Charlotte interim City Attorney Anthony Fox said Wednesday that state law prohibits elected officials from talking about anything that happens in a closed session and that there are criminal penalties for people who do so.
But his interpretation runs counter to how Charlotte’s previous three city attorneys have interpreted state law. And one legal expert said Fox’s interpretation is not correct.
The debate comes as one City Council member said he wants to investigate which of his colleagues leaked information about a financial settlement with police Chief Johnny Jennings to the media.
It also comes as the city has come under increasing pressure to discuss the settlement and whether it was warranted.
North Carolina law allows public officials to meet in closed session to discuss things such as lawsuits, economic development deals and personnel issues.
Speaking at a news conference Wednesday, Fox started talking about the board’s right to meet in private for personnel matters. Then he began speaking about closed sessions in general.
“The other body of law that’s important is the ability to go into closed session because the General Assembly has deemed it important enough to confer upon cities the ability to go into closed session for particular purposes,” Fox said.
He continued:
“The law also provides that when you go into closed session that information is confidential. It’s not to be shared. And it actually imposes criminal sanctions against anybody, any individual who has found to violate that law,” he said.
Fox was with Mayor Vi Lyles and other officials addressing comments made by City Council member Victoria Watlington, who said the council was “unethical, immoral, and frankly, illegal” in reaching the deal.
The settlement with Jennings stemmed from threatening text messages he received from former City Council member Tariq Bokhari.
Bokhari had texted Jennings that he would try and get the chief fired and that he would cripple his legacy if didn’t allow his officers to wear new protective vests.
Lyles and other council members forcefully rebuked Watlington for what she wrote. And Fox’s discussion of closed session was meant to justify the city’s lack of transparency — and possibly to warn other elected officials not to talk about it.
Law differs
But his statement about closed sessions being confidential is not what state law says.
Rebecca L. Fisher-Gabbard with the UNC School of Government said there is no prohibition against elected officials from discussing publicly what happens during closed sessions.
“The open meetings law does not prohibit the disclosure of things discussed in closed session,” she said.
She noted that while state law is silent about what can and can’t be released from a closed session, there are some documents or items that can’t be disclosed under any circumstance, such as trade secrets and personnel files.
Charlotte’s three previous city attorneys — Patrick Baker, Bob Hagemann and Mac McCarley — declined to be interviewed for this story. But there are no records of them ever telling City Council members that it’s illegal to disclose anything from any and all closed sessions.
After the news conference, WFAE asked Fox about his assertion. A reporter said they had looked at the state’s open meetings law and found no such provision.
Fox said that was the reporter’s interpretation, “versus me.”
He said then said, “I suggest you look at 143-318.16 of that statute.”
But state statute 143-318.16 does not call for criminal penalties for disclosures from closed sessions.
Fisher-Gabbard said that the statute “provides for a right of action for an individual who has good reason to believe there has been a violation of the open meetings law.”
In other words, if a citizen believes a city council is meeting in private when they should be in public, the statute gives them a path to address that. It doesn’t call for criminal penalties for elected officials talking publicly about a closed-session meeting.
On Thursday, Bokhari’s wife, Krista Bokhari, asked on social media why Fox dismissed an ethics complaint filed in January against her husband over the Jennings text messages — only to then oversee a six-figure settlement in favor of the police chief months later.
Meanwhile, City Council member Malcolm Graham called for a probe into which of his colleagues talked about the closed session.
“I called for the mayor and the manager, if appropriate, to begin an investigation on the leak itself,” Graham said. “I think that’s really important because we have to build trust internally in the building as well as externally in the building.”
It’s possible that divulging that Jennings was seeking a settlement would be prohibited under state law.
Even a verbal request for a financial settlement could be considered as part of his personnel file, which, state law says includes information about the employee collected in any form.
But the state’s laws about closed sessions also explicitly say if a legal settlement is considered or approved, then “the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible.”
Charlotte has not released any information about the agreement.
Some City Council members, like Watlington, were also upset about how city officials went about counting the votes during the closed session on the settlement, and the inability of one council member to change their vote from yes to no.
The state’s definition of a personnel file doesn’t address anything about the procedure in which votes are taken.
