GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1993
Short Title: Open Meetings Law Changes. (Public)
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Referred to: Judiciary I.
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AN ACT TO AMEND THE OPEN MEETINGS LAW.
The General Assembly of North Carolina enacts:
Section 1. G.S. 143-318.10 reads as rewritten:
"§ 143-318.10. All official meetings of public bodies open to the public.
(a) Except as provided in G.S. 143-318.11, G.S. 143-318.14A, G.S. 143-318.15, and G.S. 143-318.18, each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.
(b) As used in this Article, 'public body' means 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
(1) Exercises or is authorized to exercise a
legislative, policy-making, quasi-judicial, administrative, or advisory
function; and
(2) Is established by (i) the State
Constitution, (ii) an act or resolution of the General Assembly, (iii) a
resolution or order of a State agency, pursuant to a statutory procedure under
which the agency establishes a political subdivision or public corporation,
(iv) an ordinance, resolution, or other action of the governing board of one or
more counties, cities, school administrative units, or other political
subdivisions or public corporations, or (v) an executive order of the Governor
or comparable formal action of the head of a principal State office or
department, as defined in G.S. 143A-11 and G.S. 143B-6, or of a division thereof.
members and (ii) exercises or is authorized to exercise a
legislative, policy-making, quasi-judicial, administrative, or advisory
function. In addition, 'public body' means (1)
the governing board of a 'public hospital' as defined in G.S. 159-39 and (2) each committee of a public body, except a
committee of the governing board of a
public hospital if the committee is not a policy-making body. In addition, for
the purposes of this Article "public body" means any nonprofit
corporation to which a hospital facility has been sold or conveyed pursuant to
G.S. 131E-8, any subsidiary of that such
nonprofit corporation, and any nonprofit corporation owning the corporation
to which the hospital facility has been sold or conveyed.
(c) 'Public body' does not include and shall not be construed to include (1) meetings
among the professional staff of a public body, body or the medical staff of a public hospital, unless
the staff members have been appointed to and are meeting as an authority,
board, commission, committee, council, or
other body established by one of the methods listed in subsection (b)(2) of
this section, or (2) meetings among the medical staff of a public hospital.
or council.
(d) 'Official meeting' means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.
(e) Every public body shall keep full and accurate
minutes of all official meetings, excluding
any executive sessions including any closed meetings held
pursuant to G.S. 143-318.11. Such minutes may be in written form or, at the
option of the public body, may be in the form of sound or video and sound
recordings. Such minutes shall be public records within the meaning of G.S. 132-6. the Public Records Law, G.S.
132-1 et seq.; provided, however, that minutes of a closed meeting
conducted in compliance with G.S. 143-318.11 may be withheld from public
inspection so long as public inspection would frustrate the purpose of a closed
meeting."
Sec. 2. G.S. 143-318.11 reads as rewritten:
"§ 143-318.11. Executive sessions. Closed meetings.
(a) Permitted Purposes. – A public body may hold an executive session a closed meeting and
exclude the public: public
only:
(1) To consider the selection of a site or the
acquisition by any means or lease as lessee of interests in real property. At
the conclusion of all negotiations with regard to the acquisition or lease of
real property, if final authorization to acquire or lease is to be given, it
shall be given at an open meeting.
(2) To consider and authorize the acquisition
by gift or bequest of personal property offered to the public body or the
government of which it is a part.
(3) To consider and authorize the acquisition
by any means of paintings, sculptures, objects of virtu, artifacts,
manuscripts, books and papers, and similar articles and objects that are or
will be part of the collections of a museum, library, or archive.
(4) To consider the validity, settlement, or
other disposition of a claim against or on behalf of the public body or an
officer or employee of the public body or in which the public body finds that
it has a substantial interest; or the commencement, prosecution, defense,
settlement, or litigation of a potential or pending judicial action or
administrative proceeding in which the public body or an officer or employee of
the public body is a party or in which the public body finds that it has a
substantial interest. During such an executive session, the public body may
give instructions to an attorney or other agent concerning the handling or
settlement of a claim, judicial action, or administrative proceeding. If a
public body has considered a settlement in executive session, the terms of that
settlement shall be reported to the public body and entered into its minutes
within a reasonable time after the settlement is concluded.
(5) To consult with an attorney employed or
retained to represent the public body, to the extent that confidentiality is
required in order to preserve the attorney-client privilege between the
attorney and the public body.
(6) To discuss matters relating to the
location or expansion of industries or other businesses in the area served by
the public body.
(7) To consider matters dealing with specific
patients (including but not limited to all aspects of admission, treatment, and
discharge; all medical records, reports, and summaries; and all charges,
accounts, and credit information pertaining to such a patient).
(8) To consider the qualifications,
competence, performance, character, fitness, conditions of appointment, or
conditions of initial employment of a public officer or employee or prospective
public officer or employee; or to hear or investigate a complaint, charge or
grievance by or against a public officer or employee. A public body may
consider the appointment or removal of a member of another body in executive
session but may not consider or fill a vacancy among its own membership except
in an open meeting.
Final action making an appointment
or discharge or removal by a public body having final authority for the
appointment or discharge or removal shall be taken in an open meeting. If a
public body considers an appointment to another body, except a committee
composed of members of the public body, in executive session, it shall, before
making that appointment, present at an open meeting a written list of the
persons then being considered for the appointment, and that list shall on the
same day be made available for public inspection in the office of the clerk or
secretary to the public body. The public body may not make the appointment
before the seventh day after the day on which the list was presented.
(9) To consider the employment, performance,
or discharge of an independent contractor. Any action employing or authorizing
the employment or discharging or directing the discharge of an independent
contractor shall be taken at an open meeting.
(10) To hear, consider, and decide (i)
disciplinary cases involving students or pupils and (ii) questions of
reassignment of pupils under G.S. 115-178.
(11) To identify candidates for, assess the
candidates' worthiness for, and choose the recipients of honors, awards,
honorary degrees, or citations bestowed by the public body.
(12) To consider information, when State or
federal law (i) directs that the information be kept confidential or (ii) makes
the confidentiality of the information a condition of State or federal aid.
(13) To consider and adopt contingency plans for
dealing with, and consider and take action relating to, strikes, slowdowns, and
other collective employment interruptions.
(14) To consider and take action necessary to
deal with a riot or civil disorder or with conditions that indicate that a riot
or civil disorder is imminent.
(15) To plan, conduct, or hear reports
concerning investigations of alleged criminal misconduct.
(16) To consider and decide matters concerning
specific inmates of the correction system or security problems of the
correction system.
(17) To hear, consider, and decide matters
involving admission, discipline, or termination of members of the medical staff
of a public hospital. Final action on an admission or termination shall be
reported at an open meeting.
(18) To consider and give instructions relating
to the setting or negotiation of airport landing fees or the negotiation of
contracts, including leases, concerning the use of airport facilities. Final
action approving landing fees or such a contract shall be taken in an open
meeting.
(19) To plan investigations and receive
investigative reports requested by a board of elections concerning election
frauds, irregularities, election contests, or violations of the election laws.
Following a public hearing during which it is alleged or apparent that any
election official may have committed an act of misconduct, a board of elections
may meet in executive session to deliberate, adjudicate, and reach its decision
on whether further action shall be ordered or whether no further action shall
be ordered against any election official. Each member's vote on the decision
shall be a matter of public record.
(20) To consider and authorize acquisitions,
mergers, joint ventures, or other competitive business activities by or on
behalf of: (i) a hospital facility and a nonprofit corporation to which it has
been sold or conveyed pursuant to G.S. 131E-8; (ii) any nonprofit corporation
owning the corporation to which the hospital facility has been sold or
conveyed; or (iii) any subsidiary of either nonprofit corporation.
(1) When a closed meeting is required to prevent the disclosure of information that is privileged or confidential pursuant to a statute of this State or of the United States;
(2) When a closed meeting is required to prevent the premature disclosure of an honorary degree, scholarship, prize or similar award; or
(3) When a closed meeting is required to permit a public body to receive advice from an attorney employed or retained by the public body with respect to a judicial proceeding in which the public body has a direct interest. As used herein, 'judicial proceeding' shall mean a pending or imminent lawsuit, appeal, arbitration, or administrative proceeding before a state or federal court or other judicial or quasi-judicial tribunal. The public body shall be deemed to have a 'direct interest' in a judicial proceeding if it is a party or if it is the governing or representative body of a party. A judicial proceeding shall be deemed to be 'imminent' if it has been publicly threatened or if the public body has been notified in writing of its probable occurrence.
(b) Repealed by Session Laws 1991, c. 694, s. 4.
(c) Calling an
Executive Session.a Closed Meeting. – A public body may hold an executive session a closed meeting only
upon a motion duly made and adopted at an open meeting. The motion shall state the general purpose of the
executive session and must be approved by the vote of a majority of those
present and voting. Every motion to close a meeting shall cite
one or more of the permissible purposes listed in subsection (a) of this
section. A motion based on subdivision (a)(1) of this section shall also state
the name or citation of the statute that renders the information to be
discussed privileged or confidential. A motion based on subdivision (a)(3) of
this section shall identify the parties or potential parties in each judicial
proceeding concerning which the public body expects to receive advice during
the closed meeting.
(d) Minutes of Executive Session. –
Notwithstanding the provisions of G.S. 132-6, minutes and other records made of
an executive session may be withheld from public inspection so long as public
inspection would frustrate the purpose of the executive session."
Sec. 3. G.S. 143-318.16B reads as rewritten:
"§ 143-318.16B.
Attorney's fees awarded to prevailing party.
Assessments and awards of attorneys' fees.
(a) In any When an action is brought
pursuant to G.S. 143-318.16 or G.S. 143-318.16A, and the court shall
make written findings specifying the prevailing party or parties, and shall
award the prevailing party or parties a reasonable attorney's fee, to be taxed
against the losing party or parties as part of the costs. determines
that a public body acted in violation of this Article, the court shall assess a
reasonable attorney's fee against the public body and award it to the person or
persons instituting the action as part of the costs. The court may order that
all or any portion of any fee so assessed be paid personally by any individual
member or members of the public body found by the court to have knowingly or
intentionally committed, caused, permitted, suborned or participated in the violation;
provided, that no such order shall issue in any case where the public body
seeks the advice of an attorney employed or retained by the public body, and
such advice is followed.
(b) When an action is brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A, and the court determines that the action was filed in bad faith or was frivolous, the court may assess a reasonable attorney's fee against the person or persons instituting the action and award it to the defendants as part of the costs."
Sec. 4. Article 33C of Chapter 143 of the General Statutes is amended by adding two new sections to read:
"§ 143-318.16C. Accelerated hearing; priority.
Actions brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.
"§ 143-318.16D. Local acts.
Any reference in any city charter or local act to an 'executive session' is amended to read 'closed meeting'."
Sec. 5. G.S. 143B-282.1(a)(3) reads as rewritten:
"(3) Deliberations of the Commission shall be
conducted in its public meeting unless the Commission determines that
consultation with its counsel should be held in an
executive session a closed meeting pursuant to G.S. 143-318.11."
Sec. 6. G.S. 90-16 reads as rewritten:
"§ 90-16. Board to keep record; publication of names of licentiates; transcript as evidence; receipt of evidence concerning treatment of patient who has not consented to public disclosure.
The Board of Examiners shall keep a regular record of its proceedings in a book kept for that purpose, together with the names of the members of the Board present, the names of the applicants for license, and other information as to its actions. The Board of Examiners shall cause to be entered in a separate book the name of each applicant to whom a license is issued to practice medicine or surgery, along with any information pertinent to such issuance. The Board of Examiners shall publish the names of those licensed in three daily newspapers published in the State of North Carolina, within 30 days after granting the same. A transcript of any such entry in the record books, or certificate that there is not entered therein the name and proficiency or date of granting such license of a person charged with the violation of the provisions of this Article, certified under the hand of the secretary and the seals of the Board of Medical Examiners of the State of North Carolina, shall be admitted as evidence in any court of this State when it is otherwise competent.
The Board may in an
executive session a closed meeting receive evidence involving
or concerning the treatment of a patient who has not expressly or impliedly
consented to the public disclosure of such treatment as may be necessary for
the protection of the rights of such patient or of the accused physician and
the full presentation of relevant evidence. All records, papers and other
documents containing information collected and compiled by the Board, or its
members or employees as a result of investigations, inquiries or interviews
conducted in connection with a licensing or disciplinary matter shall not be
considered public records within the meaning of Chapter 132 of the General
Statutes; provided, however, that any notice or statement of charges against
any licensee, or any notice to any licensee of a hearing in any proceeding
shall be a public record within the meaning of Chapter 132 of the General
Statutes, notwithstanding that it may contain information collected and compiled
as a result of any such investigation, inquiry or interview; and provided,
further, that if any such record, paper or other document containing
information theretofore collected and compiled by the Board, as hereinbefore
provided, is received and admitted in evidence in any hearing before the Board,
it shall thereupon be a public record within the meaning of Chapter 132 of the
General Statutes.
In any proceeding before the Board, in any record of any hearing before the Board, and in the notice of the charges against any licensee (notwithstanding any provision herein to the contrary) the Board may withhold from public disclosure the identity of a patient who has not expressly or impliedly consented to the public disclosure of treatment by the accused physician."
Sec. 7. G.S. 90-270.15(c) reads as rewritten:
"(c) Except as provided otherwise in this Article,
the procedure for revocation, suspension, denial, limitations of the license,
or other disciplinary, remedial, or rehabilitative actions, shall be in
accordance with the provisions of Chapter 150B of the General Statutes. The
Board is required to provide the opportunity for a hearing under Chapter 150B
to any applicant whose license is denied or to whom licensure is offered
subject to any restrictions, probation, disciplinary action, remediation, or
other conditions or limitations, or to any licensee before revoking,
suspending, or restricting a license or imposing any other disciplinary action
or remediation. If the applicant or licensee waives the opportunity for a
hearing, the Board's denial, revocation, suspension, or other proposed action
becomes final without a hearing having been conducted. Notwithstanding the
foregoing, no applicant or licensee is entitled to a hearing for failure to
pass an examination. In any proceeding before the Board, in any record of any
hearing before the Board, in any complaint or notice of charges against any
licensee or applicant for licensure, and in any decision rendered by the Board,
the Board may withhold from public disclosure the identity of any clients or
patients who have not consented to the public disclosure of treatment by the
licensee or applicant. The Board may close a hearing to the public and receive
in executive session closed
meeting evidence involving or concerning the treatment or delivery of
psychological services to a client or a patient who has not consented to the
public disclosure of such treatment or services as may be necessary for the
protection and rights of such patient or client of the accused applicant or
licensee and the full presentation of relevant evidence. All records, papers
and other documents containing information collected and compiled by or on
behalf of the Board, as a result of investigations, inquiries or interviews
conducted in connection with licensing or disciplinary matters will not be
considered public records within the meaning of Chapter 132 of the General
Statutes; provided, however, that any notice or statement of charges against
any licensee or applicant, or any notice to any licensee or applicant of a
hearing in any proceeding, or any decision rendered in connection with a
hearing in any proceeding, shall be a public record within the meaning of
Chapter 132 of the General Statutes, notwithstanding that it may contain information
collected and compiled as a result of such investigation, inquiry, or hearing
except that identifying information concerning the treatment or delivery of
services to a patient or client who has not consented to the public disclosure
of such treatment or services may be deleted; and provided, further, that if
any such record, paper or other document containing information theretofore
collected and compiled by or on behalf of the Board, as hereinbefore provided,
is received and admitted in evidence in any hearing before the Board, it shall
thereupon be a public record within the meaning of Chapter 132 of the General
Statutes, subject to any deletions of identifying information concerning the
treatment or delivery of psychological services to a patient or client who has
not consented to the public disclosure of such treatment or services."
Sec. 8. G.S. 90-390(c) reads as rewritten:
"(c) Except as otherwise provided in this Article,
the procedure for revocation, suspension, refusal, or other limitations of the
certificate shall be in accordance with the provisions of Chapter 150B of the
General Statutes. In any proceeding or record of any hearing before the Board,
and in any complaint or notice of charges against any certified fee-based
pastoral counselor or certified fee-based pastoral counseling associate and in
any decision rendered by the Board, the Board shall endeavor to withhold from
public disclosure the identity of any counselees or clients who have not
consented to the public disclosure of treatment by the certified fee-based
pastoral counselor or certified fee-based pastoral counseling associate. The
Board may close a hearing to the public and receive in executive session a closed meeting evidence
concerning the treatment or delivery of pastoral counseling services to a
counselee or a client who has not consented to public disclosure of treatment
or services, as may be necessary for the protection of the counselee's or
client's rights and the full presentation of relevant evidence. All records,
papers, and documents containing information collected and compiled by or on
behalf of the Board as a result of investigations, inquiries, or interviews
conducted in connection with certification or disciplinary matters are not
public records within the meaning of Chapter 132 of the General Statutes.
However, any notice or statement of charges against any certified fee-based
pastoral counselor or certified fee-based pastoral counseling associate, any
notice to any certified fee-based pastoral counselor or certified fee-based
pastoral counseling associate of a hearing in any proceeding, or any decision
rendered in connection with a hearing in any proceeding is a public record
within the meaning of Chapter 132 of the General Statutes, except that identifying
information concerning the treatment or delivery of services to a counselee or
client who has not consented to the public disclosure of such treatment or
services may be deleted. Any record, paper, or other document containing
information collected and compiled by or on behalf of the Board, as provided in
this section, that is received and admitted in evidence in any hearing before
the Board shall be a public record within the meaning of Chapter 132 of the
General Statutes, subject to any deletions of identifying information
concerning the treatment or delivery of pastoral counseling services to a
counselee or client who has not consented to public disclosure of the treatment
or services."
Sec. 9. G.S. 120-131(b)(4) reads as rewritten:
"(4) Bill, resolution, memorandum, written analysis, letter, or other document resulting from a drafting or information request and it has been distributed at a legislative commission or standing committee or subcommittee meeting not held in executive session, closed meeting, or on the floor of a house."
Sec. 10. This act is effective upon ratification.