CMS Violated Open Meetings Law When Medical Advisory Group Met In Private, Expert Says

Aug 13, 2020

Three weeks ago, Charlotte-Mecklenburg Schools Superintendent Earnest Winston announced a new advisory group that would determine when schools return to in-class instruction.  

“Our team began the process of assembling what we are calling a medical advisory team,” Winston said during the July 21 board meeting. “And so the charge of this team will be to recommend metrics to the district, to ultimately help the board and staff determine when to actually transition between plans.”

The 13-member task force met for the first time last week.

But there was no public notice, and people weren’t allowed to watch -- even by Zoom.

Frayda Bluestein with UNC’s School of Government said CMS violated the state’s open meetings law, which includes boards or panels created to advise governments.

“Some people think that if it’s just advisory it doesn’t apply,” Bluestein said. “The statute specifically says what triggers the statute can be a group that is put together only to do advisory things.

This isn’t the first time state or local governments have tried to keep appointed advisory groups in private.

Two years ago, the North Carolina Turnpike Authority created an advisory group to study changes to the contract with a private developer to build the I-77 toll lanes. After the group first met in private, the state agreed to have future meetings be public – after the media complained.

It happened again earlier this year.

At the start of the pandemic, Mecklenburg County Manager Dena Diorio created a business task force to discuss COVID-19 response. The task force met behind closed doors and then agreed to meet in the open after Bluestein and others said they were violating the state’s open meetings law.

“This sounds very much like the situation you had with the county,” Bluestein said. “And I think we all agreed that that seems to be that (the business task force) is a public body.”

She said that she doesn’t think there is an argument that CMS’s medical team is not a public body.

“I don’t think this is a nuanced thing,” she said. “A public body is going to be something that’s intentionally put together, for/by government to work together and make decisions, or in this case provide information.”

At the board’s July 15 meeting, CMS invited some health care professionals to give their opinions on reopening schools.

They said there was risk, but they told board members they thought there were benefits to children being in the classroom.  But they struggled to set an exact standard of when it would be safe to resume in-person instruction.

The board voted to bring students back for in-classroom instruction for two weeks before going virtual for the rest of the year. Two weeks later, the board scrapped the two weeks of in-person instruction, going entirely virtual.

In response to a WFAE question, CMS released the names of who is on the 13-member advisory team.

There are only four medical doctors: Charles Bregier, Novant's medical director; Gary Little, senior vice president and chief medical officer at Atrium; Meg Sullivan, Mecklenburg County's medical director; and Jerome Williams Jr., senior vice president of consumer engagement and corporate health at Novant. 

There are two other health care specialists, including the county health director Gibbie Harris. Harris this week said she thought students could return to schools if the county's test positivity rate for the coronavirus reached 5%, assuming CMS was prepared in other ways.

Most people on the medical advisory team work for CMS.

WFAE asked the CMS communications office and the attorney's office this week how many times the advisory task force has met; when it would meet again; and whether future meetings would be open to the public. The district did not respond.

In an interview Thursday, Winston said he had heard from staff that there may be a problem with the medical advisory team’s lack of transparency.

“I heard information about the meeting not being public and I know that staff is having that conversation right now,” Winston said. 

Winston says he wants the team to be transparent. He said it’s likely that future meetings will be open.

On Thursday night, Charles Jeter, the CMS lobbyist, said all future meetings of the medical team would be open to the public.

WFAE reporter Ann Doss Helms contributed.

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