City withholds communication about council’s closed sessions

Published 12:10 am Sunday, December 6, 2020

By Natalie Anderson and Josh Bergeron
news@saliburypost.com

SALISBURY — Details of discussions by city council members during closed session meetings remain unclear after responses to the Post’s records requests.

Council members met in multiple hours-long closed session meetings from late August to Nov. 11 to discuss personnel issues. On some occasions, the private portions of the meetings were noticed as usual in meeting agendas. Other times, the closed meetings were added to the regular agenda at council meetings. In one instance, on Saturday, Oct. 10 at 12:36 p.m., the city of Salisbury sent out a notice about an emergency meeting to take place less than 30 minutes later. Nearly all of the “emergency meeting” occurred in closed session.

No formal action was taken following the final closed session meeting, and council members have declined to disclose any details regarding the matter discussed. The city has also declined to provide some correspondence in response to Salisbury Post public records requests, citing a general personnel exemption to the state’s public records law as well as that some items were prepared in anticipation of legal action.

On Nov. 6, the Post requested all emails sent by Mayor Pro Tem Al Heggins and Mayor Karen Alexander concerning public business since August, including those sent via private email accounts. Emails concerning public business are public regardless of their location.

The Post also requested all comments from city council members related to City Manager Lane Bailey’s performance review this year and communications from city council members and staff to attorneys. While state laws exempt communications from attorneys representing public bodies, they do not provide the same protection for communications from elected officials like city council members to attorneys.

The Post received around 40 emails. While City Attorney Graham Corriher didn’t specify how many records were withheld, he said the “vast majority” of records that were fell under a personnel records exemption. Corriher said there were a handful of emails also not provided that involved analysis between attorneys about legal matters.

He said personnel discussions in closed session were broad in scope, and he declined to describe whether conversations involved one personnel matter or multiple. He said there has been no discussion in open session about the matters discussed in private.
Corriher also said a number of records could qualify for multiple exemptions to public records laws. So, he said, emails withheld as “trial preparation materials” would still fall under a personnel exemption if a judge decided the former was not allowed.
“There’s multiple layers here,” Corriher said.
On Aug. 10, Alexander sent an email to city council members asking them to deliver paper copies of Bailey’s performance review no later than Aug. 28. The email also included a poll for members to provide their availability for an in-person discussion of the review.
On Aug. 31, Salisbury Mayor Pro Tem Al Heggins sent council members a copy of Bailey’s contract with no text in the body of the email.

For the request of all emails concerning public business, Corriher said he would check to see whether any private account emails were included in the batch of communications he reviewed. Alexander told the Post said that she does not use a private email account to discuss city business.

Some emails received included communication between the city and two law firms — Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Cranfill, Sumner & Hartzog LLP — Both firms assisted the city with items discussed during closed sessions.

In an email sent to Corriher on Oct. 21, Stephanie Webster, of the Cranfill, Sumner and Hartzog firm, provided information to register for a civil litigation and workers’ compensation law updates.

The city spent approximately $2,926 on general personnel advice in 2018 and $18,529 on general personnel advice in 2019, with at least $2,275 spent on general personnel advice this year since August.

On two separate occasions, the city has used the services of Cranfill Sumner & Hartzog LLP, which has offices in Charlotte, Raleigh and Wilmington and provides a range of legal services including employment law, municipalities and public entities and alternative dispute resolutions.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. also provides counsel related to labor and employment law.

In an email unrelated to the closed sessions, a citizen emailed law enforcement and local leaders, including city council members, asking them to develop a safety plan for election precincts following national discussions about voter intimidation. Heggins responded with information about an Oct. 8 webinar she registered for called “Armed Militias, Extremists and Vigilantism During the 2020 Elections and Beyond: What Cities Can Do to Address This Threat.” The event was hosted by Mayors Against Illegal Guns.

“Thank you for your email and I certainly understand and share your concern,” Heggins wrote. “We are living in unprecedented times and I believe we must take every precaution to protect our communities.”
Alexander said she registered for the webinar, and that, “We do need to make sure that our citizens are not intimidated about the candidates that they support.”
An Oct. 6 email from Salisbury Police Chief Jerry Stokes said he assigned two supervisors to develop a plan for Election Day and the days after. Specific details of the plan, however, were considered police operational plans and inappropriate to share, he added.
“It always a balancing act for police on election day ensuring we do not appear to be trying to influence the outcome and providing proper security of polling sites,” Stokes said in the email. “We will provide appropriate and necessary measures to ensure everyone is afforded the ability to vote.”