April 2, 1997
Mr. Fred M. Carmichael Summrell, Sugg, Carmichael & Ashton, P.A. 310 Broad Street New Bern, North Carolina 28560
Re: Open Meetings Law, Closed Sessions. N.C.G.S. § 143-318.11(a)(3); Closed session to consult with an attorney employed or retained by the public body.
Dear Mr. Carmichael:
Thank you for your letter dated March 20, 1997, requesting an Advisory Opinion concerning whether the Craven County Regional Medical Center Board ("the Board") can enter into closed session to hold discussions with you, as their attorney. For the sake of clarity we would like to restate the pertinent facts that you have provided.
You serve as legal counsel to the Craven Regional Medical Center ("Craven"). You were serving in that capacity in the Spring of 1996 when you drafted some three party contracts between Craven, Onslow Memorial Hospital in Jacksonville, North Carolina and two anesthesiologists concerning the provision of anesthesia services. These contacts were executed on June 18, 1996.
In December of 1996, the employment contract of Craven’s President was terminated without cause. Believing, that you would have difficulty maintaining objectivity, you excused yourself as counsel to the Board in matters involving the President’s contract. Subsequently, matters involving the anesthesia contracts came into dispute. Because you believed there was a connection between the anesthesia contracts and the President’s contract you also excused yourself from future involvement in those matters. You continue to serve as legal counsel to Craven and consider matters involving your participation with the anesthesia contracts to be covered by the attorney-client privilege.
You and the Board would now like to discuss matters involving the anesthesia contracts in a closed session of the Board. Specifically, you have asked:
- Can the Board, upon proper motion, go into closed session to have discussion with [you], as legal counsel, concerning [your] involvement in the anesthesia contract matters and also continue to maintain the attorney-client privilege between [you]?
- If so, during such discussion, can the individual members of the Board participate in a dialogue between themselves, as well as [you], concerning matters that may be brought up during the discussion in respect to the anesthesia contracts?
N.C.G.S. § 143-318.11(a)(3) provides in pertinent part that:
[i]t is the policy of the this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required : . . . To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matter may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant.While the Open Meetings Law permits a board to hold a closed session in order to consult with an attorney retained by the public body, it does not permit a public body to close a meeting for any discussion with an attorney. The exception is limited by the scope of the attorney-client privilege as defined by common law. Thus, there must be an attorney-client relationship between the public body and the attorney; the communications that are the subject of the closed session must concern legal advice in the course of the professional employment; the communications must be confidential; and the public body must not have waived the privilege. See generally, 97
C.J.S Witnesses, § 283. If any of these requirements are not present, the privilege does not exist and exception (a)(3) may not be used by a public body to go into closed session. Applying this analysis to your situation, it appears that all of the necessary components are in place to establish that the attorney-client privilege exists between you and the Board. You were retained by the board at the time the privileged communications were made, and there is no indication that the Board has, by word or deed, waived the privilege. Therefore, we believe, that upon proper motion, the Board may go into closed session to have a discussion with you concerning your involvement in the anesthesia contract matters.
You also asked if the individual Board members may discuss among themselves during the closed session, matters concerning the anesthesia contracts. Given that it would be highly impracticable for members of the Board to obtain legal advice from you without discussing it among themselves, we believe that the Board may participate in discussions concerning your involvement in the anesthesia contract matters in the context of the closed session.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
T. Brooks Skinner, Jr.
Associate Attorney General