Here's what you need to know about the DTH lawsuit and its legal implications

Following the controversial news of the Silent Sam settlement between the UNC System and the North Carolina Sons of Confederate Veterans, DTH Media Corp. — the parent company of The Daily Tar Heel — filed an open meetings lawsuit against the UNC System and the Board of Governors last Tuesday.

“We are the news organization that covers UNC more thoroughly than anyone else,” Erica Perel, general manager of the DTH, said. “We have a long history of being a watchdog for University governance, and so in that sense, I think it's appropriate that we would take those steps.” 

What sparked the lawsuit?

The UNC System made two agreements with the SCV in November 2019 regarding its activity on UNC’s campus and the fate of Silent Sam. 

In the first settlement made on Nov. 21, the system agreed to pay the SCV $74,999 to limit its actions on campus.

On Nov. 27, a second settlement was reached. The System gave the SCV possession of the statue and a $2.5 million trust to fund the statue’s preservation.

Five members of the BOG defended the Silent Sam agreement and disclosed the $74,999 agreement in an editorial published in the News & Observer on Dec. 16. They wrote that the authority to settle the matter was outlined in Section 200.5 of the UNC Policy Manual.

Despite the BOG’s stance, the DTH Media Corp. claims in its lawsuit that the BOG violated the Open Meetings Law when it “conceived, negotiated, approved, and executed in total secrecy” these agreements with the SCV. 

What is the Open Meetings Law?

Chapter 143 Article 33C of the N.C. General Statutes states that most official meetings of public bodies must be conducted publicly, and that anyone is allowed to attend. 

Frayda Bluestein, a professor in theUNC School of Government, said that when groups of people doing the work of public agencies gather together, they must provide notice of the meeting so the public can know the topic, date and place. While members of the public are allowed to attend, they don’t necessarily have the right to participate in the meeting, she said. 

“The open meetings law, the public records laws are things that typically, most often, are litigated by media because the media is always looking to have transparency so that they can report on things that elected officials and appointed officials are doing,” Bluestein said.

Bluestein said a public meeting can be brought into closed session, but the meeting must start as an open session and a motion must be made that identifies a provision in a statute that authorizes the topic the body plans to discuss privately. 

She said in a blog post that there are multiple permitted reasons for holding a closed session detailed in the law — including discussing confidential information or honoring attorney-client privilege during a consultation with an attorney. 

How does the lawsuit relate to the Open Meetings Law?

The DTH Media Corp. complaint alleges the group of BOG members that negotiated the settlements constituted a public body and, as such, should have conducted public meetings, provided public notice of them and kept minutes. 

Since the settlements did not comply with the law, the complaint states, the settlement is null and void. 

“There will be people who say that the board had bad intentions, and I don't know,” said Tori Ekstrand, a professor of media law in the Hussman School of Journalism and Media. “None of us really know, and that's, of course, part of what open meetings help to uncover for the public is exactly what were the intentions of an appointed body like this.”

Why are open meetings important? 

“Our democracy functions best when the people, who are the owners of our government, have the ability to fully participate and be fully informed about the actions that the government takes,” Perel said. “That's kind of how democracy was set up, and when decisions are made in secret — when open meetings laws are violated — that prevents people from being able to participate in their government to the fullest extent.”

Ekstrand said that open meetings serve as a way for the public to check on the government, as well as a way to participate, and she noted their increasing importance.

“As government works more and more closely with private entities, it's maybe more important than ever before that we have access to meetings,” Ekstrand said.

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