             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-568

                               Filed: 21 March 2017

Burke County, No. 15 CVS 180

HILDEBRAN HERITAGE & DEVELOPMENT ASSOCIATION, INC., and
CITIZENS UNITED TO PRESERVE THE OLD HILDEBRAN SCHOOL, Plaintiffs

            v.

THE TOWN OF HILDEBRAN and FOOTHILLS RECYCLING & DEMOLITION,
LLC, Defendants


      Appeal by plaintiffs from judgment entered 11 August 2015 and order entered

14 September 2015 by Judge Joseph N. Crosswhite, in Burke County Superior Court.

Heard in the Court of Appeals 4 October 2016.


      Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Jason White and Amber R.
      Mueggenburg, for plaintiff-appellants.

      Byrd, Byrd, McMahon, & Denton, P.A., by Lawrence D. McMahon, Jr. and G.
      Redmond Dill, Jr., for defendant-appellee Town of Hildebran.

      The Starnes Law Firm, by James B. Hogan, for defendant-appellee Foothills
      Recycling & Demolition, LLC.

      Engstrom Law, PLLC, by Elliot Engstrom, for amicus curiae Engstrom Law,
      PLLC.


      CALABRIA, Judge.


      Where the meeting of the town council was held openly and in view of the

public, the trial court did not err in concluding that it did not violate the Open

Meetings Law. Where the only evidence of unreasonable limitation of opportunity

for access to the meeting was the fact that the venue could not accommodate all
         HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

                                   Opinion of the Court



present, the trial court did not err in concluding that the town council did not violate

the Open Meetings Law.

        Where the trial court declared the contract for demolition of a building null

and void, and the building was subsequently destroyed in a fire, the issue of whether

the trial court erred in granting a partial directed verdict is moot. Where plaintiffs

failed to demonstrate an abuse of discretion, the trial court did not abuse its

discretion in declining to award attorney’s fees. We affirm in part, and dismiss in

part.

                        I. Factual and Procedural Background

        The Old Hildebran School (“Old School”) was built in 1917, and has since been

viewed as a town landmark. Two additions to the Old School were completed in 1924

and 1937, and in the 1950s a breezeway was added to connect the older portions of

the building to the newer high school structures. The Old School functioned as both

a Junior High and High School from its opening in 1917 until 1987, when new school

buildings were built in town. The Town of Hildebran (“Town”) acquired the Old

School from the Burke County Board of Education in 1988.

        The Old School was first discussed at a 22 September 2014 special meeting of

the Hildebran Town Council (“Town Council”). At this meeting, Council Member Lee

Lowman (“Lowman”) brought up the physical state of the school, expressing his belief

that the Old School was beyond repair and was both a safety and fire hazard. Council



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Member Jamie Hollowell (“Hollowell”) then requested that “hard copy bids” be

solicited for costs of both demolition and repair of the school, in order to make an

informed decision.   Virginia Cooke (“Cooke”), Council Member and town mayor,

stated that she had solicited a quote for costs to demolish the school.

      The Town Council next discussed the Old School at its 27 October 2014

regularly scheduled meeting. There were two discussions concerning the Old School

at the 27 October 2014 meeting. First, the Town Council considered a resolution that

would exempt it from following the formal bidding process for projects costing less

than ninety thousand dollars, which failed. Second, the Town Council entered into a

closed session to “discuss matters relating to the location or expansion of industries

or other businesses in the area served by the public body, including agreement on a

tentative list of economic development incentives that may be offered by the public

body in negotiations” citing N.C. Gen. Stat. § 143-318.11(a)(4). Later, at trial, the

evidence showed that the Old School’s future was discussed during the closed session

rather than a discussion pertinent to “the location or expansion of industries or other

businesses[.]”

      The Town Council next discussed the Old School at the regularly scheduled

meeting on 24 November 2014, where a presentation was given regarding the

possibility of historic rehabilitation. The Old School was otherwise not discussed any

further at the 24 November 2014 meeting.



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      Public interest in the fate of the Old School began to grow in late November

and early December of 2014. The trial court found that “at least one Council member

and the Mayor knew that public interest in the fate of the old school building was

very high[.]”   At the Town Council’s December 2014 regular meeting, Cooke

announced that there would be a public forum to allow citizens to discuss options for

the Old School, and the forum was scheduled for 8 January 2015, as a special meeting.

      At the 8 January 2015 special meeting, Cooke announced which portions of the

school would be “affected” by demolition. Twenty-one members of the public spoke,

each addressing opinions as to the fate of the school, with nineteen of the twenty-one

speakers in favor of saving the Old School. The Town Council held another special

meeting on 23 January 2015, at which the school was not discussed.

      The Town Council’s next meeting was its regularly scheduled meeting on 26

January 2015. The Town Council posted the agenda for this meeting, as was its

routine, on its website. The published agenda for the 26 January 2015 Town Council

meeting showed that the Town Council would discuss the Old School, but there was

no indication that the Town Council would vote upon the Old School’s fate at the

meeting. Even though there was no vote scheduled on the agenda, the meeting room

was full for the 26 January 2015 meeting. Around twenty to twenty-five members of

the public were permitted to enter the meeting room to voice their opinions, however

they were not permitted to remain in the room once having done so. At least one



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                                  Opinion of the Court



member of the public and one Council Member requested the meeting to be relocated

to the Town auditorium, a standalone structure adjacent to the Town Hall complex.

The relocation request was denied. The reason for denying the request was that a

change in location would have required the Town Council to give at least forty-eight

hours public notice, pursuant to N.C. Gen. Stat. § 143-318.12(a).

      The evening before the 26 January 2015 meeting, Lowman communicated with

Cooke and all members of the Council, except for Councilman Wendell Hildebran

(“Hildebran”). The purpose of the conversations between Lowman and the others was

to (1) discuss his intention to amend the agenda and call for a vote as to the fate of

the school and (2) determine whether the Council Members would support his effort

to amend the agenda and call for a vote. Lowman did not contact Hildebran because

he knew he would not support Lowman’s amendment to the agenda, and Lowman

believed that Hildebran would inform the public of the plan to amend the agenda.

      Based on Lowman’s conversations with Cooke and other Town Council

members, Lowman made a motion to amend the agenda at the 26 January 2015

meeting from “Original School Building Discussion” to “Original School Building

Discussion/Vote[.]” The trial court found that “[p]rior to the meeting held on January

26, 2015, the public did not have knowledge that the agenda would be amended or

the nature of the amendment to the agenda.” Hildebran requested that the vote be

tabled until the Town’s 23 March 2015 meeting.



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      The motion to amend the agenda passed, and Hildebran was the only member

to oppose the amendment. The agenda was further amended to add “Old School

Building Demolition Quotes under Old Business” because Cooke had informed

Lowman, prior to the 26 January 2015 meeting, that she had received demolition

quotes. The Town voted to demolish the Old School and to award the demolition

contract to Foothills Recycling & Demolition, LLC (“Foothills”) on 26 January 2015.

      On 24 February 2015, Hildebran Heritage & Development Association, Inc.

(“HHDA”), and Citizens United to Preserve the Old Hildebran School (“Citizens

United”) (collectively, “plaintiffs”), filed a complaint against the Town and Foothills

(collectively, “defendants”), alleging breach of contract, failure to comply with N.C.

Gen. Stat. § 143-129 et seq. (the procedure for government bodies taking bids on public

contracts), and failure to comply with N.C. Gen. Stat. § 143-318.9 et seq. (the “Open

Meetings Law”). In addition, plaintiffs sought a temporary restraining order and a

preliminary injunction to prevent the demolition of the Old School. On 20 March

2015, Foothills filed its answer and motions to dismiss, alleging failure to state a

claim upon which relief can be granted, lack of capacity by Citizens United to file a

lawsuit, and plaintiffs’ lack of standing. On 24 April 2015, the Town filed its answer.

      A bench trial was held before the Superior Court of Burke County. At trial, at

the conclusion of plaintiffs’ evidence, defendants moved for a partial directed verdict

on the issue of the validity of the contract between the Town and Foothills. On 3



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September 2015, the trial court entered an order on this motion, granting it in favor

of defendants, and holding that “the evidence . . . is insufficient as a matter of law to

establish that the contract between the Defendants to demolish the School Building

is invalid[.]”

       On 11 August 2015, the trial court entered its judgment on plaintiffs’

complaint. It first noted that plaintiffs had alleged four different violations of the

Open Meetings Law: (1) that the Town Council had discussed remodeling or

destroying the Old School during the 27 October 2014 closed session meeting; (2) that

the Town Council had failed to provide reasonable access to the 26 January 2015

meeting; (3) that Lowman had engaged in one-on-one discussions outside of the open

sessions; and (4) that the Town Council had voted to amend its agenda at the 26

January 2015 meeting.        With respect to the first allegation, the trial court

acknowledged that the discussion during the closed session meeting on 27 October

2014 constituted a violation of the Open Meetings Law. Nonetheless, the trial court

concluded that, notwithstanding this violation, “the vote of the Defendant’s Town

Council to demolish the old school building and the award of the demolition contract

to the Defendant Foothills should not be declared null and void.”

       With respect to plaintiffs’ remaining allegations, the trial court concluded that

the measures taken to make the 26 January 2015 meeting accessible to the public

were “reasonable under all the circumstances existing at that time and substantially



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complied with the Open Meetings Law[,]” that the evidence with respect to the one-

on-one discussions and vote to amend was “insufficient as a matter of law to establish

that any of these other acts were in violation of the Open Meetings Law[,]” and that

therefore defendants were entitled to a directed verdict with respect to these

allegations.

       The trial court then considered whether to award attorney’s fees. The court

concluded that, as both parties had succeeded on a substantial issue in the case, both

were “prevailing parties” under statute. In its discretion, the court declined to award

attorney’s fees to either side.

       From the trial court’s order granting a partial directed verdict, and from the

trial court’s judgment, plaintiffs appeal.

                                  II. Directed Verdict

       In their third argument, which we choose to address first, plaintiffs contend

that the trial court erred in entering a directed verdict in favor of defendants as to

the claim that the demolition contract was null and void. Due to newly revealed

information, however, we hold that this issue is moot.

       At oral arguments before this Court, it was revealed by the parties that the

Old School, during the pendency of the appeal, had caught fire and burned down. The

fact that the parties did not consider this information to be pertinent to be brought to




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                                   Opinion of the Court



the attention of this Court is itself troubling. This information would not have been

brought to the attention of the Court, but for a fortuitous question from the Court.

             Where parties contract with reference to specific property
             and the obligations assumed clearly contemplate its
             continued existence, if the property is accidentally lost or
             destroyed by fire or otherwise, rendering performance
             impossible, the parties are relieved from further
             obligations concerning it. . . . Before a party can avail
             himself of such a position, he is required to show that the
             property was destroyed, and without fault on his part.

Sechrest v. Forest Furniture Co., 264 N.C. 216, 217, 141 S.E.2d 292, 294 (1965)

(citation and quotations omitted). In the instant case, it is clear that the Old School

was completely destroyed by fire, through no fault of either party. Likewise, the

contract for the demolition of the Old School clearly contemplated its continued

existence, at least until the contract was completed.

      Had this information been available at trial, it would clearly have supported

the trial court’s determination that the contract was null and void. Performance of

the contract was rendered impossible by the destruction of the Old School by fire.

However, the record contains no evidence as to when the Old School was destroyed

by fire; moreover, the trial court’s order on the motion for a directed verdict seems to

imply that, as of the entry of that order, the trial court was unaware of the Old

School’s destruction, had the fire even occurred at that time. As such, this new

information has no bearing on the trial court’s order.




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                                  Opinion of the Court



      It does, however, have bearing on the ultimate disposition of this issue. The

destruction of the Old School renders performance under the contract impossible.

Certainly, even if the contract was not null and void when the trial court entered its

order, the contract is null and void now. Even were we to agree with plaintiffs’

contentions and remand this issue, the outcome would be the same; the trial court

would grant a directed verdict, holding the contract to be null and void as a result of

the destruction of the Old School. We therefore hold that this matter is moot, and

dismiss this argument accordingly.

                            III. The Open Meetings Law

      In their first and second arguments, plaintiffs contend that the Town violated

the Open Meetings Law, both by purposefully conducting sub-quorum meetings, and

by failing to provide reasonable public access. We disagree.

                               A. Standard of Review

      “Issues of statutory construction are questions of law, reviewed de novo on

appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).

“Whether a violation of the Open Meetings Law occurred is a question of law. We

therefore apply de novo review to this portion of the decision of the trial court.”

Knight v. Higgs, 189 N.C. App. 696, 700, 659 S.E.2d 742, 746 (2008).

                              B. One-on-One Meetings




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      First, plaintiffs contend that the Town violated the Open Meetings Law by

permitting Lowman to conduct one-on-one meetings.

             It is the public policy of our State that “hearings,
             deliberations, and actions of [public] bodies be conducted
             openly.” N.C. Gen. Stat. § 143-318.9 (2005). Accordingly, as
             a general rule, “each official meeting of a public body shall
             be open to the public, and any person is entitled to attend
             such a meeting.” N.C. Gen. Stat. § 143-318.10(a) (2005).

Gannett Pac. Corp. v. City of Asheville, 178 N.C. App. 711, 714, 632 S.E.2d 586, 588

(2006); see also N.C. Gen. Stat. §§ 143-318.9 and -318.10(a) (2015). Plaintiffs contend

that the Town, a public body, violated this public policy, in that Lowman contacted

members of the Town Council individually and in private, rather than openly.

      Plaintiffs attempt to analogize these facts with those in News & Observer

Publishing Co. v. Interim Bd. of Educ., 29 N.C. App. 37, 223 S.E.2d 580 (1976). In

that case, the defendant created a special “committee of the whole” in order to enact

business without invoking the Open Meetings Law. This Court acknowledged that

certain grounds might exist to form a closed session committee of the whole, such as

theft or embezzlement, but held that “we do not think a board can evade the

provisions of statutes requiring its meetings to be open to the public merely by

resolving itself into a committee of the whole.” Id. at 49, 223 S.E.2d at 588.

      We hold, however, that plaintiffs’ analogy is inapplicable. In News & Observer,

the defendant board met to conduct votes in closed session, in violation of the Open

Meetings Law.     Plaintiffs do not allege, however, that Lowman conducted any


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                                 Opinion of the Court



business during these one-on-one meetings. Rather, Lowman discussed with other

members of the Town Council his plan to present a motion to amend at the meeting

proper. Even assuming arguendo that Lowman’s conduct was designed to avoid the

protections of the Open Meetings Law, the vote itself took place at the 26 January

2015 meeting, at which the public was present, minutes were taken, and the votes of

the Town Council were recorded. Unlike News & Observer, in which a closed session

was held in violation of the Open Meetings Law, this meeting was held in view of the

public, with members of the public able to speak, and with records taken of the

proceedings. As such, we hold that the trial court did not err in concluding that the

Town did not violate the Open Meetings Law.

                            C. Reasonable Public Access

      Plaintiffs further contend that the Town failed to provide reasonable public

access to the 26 January 2015 meeting.

      Pursuant to the Open Meetings Law, the court must consider a defendant’s

actions “according to the standard of reasonableness of opportunity for public access

to the meetings.” Garlock v. Wake Cty. Bd. of Educ., 211 N.C. App. 200, 201, 712

S.E.2d 158, 162 (2011). Plaintiffs contend that the venue used for the meeting was

inadequate to address the public’s interest, that between twenty and twenty-five

people were forced to stand outside the meeting room, and that no equipment was

available to permit these excess attendees to observe or hear what transpired during



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                                   Opinion of the Court



the meeting. Plaintiffs contend that whether the opportunity for public access was

reasonable is a question of fact for the jury, and that the trial court erred in ruling on

it as a matter of law.

      However, “[w]hether a violation of the Open Meetings Law occurred is a

question of law.” Knight, 189 N.C. App. at 700, 659 S.E.2d at 746. As such, it was

appropriate for the trial court to determine this issue on a motion for directed verdict.

The trial court’s order set out numerous facts, which are supported by the evidence,

in support of its determination as a matter of law that opportunity for public access

was reasonable, and that no violation of the Open Meetings Law resulted. We agree.

We decline to find that a lack of overflow seating or external speakers, absent more,

constitutes an unreasonable failure of access. We therefore hold that the trial court

did not err in holding, as a matter of law, that there was reasonable opportunity for

access to the meeting under the Open Meetings Law.

                                  IV. Attorney’s Fees

      In their fourth argument, plaintiffs contend that the trial court erred in

declining to award attorney’s fees based upon defendants’ purported violation of the

Open Meetings Law. We disagree.

                                 A. Standard of Review

      “When an action is brought pursuant to [the Open Meetings Law], the court

may make written findings specifying the prevailing party or parties, and may award



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                                   Opinion of the Court



the prevailing party or parties a reasonable attorney's fee, to be taxed against the

losing party or parties as part of the costs.” N.C. Gen. Stat. § 143-318.16B (2015).

“Such an award is discretionary under the statute.” Knight, 189 N.C. App. at 704, 659

S.E.2d at 748.

                                      B. Analysis

      In its judgment, the trial court found that both plaintiffs and the Town

succeeded on significant issues in the litigation, and therefore found that “the

Plaintiffs and the Defendant [Town of] Hildebran are both prevailing parties.” In an

exercise of its discretion, the trial court declined to award attorney’s fees, and ordered

each party to bear its own costs. On appeal, plaintiffs contend this ruling was an

abuse of discretion.

      Plaintiffs’ argument is premised on the fact that “the directed verdict granted

in favor of the Town was erroneous.” However, we have already held that the trial

court did not err in granting a directed verdict in favor of defendants. Plaintiffs

present no additional arguments to support their contention that the trial court

abused its discretion in declining to award attorney’s fees. We hold, therefore, that

the trial court did not abuse its discretion.

                                     V. Conclusion

      The trial court did not err in concluding as a matter of law that the Town

substantially complied with the Open Meetings Law, including providing reasonable



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                                    Opinion of the Court



access to the 26 January 2015 meeting. The trial court did not abuse its discretion in

declining to award attorney’s fees. We dismiss plaintiffs’ arguments with respect to

the trial court’s order for a partial directed verdict.

       AFFIRMED IN PART, DISMISSED IN PART.

       Judge TYSON concurs.

       Judge BRYANT concurs in part and dissents in part.




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 No. COA16-568 – Hildebran Heritage & Dev. Ass’n, Inc. v. The Town of Hildebran


      BRYANT, Judge, concurring in part and dissenting in part.


      Because I believe the trial court erred in directing a verdict when it concluded,

contrary to the facts, that one-on-one meetings conducted by Councilman Lowman

did not violate the Open Meetings Law, I respectfully dissent from that portion of the

majority opinion.

             In determining the sufficiency of the evidence to withstand
             a motion for a directed verdict, all of the evidence which
             supports the non-movant’s claim must be taken as true and
             considered in the light most favorable to the non-movant,
             giving the non-movant the benefit of every reasonable
             inference which may legitimately be drawn therefrom and
             resolving contradictions, conflicts, and inconsistencies in
             the non-movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989) (emphasis added)

(citation omitted).

                    Allegations that a party violated the Open Meetings
             Law are considered by the Superior Court in its role as a
             trier of fact.

                      “It is well settled in this jurisdiction that
                      when the trial court sits without a jury, the
                      standard of review on appeal is whether there
                      was competent evidence to support the trial
                      court’s findings of fact and whether its
                      conclusions of law were proper in light of such
                      facts.” Shear v. Stevens Bldg. Co., 107 N.C.
                      App. 154, 160, 418 S.E.2d 841, 845 (1992). If
                      supported by competent evidence, the trial
                      court’s findings of fact are conclusive on
                      appeal. Finch v. Wachovia Bank & Tr. Co.,
                      156 N.C. App. 343, 347, 577 S.E.2d 306, 308–
                      09 (2003). “Conclusions of law drawn by the
        HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

                       BRYANT, J., concurring in part and dissenting in part



                       trial court from its findings of fact are
                       reviewable de novo on appeal.” Food Town
                       Stores v. City of Salisbury, 300 N.C. 21, 26,
                       265 S.E.2d 123, 127 (1980).

             Gannett Pacific Corp. v. City of Asheville, 178 N.C. App.
             711, 713, 632 S.E.2d 586, 588 (2006). Whether a violation
             of the Open Meetings Law occurred is a question of law. We
             therefore apply de novo review to this portion of the
             decision of the trial court.

Knight v. Higgs, 189 N.C. App. 696, 699–700, 659 S.E.2d 742, 745–46 (2008).

      North Carolina’s public policy requires that hearings, deliberations, and

actions of public bodies be conducted openly. N.C. Gen. Stat. § 143-318.9 (2015). As

a general rule, “each official meeting of a public body shall be open to the public, and

any person is entitled to attend such a meeting.” N.C. Gen. Stat. § 143-318.10(a)

(2015). A “public body” is defined as

             any elected or appointed authority, board, commission,
             committee, council, or other body of [North Carolina], . . .
             or other political subdivisions or public corporations in
             [North Carolina] that (i) is composed of two or more
             members and (ii) exercises or is authorized to exercise a
             legislative policy-making, quasi-judicial, administrative, or
             advisory function.

Id. § 143-318.10(b).

      An “official meeting” is defined as “a meeting, assembly, or gathering together

at any time or place or the simultaneous communication by conference telephone or

other electronic means of a majority of the members of a public body . . . .” Id. § 143-

318.10(d). “By the plain language of the statute, in order to be an official meeting, a


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                    BRYANT, J., concurring in part and dissenting in part



majority of the members of the public body must be present.” Gannett Pac. Corp.,

178 N.C. App. at 715, 632 S.E.2d at 589. “However, a social meeting or other informal

assembly or gathering together of the members of a public body does not constitute

an official meeting unless it is called or held to evade the spirit and purposes of this

Article.” N.C.G.S. § 143-318.10(d) (emphasis added).

      At trial, Councilman Lowman was called as a witness by plaintiff and testified

at length about the propriety of the “one-on-one” discussions with council members

and the mayor:

             Q. Have you had any occasions at any -- at any point in
             time . . . to discuss a matter pertaining to the demolition of
             the old school building one-on-one with, say, the mayor?

             A. I have talked one-on-one with the mayor and one-on-one
             with the council.

             Q. And are there also examples where other members of
             the council have talked one-on-one with the mayor about
             the fate of the old school building?

             A. Yes.

             Q. And those would be one-on-one discussions that were
             had individually, rather than calling a meeting to talk
             about it collectively?

             A. Correct. A meeting is considered three, three of us
             together, three council or two council and the mayor -- or
             three of us and the mayor.

             Q. And you’re aware, then, that you can have those one-on-
             one discussions --



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HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

          BRYANT, J., concurring in part and dissenting in part



    A. Uh-huh.

    Q. -- and avoid calling a meeting.

    A. Correct.

    Q. And if the mayor’s having discussions or if you’re having
    discussion one-on-one with a council member about the fate
    of the old building, you can do that individually and avoid
    having to call a meeting and have the public sit in and
    listen, correct?

    A. That is correct.

    Q. And that’s happened, has it not, with regard to the
    demolition of the old school building?

    A. It has, both, demolition and rehab.

    Q. But, but, in particular, it has in terms of demolition,
    correct?

    A. That is correct.

    Q. And, again, no member of the public’s going to be privy
    to those one-on-one discussions that you’re having
    regarding demolition of the building, for example, with the
    mayor, correct?

    A. That is correct.

    Q. No member of the public’s going to be privy to the
    information you’re discussing . . . one-on-one with
    members of the council with the mayor, correct?

    A. That is correct.

    Q. Have you had meetings where you met with two of the
    other council members?



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           BRYANT, J., concurring in part and dissenting in part



    A. No.

    Q. The reason you haven’t done that is because that would
    constitute a meeting, correct?

    A. That is correct.

    Q. And you don’t want to do that, correct?

    A. That is correct.

    ....

    Q. And you didn’t want to have it be a matter of public
    record, that you planned on amending the agenda, did you?

    A. I didn’t make that call until the week of the meeting.

    Q. But you certainly had enough time to discuss that one-
    on-one with those council members.

    A. I asked them if they were ready to vote, yes.

    Q. And that was outside of the public meeting.

    A. Correct.

    Q. And that was pertaining specifically to the demolition
    of the old school building.

    A. Demolition versus the rehab. I was not swaying their
    votes. It was just were they ready.

    Q. And you had that discussion.

    A. Yes.

    Q. Outside of a public meeting.

    A. Yes.


                                    5
HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

           BRYANT, J., concurring in part and dissenting in part




    Q. And you knew that there would be no record of that that
    would be available to the public.

    A. That is correct.

    ....

    Q. And, ultimately, the council decided and voted to allow
    you to amend the agenda, correct?

    A. That is correct.

    Q. And did each of those members that you had those one-
    on-one conversations with -- did they vote in support of
    amending the agenda?

    A. As far as I know, yes. Except for one.

    Q. Did you have a one-on-one conversation with Mr.
    Hildebrand [sic] beforehand?

    A. No, I knew where he stood.

    Q. So the reason you didn’t have a conversation with him
    is because you knew he’d be opposed to amending the
    agenda.

    A. There was -- He was opposed and I was for. It was plain
    as day, yes.

    Q. Okay. So you avoided having that conversation with
    him based upon that.

    A. I don’t speak to Mr. Hildebrand [sic].

    Q. Well, whether you do or not, the reason you didn’t have
    the discussion with him, as you did with the others that
    voted for your position to amend the agenda, was because
    you knew he wouldn’t be in favor of it, correct?


                                    6
        HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

                   BRYANT, J., concurring in part and dissenting in part




             A. That is correct.

             Q. And he would let the public know about it, correct?

             A. Correct.

      The trial court made the following relevant findings of fact:
             14. Prior to the meeting on January 26, 2015, Councilman
             Lee Lowman contacted certain other Council members one-
             on-one to inquire about amendment of the agenda for the
             January 26, 2015 meeting to include a vote to demolish the
             old school building.

             15. Councilman Lee Lowman contacted certain other
             Council members one-on-one to avoid holding an official
             meeting and to prevent such communications from being
             open to the public.

             16. Councilman Lee Lowman intentionally did not contact
             the one Council member that he knew held an adverse
             position to his own.

             17. Councilman Lee Lowman indicated that it was typical
             for Council members to have one-on-one communications
             to conduct the business of the Town of Hildebran.

(Strike-outs in original) (emphasis added).

      The trial court’s findings of fact, particularly that Councilman Lowman (1)

contacted other council members one-on-one specifically “to avoid holding an official

meeting,” and (2) did not contact Councilman Hildebran as he knew he held an

adverse position, are clearly based on evidence in the record that the other council

members were called “to ensure that they had the vote to amend the agenda, which

would allow them to vote on the school building demolition without any prior notice

                                            7
        HILDEBRAN HERITAGE & DEV. ASS’N, INC. V. THE TOWN OF HILDEBRAN

                   BRYANT, J., concurring in part and dissenting in part



to the public.” Councilman Lowman admitted that he didn’t contact Councilman

Hildebran because he knew Hildebran held an adverse position, and if Lowman asked

Hildebran about voting to amend the agenda, he would alert the public. The only

reasonable inference to be drawn from these facts is that Councilman Lowman’s

action of contacting other council members individually was to evade the purpose of

the Open Meetings Law.

      Thus, because the findings by the trial court support a conclusion that

Councilman Lowman’s actions were purposeful and undertaken in order to evade the

purpose and spirit of the Open Meetings Law and the council’s obligation to conduct

meetings in public, I submit the trial court erred in concluding the above-described

actions did not amount to a violation. Therefore, I respectfully dissent.




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