After months of ignoring more than a dozen public records requests filed by The Smoky Mountain News, the troubled charter school now says it won’t fulfill the requests until it gets a check for $1,537.50.
The requests were lodged long before any such billing was ever mentioned; there’s no record of the board passing any billing policy and SRCA Head of School Joshua Morgan and Board Attorney David Hostetler refused multiple requests for comment. According to a number of open records experts, the demand for payment is an egregious violation of state law.
“It’s moronic,” said Mike Tadych, an attorney with Stevens, Martin, Vaughn and Tadych, a Raleigh-based law firm that also advises the North Carolina Press Association. “I’m afraid you’re rapidly approaching the point where you’re just going to have to sue them.”
Maintaining transparency in local government is a priority so important to democracy that lawmakers in all 50 states have for decades now have deemed it worthy of enshrinement in statute.
So-called “sunshine laws” cover everything from when and where public meetings take place to when those meetings can enter closed sessions to which documents produced by a governing body are public, and how citizens can access them.
Public records laws apply to public bodies. Section 143-318.10(b) of the North Carolina General Statutes defines a public body as “ … 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.”
While that definition obviously includes towns and counties, it also includes school boards, whether they’re elected public school boards or appointed public charter school boards. The reasoning is, if public bodies are going to use public funds — taxpayer money — they should be transparent in how and why they do that.
Despite having an unelected board, public charter school Shining Rock Classical Academy has received and spent around $3 million in taxpayer money since its inception in 2015, and is a public body per NCGS.
As such, Shining Rock is also subject to North Carolina’s public records law, which was first codified in 1935. Any North Carolina citizen can request any public record from any public body without having to say why they want the records, or what they’ll do with them. When making requests, the media is afforded no special status above and beyond that of any other citizen.
According to NCGS 132-1(a), public records are “all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.”
There are some important exceptions to this rule, like certain information contained in personnel files, criminal investigations, economic development discussions and trade secrets.
Section (b) of that same statute, however, says that public records are “the property of the people” and that “it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, ‘minimal cost’ shall mean the actual cost of reproducing the public record or public information.”
Of course, public bodies can and have used the “actual cost” provision in attempts to thwart legitimate public records requests. Earlier this year, the N.C. town of Youngsville tried to charge a reporter $70,000 after the reporter submitted a public records request for emails and text messages related to the retirement of the town’s police chief.
That figure dropped to $15,000 after pushback, but it’s still a tall order for the tiny Wake Weekly, a newspaper with a circulation of just 5,000 copies a week.
Unfortunately, the system is slanted toward public bodies in that their refusal to comply with public records requests or attempts by public bodies to charge fees in excess of those permissible by state law requires the requestor to do one of two things — lawyer up, or shut up.
Since before it even opened in 2015, Shining Rock began to establish a pattern of violating sunshine laws, and to date has never been held accountable.
In July 2015, the school violated closed-session laws pertaining to property acquisition. In October 2017, the school violated public meeting notice requirements for a special called meeting that ended with the resignation of founding Head of School Ben Butler. In January 2018, it did the exact same thing.
This past June, the board did it again by not providing adequate notice of a meeting in which board attorney David Hostettler dismissed multiple allegations of improper disciplinary procedures by the school’s then-interim head, Joshua Morgan.
Hostettler notified the parents who filed the grievances of his decision by letter, long after the meeting was over, and later admitted to SMN that the legal violation was an “unintended oversight.”
A month after that, in July, a separate SMN story revealed that Shining Rock has the highest percentage of unvaccinated students in Haywood County; when asked for a copy of the school’s policy on removing unvaccinated students if a measles case is diagnosed, Shining Rock never replied.
Not everything Shining Rock’s governing board does is illegal, but even recent tactics suggest they’re not above skirting the law to obscure transparency.
An Aug. 1 special called meeting agenda said the board would consider adopting an electronic communications policy. That policy wasn’t available anywhere on Shining Rock’s website. SMN requested it, but it wasn’t delivered until less than 48 hours before the meeting and was never otherwise publicly available for viewing.
Although the board was prepared to vote on an item the public had never seen, the policy was tabled because a portion of it violated the board’s own existing policy.
Later in that same meeting, Shining Rock held a three-hour closed session for a purpose not recognized by N.C. law, “facilities.”
That closed session came just hours after Shining Rock filed a thick packet of paperwork with Waynesville’s Development Services Department. As first reported by The Mountaineer, the documents outlined plans for a multi-million dollar new facility, even though there had never been any mention of one on any meeting agenda, ever.
Like the electronic communications policy, the development documents weren’t otherwise publicly available for viewing before the meeting, but they likely involved significant taxpayer expense in their creation — architectural renderings and a tree study, for example.
Whatever the amount of taxpayer funds expended on the project, it was all for naught. Four days later, during another special called meeting, Morgan reported a significant decline in enrollment — which negatively affects the amount of taxpayer funding — and the board subsequently voted unanimously to cease all discussions on the new facility project.
The question of the amount, though, still hasn’t been answered. Following the Aug. 1 meeting, SMN lodged a number of project-related public records requests on Aug. 7.
The first was for all closed session meeting minutes of any Shining Rock board or committee, dating back to Aug. 1, 2018. Such minutes could provide insight into discussions of the expenditure of taxpayer monies in furtherance of the ill-fated facilities plan and are required by law to be recorded accurately.
The Mountaineer asked Shining Rock for the same thing, but according to their story published Aug. 5, “ … SRCA board members said they did not have anything to provide.”
Also requested by SMN were copies of all project-related correspondence between Shining Rock’s board, board members, employees or staff and any board-retained attorney.
The next request was for all public records that show the amount of taxpayer funds expended on the facilities project, and copies of all checks written to any entity connected with the project.
Two more requests included all correspondence relating to the creation of the proposed electronic communications policy, and a year’s worth of correspondence between the school and its board regarding how it deals with the media.
Several more separate requests were made at that time, including all documents related to the board’s relationship with its attorney, Hostettler — contracts, fee arrangements, billing procedures, invoices and copies of checks.
After several emails requesting confirmation of the receipt of those Aug. 7 requests, Shining Rock finally responded six days later, writing “We have received your public records request and will respond as promptly as possible, upon payment of any fees as may be prescribed by law [emphasis theirs].”
That same day, SMN requested a copy of the fee schedule, since none was known to exist and prior public records requests — some substantial — had been adequately fulfilled by Shining Rock with no mention of any fees. Shining Rock never replied.
Around that same time, Morgan publicly called for a “media reset” in response to claims that Shining Rock was being treated unfairly by SMN and The Mountaineer, both of which had reported extensively on Shining Rock’s illegal meetings and lack of accountability in how it spends taxpayer money.
After meeting with publishers and editors of both papers, along with North Carolina Press Association Attorney Mike Tadych via FaceTime, the school then announced that it would temporarily suspend board operations until board members could attend an upcoming workshop on transparency law, led by its attorney, Hostettler.
Three weeks after the Aug. 7 records requests were made but still weeks before the Sept. 15 workshop, a follow-up email was sent by SMN requesting a projected timeline for the delivery of the requests, as well as a copy of the school’s public records release policy and a copy of the public records fee schedule. Shining Rock never replied.
At that point, an additional public records request was filed, this time for all contracts and copies of all checks written to another one of Shining Rock’s consultants — a group called Leaders Building Leaders, and one of its associates, Katy Ridnour.
Shining Rock’s board then held the transparency workshop, and in doing so demonstrated why it was a good idea — yet again, the school failed to provide proper public notice of the meeting per NCGS 143-318.12, thus making it the school’s second illegal meeting in less than six months and its fourth in two years.
Six weeks after the Aug. 7 public records requests were made, SMN sent a similar follow-up email. Shining Rock never replied.
Shortly after that, an additional request was made, this time for supporting documents related to the board’s Sept. 25 regular meeting. As with the electronic communications policy, none of the documents were available to the public before the meeting. That request was not fulfilled before the meeting.
On Oct. 18, the same request was made for the board’s regular Oct. 23 meeting because none of the documents were available to the public before the meeting. That request was fulfilled a little over an hour prior to the meeting.
Within that same Oct. 18 request, an additional request for accounting documents relating to the expenditure of taxpayer monies on yet another Shining Rock contractor also went unanswered; on Oct. 16, the Charlotte News & Observer reported on a mass exodus of leadership at TeamCFA, a Charlotte-based consultancy with 17 charter schools clients in North Carolina, including Shining Rock.
More than a dozen requests, most of which are more than three months old, remain unfulfilled. No word had been received by SMN on when to expect them, until an Oct. 30 email revealed that the school had been ignoring the requests since August while scrambling to craft an illegal fee structure designed to thwart them.
Almost three months after SMN’s public records requests were made and Shining Rock said the records would be provided “upon payment of any fees as may be prescribed by law” but then failed to provide a copy of any fee schedule, one finally materialized in the form of an email from Morgan on Oct. 30.
“As permitted by law, the school will assess reasonable costs to comply with public records requests that require an excessive amount of staff time,” reads the email, which also demanded a certified check for $1,537.50 before any work on gathering the records would begin.
“These costs may include but are not limited to the following: Copy costs, Staff, Administration, and/or board member time used to gather and prepare documents [and] attorney fees associated with determining what records or portions of records are not public,” Morgan continued.
Reasonable costs are permitted by law, according to the David M. Lawrence Distinguished Professor of Public Law and Government at the University of North Carolina’s School of Government, Frayda Bluestein, but most of what Morgan’s trying to charge for doesn’t fall under the classification of “reasonable.”
Although he says the first half hour of time is free, Morgan proposes after that to charge $25 an hour for staff time, $50 an hour for administration or board member time and $300 an hour for attorney time.
NCGS 132-6.2(b) states in part that “ … no public agency shall charge a fee for an uncertified copy of a public record that exceeds the actual cost to the public agency of making the copy. For purposes of this subsection, ‘actual cost’ is limited to direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.”
Morgan’s probably justified in his request for the cost of the copies — a few cents each, maybe — but not much else.
“This language has been interpreted to allow only the cost of the actual reproduction of records, and should not include the time it takes for the employees and other custodians to identify and review the records before they’re copied,” Bluestein said after reviewing Morgan’s email. “The authority to charge a higher service charge is limited to excessive staff time making the copies and in these days with electronic records, excessive IT time searching servers to identify responsive records. There is no authority to charge for the time it takes the attorney determine what can be released.”
That would render moot Morgan’s attempt to charge $300 an hour for Hostettler to go through the documents.
Of note, the town attorney in the Youngstown case quoted the same $300 an hour figure to “expedite” Wake Weekly’s public records request. That’s more than double what he charges the town, according to the N&O, but details of Hostettler’s billing arrangements haven’t been delivered to SMN as requested.
N.C. Attorney General Josh Stein’s 2019 Open Government Guide appears to be in accord with Bluestein’s opinion and cites the same statutes she does, but goes into a bit more detail about what “actual cost” actually means.
“The law does not give examples of actual costs but it does say that actual cost may not include costs the agency would have incurred if the copy request had not been made,” reads the guide, which is available online. “This means that under most circumstances, fees may not include the labor costs of the agency employees who make the copies.”
Stein’s opinion undercuts Morgan’s attempt to charge $50 an hour for time spent by administrators as well as by board members, who aren’t even paid for their service anyway.
Press Association Attorney Mike Tadych agreed with Bluestein, further opining that “excessive staff time” has been suggested by case law to be four hours, not Morgan’s offer of half an hour.
Tadych also pointed out that “actual cost” should be fact, not fancy.
“You can charge ‘actual cost,’ but it has to be actual cost, not just, ‘Here’s what we decided,’” he said, pointing out that he’d be surprised if secretaries and other clerical personnel at the school actually make the $25 an hour Morgan’s trying to charge for their time.
Public records provided by Shining Rock earlier this year show only three part-time office staffers — one making $17 an hour, and the other two making $15 an hour.
Even as an administrator, Morgan’s one-year contract provides for a salary of $75,000 a year, which when divided by the 2,040 hours a full-timer would work during a year comes out to $36.76 an hour, not the $50 he’s asking.
All in all, Morgan estimated that SMN’s cumulative requests that remain unfulfilled would require “1 hour of clerical, 10 hours of administrative, and 4 hours of attorney time,” to total $1,537.50. That price takes into account the free half-hour of time from each.
Backing out the prohibited 3.5 hours of attorney’s fees would shave $1,050 from the bill, and deducting the non-excessive half-hour of clerical time would scale it back by another $12.50.
Regarding the 9.5 hours of administrative time, that estimate comes from more than a dozen independent public records requests, not from one large task, and should be itemized independently for each request instead of as a lump sum that arose only because of Shining Rock’s months-long refusal to fulfill any of those requests in a timely manner, as each was submitted.
Backing out that prohibited $50 an hour charge for 9.5 hours of administrative time would shave the final $475 off the bill sent in Morgan’s email and bring the balance to zero. Ironically, Morgan didn’t charge for the one thing he could legally charge for — the actual cost of the copies themselves.
“These people appear intractable,” said Tadych. “They’re still a public agency, and if they don’t want to be a public agency, then they should stop taking taxpayer money and become a private school. The way I read that email is, ‘Well, you’re not going to sue us, so we’ll do what we want.’”