A North Carolina Superior Court judge has dismissed a portion of the DTH Media Corporation's complaint against the UNC System and Board of Governors in a virtual hearing Thursday. The complaint accused the groups of violating North Carolina Open Meetings Law to negotiate its $2.5 million settlement with the North Carolina Sons of Confederate Veterans in November 2019.
Judge Carl Fox denied the University's motion to dismiss the DTH’s complaint regarding the payment of $74,999 to the SCV last year, which was separate from the $2.5 million settlement, and said this case will be allowed to continue.
The UNC System asked the court to dismiss the complaint after Judge Allan Baddour vacated the $2.5 million settlement between the UNC System and the SCV in February. After a group of UNC students and faculty filed a motion to intervene with the settlement, Baddour ruled the SCV — which had received both possession of the Silent Sam monument and a $2.5 million trust meant for its care and preservation — didn't have standing in the case.
Lawyers for the UNC System argued at Thursday's hearing that since the settlement had been vacated, the DTH’s complaint that the deal was made without public knowledge is now moot.
The North Carolina Judicial Branch legal glossary states that ruling a case as “moot” means that it is "not subject to a court ruling because the controversy has not actually arisen, or has ended.“
"There is no further relief to be issued by this court in this case because the actions that they have prayed for have already been effectuated in Judge Baddour’s case,” Philip Isley, representing the UNC System, said.
Hugh Stevens, who represents the DTH Media Corp., argued that even though the settlement had been vacated, the DTH sought a declaration from the court defining the System’s violation in order to publicly acknowledge that the deals were made in secret.
"I think if this court or any court told the Board of Governors, 'You misbehaved, you didn't follow the law … You shut the people out of their business and you shouldn't have done that, and that was wrong, and I'm declaring as a matter of law that it was wrong' — that is a powerful message," Stevens said.
Judge Fox ruled that it was not the court’s place to merely advise the System of wrongdoings, considering that the situation had already been remedied by the dismissal of the $2.5 million settlement.
“This court feels that merely having this proceed to declare whether or not an Open Meetings Law violation occurred is, in its truest form, advisory,” Fox said. “... I don't believe that that's what courts do. There's no injury that's going to be addressed by this court doing that, there's nothing that the (Board of Governors) is going to do in response to that.”
Stevens also argued that while the settlement with the SCV — which he referred to as the “Silent Sham" — was vacated, the Nov. 21 payment still stands.
“It was a sham, and that’s a shame,” Stevens said. “Fortunately, that part did get set aside. But the other agreement is still in place.”
North Carolina’s Open Meetings Law states that most meetings of public bodies must be conducted publicly and allow anyone to attend. The DTH’s complaint alleged that the $74,999 deal made on Nov. 21 and the $2.5 million settlement made on Nov. 27 were negotiated by a group of five members of the UNC System Board of Governors in violation of this law, without public knowledge.
“However these agreements were struck, the one thing that the defendants cannot possibly deny is that they were struck entirely behind closed doors,” Stevens said. “They were approved and signed in a public or quasi-public situation, but the real question is not that. The real question goes back to exactly what the law provides — and that is they were actions that appear, at least, to have been taken, considered, discussed or deliberated in violation of the Open Meetings Law.”
A media relations representative for the UNC System told the DTH that the System is unable to comment on the ruling as it is a part of ongoing litigation.
DTH Media Corp. will pursue its complaint against the UNC System regarding the Nov. 21 “flag settlement,” as it was described by UNC System lawyer Hardy Lewis.
In this settlement, the System paid the SCV $74,999 — $1 less than the amount requiring approval from the N.C. Attorney General — for their agreement to not display Confederate flags or banners on any property controlled by the UNC System. However, the DTH previously reported that this payment allowed the SCV the ability to procure Silent Sam from the United Daughters of the Confederacy North Carolina Division Inc. and then sue the UNC System.
Stevens said that if a court finds the flag settlement to have violated the Open Meetings Law, the SCV may be forced to pay the $74,999 back to the System.
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