34 / 40
32
NCRWA.COM|
Fall 2015
feature
P
ublic bodies, including municipal governing
boards and councils, holding closed sessions
to consider acquisition of real property must
follow both statutory and case law requirements
when calling the closed session.
North Carolina’s open meetings law, found
in N.C. General Statues Chapter 143, Article
33C, provides that official meetings of both
public bodies must be open to the public.
However, these statutes also permit a public
body to hold closed sessions for specified
purposes. During these closed sessions the
public may be excluded.
The procedures to call a closed session are
found in General Statute 143-318.11(c). It
provides that a public body may hold a closed
session only when a motion to do so is made
and adopted at an open meeting. Additionally,
the motion must cite one or more of the
permissible purposes for closed sessions listed
in the statute. For two of those permissible
purposes subsection (c) requires that additional
information be disclosed in the motion. For
motions based on subsection (a) (1), (prevent
the disclosure of information that is confidential
or privileged under state or federal law), the
motion must also state the name or citation of
the law that renders the information privileged
or confidential. Motions based on subsection
(a) (3) (consider and give instructions to an
attorney on handling of a claim) must identify
the parties in each existing lawsuit concerning
which the public body expects to receive advice
from its attorney.
In addition to the statutory requirements for
calling closed sessions, the North Carolina
Court of Appeals has in case law established
procedures to be followed when calling a
closed session to consider acquisition of
real property. As mentioned above, a motion
to call the closed session must cite one of
the permissible purposes. In the case of
real property acquisition, General Statute
143-318.11 (a) (5) authorizes a closed session
to establish or to instruct the public body’s staff
or negotiating agents concerning the position
to be taken on the behalf of the public body in
negotiating the price and other material terms
of contract for acquisition of real property.
Subsection (a)(5) was the focus of the Court
in Boney Publishers, Inc. v. Burlington City
Council, 151 N.C. App. 651, 566 S.E.2d 701
(2002). The Council entered into closed session
to consider an option to purchase a single tract
of real estate for use as a public park, believing
that the location of the property, its intended
purpose and its owners were material terms of
the contract and should not be disclosed. The
Court ruled that the subsection (a) (5) does
not permit a public body to deny access to
matters relating to the terms of a contract of
acquisition of real property unless those terms
are both material to the contract and are also
actually subject to negotiation. In the case,
the only material terms subject to discussion
were the offering price and the structuring of
the conveyance. While it was noted that there
may be cases where the location, intended use
of property, and owners may constitute material
terms to be negotiated, the Court found that
such was not the situation presented.
Consequently, the Court held that, unless one
of the following matters is actually under
negotiation, a public body must, before the
closed session, disclose: the location of the
property proposed for acquisition; the intended
use of the property; and the identity of the
owners of the property.
Accordingly, when calling a closed session to
consider acquisition of real property, always
remember to make the motion in open session,
cite the permissible purpose for the closed
session and, unless these items are subject to
negotiation, disclose the location of the property,
its intended use and the identity of the owners.
This article was reprinted with permission from
the May/June 2015 Issue of Southern City,
Published by the North Carolina League of
Municipalities.
By John Phelps, NCLM Associate General Counsel
Closed Session on Real Estate Acquisition?