September 20, 1995
Julia C. Howard, Chair, Ethics Committee North Carolina General Assembly State Legislative Building Raleigh, N.C. 27601
RE: Advisory Opinion, Open Meetings, Public Records, N.C.G.S. §§ 132-1, et seq., 143-318.9 et seq.
Dear Ms. Howard:
We have received your request dated September 19, 1995 for a written opinion on the following questions. Within the constraints of responding to your request in less than twenty-four hours, we provide you with the following opinions.
QUESTION:
May the Ethics Committee receive, examine, and withhold from public inspection investigatory reports which are ordered by the Chair of the Committee to be completed in pursuing its investigations?
ANSWER:
No. The Ethics Committee is a public body and as such, reports that it receives are public record. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992).
QUESTION:
May the Ethics Committee proceed in closed session to take the testimony of a former House page, who is 16 years of age, and publish the testimony, with the page’s name and any identifying material omitted from the transcript of testimony?
ANSWER:
No. Under recent amendments to the Open Meetings law, N.C.G.S. § 143-318.9 et seq., adopted by the General Assembly in 1994, it is unclear whether the Ethics Committee can close its meetings in proceedings to consider charges against a House member. A responsible argument can be made that under N.C.G.S. § 143-318.11(a)(6) the Committee can close its meetings to "consider the . . . fitness, . . . of an individual public officer . . . ." That same subsection, however, provides that A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another public body . . . except in an open meeting."
Given this apparent inconsistency in the relevant provisions of the Open Meetings Law, we are unable to predict with confidence how a court would rule if a closed meeting of the Committee were challenged. Even if the Committee can conduct its investigation in closed session, including taking testimony of the former House page, the full transcript of the testimony would become
public record at the conclusion of the Committee’s proceedings. N.C.G.S. § 143-318.10(e) and
Chapter 132 of the General Statutes. We concur with the Committee’s desire to protect the
identity of this minor. Unfortunately, there is no provision in the law authorizing the Committee
to redact the former page’s name or identifying information.
Until the General Assembly can clarify the relevant statutes, we recommend that the most
prudent way to for the Committee to proceed is to conduct its proceedings in open meeting, but
take the testimony of the former House page by deposition in private. This would protect the
young former page from any adversity associated with testimony in public. The transcript of the
deposition, when received by the Committee should be treated as a public record.
We trust this is responsive to your questions. If we can be of further assistance to the Committee,
please let us know.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
John R. McArthur
Chief Counsel