Legality of closed vote in question

Burns decision made in private

Staff WritersMarch 11, 2010 

  • Under state law (143-318.11), public bodies can hold closed sessions only under certain "permitted purposes." One of those purposes is:

    "To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting."

— Wake County school board members ignored open-meeting requirements in state law when they voted behind closed doors to place Superintendent Del Burns on administrative leave, a First Amendment expert said Wednesday.

Raleigh attorney Hugh Stevens, who has represented The News & Observer and many other media outlets in open-meetings cases, said the vote Tuesday should have taken place in public after members discussed Burns' job status in closed session.

But Ron Margiotta, the school board chairman, and Ann Majestic, the board's attorney, maintained that members acted within the law because no hiring or firing took place. Instead of holding a public vote, Margiotta read a prepared statement announcing the board's decision.

"In my view, they failed to follow the requirements of the law in the way the vote was taken," Stevens said. "It really comes down to whether the public body wants to be up front with the public or not."

Despite Margiotta's instructions to board members not to reveal their votes, member Carolyn Morrison said Wednesday that the vote split 5-4 along the same lines seen in many actions since a new majority took over in December.

Majestic, present at the meeting, said Wednesday that the voting followed the requirements of the law because Burns' employment wasn't ended. Though some groups had advocated firing Burns, he will be allowed to remain on paid administrative leave until his previously announced resignation date of June 30.

"The law requires any decision to hire or fire to be done in open session," Majestic said.

Margiotta said Majestic told board members it was not necessary to vote on Burns in public.

"Closed sessions are something sacred," Margiotta said. "We don't reveal anything out of closed session."

Stevens said that Majestic's reading of the law represented an "extremely crabbed and narrow view" of its purpose. In effect, the vote was over whether to fire Burns, he said.

"You have a vote - clearly you're entitled to know who voted how," Stevens said.

Margiotta said Wednesday that he did not want board members to reveal the divided vote to protect Burns' privacy and prevent more dissension in the community. The board's statement said that Burns had made "totally inappropriate" statements in media interviews after he announced his resignation Feb. 16. Burns had accused the board majority of engaging in political partisanship and criticized members' intention to end busing for socioeconomic diversity.

"If we keep going, it will keep getting ugly," Margiotta said about revealing the details of the vote.

Morrison said Wednesday that Burns' controversial statements were the sole reason behind the majority's decision to remove him from office. Margiotta's instructions not to talk about the vote didn't come until after board members left the closed session, she said.

"I didn't take offense at it," Morrison said Wednesday. "[Margiotta] did say, 'Come on,' or 'I thought we weren't going to talk about that.'"

Rarely outspoken at meetings, Morrison said she felt she had to speak out on Burns' behalf, partly because they have known each other since she hired him to work at Root Elementary School in 1976.

"I felt very sad to lose someone of his caliber when we need all the stability we can get," Morrison said.

The board majority has also faced complaints that it violated the open meetings law when members met as a group before being sworn into office on Dec. 1. Board members have argued that the law did not apply then because they weren't yet in office.

Without discussing what was said behind closed doors, both Margiotta and JohnTedesco, a key member of the board majority, said removing Burns from the day-to-day control was the right decision. Efforts to reach Burns Wednesday did not succeed.

'This was a necessary step moving forward after he said he couldn't carry out the goals of the board," Tedesco said.

Margiotta and Tedesco stressed the unanimous vote that installed Donna Hargens, Wake's chief academic officer, as acting superintendent of the state's largest school district.

Margiotta said he hopes the board will approve an interim superintendent March 23. Also that day, he said the board will begin discussing the process for finding a permanent successor to Burns.

thomas.goldsmith@newsobserver.com or 919-829-8929

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