Editor's Note: The article was updated on Wednesday at 4:00 p.m. with the most recent copy of the lawsuit.
The DTH Media Corp., the parent company of The Daily Tar Heel, filed a legal complaint against the UNC System and Board of Governors Tuesday, claiming that the BOG violated the Open Meetings Law when meeting about the Silent Sam settlement.
The UNC System entered into two agreements in November 2019 with the North Carolina Sons of Confederate Veterans. On Nov. 21, the system agreed to pay $74,999 to limit the SCV’s actions on system campuses. On Nov. 27, the system gave the SCV possession of Silent Sam and a $2.5 million trust for its preservation in a settlement agreement.
“…both agreements with the SCV were conceived, negotiated, approved, and executed in total secrecy in violation of the Open Meetings Law,” the legal complaint from DTH Media Corp. said.
In a Dec. 16 editorial that appeared in the News & Observer, five members of the BOG (Jim Holmes, Darrell Allison, Wendy Murphy, Anna Nelson and Bob Rucho) defended the Silent Sam settlement agreement and disclosed the $74,999 agreement.
“The Board of Governors tasked us to work with UNC-Chapel Hill to review other options that would accomplish all of the board’s directives,” they said in the editorial.
The members said in the editorial that they brought their proposed settlement to the BOG’s Governance Committee. They said the authority to settle this matter fell under Section 200.5 of the UNC Policy Manual, which outlines the situations in which the Committee has this authority.
The DTH Media Corp. complaint said the group of BOG members that negotiated the SCV agreements is a “public body,” meaning they are required under North Carolina Public Meetings Law to conduct public meetings, give public notice of them and keep minutes of them.
The complaint said since the SCV agreements did not comply with these requirements, the settlement is therefore null and void.
Co-Editor-in-Chief Emily Siegmund said the DTH consulted with their attorney as facts developed on the settlement coverage. She said the DTH weighed the pros and cons of whether filing the lawsuit was worth a potential financial risk before deciding to file.
“Open records laws and open meetings laws are kind of the basis of how we can hold our community accountable and hold our community leaders accountable," Siegmund said. "And if a body like the Board of Governors is going to make a decision on behalf of our community, that needs to be a public decision and it needs to be something that journalists and the public are able to easily access information for."
Co-Editor-in-Chief Marco Quiroz-Gutierrez said filing this lawsuit is important because it holds officials in power accountable.
“It’s important to know that our state is following the laws that they themselves set, and when it seems like they haven’t done so, it’s the job of our institution, The Daily Tar Heel, to hold them accountable,” he said.
Brooks Fuller, director of the NC Open Government Coalition and a professor at Elon University, said to win an open meetings lawsuit, the plaintiff just needs to prove that the public body in question violated a specific provision of the law. He said the judge determines the remedy and, in serious cases, can set aside any action taken during the meeting that violated the law.
“It's vital for news organizations and citizens alike to assert their rights to attend open meetings when they are held and to hold powerful people to account whenever they violate the public's right of access,” Fuller said in an email. "Sometimes, that requires litigation.”
The UNC System press office did not respond to requests for comment by the time of publication.