Open Meetings and Other Legal Requirements for Local

Article 53

Open Meetings and Other Legal Requirements for

Local Government Boards

by Frayda S. Bluestein

Open Meetings Law Requirements for All Public Bodies / 2

Overview / 2

Public Right of Access to Open Meetings / 2

Ocial Meetings of Public Bodies / 2

Notice Requirements / 3

Regular Meetings / 3

Special Meetings / 3

Emergency Meetings / 3

Recessed Meetings / 4

Closed Sessions / 4

Procedures for Closed Sessions / 4

Condential Records / 4

Attorney Consultations / 4

Economic Development / 5

Purchase of Real Property / 5

Employment Contracts / 5

Public Employees / 5

Criminal Investigations / 5

Minutes and General Accounts / 5

Remedies / 6

Additional Meeting Requirements for County

and City Governing Boards / 6

Governing Board Meetings / 6

Organizational Meetings / 7

Counties / 7

Cities / 7

Regular Meetings / 7

Counties / 7

Cities / 7

Special Meetings / 7

Counties / 8

Cities / 8

Emergency Meetings / 8

Counties / 8

Cities / 8

Meeting Location / 8

Rules of Procedure / 9

Quorum / 9

Counties / 9

Cities / 9

Governing Board Action / 9

Voting Rules / 9

Counties / 10

City Ordinances / 10

Excusing Members from Voting / 11

Public Hearings and Public Comment / 11

Rules for Quasi-Judicial Proceedings / 12

Remote Participation in Meetings / 12

Meeting Requirements for Appointed Boards / 12

Additional Resources / 13

About the Author / 13

Acknowledgment / 13

is article describes various legal requirements that aect elected and appointed local governing boards. In addition

to the county and city elected governing boards, there are many other appointed boards that carry out important

functions and activities at the local government level. e North Carolina open meetings law applies to all public

bodies, including local elected and appointed boards, councils, and commissions, and to subcommittees of these bod-

ies. County and city governing boards are subject to additional state statutory requirements regarding meetings and

voting. ere are numerous locally appointed boards as well. Some are governed by state statutory requirements, such

as rules about voting and conicts of interest for quasi-judicial boards. Many locally appointed boards are created by

local ordinance and are governed primarily by the rules and requirements set out in those ordinances.

e rst section of this chapter provides a summary of the open meetings law. e second section deals with pro-

cedures that apply only to governing boards of counties and cities. e nal section outlines how to determine the

procedures that apply to statutorily mandated and locally appointed boards and commissions.

This material is an article from the forthcoming School of Government publication, County and Municipal Government in North Carolina, Second

without the express written permission of the School of Government, CB# 3330, UNC Chapel Hill, Chapel Hill, North Carolina 27599-3330;

telephone: 919-966-4119; fax 919-962-2707; Web: www.sog.unc.edu.

53-2 Open Meetings and Other Legal Requirements for Local Government Boards

Open Meetings Law Requirements for All Public Bodies

Overview

e North Carolina open meetings law

gives the general public a right to attend ocial meetings of public bodies,

except in those cases where the law permits closed sessions. e law denes the types of public entities and meetings

to which it applies and sets out mandatory forms and timing of notice that must be provided. If public ocials con-

duct a meeting and do not comply with the notice and access requirements under the law, there is no immediate legal

consequence. Rather, the law creates a legal remedy for a person who has been denied access to the meeting to seek

redress in court, as further outlined below. Failure to comply with the open meetings law often does, however, create

negative publicity for the public body and may diminish the public’s trust and condence in their local government

representatives.

Public Right of Access to Open Meetings

e public’s right to attend meetings of public bodies represents a strong policy in favor of transparency in local govern-

ment decision making. Compliance with the notice requirements is an essential element of providing the mandated

access. As part of the right of access, the law allows media broadcast of meetings and permits any person to photograph,

lm, tape-record or otherwise reproduce any part of an open meeting.

e open meetings law does not, however, pro-

vide the public any right to speak at public meetings. As noted later in this chapter, a separate statute requires regular

public comment periods at certain governing board meetings. Public hearings also provide opportunities for public

input and are required for some types of actions.

Other than these provisions, however, there is no general right for

members of the public to be heard by, or to hear from, members of public bodies. It is up to each board to establish,

in its discretion, additional opportunities for public input, either at meetings or through other channels. For a more

complete discussion of citizen involvement in local government, see Article XXX, Citizen Participation[x-ref].

Ocial Meetings of Public Bodies

e notice and access requirements under the open meetings law are triggered when there is an “ocial meeting” of

a “public body.” e statute

denes the term public body as any elected or appointed board, commission, committee,

council, authority, or other body in state or local government that (1) has at least two members and (2) exercises or is

authorized to exercise any of these powers: legislative, policy-making, quasi-judicial, administrative, or advisory. is

denition—and thus the scope of the statute—is very broad. Public bodies in county or city government include the

elected governing board; each committee of that board, whether it is a standing committee or an ad hoc committee;

boards created by statute, such as the board of health and the board of social services; and each body established by

action of the governing board, such as a planning board, a zoning board of adjustment, a parks and recreation com-

mission, or a human relations commission. Other local level governing boards include local boards of education, com-

munity college boards of trustees, and governing boards of public hospitals.

All ocial meetings of public bodies must be open to the public, unless the purpose of the meeting is one for which

a closed session is allowed under the statute. As dened in the statute

an ocial meeting occurs whenever a major-

ity of the members of a public body gather together to take action, hold a hearing, deliberate, or otherwise transact

the business of the body. Even an informal gathering that includes a majority of the board triggers the statute if the

members discuss or otherwise engage in the business of the public body.

Meetings solely among the professional sta of a public body and purely social gatherings among members of a

public body are specically excluded from the requirements of the law.

1. N.C. Gen. Stat. (hereinafter G.S.) Ch. 143, Art. 33C, §§ 143-318.9 through -318.18.

2. G.S. 143-318.14.

3. Public hearings are only required when a statute specically calls for them. See David Lawrence, “When Are Public Hearings

Required,” Coates’ Canons: NC Local Government Law Blog (Aug. 21, 2009), http://canons.sog.unc.edu/?p=77.

4. G.S. 143-318.10(b).

5. G.S. 143-318.10(d).

Open Meetings and Other Legal Requirements for Local Government Boards 53-3

e denition of ocial meeting makes clear that an ocial meeting occurs by the simultaneous communication,

in person or electronically, by a majority of the board. Because the denition includes electronic communication, a

telephone call or email communication that involves a simultaneous conversation among a majority of a public body

would violate the open meetings law if notice and access are not provided.

Notice Requirements

A key component of the open meetings law is the requirement to provide advance notice of meetings. e statute

requires that each public body give public notice of its ocial meetings, even those that will be conducted in closed

session. ese requirements apply to meetings of the governing board, to meetings of each appointed board, and to

meetings of each committee of any of these boards. e type of notice required depends on the nature of the meeting,

as described below. Specic additional types of notice required for county and city governing boards are described

later in this chapter.

Regular Meetings

If a public body holds regular meetings, it gives public notice of those meetings by ling its schedule of regular meet-

ings in a central location. For public bodies that are part of a county government, that location is the oce of the clerk

to the board of commissioners. For public bodies that are part of a city government, that location is the oce of the

city clerk. For local public bodies not part of a county or city, such as a local board of education, that location is the

oce of its clerk or secretary. e law also requires the schedule of regular meetings to be posted on the public body’s

website, if it maintains one. Once this notice is properly led and posted, no other public notice is required for regular

meetings held pursuant to the schedule. Changes in the regular meeting schedule are made by ling and posting a

revised schedule at least seven days before the rst meeting to occur under the revised schedule.

Special Meetings

If a public body meets at some time or place other than that shown on its regular meeting schedule, or if the public

body does not meet on a regular schedule, it must give special meeting notice. Such a notice sets out the time, place,

and purpose of the meeting and is provided in three ways. First, it must be posted on the principal bulletin board of the

public body (or on the meeting room door if there is no principal bulletin board). Second, it must be mailed, emailed,

or delivered to any person who has made a written request for notice of special meetings. ird, it must be posted on

the website of the public body, if it has one. Each of these forms of notice must occur at least forty-eight hours before

the meeting. A public body may require media requests to be renewed annually. Non-media requesters may be required

to renew quarterly and must be charged a fee of $10 per calendar year. No fee may be charged for email notices.

It is important to note that the statute requires the notice to specify the purpose of the meeting. Public bodies should

be careful when conducting special meetings not to discuss or take action on matters not included in the scope of the

notice.

Emergency Meetings

If the public body must meet within less than forty-eight hours, notice must be given to all local news media that have

requested notice. Notice may be given by telephone or email or by the same method used to notify the members of the

public body. An emergency meeting may be held only to address “generally unexpected circumstances that require

immediate consideration by the public body,” and only matters meeting this standard may be discussed at the meeting.

As noted later in this chapter, because of a separate notice requirement for city council members, a city council usually

must allow at least six hours when scheduling an emergency meeting.

6. G.S. 143-318.12.

7. G.S. 143-318.12(b)(3).

8. See G.S. 160A-71(b)(1).

53-4 Open Meetings and Other Legal Requirements for Local Government Boards

Recessed Meetings

If a public body is in a properly noticed regular, special, or emergency meeting, it may recess that meeting to a time,

date, and place certain. Notice of a recessed meeting is provided by announcing the time, date, and place of the recessed

meeting in open session at the original meeting. In addition, the statute

requires notice of the recessed meetings to

be posted on the public body’s website, if it has one.

Closed Sessions

e open meetings law authorizes a public body to meet in closed session for any of nine specic reasons listed in the

statute.

is authority applies to all public bodies (not just governing boards), although many appointed boards rarely

have justication to meet in closed session.

Procedures for Closed Sessions

A closed session can be a part of any regular, special, or emergency meeting, and the applicable notice of the meeting

must be given, even if the entire meeting consists of the closed session. If a public body wishes to hold a closed session,

the body must rst meet in open session and then vote to hold the closed session. It is not sucient for the presiding

ocer simply to announce that a closed session will be held. Rather, there must be a motion to go into closed session,

and the motion must identify the permissible purpose from among those authorized in the statute. (A specic citation

is not necessary as long as it is clear from the motion which provision is being invoked.) Once the closed session is

complete, the public body must return to the open session to complete its business or to adjourn.

A brief overview of the closed session purposes most commonly used by local governments is set out below. For

more detail, see the School of Government publication Open Meetings and Local Governments in North Carolina:

Some Questions and Answers.

Condential Records

A public body may meet in a closed session to discuss information that is part of a record that is condential or oth-

erwise not available to the public.

us, for example, a board of social services may have a closed session to discuss

matters involving recipients of public assistance, because records about recipients are closed to public access. A motion

to go into closed session under this provision must state the name or citation of the law that makes the information

privileged or condential.

Attorney Consultations

A public body may meet in closed session with its attorney to discuss matters that are within the attorney–client privi-

lege—that is, legal subjects.

While in the closed session, the public body may give instructions to the attorney about

handling or settling claims, litigation, or other proceedings. If a board meets in closed session under this provision in

order to receive advice about an existing lawsuit, the motion to go into closed session must identify the parties to the

lawsuit.

e basis for this exception to the open meetings law is to preserve the attorney–client privilege. is means

that the meeting cannot legally include any person who is not within that privilege.

9. G.S. 143-318.12 (e).

10. G.S. 143-318.11(a)(1) through (9).

11. David M. Lawrence, Open Meetings and Local Governments in North Carolina: Some Questions and Answers (UNC School of

Government, 7th ed. 2008).

12. G.S. 143-318.11(a)(1).

13. G.S. 143-318.11(c).

14. G.S. 143-318.11(a)(3).

15. Id.

16. For more detail on the scope of the attorney–client exception, see David M. Lawrence, “Closed Sessions Under the Attorney–

Client Privilege,” Local Government Law Bulletin 103 (Apr. 2002), www.sogpubs.unc.edu/electronicversions/pdfs/lglb103.pdf.

Open Meetings and Other Legal Requirements for Local Government Boards 53-5

Economic Development

A public body may have a closed session to discuss matters relating to the location or expansion of businesses in the

area served by the public body.

is is the authority under which a public body may in closed session develop an

incentives package to attract a new business or encourage an existing business to expand.

Purchase of Real Property

A public body may hold a closed session to develop its negotiating position in the purchase of real property, and it may,

while in closed session, give instructions to its bargaining agent in that transaction.

Note that this provision does not

authorize a public body to meet in closed session when it is selling real property.

Employment Contracts

A public body may hold a closed session to develop its position in the negotiating of an employment contract, and it

may, while in closed session, give instructions to its negotiating agent in that transaction.

Public Employees

A public body may hold a closed session to consider the qualications, competence, performance, character, tness, and

conditions of appointment or employment of a public employee or public ocer.

In addition, a public body may hold

a closed session to hear or investigate a complaint, charge, or grievance by or against a public ocer or employee.

public body may not use this provision to discuss members of the public body itself or members of other public bod-

ies. is provision does not allow closed session discussions of general personnel policies. It applies only to matters

involving specic employees of the unit, and does not extend to independent contractors or volunteers.

Criminal Investigations

A public body may hold a closed session to plan, conduct, or hear reports concerning an investigation of alleged crimi-

nal conduct.

Minutes and General Accounts

e open meetings law requires public bodies to prepare “full and accurate minutes” of all meetings and a “general

account” of closed sessions.

Separate statutes for county

and city

governing boards also require each board,

through its clerk, to keep full and accurate minutes of its proceedings. Although the statutes do not detail what full and

accurate minutes should include, the proper content of board minutes is suggested by their purpose, which is to provide

an ocial record, or proof, of governing board actions. erefore, at a minimum the minutes should include two sorts

of material: (1) the actions taken by a board, stated specically enough to be identied and proved; and (2) proof of any

conditions necessary to action, such as the presence of a quorum. Additional detail about matters that were discussed

or individuals who addressed the board is often included but is not legally required. Minutes should be approved by the

public body. e statutes do not establish a specic time frame within which minutes must be prepared or approved.

17. G.S. 143-318.11(4).

18. G.S. 143-318.11(5).

19. Procedures for selling real property are governed by Article 12 of Chapter 160A of the North Carolina General Statutes and

are described in Article XXXX[X-ref] of this publication.

20. G.S. 143-318.11(a)(5).

21. G.S. 143-318.11(a)(6).

22. Id.

23. G.S. 143-318.11(a)(7).

24. G.S. 143-318.10(e).

25. G.S. 153A-42.

26. G.S. 160A-72.

53-6 Open Meetings and Other Legal Requirements for Local Government Boards

As noted, the purpose of minutes is to provide an ocial record, or proof, of council action. In a judicial proceeding,

the minutes are the only competent evidence of council action, and as such, they may not be attacked on the ground

that they are incorrect. Once approved, minutes may be modied in only two ways: (1) a person may bring a legal

action alleging that the minutes are incorrect and seeking a court order to correct them; and (2) much more common,

a council may itself modify its minutes if they are found to be incorrect.

Since public bodies have limited authority to take action in closed sessions, minutes of closed sessions can be quite

skeletal. For closed sessions, the open meetings law requires, in addition to minutes, a general account of the closed

session. e statute requires that the general account be detailed enough “so that a person not in attendance would

have a reasonable understanding of what transpired.”

It is common for boards to combine the minutes and general

account in a single document.

Minutes are generally open to the public under the public records law (see Article XXX[x-ref]) and must be perma-

nently retained. Closed session minutes, however, may be withheld from public access (sealed) for as long as is necessary

to avoid frustrating the purpose of the closed session. Many public bodies initially seal all minutes and general accounts

of closed sessions and then delegate to their attorney or other sta the responsibility for periodically reviewing these

documents and opening them to public access when that is appropriate. Closed session minutes should be approved

by the public body, and it may hold a closed session to do so.

Remedies

ere are two statutory remedies for correcting violations of the open meetings law. e rst is an injunction.

Any

person may seek an injunction to stop the recurrence of past violations of the law, the continuation of present violations,

or the occurrence of threatened future violations. e second is the invalidation of any action taken or considered in

violation of the law.

Action taken at a meeting held in violation of the open meetings law is not automatically invalid,

but a trial judge does have the option of entering such an order if a lawsuit is led seeking that remedy. e court may

award attorneys’ fees to the prevailing party in a lawsuit alleging a violation of the open meetings law, and it may order

that they be paid personally by individual members of the public body if they are found to have knowingly or intention-

ally violated the law.

Individuals cannot be held liable for costs if they follow the advice of counsel.

Additional Meeting Requirements for County and City Governing Boards

Boards of county commissioners and city councils hold ultimate authority to act for the local government. Article 5,

“County and City Governing Boards,”[x-ref] describes the structure and roles of these important bodies. is section

describes some of the specic meeting requirements that apply—in addition to those under the open meetings law—to

these governing boards.

Governing Board Meetings

Specic statutes in Chapters 153A (counties) and 160A (cities) of the North Carolina General Statutes prescribe proce-

dures for governing board meetings that supplement the requirements of the open meetings law. Both sets of require-

ments must be met.

27. G.S. 143-318.10(e). A case that sets out an acceptable general account is Multimedia Publishing Co. of N.C., Inc. v. Henderson

County, 145 N.C. App. 365 (2001).

28. G.S. 143-318.11(a)(1).

29. G.S. 143-318.16.

30. G.S. 143-318.16A.

31. G.S. 143-318.16B.

Open Meetings and Other Legal Requirements for Local Government Boards 53-7

Organizational Meetings

After each election the newly elected (or re-elected) members must qualify for oce by taking and subscribing the

oath of oce. In addition, the governing board must organize itself. e meeting at which these events take place is

known as the organizational meeting.

Counties

G.S. 153A-26 directs that each commissioner elected or re-elected at the November election must take the oath of oce

on the rst Monday in December following the election; at the same time, the board elects its chair and vice-chair for

the ensuing year. If a commissioner is unable to take the oath at that time, he or she may take it later.

Cities

Unless a council sets an earlier date,

a city council’s organizational meeting is held at the board’s rst regular meeting

in December following the election. At the organizational meeting, all newly elected and re-elected members, and the

mayor, if newly elected or re-elected, must take the oath of oce. If the city is one in which the board elects the mayor,

this is done at the organizational meeting. e board must also elect a mayor pro tempore.

Regular Meetings

Counties

G.S. 153A-40 directs boards of county commissioners to hold at least one meeting each month, although they may

meet more often if necessary. Many boards hold two regular meetings each month. e board may select any day of

the month and any public place within the county for its regular meetings, but unless it selects some other time or

place by formal resolution, the law requires the board to meet on the rst Monday of the month at the courthouse.

Cities

G.S. 160A-71 directs each city’s governing board to x the time and the place of its regular meetings. If the board fails

to act, the statute provides that meetings shall be held on the rst Monday of each month at 10:00 a.m. Cities are not

required to hold a meeting every month.

Special Meetings

Although both county commissioners and city councils may hold special meetings, the statutes under which they may

do so are somewhat dierent. Under the county and city statutes governing meeting notice, a special meeting is any

meeting other than a regular meeting.

In general, a governing board may take any action at a special meeting that it may take at a regular meeting. A

few exceptions do exist, however, as some statutes require action to be taken at a regular meeting. Examples include

adoption of ordinances awarding or amending franchises and action on several procedures for selling property. (Even

so, a board may discuss these matters at a special meeting; it simply may not act.) Because of these exceptions, before

taking any action at a special meeting, a board should consult its attorney to ascertain whether it may properly take

the action. As noted earlier, it is also important to limit actions taken at special meetings to those matters identied

in the notice of the meeting.

Governing boards must comply with the separate requirements for notice to the public of special and emergency

meetings under the open meetings law as well as the procedures for notice to the board members, as described below.

32. G.S. 160A-68 permits a board to establish an earlier date, which may be any date within the period beginning on the day that

the election results are ocially determined and published and ending on the day that the board holds its rst regular meeting in

December.

33. G.S. 160A-70 species that the mayor pro tempore is to serve at the pleasure of the governing board.

34. G.S. 153A-40(b); G.S. 160A-71((b)(1).

53-8 Open Meetings and Other Legal Requirements for Local Government Boards

Counties

G.S. 153A-40 permits a special meeting to be called by the chair or by a majority of the other board members. e

law sets specic rules for calling special meetings. ey must be called by written notice stating the time, place, and

subjects to be considered. is notice must be posted on the courthouse bulletin board and delivered to each board

member at least forty-eight hours before the meeting. Unless all members attend the meeting or sign a written waiver,

only business related to the subjects stated in the notice may be transacted at a special meeting. It is important to

remember, however, that expansion of the subjects to be addressed in a special meeting, even if allowed under this

statute, may violate the open meetings law.

Cities

G.S. 160A-71 permits special meetings of a city council to be called in either of two ways. First, if a board is convened

in a regular meeting or a duly called special meeting, it may schedule a special meeting. Second, the mayor, the mayor

pro tempore, or any two members of the board may call such a meeting. ey may do so by preparing and signing a

written notice of the meeting—setting out the time and place and the subjects to be considered—and causing this notice

to be delivered to each board member (or to his or her home). e notice must be delivered at least six hours before

the meeting, but as noted earlier, the open meetings law requires forty-eight hours’ public notice of a special meeting.

Emergency Meetings

Counties

G.S. 153A-40 provides that notice to board members is not required for a special meeting that is called to deal with

an emergency, but it requires the person or persons calling the meeting to take reasonable actions to inform the other

board members and the public of the meeting.

Cities

e city statutes do not specically address emergency meetings. is means that the six-hour notice for special meet-

ings applies to these types of meetings. Even though there is no minimum time for public notice of emergency meetings

under the open meetings law, the six-hour board member notice requirement will usually limit a city’s ability to hold

a meeting with less than six hours notice. If, however, an emergency meeting is set in a regular or duly called special

meeting, the six-hour notice requirement does not apply.

Meeting Location

While county commissioners’ meetings are generally held within the county, G.S. 153A-40 permits out-of-county

meetings in four specic instances (and not otherwise):

1. In connection with a joint meeting of two or more public bodies, as long as the meeting is within the bound-

aries of the political subdivision represented by the members of one of the participating bodies;

2. In connection with a retreat, forum, or similar gathering held solely to provide the county commissioners

with information relating to the performance of their public duties (no vote may be taken during this type of

meeting);

3. In connection with a meeting between the board and its local legislative delegation while the General Assem-

bly is in session, as long as no votes are taken except concerning matters directly relating to proposed or

pending legislation;

4. While the commissioners are attending a convention, association meeting, or similar gathering, if the meet-

ing is held solely to discuss or deliberate on the board’s position concerning convention resolutions, associa-

tion ocer elections, and similar issues that are not legally binding.

ere are no comparable statutory restrictions on the location of city council meetings.

Open Meetings and Other Legal Requirements for Local Government Boards 53-9

Rules of Procedure

Each governing board has the power to adopt its own rules of procedure. Exercise of this power can help prevent argu-

ments over procedure that cannot otherwise be satisfactorily resolved. Boards often base their rules on Robert’s Rules

of Order or similar sources. Boards should be careful, however, to adapt these models, which are primarily intended

for large groups, to the special needs of a small board. e School of Government publishes two resources—Suggested

Rules of Procedure for the Board of County Commissioners

and Suggested Rules of Procedure for a City Council

—that

are adaptations of Roberts Rules designed specically for North Carolina county and city governing boards.

Quorum

As noted earlier, a governing board may take action only during a legally constituted meeting. A meeting is legally

constituted only when a quorum is present. As described below, the rules for determining a quorum are slightly dif-

ferent for counties and cities.

In both counties and cities, once a quorum has been attained and the meeting convened, a member may not destroy

the quorum by simply leaving. G.S. 153A-43, for counties, and G.S. 160A-74, for cities, both provide that if a member

withdraws from the meeting without being excused by a majority vote of the remaining members present, he or she is

still counted as present for purposes of a quorum. In addition, the city statute provides that the member is counted as

voting “yes” on all matters that come before the board after he or she leaves. ere is no comparable provision in the

county statute, but many boards of commissioners have adopted the same rule by board action.

Counties

G.S. 153A-43 denes a quorum as a majority of the membership of the board of commissioners, and it provides that

the number is not aected by vacancies. us, if a board has six members, its quorum is four; and if there is a vacant

seat, the quorum remains four.

Cities

G.S. 160A-74 denes a quorum as a majority of the actual membership of the council, including the mayor but excluding

vacant seats. us, if a city is governed by a ve-member board plus the mayor, the actual membership of the group is

six, and a quorum is four. If one seat is vacant, however, the membership becomes ve, and a quorum is three.

Governing Board Action

Governing boards take action in a variety of forms: ordinances, resolutions, motions, and orders. Textbooks usually

dene ordinance as a permanent rule of conduct imposed by a county or city on its citizens. us, ordinances may

limit the amount of noise that citizens may make, regulate how they may use their land, or require their businesses to

treat sewage before discharging it into the government’s system. In North Carolina, local governments also appropriate

money and levy taxes by ordinance.

e other sorts of actions are less precise in their meaning. Textbooks often dene resolutions as expressions of

board opinion on administrative matters and motions and orders as actions resulting in or expressing a decision. us,

a board might set out the unit’s policy on extension of utilities by resolution while approving specic extensions by

motion or order. In practice, the distinction is not always so carefully drawn; often one board takes actions by order

or motion that another takes by resolution.

Voting Rules

Both county commissions and city councils are subject to complicated rules that determine whether a measure has

passed. In both counties and cities, the number of board members who must vote for a measure in order for that

35. Joseph S. Ferrell, Suggested Rules of Procedure for the Board of County Commissioners (UNC School of Government, 3d ed. 2002).

36. A. Fleming Bell, II, Suggested Rules of Procedure for a City Council (UNC School of Government, 3d ed. 2000).

53-10 Open Meetings and Other Legal Requirements for Local Government Boards

measure to pass diers according to a number of factors: whether the measure is an ordinance or some other form of

action, when the measure rst comes before the governing board, and whether any members have been excused from

voting on the measure. e actual provisions, however, dier between counties and cities.

Counties

e law does not regulate the manner in which orders and resolutions are adopted by a board of commissioners beyond

the minimum requirement of a valid meeting at which a quorum is present, but several laws govern the adoption of

ordinances.

An ordinance may be adopted at the meeting at which it is introduced only if it receives a unanimous

armative vote, with all members of the board present and voting. If the ordinance passes at this meeting but with

less than a unanimous vote, it may nally be passed by a majority of votes cast (a quorum being present) at any time

within 100 days of its introduction. is rule does not apply to the following ordinances:

• e budget ordinance (which may be passed at any meeting at which a quorum is present);

• Any bond order (which always requires a public hearing before passage and in most cases requires approval by

the voters as well);

• Any ordinance on which the law requires a public hearing before adoption (such as a zoning ordinance);

• A franchise ordinance (which must be passed at two separate regular meetings of the board).

City Ordinances

To be adopted on the day that it is introduced, a city ordinance must be approved by a vote of at least two-thirds of the

actual membership of the council, excluding vacant seats. is rule applies to any city action that has the eect of an

ordinance, no matter how it is labeled. In determining actual membership, the mayor is not counted unless he or she

has the right to vote on all questions before the board. us, if a board has seven members and is presided over by a

mayor who votes only to break ties, ve members must vote in favor of an ordinance for it to be adopted on the day that

it is introduced. If there is a vacant seat, however, the actual membership is then six, and only four votes are required

to adopt the ordinance on that rst day.

Given this special rule pertaining to the day of introduction, what constitutes introduction? e statute states that

the day of introduction is the day on which the board rst votes on the subject matter of the ordinance.

Examples of

such a vote might include a vote to hold a hearing on the ordinance, refer it to committee, or try to pass it.

After the day on which it is introduced, an ordinance may be adopted by an armative vote equal to at least a

majority of the board membership; vacancies do not aect the number necessary for approval. Members who have

been properly excused from voting on a particular issue (see the discussion under the heading “Excusing of Members

from Voting,” below) are not included in the membership for a vote on that issue. For example, a six-member board

normally requires an armative vote of four members to adopt an ordinance. But if one member is excused on a par-

ticular issue, the board is treated as having only ve members on that issue, and only three need vote armatively for

the measure to pass.

Nonvoting mayors are not counted in determining how many members constitute the board. If there is a tie, however,

the mayor’s vote is counted in determining whether the requisite majority vote has been attained. us, if a six-member

board divides three to three on an issue and the mayor votes armatively to break the tie, the measure has received

the four votes necessary for its adoption.

G.S. 160A-75 requires a majority vote of the board membership on a few other measures besides ordinances: (1) any

action having the eect of an ordinance, no matter how it is labeled; (2) any measure that authorizes an expenditure

of funds or commits a board to one, other than the budget ordinance or a project ordinance; and (3) any measure that

authorizes, makes, or raties a contract.

37. G.S. 153A-45 through -50.

38. G.S. 160A-75.

Open Meetings and Other Legal Requirements for Local Government Boards 53-11

With the exceptions just noted, the general law makes no special provision for the sort of city council vote neces-

sary to adopt resolutions, motions, or measures other than ordinances. (Some charters do require that resolutions or

other actions receive the same vote as ordinances.) For these actions the rule is that action may be taken by a majority

of those present and voting, as long as a quorum is present. us, if a board has eight members, its quorum is ve; and

if only ve members are present, a resolution or a motion may be adopted by a vote of only three of the ve.

Excusing Members from Voting

G.S. 153A-44, for counties, and G.S. 160A-75, for cities, permit a board member to be excused from voting in two

circumstances in which there is a potential conict of interest: (1) when the question involves his or her own nancial

interest, and (2) when it involves his or her ocial conduct. In addition, these two statutes reference three other stat-

utes that prohibit a board member from voting in certain circumstances because of a nancial conict: G.S. 14-234,

when the board member may be interested in a contract being approved or considered by the board; G.S. 153A-340

or G.S.160A-381, when the board is considering a zoning ordinance amendment that is likely to have a “direct, sub-

stantial, and readily identiable nancial impact on the member”; and G.S. 153A-345 or G.S. 160A-388, when the

board is acting on a land use matter in a quasi-judicial capacity and the board member’s participation would violate

the constitutional requirement of an impartial decision maker. ese statutes are discussed in more detail on Article

XXXX, Ethics and Conicts of Interest[x-ref].

In those situations in which the statutes do not expressly prohibit the interested board member from voting, the

county statute species that the board must vote to excuse a member. e city statute is silent as to procedure, but

unless the board has adopted a procedural rule authorizing a member to be excused by the mayor or to excuse himself

or herself, such an abstention should be allowed only by vote of the remaining board members. If a member is excused,

that member should neither vote nor participate in any way in the deliberations leading up to the vote.

Unless a board member is excused, he or she must vote; the statutes do not authorize unexcused abstentions. If a

council member persists in abstaining without being excused, G.S. 160A-75 directs that the member be counted as

voting yes. ere is no comparable provision in the county statute, but many boards of county commissioners have

adopted such a provision by rule.

e rules for mayors are slightly dierent than for commissioners or council members. If a mayor is elected by and

from the board, he or she remains a board member and must vote. But a mayor who may vote only to break a tie has

the option of not voting at all. e statute allows, but does not require, the mayor to break a tie. If he or she refuses to

break a tie, the measure is defeated.

Public Hearings and Public Comment

As noted earlier, the open meetings law allows the public to attend meetings but does not provide a right to be heard.

e public has opportunities for public comment through hearings and public comment periods. Some hearings are

required,

such as the hearing on the budget ordinance, a bond ordinance, or a zoning ordinance or amendment.

Others are held on the board’s own initiative to give interested citizens an opportunity to make their views known to

the board on a controversial issue, such as a noise-control or towing ordinance.

State statutes also require boards of county commissioners, city councils, and school boards to oer at least one

public comment period each month during a regular meeting, at which members of the public may comment on local

government aairs more broadly.

is public comment period is discussed in more detail in Article XXXX’s[x-ref]

discussion of citizen participation.

e laws that require public hearings do not specify the manner in which they must be conducted; the laws only

require that they be held. Nevertheless, G.S. 153A-52 and -52.1, for counties, and G.S. 160A-81 and -81.1, for cities, allow

the board to adopt reasonable rules governing the conduct of public hearings and public comment periods. ese rules

39. Public hearings are required only when a statute specically calls for them. See David Lawrence, “When Are Public Hearings

Required,” Coates’ Canons: North Carolina Local Government Law Blog (Aug. 21, 2009), http://canons.sog.unc.edu/?p=77.

40. G.S. 153A-52.1 (counties); G.S. 160A-81.1 (cities); G.S. 115C-51 (schools).

53-12 Open Meetings and Other Legal Requirements for Local Government Boards

may regulate such matters as allotting time to each speaker, designating who will speak for groups, selecting delegates

from groups when the hearing room is too small to hold everyone who wants to attend, and maintaining order as well

as decorum. e statutes requiring public hearings and comment periods create constitutionally protected rights of

expression for members of the public. Governing boards must be careful when regulating conduct to avoid restricting

speakers based on the opinion or point of view they are expressing.

Rules for Quasi-Judicial Proceedings

County and city governing boards, as well as some types of appointed boards, sometimes function in a quasi-judicial

capacity. Examples include decisions on certain types of land use permits or zoning variances and appeals of personnel

actions. In these settings, boards are limited in their process and decision making by principles of due process, which

is required because these actions aect constitutionally protected property rights. As noted above, the legislature has

enacted specic voting rules to avoid conicts of interest that apply in these situations. In addition, quasi-judicial hear

ings must be conducted consistent with the basic rules for a legal proceeding, including swearing in of witnesses and

decisions based exclusively on evidence presented in the proceeding. ese types of hearings should be distinguished

from those designed to provide open forums for public comment or opinion. Indeed, only those who are qualied as

witnesses or who have a stake in the outcome may speak at quasi-judicial hearings.

Remote Participation in Meetings

A board member who is unable to attend a meeting may wish to participate remotely by phone or Internet connection.

e question of whether a person must be physically present to count toward a quorum is unclear under the statutes.

e open meetings law denition of ocial meeting includes electronic meetings.

But the open meetings law applies

to all public bodies throughout the state, not just to local government boards, and it does not specically authorize

or even address the use of electronic meetings or individual electronic participation by local government boards. As

noted above, the quorum and voting statutes refer to members being “present,”

but courts in other states have found

that a person may be considered to be present when participating remotely. Until there is more specic guidance from

the legislature or the courts, remote participation may create a risk if the remote participant casts a deciding vote or

is necessary to create a quorum. On the other hand, there is no legal risk if a member participates in a discussion (no

vote being taken) or if there is a sucient number of board members physically present to constitute a quorum. It is up

to the governing board, in any event, to decide whether and under what circumstances to allow remote participation.

Local governments may also authorize remote participation for boards they create and appoint. Boards that wish to

allow remote participation should establish policies governing when it will be allowed.

Meeting Requirements for Appointed Boards

e preceding section of this chapter focused on rules that apply to county and city governing boards. Appointed

boards are, of course, subject to the open meetings law but not to many of the more specic rules described above.

For purposes of understanding meeting requirements for appointed boards, it is helpful to consider them in two

categories: those created by statute and those created by local county or city ordinance. Statutory boards include

social services, public health, and ABC boards. Statutes establishing these boards include specic procedural and

other requirements. Other boards and commissions are created by local ordinance or resolution under the governing

41. G.S. 160A-75.

42. G.S. 153A-44, 160A-74.

43. For a more detailed analysis of the legal aspects of remote participation, along with considerations for local policies, see Frayda

S. Bluestein, “Remote Participation in Local Government Board Meetings,” Local Government Law Bulletin 133 (Aug. 2013), ht tp://

sogpubs.unc.edu/electronicversions/pdfs/lglb133.pdf.

Open Meetings and Other Legal Requirements for Local Government Boards 53-13

boards’ general authority to organize the local government

or under more specic authority, such as that authorizing

the creation of boards of adjustment.

Statutes establishing or allowing the creation of specic appointed boards may include membership and proce-

dural requirements that must be met. County and city governing boards establish other local boards by adopting

ordinances, which contain the membership, purpose, and procedure under which they are to operate. Two School of

Government resources are recommended for the creation and operation of these types of boards: Suggested Rules of

Procedure for Small Local Government Boards

and Creating and Maintaining Eective Local Government Citizen

Advisory Committees.

Additional Resources

Additional information can be found by searching Coates’ Canons: NC Local Government Law Blog (http://

sogweb.sog.unc.edu/blogs/localgovt) using the keyword “open meetings.” Also see David M. Lawrence, Open Meetings

and Local Governments in North Carolina: Some Questions and Answers (UNC School of Government, 7th ed. 2008).

About the Author

Frayda S. Bluestein is a School of Government faculty member specializing in local government law.

Acknowledgment

is article updates and revises previous articles authored by David M. Lawrence and Joseph S. Ferrell, whose contri-

butions to the eld and to this publication are gratefully acknowledged.

44. G.S. 153A-76 (counties); G.S. 160A-146 (cities).

45. G.S. 153A-345 (counties); G.S. 160A-388 (cities).

46. A. Fleming Bell, II, Suggested Rules of Procedure for Small Local Government Boards (UNC School of Government, 2d ed. 1988).

47. Vaughn Mamlin Upshaw, Creating and Maintaining Eective Local Government Citizen Advisory Committees (UNC School

of Government, 2010).