News & Observer Pub. Co. v. Interim Bd. of Ed. for Wake County
| Decision Date | 07 April 1976 |
| Docket Number | No. 7610SC24,7610SC24 |
| Citation | 29 N.C.App. 37,223 S.E.2d 580 |
| Parties | The NEWS AND OBSERVER PUBLISHING COMPANY, a corporation, et al. v. INTERIM BOARD OF EDUCATION FOR WAKE COUNTY, a Body Politic and Corporate, etal. |
| Court | North Carolina Court of Appeals |
Lassiter & Walker by William C. Lassiter, Raleigh, for plaintiffs-appellees.
Robert L. Farmer, Raleigh, for defendants-appellants.
Wade H. Hargrove, Raleigh, amicus curiae.
SCOPE OF REVIEW
The record recites that defendant appellants' sole exception 'is the rendering and signing of the Order' by Judge Bailey dated 31 December 1975. That being true, appellate review is limited to the question of whether error of law appears on the face of the record. While this permits us to review the conclusions of law and to determine if the facts found or admitted support the order, it does not present for review the findings of fact or the sufficiency of the evidence to support them. 1 Strong, N.C. Index 2d, Appeal and Error § 26, and cases therein cited. Therefore, defendants' contentions that certain findings of fact are not supported by the evidence will not be considered.
This action involves an interpretation of portions of the North Carolina Open Meetings Law enacted by the 1971 General Assembly. Ch. 638, 1971 Session Laws, codified as Art. 33B of Ch. 143 of the General Statutes.
G.S. 143--318.1 provides as follows:
'Public policy.--Whereas the commissions, committees, boards, councils and other governing and governmental bodies which administer the legislative and executive functions of this State and its political subdivisions exist solely to conduct the peoples' business, it is the public policy of this State that the hearings, deliberations and actions of said bodies be conducted openly.'
G.S. 143--318.2 requires in substance that all official meetings of the governing and governmental bodies of the State and its political subdivisions, including all county, city and municipal committees and boards which have or claim authority to conduct hearings, deliberate or act as bodies politic and in the public interest, shall be open to the public.
G.S. 143--318.3 sets forth those instances in which the bodies coming within the ambit of the law may hold executive sessions and exclude the public from their deliberations. G.S. 143--318.4 specifies certain agencies or groups that are excluded from the provisions of G.S. 143--318.2.
Defendants contend first that the executive session complained of here was authorized by G.S. 143--318.3(b) which provides in pertinent part as follows: 'This Article shall not be construed to prevent any governing or governmental body specified in G.S. 143--318.1 from holding closed sessions to consider information regarding the appointment, employment, discipline, termination or dismissal of an employee or officer under the jurisdiction of such body . . ..' Defendants argue that a member of the Board is an 'officer' under the jurisdiction of the Board, therefore, a closed session to consider information regarding the appointment of such officer is authorized. We reject this argument.
Ordinarily a strict or narrow construction is applied to statutory exceptions to the operation of laws, and those seeking to be excluded from the operation of the law must establish that the exception embraces them. 73 Am.Jur.2d, Statutes § 313, pp. 463--64 (1974). While neither our Supreme Court nor this Court has spoken on the question of strict construction as it pertains to our open meetings law, courts of other states have held that exceptions to their open meeting statutes allowing closed meetings must be narrowly construed since they derogate the general policy of open meetings. See Illinois News Broadcasters Ass'n v. Springfield, 22 Ill.App.3d 226, 317 N.E.2d 288, 290 (1974); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Times Publishing Company v. Williams, 222 So.2d 470 (Fla.App., 1969); Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla., 1974). We are convinced that these principles are sound; that exceptions to our open meetings law should be strictly construed and that those seeking to come within the exceptions should have the burden of justifying their action.
We think the term 'under the jurisdiction of' implies one Subordinate to the Board. For the most part, defendant Board is the aggregate of its members, who are coequal. Applying a strict construction to subsection (b), we hold that a member of defendant Board is not an 'officer' of the Board within the contemplation of the open meetings law.
Defendants next contend that the trial court erred in concluding that the closed session complained of was not authorized by G.S. 143--318.4(7) when defendants attending the meeting were constituted a committee of the whole.
G.S. 143--318.4 specifies certain agencies or groups that are excluded from the open meetings law, subsection (7) providing as follows: 'All study, research and investigative commissions and committees including the Legislative Services Commission'. Defendants argue that the individual defendants attending the meeting in question became an investigative committee as envisioned by Subsection (7).
Dictionaries we have consulted define 'committee of the whole' in terms of a legislative body. Plaintiff submits the Century Dictionary definition as follows: '--COMMITTEE OF THE WHOLE, a committee of a legislative body consisting of all the members present, sitting in a deliberative rather than a legislative character, for formal consultation and preliminary consideration of matters awaiting legislative action'. 1 Century Dictionary 1131 (1889).
We think the terms is entitled to a broader reach and that utilization of the concept is warranted by groups other than legislative. By way of illustration, a brief look at the Modus operandi of the House of Representatives of our State might be helpful.
Due to the large volume of proposed legislation, our House performs a major part of its work in a Regular session through standing committees, finding it impossible for every member to participate in hearings and the careful scrutiny of every bill that is introduced. However, in a special or extra session, which usually considers only one or two questions, and usually lasts only a few days, the House often utilizes its rule providing for a Committee of the Whole House. See Journals for 1963 Extra Session dealing with Congressional redistricting; 1965 Extra Session dealing with the 'Speaker Ban Law'; and 1966 Extra Session dealing with Congressional and Legislative redistricting and reapportionment. The Journals reveal that during those extra sessions practically all committee work was done by the House sitting as a committee of the whole.
The reasons for this procedure in an extra session are numerous. These include the fact that the House is dealing with a single subject, all of its members are available at the same time to meet as a committee for purpose of hearing statements from people who are not members of the House, and time is minimized by having every member receive full information on which to base a judgment.
In like manner much of the routine work of city councils, boards of county commissioners, and boards of education, particularly in larger cities and counties, may be performed more efficiently by committees of fewer members than the entire board. However, there arise major or unusual problems or duties that require the combined and expeditious attention of the entire body and on those occasions the body could well utilize the committee of the whole procedure.
With respect to a board of education, we can envision instances in which the board would need to function as a committee of the whole in closed session in order to investigate certain matters. An example would be the theft or embezzlement of property when the board did not have proof as to the wrongdoer and means to determine the unknown culprit would have to be devised. Obviously, a discussion of the matter in a public meeting could destroy any plan to determine the...
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