[By School of Government instructor Bob Hagemann]

City councils hold regular meetings and sometimes they hold special meetings. Regular meetings happen on the adopted and published normal schedule. Special meetings are called for times different from the normal schedule. Maybe something has come up that cannot wait until the next regular meeting.

Recently I was asked about a statute that looks like it says that a single member of the city council can prevent the board from holding a special meeting. Could that really be true? The question stemmed from G.S. § 160A-71(b)(2).  It contains this sentence: “Special meetings may be held at any time when the mayor and all members of the council are present and consent thereto, or when those not present have signed a written waiver of notice.” Let’s call this “the problematic (b)(2) sentence.”

I was a local government attorney for many years. I attended numerous special meetings where some members were absent. I never thought about whether the absent member(s) had signed a written waiver of notice. When my attention was drawn to “the problematic (b)(2) sentence,” my first reaction was panic. Had I witnessed and participated in a bunch of illegal meetings? But after digging in deeper, I’m convinced that “the problematic (b)(2) sentence” doesn’t mean what it seems to say.

In order to understand my conclusion, you have to go back to 1971, the year that Chapter 160A was created. As originally enacted, subsection (b) was a single paragraph with no subdivisions. The (b)(2) sentence was just part of that one long paragraph.

The mayor, the mayor pro tempore, or any two members of the council may at any time call a special council meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each councilman or left at his usual dwelling place at least six hours before the meeting. Special meetings may be held at any time when the mayor and all members of the council are present and consent thereto or when those not present have signed a written waiver of notice. Only those items of business specified in the notice may be transacted at a special meeting, unless all members are present or have signed a written waiver of notice.

“The problematic (b)(2) sentence” immediately followed the requirement that “notice shall be delivered … at least six hours before the meeting.” Given that proximity, my eyes are drawn to the phrase “at any time” in the following sentence. If the intent was to impose a unanimous attendance/waiver of notice requirement to all special meetings, the phrase “at any time” would have been unnecessary. That is, the sentence would have been written “[s]pecial meetings may be held when the mayor and all the members ….”

So why would the General Assembly include the phrase “at any time”? I think it must have been to establish an exception to something else. In my opinion, it’s an exception to the six hours notice requirement. And that makes perfect sense since the notice is clearly intended to give the members a chance to alter their plans if necessary, so that they may attend the meeting. But if they are all at the meeting, or any absent members have waived the right to receive notice, none of the members would be prejudiced if they haven’t received six hours notice.

So “the problematic (b)(2) sentence” merely meant that a single city council member could block a special meeting being held on less than six hours notice, not that the single member could block the meeting altogether.

One additional observation. Not only is the “the problematic (b)(2) sentence” confusing, it is nowadays completely ineffective. It was made ineffective by the Open Meetings Law, which was enacted after the adoption of Chapter 160A. The Open Meetings Law requires at least 48 hours notice to the public for special meetings (see G.S. 143-318.12(b)(2)). Nowadays there is no ability for a board to meet on less than six hours notice even if all the members are present or those absent have waived notice.

What about counties? Interestingly, and despite the fact that the counties chapter in the General Statutes, Chapter 153A ,was enacted only two years after Chapter 160A, Chapter 153A does not present the same question. That’s because 153A-40(b), the county equivalent, does not contain a provision like “the problematic (b)(2) sentence.”

I believe this analysis and interpretation is correct, but there is no case law that addresses the issue. It is certainly possible for others to reach a different conclusion. For that reason, I recommend that anyone who confronts this situation consult with their city attorney.