Public notice requirements for voter challenge hearing may not have been met
A meeting scheduled for 10 a.m. on Sept 28 by the Graham County Board of Elections to hear voter registration challenges against John and Tina Emerson will continue as scheduled, despite questions over whether the board issued proper public notice in compliance with state statues.
In North Carolina, there are basically three different kinds of meetings — regular, special and emergency.
The BOE’s website says that regular monthly meetings are held on the second Monday of every month, which in this case would have been Sept. 12.
According to a blog post on the UNC-Chapel Hill School of Government’s Coates’ Canons authored by N.C. Supreme Court candidate Trey Allen, “A ‘special meeting’ is one that is not part of a public body’s regular meeting schedule.”
Public notice requirements for special mee- tings are different than for regular meetings.
While regular meetings must be scheduled in advance for the entire year and published with the county clerk, the General Assembly has authorized local governing boards to hold special meetings in order to conduct business that can’t wait for a regular meeting.
Another School of Government publication, Open Meetings and Other Legal Requirements for Local Government Boards by Freyda S. Bluestein says that “if a public body meets at some time or place other than that shown on its regular meeting schedule,” it must give special meeting notice. That notice must consist of three separate postings.
“First, it must be posted on the principal bulletin board of the public body (or on the meeting room door if there is no principal bulletin board). Second, it must be mailed, emailed, or delivered to any person who has made a written request for notice of special meetings,” Bluestein wrote. “Third, it must be posted on the website of the public body, if it has one.”
The Smoky Mountain News has not verified whether a copy of the notice was posted on the “principal bulletin board” to fulfill the first requirement.
However, a meeting notice was emailed to the BOE’s “sunshine list,” consisting of people who’ve requested to receive such notices, on Aug. 30, which fulfills the second requirement.
Each of the three forms of notice for a special meeting must occur “at least forty-eight hours before the meeting,” according to Bluestein’s publication. Per the emailed announcement calling the meeting for 10 a.m. on Sept. 28, the 48-hour mark would have been at 10 a.m. on Sept. 26.
Requirements set forth in General Statute 143.318.12(e) explicitly state that “If a public body has a Web site that one or more of its employees maintains, the public body shall post notice of any meeting held under subdivisions (b)(1) and (b)(2) of this section prior to the scheduled time of that meeting.”
Section (b)(2) is the section describing the notice requirements for special meetings.
Allen goes on to describe the consequences of holding a meeting — any meeting — without first complying with public notice requirements outlined in statute.
“The remedies available for violations of the open meetings law offer a public body additional reasons to think twice before it risks contravening the notice requirements for special meetings,” he wrote. “Depending on the circumstances, if a court finds that a public body has run afoul of the open meetings law, it may order the public body to refrain from future violations, invalidate any action taken in contravention of the law, or compel the public body or its members to pay all or a portion of the prevailing party’s legal fees.”
Teresa Garland, director of the Graham BOE, said she’d done “everything in her power” to post the notice, but that she doesn’t have access to the website.
“Someone just recently took our website over. It’s supposed to be on it. I sent that request out,” Garland said. “They will not let us have our own website. They will not let us do it. They hire it out to someone. And so our hands are kind of tied.”
Garland said she didn’t know the name of the company or person managing the website, or whether or not that person was a county employee.
“To be honest with you, I don’t know who has taken it over now. In the last four years, we’ve had like six different people,” she said. “I don’t even know who does it now, but I had sent it to our human resources and asked her to do that. And she gave me an email, and I can’t even pronounce the guy’s name. It starts with an ‘H’ and I’m assuming it’s like, ‘Hiramata Shushu’ or something, and so he’s supposed to be the one doing it.”
Additionally, Garland could not provide the name of the current Graham County attorney, who is not listed on the county’s website.
Garland did provide a link to the Graham BOE’s Facebook page, where the meeting notice appears to be posted as of Sept. 23, well in advance of the 48-hour deadline.
Statute, however, makes no mention of Facebook or social media as valid venues for public meeting notices — only the public body’s website.
When asked if she planned to cancel the meeting out of an abundance of caution, Garland was an emphatic “No.”
Bill Cannon, an attorney who represented the Graham BOE during the preliminary voter registration challenge held in early July, told The Smoky Mountain News on Sept. 26 that he believes the notice published on Facebook fulfills the website posting requirement laid out in 143-318.12(e).
Cannon said he reached the determination on his own, without input from other experts, and would issue an opinion to Graham BOE Chair Juanita Colvard stating so.
John Noor, attorney for the challengers, said he couldn’t comment on the matter without authorization from his client, Lake Santeetlah Council Member Diana Simon.