Sunshine Law Needs Teeth

Senator Thom Goolsby

February 12, 2013

Do you know what happens in North Carolina if a government board, agency or commission refuses to obey the state’s sunshine laws requiring open meetings and records? Absolutely nothing!

In other words, your local school board, county commission, city council or airport authority can decide to have closed meetings by going into “executive session” just because they feel like it. Maybe they don’t want the public or press around because the topic under consideration will make them look bad. But, there is nothing the public or press can effectively do about it. There’s also nothing that any other state, local or federal official can do about it.

There is an open meetings law on the books, but it has absolutely no teeth. In fact, the law doesn’t even have any gums. You can file a lawsuit, but it will not allow you into a meeting that has already taken place or provide you with minutes of the meeting that were never taken.

The same rule holds true with records. Say a government official or one of his underlings does not want you to have a document, email or invoice that would demonstrate mismanagement, fraud or incompetence. Guess what? They can fight you tooth and nail. Even after a protracted court battle, there is no real punishment (except for some possible legal fees) for them doing so.

Does this sound like government run amok with no accountability to anyone? It should appear that way to any public-minded citizen. Let’s be clear: North Carolina has open meeting and open record laws on the books. The problem is there is no way to enforce them because there is no punishment for any violation.

Here’s a real life example of how bad it can get: a local Alcohol Beverage Control board in Southeastern North Carolina decided that it did not want to address issues regarding the outrageously high salary it was paying its director. Guess what the board members did? They held a private, executive session where they may have discussed the matter. However, since the session was closed to the public (open meeting violation) and since they kept no minutes (open record violation), the public will never know what was done in its name, with its money, on its time.

There is a way to stop this madness, and it is a simple fix. A bill was introduced in the last session of the General Assembly to criminalize open meeting/open record law violations. Although the public likes the idea, government bureaucracies and politicians do not. Why? It’s great to act with impunity, as long as you are in charge and not paying the bills. After all, it has worked well for czars, kings and potentates for centuries.

Here’s what the proposed law will do: if you violate the open meeting/open record law, you can be charged with a Class III misdemeanor. This is the lowest level crime on the books. However, it is still a crime punishable by up to 20 days in jail. The intent of the law is not to jail politicians and bureaucrats. It is meant to fire a shot across the bow of potential offenders. Upon its implementation, the law will change the default position on government meetings and records making them “open,” rather than “closed.” Only an extremely dim-witted bureaucrat or politician will refuse to give out a government record or close a meeting, unless they are told to do so by their lawyer.

The result of this proposed law should be more open government, faster and greater access to records and less hanky-panky, self-dealing and corruption on the part of officials. Nonetheless, it will be up to the public and the press to demand accountability from their leaders. It was the French lawyer, diplomat and writer, Joseph de Maistre, who said, “People get the government they deserve.” In North Carolina, we deserve better than the status quo.

Thom Goolsby is a state senator, practicing attorney and law professor. He serves as a Chairman on the Judiciary 1 Committee in the NC Senate and introduced the change to the open record/open meeting law last session.