The Secret Meeting

Here it is! The long-awaited audio recording of the "Secret Meeting" between County Board of Elections Chair David Cox and Board Member Ed Credle during recess of the March 23 2010 Board meeting!

This is the recording that cost Pamlico County taxpayers $1,400 when Board Member Judy Smith consulted the county attorney about:

1) whether or not a recording she made of the March 23, 2010 Board of Elections meeting was a “public record” which she was therefore obliged to turn over to the Board’s custodian of records; and

2) if so, whether nineteen seconds of audio captured by her recorder when she left it running during a recess of the meeting is also a public record.

Background:

Ms. Smith recorded the March 23, 2010 BOE meeting in her capacity as Secretary in order to aid her in preparing minutes. She then refused multiple requests to provide the Board’s custodian of records with the recording. She also subsequently refused to provide recordings she made of the Board’s April 5, April 13, and April 20 meetings.

At the Board’s April 27 meeting, Ms. Smith was again asked to provide the recording to the Board as a public record, and she stated she would not provide the recording unless and until I and Mr. Credle agreed to “explain” to her satisfaction several comments she had recorded during a recess when she was outside the room.

I did not believe Ms. Smith had the right to hold recordings of public meetings as hostage for any reason, so I made a written demand under North Carolina General Statutes 132-5 that she turn over the recording. Ms. Smith contacted the county attorney, who explained that a recording of a public meeting made by the Secretary of a body to assist in preparing meeting minutes is a “public record,” and not a “personal” recording. Ms. Smith finally turned over a copy of the recording to the Board’s custodian of records.

As for the recording made during the recess, contrary to assertions made elsewhere, the county attorney never "advised [that the] segment of the recording [made during the recess] is a public document and is a part of the meeting business." The attorney never even listened to the recording to evaluate its content and determine whether the recess conversation actually involved Board of Elections “business.” Instead, he simply took his client's (Ms. Smith’s) assertions as true (as attorneys generally do when writing opinion letters to client inquiries);

“You [Ms. Smith] believe that a portion of the tape recording during the recess includes discussions regard Board of Elections’ business…If any of these assumptions or facts are incorrect… my opinion may change accordingly…"

- Jimmie B. Hicks, Jr. letter of May 6, 2010

Now that Ms. Smith has turned over the recording, including the portion recorded during the recess, we can all listen and determine whether Mr. Credle or I broke any rules.

The Accusations

Mr. George Smith wrote a letter to the editor of the County Compass newspaper asserting that two portions of the recess discussion violated open records and/or open meetings laws:

1) a discussion between Mr. Cox and Mr. Credle about some complaints made by members of the public during the public comments portion of the meeting; and

2) comments about a number of potential voter registration challenges.

The Rules:

What are the rules about two Board members speaking to each other while the third member is not present?

As of May 28th, the rule was: "it is within the law for a board chairman or member to meet individually and privately with each other to discuss a public matter if no action is taken through these individual meetings." Don Wright, General Counsel, State Board of Elections.

Recently the State Board has promulgated a new rule: "Members of county boards of election should refrain from two-person conversations touching on subjects that may come before the board for a decision. Conversations that concern elections but do not touch on subjects that may come before the board for decisions are not in violation of the law and are permissible." - Robert P. Joyce, UNC School of Government July 8, 2010.

In explaining the new rule, Mr. Joyce also made clear that conversations between a Board member and BOE staff members are not covered under the Open Meetings Act.

The Substance - Where is the Violation?

The second question is whether any of the above rules were violated by anyone who was recorded by Ms. Smith during the recess.

First, we should listen to what was said:

(Note: for some reason unknown to me, you may have to hit the "play" button twice to start the player)

(my best attempt of a transcript appears below, at the end of this posting)

In the recording, Mr. Credle and I have a brief exchange about things said by several speakers during the public comment period concerning events that allegedly occurred during the election of 2008. The deadline to file a protest of the 2008 election was November 18, 2008, 16 months before the meeting and conversations about which Mr. Smith complained took place. There was no way the Board could have taken any action on the allegations and complaints made by the speakers, no matter how well-founded they might have been.

Next you will hear SBOE District Election Technician Rosemary Blizzard wondering why the Board spent so much time discussing a number of potential voter registration challenges, commenting that the challengers should simply submit their challenges for consideration and decision by the Board. Pamlico County Director of Elections Lisa Bennett also jokingly suggested that the Board simply vote to remove all challenged voters. I responded to these comments with noncommittal “yeah”s, indicating I heard and understood what the staff members were saying, but giving no substantive responses in order to protect my complete impartiality in the event the potential challenges were brought before the Board for a quasi-judicial hearing and decision.

How does a brief discussion between Board Members Mr. Credle and myself about allegations upon which the Board had no power to act violate any of these rules?

How do comments made by BOE staff members to a Board Member about any matter whatsoever violate any of these rules?

Now we can all listen and decide for ourselves whether anything in the recess recording is a public document or reveals a violation of the NC Open Meetings Act.


(Transcription:)

Ed Credle: Give me a hand. (laughter)

Ed Credle: Give up, give up a "Jesse Jackson." (as Mr. Cox gave a hand to help Mr. Credle stand up) There ya go. Thank you. (laughing)

Dave Cox: Alright.

Ed Credle: I need to straighten up a little (sighs)…

Dave Cox: Yeah

Ed Credle: Gee. Thank you.

Dave Cox: Well, heh-heh.

Ed Credle: I’m catchin’ it.

Dave Cox: Yeah?

Ed Credle: Yeah. Yep. [indiscernible]

Dave Cox: I hope you can see who they focused on uh you know, Mesic and who they were looking at real closely in Oriental?

Ed Credle: Ha, ha. Yeah. OK, well we can take care of that.

Dave Cox: Yeah.

Lisa Bennett (entering room): Mr. Credle, I think I caught you napping [laughter]

Ed Credle: Almost. Wow. Almost. [laughter continues]

Rosemary Blizzard: [indistinct] ten minutes [indistinct].

Ed Credle: You got it.

Lisa Bennett: It’s still on (referring to audio recorder)

Rosemary Blizzard: Why are we discussing? Just turn it in. Y’all do the voting.

Dave Cox: Yeah.

Rosemary Blizzard: If you vote “no” you vote “no.”

Dave Cox: Yeah. It’s OK.

Rosemary Blizzard: Majority rules.

Lisa Bennett: Just vote “yes” so I can take them off, OK? [snickers].

Dave Cox: Yeah.

Lisa Bennett: "[indiscernible/laughing] Just get rid of ‘em."