Dare County elections attorney urges narrow use of closed sessions after state guidance

The Dare County Board of Elections reviewed written guidance from the North Carolina State Board of Elections and heard legal advice from the county attorney on whether a recent closed-session discussion about party-submitted names for chief judge and judge slots was lawful. County Attorney Robert Outen told the board the action they took in open session — approving the slate — satisfied the statutory requirement that final decisions be made publicly, but he recommended restricting closed sessions to narrowly protected matters.

Outen said public bodies are governed by statutes that presume meetings be open and that exceptions should be used sparingly. “All meetings of public bodies ... are required by statute ... to be open,” Outen said. He told the board that some appointment qualifications — whether a person is a registered voter or a county resident — are public records and do not justify a closed session, while concerns about “good character and good repute” can involve protected information and may justify closing part of a meeting.

The county attorney described the risk if a closed session is invalid: if a board took action in an unlawful closed session, that action could be void. But he emphasized the difference between discussing matters in private and actually making a decision there: if the board only discussed concerns in closed session and then took its vote in open session, the open-session vote stands. “If you had, in fact, voted and taken your action in the closed session ... then that would be void,” Outen said. “When you come out of closed session and then you have a discussion and you vote and you follow the procedures and you take action and you have a majority vote in open session, then ... that’s okay.”

Board members told the county attorney they had sought and received a written memo from the state and that the board had removed certain language from earlier minutes based on the state guidance. A board member also said they had consulted a former judge who had previously issued a decision on closed meetings; the county attorney said he had spoken with that judge and that while interpretations vary slightly, his written view aligned with the state guidance the board received.

Board members and staff agreed to follow the county attorney’s recommendation: do as much business as possible in open session, and use closed sessions only for matters that clearly involve protected personnel-type information, such as allegations affecting a person’s reputation or private employment records. The board did not take a formal vote specifically on changing procedures during that discussion.

The discussion occurred during “old business”; the board recorded that it had the state’s written guidance and that the county attorney concurred with the state’s advice. The board chair asked that the state memo be attached to the official minutes for the meeting.