The Town of Ticketmaster is holding a particularly contentious regular meeting this evening that will draw a much larger crowd than usual. The council wants to require tickets for entry to prevent overcrowding. Meanwhile, in the neighboring County of Corona, the Board of Commissioners is considering a resolution that would require the public to provide proof of COVID vaccination to attend in-person meetings.
Board members in both Ticketmaster and Corona are worried that these policies may violate North Carolina’s open meetings law. Are they right?
Open Meetings Law Overview
Section 143-318.10 provides that all official meetings of public bodies must be open to the public and that “any person is entitled to attend such a meeting.” The Court of Appeals has concluded that the phrases “open to the public” and “any person” are ambiguous. Garlock v. Wake Cty. Bd. of Educ., 211 N.C. App. 200, 221 (N.C. Ct. App. 2011). When statutes are ambiguous, courts examine the legislature’s purpose in enacting the legislation at issue. Id.
The General Assembly intended the open meetings law to accomplish three main goals: i) ensuring that public bodies receive public input on substantive actions; ii) requiring public bodies to act in good faith in providing for public knowledge of and participation in meetings; and iii) providing the public with the opportunity to know about and understand public bodies’ deliberations and actions. Garlock, 211 N.C. App. at 222. In evaluating these purposes, the Court of Appeals decided that the open meetings law should be understood and applied broadly in favor of public access. Id.
With the open meetings law’s purposes and broad construction in mind, do public bodies have a duty to admit any and all members of the public, always? According to North Carolina courts, the answer is “no”. Instead, the Garlock Court held that public bodies must “take reasonable measures to provide for public access to [their] meetings.” Id. at 223.
Reasonableness Standard
What constitutes a reasonable measure? The Garlock Court did not provide any firm definition but identified certain relevant factors. Id. at 217. These factors include proper notice procedures, proper distribution of agendas, preparation and availability of meeting minutes, and the location and characteristics of meeting places. Id. More recently, the Court of Appeals held that failing to provide overflow seating or external audio speakers, without more, is not unreasonable and does not violate the open meetings law’s right of access. Hildebran Heritage & Dev’t Assoc., Inc. v. Town of Hildebran, 252 N.C. App. 286, 294 (N.C. Ct. App. 2017). Taken together, reasonableness is a flexible standard that courts evaluate on a case-by-case basis. Back to our examples…
Ticketing
Ticketing was one of the measures at issue in Garlock. There, the court held that it was unreasonable to use a ticket procedure without prior notice to the public. Id. at 226. Notice should provide any information reasonably necessary to give the public the opportunity to attend a meeting. Id. Without prior notice of the ticket requirement, a member of the public would arrive for the meeting only to be denied admission for lack of a ticket. Id. As a result, while failing to provide notice of a ticketing procedure was unreasonable, a properly noticed ticketing procedure may pass judicial muster. Id. Based on Garlock, Ticketmaster may be able to use a ticketing policy if it provides advance notice.
Proof of Vaccination
Unlike our ticketing example, there are no cases that squarely address the vaccination requirement. As Garlock demonstrates, whether the vaccination requirement is permissible depends on whether it is reasonable. The Garlock Court made two key observations that may weigh against finding reasonableness here. First, the public body at issue in Garlock chose to hold its meeting in a smaller room for staff convenience. Id. at 227. When a larger-than-expected crowd arrived, the public body declined to change rooms, despite the availability of a larger room. Id. Consequently, several members of the public were completely excluded from large portions of the meeting. Id. This complete exclusion of members of the public was “the most obvious violation of the open meetings law” in the case. Id. Second, the Garlock Court noted that under the open meetings law, “all members of the public are treated the same” and should be accommodated on a “first come, first served” basis. Id. at 228. The court cautioned against any rule that “favors members of the public who claim to have a superior right to attend the meeting for some reason not addressed by the open meetings law.” Id.
Applying those observations here, vaccination as a prerequisite to meeting attendance would completely exclude members of the public, despite the availability of an alternative option. Since our statewide state of emergency is still active, public bodies can hold meetings remotely under G.S. 166A-19.24, eliminating the need for vaccination requirements. Also, the open meetings law does not address rights of access for vaccinated versus un-vaccinated individuals. Thus, a rule of promoting the attendance of vaccinated individuals over un-vaccinated folks may be the type of rule that Garlock disfavored. For these reasons, I doubt that a court would find vaccination requirements to be reasonable under the open meetings law.
Still, this is an unsettled area of law. A court could find that the pandemic justifies such measures as reasonable. Notably, public bodies will bear the burden of establishing the reasonableness of their procedures. See News & Observer Pub. Co. v. Interim Bd. of Educ. For Wake Cty., 29 N.C. App. 37, 48 (N.C. Ct. App. 1978)(holding that those seeking to fall within an exception to the open meetings law should have the burden of justifying their action).
Practice Points
Public bodies should approach limits on public access cautiously. They should take advantage of reasonable alternatives before enacting restrictions. Public bodies must notify the public of any limiting measures or restrictions well in advance of the meeting at issue.
