Shining Rock off to rocky start: Did new charter school violate open government law?
As a public entity receiving public dollars, Shining Rock Classical Academy — Haywood County’s first charter school — is required to follow the state’s Public Records and Open Meetings laws.
These state laws are supposed to keep government proceedings open to the public and hold officials accountable for their actions, but many open government experts say the Shining Rock charter school board has violated the law by voting to buy property for the school without disclosing what property they were buying.
“When you take on the responsibility of taking over public business on the public dime, you have to be accountable to the taxpayers,” said Jonathan Jones, director of the North Carolina Open Government Coalition. “Charter schools are taking on the responsibility of educating students in lieu of the local school board, so they have to have the same accountability.”
Getting off the ground
Establishing a charter school within a two-year period has been a major undertaking, especially for a small group of parents working as unpaid volunteers.
One of the major hurdles for a start-up charter schools is finding a suitable school building or a piece of property to build one on. Shining Rock had initially chosen to lease property on Ratcliffe Cove in Waynesville and bring in modular classrooms, with the long-term goal of constructing a school.
But that site fell through due to higher-than-expected costs and delays in getting the site ready. With only two months until the school is supposed to start classes, the board searched for a temporary location and ultimately secured a lease on a building at Lake Junaluska Assembly.
Keilberg said the board meanwhile continued to search for a permanent home.
Done deal without public input
On July 3, the charter school board held a closed session meeting to discuss property acquisition, then emerged from closed session and openly voted to buy land. Specifically, the board voted to authorize Keilberg to “execute a contract for the purchase of certain real estate,” subject to the terms of negotiation discussed in closed session. That vote made the purchase a done deal without ever saying where the property was located.
The charter school board refused to reveal the location of the property, even after voting to buy it, stating that the sale wasn’t final until the contract was actually signed. The location of the property — a 35-acre field at the corner of Raccoon Road and U.S. 276 — wasn’t announced until a week later.
Refusing to disclose the property location is a violation of the N.C. Open Meetings Law, according to Mike Tadych, a media law expert and attorney for the N.C. Press Association with Stevens Martin Vaughn & Tadych in Raleigh.
The Open Meetings law specifically “prohibits members of a public body from acting by reference,” Tadych said, citing state statute 143-318.13(c). But that is exactly what the SRCA board did when it voted to approve the purchase.
Haywood County Commissioner Chairman Mark Swanger — who is also a former chairman of the Haywood County School Board — said public bodies can’t vote on something without saying what it is they are voting on. The property must be identified at the time the board votes to buy it, not after the ink is dry some days later, he said.
“You have to identify what you are voting on, period,” Swanger said. “Before we purchase any property there has to be an open vote where the property is identified.”
Chip Killian, the Haywood County commissioners’ attorney for over 40 years, is the longest serving county attorney in the state.
“If I was their lawyer I would tell them they should reveal the name of the owners and property that they were making an offer to buy,” Killian said.
Keilberg argued that disclosing the property they had voted to purchase might prompt someone else to come along and try to buy the same site, potentially out-bidding them and thwarting their deal.
“That is always a possibility, but I don’t know that that gives them the right to conceal the property they are proposing to buy,” Killian said.
The charter school will receive public tax dollars from the county and state, and those tax dollars will ultimately be used to fund the property purchase — thus requiring the charter school board to act as a public body and follow the same open meetings laws.
“I would expect transparency. Those are my tax dollars as well as everybody else’s,” Swanger said.
Despite several attempts by the newspaper to bring the charter school board around, Keilberg maintained they could keep the location secret until the contract was signed, despite having already voted to buy it.
Keilberg feared if word got out what site they were buying, someone else might slip in with a higher offer and buy it out from under them, she explained.
“If you printed our location it would needlessly frustrate our ability to negotiate any contract,” Keilberg wrote in a July 7 email. “Once an offer becomes a contract, we are more than willing to disclose location.”
The problem is, once a contract is signed, it’s too late for the public to offer feedback on the school site before it’s a done deal. If the Haywood County school board voted to buy a piece of property to build a new school or if the county commissioners voted to buy a piece of property to build a new landfill — the public has a right to know about it before a contract is signed.
“If someone else had a piece of property suiting the public body’s needs and for a better price, they would be excluded from coming forward because they wouldn’t have access to that information until it’s too late,” Tadych said.
Cart before the horse
The Open Meetings law clearly required the charter school board to identify what property they voted to buy.
But even before reaching that point, the board should have disclosed what property it was talking about in closed session, according to Frayda Bluestein, a professor of Public Law and Government at the University of North Carolina-Chapel Hill.
She said the 2002 case of Boney Publishers v. Burlington City Council found that, “if requested, the board must disclose the property’s current owner, the location of the property, and the use to which the board intends to put on the property before they meet in closed session.”
Prior to officially buying a piece of property, the board met twice in closed session to discuss possible locations. Keilberg was asked numerous times to disclose what property was being considered in closed session.
However, Keilberg said the board was not required to do this, since multiple pieces of property were all being considered. She said several sites were considered, including locations in Canton, Hazelwood and Maggie Valley.
Even when given several examples of the requirement to disclose what property they were discussing in closed session, Keilberg still refused to release it, stating that disclosing the site would “frustrate contract negotiations.” She said the board consulted a number of attorneys on the matter.
“All are considered experts in open meetings laws, and all without reservation back our position,” Keilberg said in an email.
One of those was Richard Vinroot, an attorney from Charlotte who has made three unsuccessful runs for governor.
“We aren’t going to give you what you are asking for,” Vinroot said when asked to explain his rationale. “They asked me if they needed to provide that and I told them ‘no.’”
Vinroot was unwilling to discuss the issue, or talk about ways to resolve the impasse.
“What is it about no you don’t understand?” Vinroot said. “I told you what my client’s position is. I don’t need to belabor it. I don’t need to convince you. I only need to convince my client that they are right. Write whatever you want to.”
Vinroot said the charter school was exempt from the requirement to disclose property under consideration because there was more than one tract in play, claiming they had a loophole under the Burlington city council case.
For the record, the newspaper won that case, forcing the city council to identify what property it was discussing in closed session. But Vinroot claimed it didn’t apply if multiple tracts were being talked about.
Mike Tadych, an attorney for the N.C. Press Association, patently disagreed.
The only legal precedent that came out of that Court of Appeals ruling was that public bodies must disclose what property they are talking about in closed session, he said.
By comparison, the Haywood County school board has been considering several pieces of property for a new central office, and all of the sites being talked about have been made public.
“We have examined at least a dozen sites and examined the pros and cons of each site. Those are detailed in our buildings and grounds minutes,” said Bill Nolte, the assistant superintendent for Haywood County Schools.
Jones said violations of the Open Meetings and Public Records laws — whether it’s improperly noticed meetings or an improper closed meeting — could result in a challenge from any citizen or organization.
“If they don’t follow procedure or exceed the exceptions, any decision they make could be undone by a Superior Court judge,” Jones said. “That can happen with a property purchase if someone would challenge the way they did it.”
If found in violation, the board could also be responsible for paying court costs for whoever sued them.
“In my opinion, the vote was authorization to purchase the property but was improperly done, given that it was done by reference impermissibly. Thus, the authorization is subject to challenge and potentially being nullified pursuant to G.S. §143-318.16A,” Tadych said.
— Staff writer Becky Johnson contributed to this story