City Slams Door In Public's Face

It appears that Mayor Robbie Perkins, City Attorney Mujeeb Shah-Khan and City Manager Denise Roth are uniting to keep people from knowing what is going on in city government.

As a practical matter the only people who can stop them from cutting government off from the people are the eight other members of the City Council, and so far the council seems fine with building a huge wall between government and the people.

All the seats on the City Council are up for election this year, so they will all be out campaigning, talking about transparency and openness in government. Don't let them get away with it; the Greensboro city government has started doing its business behind closed doors in secret meetings and has plans to withhold public documents from the people.

Perkins has long wanted to do most of the business of the City Council in secret meetings behind closed doors, and now that he has support from Shah-Khan, they are doing just that. Roth really hasn't played a major role in closing meetings to the public, but now she is involved in coming up with a method for the average citizen to get public documents that is so complicated and convoluted that public records requests that should take minutes may take months, and who knows what will get redacted along the way.

Both the North Carolina open meetings law and the public records law are strong statutes that state the business of public bodies should be done in public, including discussions, and that public records belong to the people and the government must make them available "to be inspected and examined at reasonable times and under reasonable supervision, and shall as promptly as possible furnish copies thereof."

There is nothing prompt about the new system the city is putting in place, and Shah-Khan is well known for withholding documents that should be made public.

The public records statute is strong but has some flaws. One flaw is that there is no penalty for violating the law. In other words, if The Rhino Times requests a copy of Shah-Khan's employment contract and is told it is not public record, our legal recourse is to go to court and have a judge order the city to turn it over. But the judge can't levy any fines or punishment against the city or the individual who illegally withheld the contract beyond awarding attorney's fees, and the taxpayers pick up that tab.

The same is true for closed meetings. The City Council could meet in closed session to discuss the budget and, after the public found out about it and took the City Council to court, all the judge could do would be to make the minutes available and tell the City Council not to do it again.

Shah-Khan is particularly slippery when it comes to public records. It is extremely difficult for the public to prove that documents are public records when the city has a copy and the public doesn't. In Charlotte, when Shah-Khan was an assistant city attorney, he withheld a huge amount of information about the preparations for the Democratic National Convention from the Charlotte Observer because he said the documents dealt with security issues. The Charlotte Observer didn't believe that the parts redacted from their documents actually dealt with security issues, but they were redacted so the Charlotte Observer had a hard time making its case until some of the documents were leaked to the newspaper in unredacted form.

Then the Charlotte Observer could publicly question why the discussion of the color of a police command station was redacted as well as the hours District Court would be open during the convention. How in the world could the hours court is operating be confidential? It has to be announced publicly so that people can be there, but according to Shah-Khan the time court would be open had to be kept confidential for security reasons.

Shah-Khan won the argument until the unredacted documents were leaked because up until then he was the only one who could see what the documents actually said.

Once the Charlotte Observer got the leaked documents the Charlotte city attorney overruled his assistant, Shah-Khan, and released a bunch of documents. But no one was fined; there were no repercussions except for some public embarrassment on Shah-Khan's part.

The second paragraph of the public records law states, "The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people." So when citizens make public records requests they are simply asking the government to show them documents that they own and the government has in its custody.

Now the legal department is going to review every public records request to make certain that nothing that is not a public record is released. Greensboro has tried this before and it can tie up a simple request for months, because the attorney's office has things to do other than look at records, the vast majority of which are public.

Recently we were told that we couldn't get a salary history for an employee. The salary history of an employee is a public record, but when a city employee says no then we have to go find someone to overrule them. In this case Assistant City Attorney Jamiah Waterman did so, but public records are supposed to be made available to the public at reasonable times and under reasonable supervision, not when you can find an assistant city attorney who knows the law.

One problem with the process that the city is now setting in place is that it ignores the law. The law says that the "custodian" of the records has a responsibility to make them available to the public. The public information request tracking (PIRT) officer is not the custodian of any public records and will have no legal responsibility to provide anyone with any public information. So if someone goes to planning department to request a copy of a rezoning request – an item that is undoubtedly a public record – instead of being handed a copy of that document, according to this system, the requester will be referred to the PIRT officer who will contact the planning department and put in a request for the document, which will then be sent to the legal department, and/or the city manager's office and/or the Police Department to be approved for release.

So if you are the requester and you don't get the information you requested, you don't even know where your public information got hung up in the system. And the person who has a legal responsibility to provide that record has done what they are supposed to do according to city policy, which is not hand the document over to the requester, as they are required by law to do, but they have instead handed it over to the PIRT officer who handles everything from there.

If that sounds far fetched, local blogger Roch Smith sent in a simple question to the city on Wednesday: "What is the criteria for closing public records requests?"

Instead of Smith getting an answer, he received a notice that his question was entered into the PIRT system as a records request.

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What is best for the public is obvious. It is best if the city gives the public the records that are public, "as promptly as possible," as the law requires. It is best for the taxpayers if the city would follow the law and not create a new job and a lot of extra work for current city employees.

Councilmember Nancy Vaughan said she was disappointed in the recent changes to the public information procedure for the city. She said, "I really need to sit down with Denise and Mujeeb and tell them where I'm coming from. We may have a parting of the ways."

Vaughan mentioned Smith's request and said the city seemed to be moving backward when it came to dealing openly with public records.

The other problem, which is if anything worse, is that the City Council is now doing its business in committees appointed by Perkins, or in some cases self-appointed groups of two, three or four, but never five.

Shah-Khan said that unless the members of these groups are appointed by the mayor, according to the process the City Council has for creating committees that the open meetings law does not apply to them.

According to the statute the open meetings law applies to all public bodies and the statute states "public body" means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, … (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function."

There is nothing in the law that says the group has to be designated a committee by the mayor or by City Council policy. In fact, the law specifically states that it applies to a group that is an "other body of the state."

It appears the question boils down to whether the groups are appointed. If they are not appointed by some method then how does everyone know who is a member of the group and who is not? If it is just the first three councilmembers to walk in the door then you might have trouble making the argument that the group was "appointed." Or if the group changed from meeting to meeting. But these are well-defined groups that must be self-appointed or appointed by someone because some councilmembers who wanted to be in these groups are not. If it is just a group of councilmembers how can any councilmember not be a member?

The council committee on Downtown Greensboro Inc. (DGI) consists of Councilmembers Zack Matheny and Vaughan. They have been meeting with the executive committee of DGI to try and solve the problem of the council, which provides over 90 percent of the funding for DGI and is disappointed with the actions of DGI, and in particular with the actions of its president, Ed Wolverton.

The Duke Energy Committee has Councilmembers Tony Wilkins, Vaughan and Mayor Perkins as members. Its first meeting was open to the public but subsequent meetings have been closed.

When the city first started appointing these groups the press made a deal – We thought the meetings were public meetings and should be open to public, but we agreed that if the press could attend the meetings we would not make a big deal about the fact that they were not publicly announced as the law requires of public meetings. However, when Wade left her seat on the City Council to take a seat in the North Carolina Senate, the city threw that deal out the window and there was no one to defend the right of the press to attend meetings.

Shah-Khan said that a meeting of the full City Council at a specified time in the council chambers was not an official meeting of the City Council because they were not there to conduct city business, but just to have their picture taken. Some might argue that the City Council having its official portrait made, which was paid for by the taxpayers, was official business, but Shah-Khan was the only attorney in the room and he said, no, it was not.

However, with reasoning like that it is not surprising that Shah-Khan has found a legal argument to keep the meetings of unnamed committees of the City Council closed to the public.

Once again there are only two ways this can be challenged, one is for someone to hire a lawyer and take the city to court, the second and the far more reasonable answer is for the majority on the City Council to decide that they were telling the truth to the voters when they said that they wanted the government to be as transparent as possible and to inform Shah-Khan that they want him to err on the side of openness.