A question came up during last month’s RCAC meeting, regarding the legal standing of CACs with regard to the city. RCAC Chair Will Allen got an opinion from Raleigh City Attorney Tom McCormick. Will says:
Tom advises that the CAC is an organization created by the Raleigh City Council and is therefore a public body and subject to the Open Meetings law. Email is a type of communication that is covered by that law, and so any of the types of email communication involving CAC and/or city matters would be public record.
But the CACs aren’t advisory boards in the spirit of North Carolina’s Open Meetings Law. From the City’s own page on CACs (emphasis mine):
CACs are nonpartisan. They also are independent of the City Council. In fact, CACs are the only advisory boards to the City Council that are not appointed by the Council. Instead, residents of each CAC region elect the chairperson and other officers of their CAC.
Membership in a CAC isn’t by appointment like other city boards: one becomes a member of a CAC based on where one lives. That means every city resident is now subject to the Open Meetings Law. And since there are over 10,000 residents in the East CAC (for instance) and therefore 10,000 members in the East CAC, does that mean a quorum of this “advisory board” is 5,001 citizens?
Not even the leaders of a CAC are appointed: they are elected solely by the CAC membership (those 10,000 ordinary people). The leaders do not serve at the pleasure of the Council but can instead pretty much do whatever they want with little recourse. No one even enforces CAC leadership elections. Councilors couldn’t remove a leader if they tried.
Neither the city staff nor the Council sets the CAC agenda, nor is there an approved work plan. There is also no restriction on what we can discuss. As a CAC chair I wanted to hold a year’s worth of meetings where everyone just played video games, there’s nothing stopping me from doing so. I can’t see that happening with any other “official” city board.
The Open Meetings Law itself, Chapter 143 Article 33c, reads as follows:
ยง 143?318.10. All official meetings of public bodies open to the public.
(a) Except as provided in G.S. 143?318.11, 143?318.14A, 143?318.15, and 143?318.18, each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.
(b) 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 G.S. 159?39 and the governing board of any nonprofit corporation to which a hospital facility has been sold or conveyed pursuant to G.S. 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.
(c) “Public body” does not include (i) a meeting solely among the professional staff of a public body, or (ii) the medical staff of a public hospital or the medical staff of a hospital that has been sold or conveyed pursuant to G.S. 131E?8.
(d) “Official meeting” means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.
(e) Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions held pursuant to G.S. 143?318.11. Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings. When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. Such minutes and accounts shall be public records within the meaning of the Public Records Law, G.S. 132?1 et seq.; provided, however, that minutes or an account of a closed session conducted in compliance with G.S. 143?318.11 may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session. (1979, c. 655, s. 1; 1985 (Reg. Sess., 1986), c. 932, s. 4; 1991, c. 694, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 570, s. 1; 1995, c. 509, s. 135.2(p); 1997?290, s. 1; 1997?456, s. 27.)
Now, as a CAC chair I have always worked to make everything as open as possible. I am Mr. Open, in fact, and consider myself an ardent supporter of the Open Meetings Law. My CAC is fortunate to have an excellent secretary who takes minutes. I’m technically savvy so I put up a blog and record every meeting with audio and video. But many other CACs don’t have these resources and the law would seem to require them. What do these folks do? Like me, CAC leaders are all volunteers who receive little if any assistance from the city.
Think CACs are powerful? Think again. Your average homeowner’s association has far more power than a CAC. Developers are not required to appear before CACs to present their projects but some do as a courtesy. There is no legal requirement for CACs to sign off on projects. In my mind that makes them pretty poor as advisory boards.
Also, should the City Attorney’s office now consider the CACs to be advisory boards, wouldn’t it follow that their legal liability is now assumed by the city as are all other city boards and commissions? Is this really what the city had in mind?
And if a CAC got sued, who exactly would get sued? The city? The 10,000 residents that make up my CAC? The CAC leadership? I seriously doubt a plaintiff could even prove a CAC actually exists.
I know that attorneys like to err on the side of caution, but saying a CAC is an official city board is a bit of a stretch. CACs don’t make any policy whatsoever. They are a glorified monthly neighborhood meet-up and little more.
Let’s save the legal tangles for the things where it really matters.