City and County Attorneys as Public Officers - a Possible Upside

In last week’s blog post, I discussed the status under the public records law of records kept in his or her law office by a local government attorney who serves on a contract basis, rather than as an employee.  I noted that one of the rationales given by the Court of Appeals, in the Kitty Hawk case (181 N.C. App. 1), for holding that the records were subject to public inspection was that the city attorney in the case was a public officer.  In this blog post I want to discuss the potential implications of that holding and rationale for closed sessions under the open meetings law.

Until 1994 the open meetings law permitted a public body to hold a closed session “to consider the employment, performance, or discharge of an independent contractor.”  This authorization permitted a closed session to consider possible candidates for city or county attorney when the board engaged part-time, retained counsel rather than a full-time employee.  In 1994, though, the General Assembly deleted the independent contractor language from the statute.  The apparent effect was that a city council or board of county commissioners could hold a closed session to consider candidates for city or county attorney if the board was hiring a full-time employee but not if it was retaining an attorney or law firm in private practice.  The Kitty Hawk decision offers an argument that a closed session is still possible when the board is hiring a contract attorney. The open meetings law permits a closed session to consider the qualifications, performance, etc., of a public officer or employee or prospective public officer or employee.  Because the Court of Appeals has held at least twice that a city attorney is a public officer – the other case is City of Winston-Salem v. Yarbrough, 117 N.C. 340 (1994), a tort liability case – there is a respectable argument that this closed session authorization is available as to both full-time and part-time city and county attorneys.  Although there are downsides to considering city and county attorneys as public officers in contexts beyond tort liability and the public records law (which I will discuss in a future blog), there is a close affinity between the public records and open meetings laws, and it therefore seems reasonable to extend the public officer characterization to at least the open meetings context. I should stress, though, that this apparent authority to consider in closed sessions the qualifications and performance of city and county attorneys doesn’t extend to attorneys representing other sorts of local boards and agencies.  That’s because the principal rationale for holding city and county attorneys to be public officers – that their position is created by statute – does not extend to attorneys for other sorts of public bodies. David Lawrence is retired from the faculty of the School of Government. For questions about the subject of this blog post, please refer to our list of faculty expertise to identify the appropriate faculty member to contact.