.E.2d at 422-23.
In seeking other states’ decisional support for its rebuttal, the Byrd II
dissent looked primarily to Cathcart v. Andersen, 530 P.2d 313 (Wash. 1975) (en
banc), which saw the Supreme Court of Washington hold its Open Public Meetings
Act applicable to meetings of the law school faculty at the University of
Washington, where the court determined that the “purpose of the Act is to allow
the public to view the decision-making process at all stages,” id. at 316. See
Byrd II, 239 S.E.2d at 429 (Exum, J., dissenting).
n101. See, e.g., Bd. of Governors of the Univ. of N.C. v. U.S. Dep’t of Labor,
917 F.2d 812, 817 (4th Cir. 1990); Polk County Bd. of Supervisors v. Polk
Commonwealth Charter Comm’n, 522 N.W.2d 783, 796 (Iowa 1994).
n102. N.C. Gen. Stat. § 143-318.9 (2007).
n103. Id. § 143-318.10(b).
n104. Id.
n105. Id. § 143-318.10(d).
n106. Student Bar Ass’n v. Byrd (Byrd II), 239 S.E.2d 415, 428 (N.C. 1977)
(Exum, J., dissenting).
n107. N.C. Gen. Stat.§§143-318.10(e), -318.11 (2007).
