Meetings of Public Bodies; Public Records

Subject:

Meetings of Public Bodies; Public Records; G.S. Chapter 132; Article 33C of G.S. Chapter 143.

Requested By:

William I. Millar Attorney for Haywood County Hospital Waynesville

Questions:

(1)

Is there any requirement that a hospital subject to Article 33C of G.S. Chapter 143 (Meetings of Public Bodies) make available for public inspection contracts for the employment of independent contractors considered by its governing body in executive session, exemplars of which contracts are attached to the minutes of the executive session, which contracts were later approved by the governing body in open session?

(2)

What legal sanctions may be brought to bear against the governing body for failure to make such available for public inspection?

(3)

Assuming that the act of approving such contract took place in executive, rather than open, session, is the contract itself vitiated in any way?

Conclusions:

(1)

Yes. Under Article 33C of G.S. Chapter 143, the terms of such contracts should be made public at the time of action employing or authorizing employment of the independent contractors.

(2)

Concealment of the terms of such contracts when considered for final approval by the governing body is a violation of Article 33C of G.S. Chapter 143 for which injunctive relief may be sought under G.S. 143-318.16 and attorney’s fee may be awarded a prevailing plaintiff in such an action where a willful violation is found. Public inspection of such documents may be compelled under G.S. 132-9. The possibility of personal civil or criminal liability of public officers who willfully persist in unlawfully suppressing information about the people’s business cannot be precluded.

(3)

Such contracts executed pursuant to otherwise valid approval of the governing body in executive session are not rendered void or vitiated by Article 33C of Chapter 143 for failure of the governing body to give final authorization in open meeting.

You acknowledge that the subject hospital is a "public hospital" subject to the provisions of Article 33C of G.S. Chapter 143, the statutory law dealing with "Meetings of Public Bodies." Such being the case it would appear that documents reflecting action taken by the public body, unless otherwise excluded or rendered confidential by law, are public records and are subject to public inspection under G.S. Chapter 132.

Your letter explains that the hospital’s governing body normally meets in . . . executive session to consider the employment of any independent contractor — whether to provide pathology services, anesthesia services, X-Ray services, or for the operation of the Emergency Room. . . . After consideration of the proposal and of the proffered contract, the governing body re-convenes itself into open session, and takes such action upon the contract as it desires-approving, rejecting or modifying the document(s) considered in executive session." I understand, however, that the hospital desires to continue its past practice of refusing to make public the full terms of such contracts and especially the sums to be paid thereunder for reason that the amounts which it finds necessary to pay for medical services are so great that the publication thereof "may incite public indignation without comprehension that the . . . services are essential and not attainable for less."

G.S. 143-318.11 lists permitted purposes of an executive session of a public body. Subdivision (a)(9) thereof permits such a session, excluding the public, to consider employment of an independent contractor. It further states, however, that "(a)ny action employing or authorizing the employment . . . of an independent contractor shall be taken at an open meeting." We believe that this provision requires the terms of employment of the independent contractor to be made public at that time and that neither consideration of the contract in executive session nor making it a part of the minutes of such a session alters this requirement. Concealment of the terms of such a contract at the time of final action upon it is not a legitimate purpose of executive session. In Article 33C of G.S. Chapter 143, the General Assembly has stated the public policy of this State in such matters:

"§ 143-318.9. Public policy.

Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly."

You next inquire about possible legal sanctions. It is our opinion that such a public body’s failure to take final action approving a contract, including public revelation at the time of the terms of the contract, at an open meeting is a violation of Article 33C of Chapter 143. The remedies of

G.S. 143-318.16, mandatory or prohibitory injunction, could therefore be sought by an aggrieved person. It seems likely under the facts here that public revelation of the full terms of such a contract could thereby be compelled. Attorney fees may be awarded a prevailing plaintiff where a willful violation is found. Further, public access to such contract as a public record could be sought under G.S. 132-9.

It does not seem necessary here to speculate as to the possible applicability of other legal sanctions. Suffice it to say that we would not preclude the possibility of personal, civil or criminal liability of public officers, under State or federal law, where they willfully persist in a practice of unlawfully suppressing information about the people’s business.

We find no clear legislative intent in Article 33C of G.S. Chapter 143 that contracts between public bodies and independent contractors, otherwise properly approved and executed, are void or vitiated because final action by the public body was not taken at public meeting. Therefore, if approval in executive session would otherwise suffice, we conclude that failure to take final action in open meeting would not invalidate a public body’s contract, G.S. 143-318.11(a)(9) notwithstanding. See Lewis v. White, 287 N.C. 625.

Rufus L. Edmisten Attorney General

William F. Briley Assistant Attorney General