UNC student newspaper files suit alleging Silent Sam settlement violates open meetings law

The DTH Media Corporation, the non-profit that operates UNC-Chapel Hill’s Daily Tar Heel student newspaper, has sued the UNC Board of Governors over the controversial Silent Sam settlement.

The suit, filed Tuesday, alleges that the board violated North Carolina Open Meetings Law in the way it approved the $2.5 million deal with the Sons of Confederate Veterans, which also included a $74,999 payment to assure that the group would not use Confederate flags in on-campus protests.

“Both agreements with the SCV were conceived, negotiated, approved and executed in total secrecy in violation of the Open Meetings Law,” the suit states. “Owing to the defendants’ multiple violations of the Open Meetings Law, neither the plaintiff nor the public knew or could have known about either transaction until the afternoon of November 27, 2019, when the individual defendants disclosed it in an op-ed piece published by The News & Observer.”

The suit asks the court to “declare null and void, and set aside, certain actions taken and agreements entered into by defendants The University of North Carolina and the University of North Carolina Board of Governors in violation of the Open Meetings Law.”

The suit also asks for an order “permanently enjoining the defendants and anyone acting in concert with them from recurring or continuing violations of the Open Meetings Law,” as well as the awarding of reasonable attorney fees to the plaintiff.

The DTH Media Corporation is being represented by Stevens Martin Vaughn and Tadych, PLLC.

Lawyers and representatives for the UNC system and the Daily Tar Heel could not be reached early Wednesday and had released no public statements.

Brooks Fuller, director of the North Carolina Open Government Coalition, said the complaints in the suit are familiar to many people who have dealt with UNC and its board of governors – particularly as it concerns the Confederate monument.

“During the past several years, I’ve watched the Silent Sam controversy with great interest,” Fuller said. “I’ve taught students at UNC who yearn to be heard only to have their grievances flippantly dismissed. Some have been given a clear signal that there is no room for them to be heard by the University system’s highest leadership. They’re literally turned away from BOG meetings.”

“The BOG could better serve the UNC community by making a serious commitment to making ample space for public comment on all matters, even controversial topics that might cause them frustration or discomfort. Perhaps that would be a good New Year’s resolution.”

The suit mentions the inability of media outlets to get access to meeting minutes, especially those held in closed session. Policy Watch has repeatedly requested such minutes and correspondence between board members involving decisions made in closed sessions. The UNC system has not provided them.

“Secrecy often grows out of complacency and we cannot be complacent when it comes to our government and our University system,” Fuller said. “One thing that is fairly common is that public bodies often fail to keep and produce full and accurate minutes of closed sessions. I attribute many such cases to negligence, haste, or lack of care rather than malevolent intent.”

Courts don’t regularly void actions taken in meetings that violate the open meetings law, Fuller said, but it is possible.

“This is a pretty uncommon remedy,” Fuller said.  “Usually this remedy is reserved for truly egregious violations.”

Settlement under siege

The new suit comes after Orange County Superior Court Judge Allen Baddour last month rejected a legal intervention into the Silent Sam settlement by students and faculty at UNC-Chapel Hill, but said he would be re-examining several parts of the settlement. That will include whether the Sons of Confederate Veterans had standing to sue the university system in the first place.

Baddour’s move surprised a number of legal scholars. While many thought it would be tricky for students and faculty to establish standing in the case, they said it is fairly unusual for a judge to announce he will re-examine aspects of a settlement he previously approved on his own motion.

“Usually when you deny a motion to intervene, you deny it and that’s that,” said Eric Fink, an associate professor at Elon Law School who teaches civil procedure.

The attempted legal intervention obviously got the judge’s attention, Fink said, and made him ask questions that hadn’t yet been asked about the deal. In that way, it was a victory even if the intervention failed, Fink said.

“In law school, we often teach like this is all done by machines in black boxes. It’s not. Judges are human. They want to get it right and they don’t want to be reversed all the time. They feel silly.”

Baddour has had at least two of his judgements in favor of UNC in separate cases reversed on appeal and another is pending in the state Court of Appeals.

In 2015, the Court of Appeals reversed Baddour’s ruling in Frampton v. UNC, finding that the university had to pay a tenured professor put on leave after a 2012 arrest on drug smuggling charges in Argentina.

In 2018, the Court of Appeals again reversed Baddour in DTH Media Corp v. Folt, finding that the university could not deny public access to public records involving sexual assaults on campus.

In court last month, Baddour said he worked with lawyers for UNC and the Sons of Confederate Veterans on the final settlement, which was approved seven minutes after the complaint was officially filed during the week of Thanksgiving.

While that sort of predetermined, quickly approved settlement isn’t necessarily unusual in civil cases involving car accidents or people tripping on staircases, legal experts said it isn’t the norm in high profile cases involving millions of dollars and controversies surrounding a public university system.

“In the context, the terms of this agreement themselves are so overreaching that it doesn’t look like the kind of settlement you’d reach quickly just to make it go away,” Fink said. “Two-point-five million dollars is not nuisance value.”

Eric Muller, Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at UNC-Chapel-Hill, has followed this case closely. He was in court last month to hear Baddour’s decision and said reexamining the settlement was “a savvy thing to do.”

“My sense is that he is troubled enough by what he’s heard outside the context of the litigation that he wants to signal to the parties that this isn’t over,” Muller said. “I would imagine the lawyers for UNC and the Sons of Confederate Veterans probably breathed a huge sigh of relief when Judge Baddour denied the motion to intervene. They probably thought ‘Well, that’s it. We won!’ But then he very quickly made clear that it’s not over and he wants to address, really, a multitude of issues.”

Baddour said as much in last month’s hearing, saying he has serious questions not only about the standing of the Sons of Confederate Veterans but about the way the $2.5 million may be used under the settlement agreement. A letter from the group’s leader to its membership declaring the group would use part of the settlement money for a new headquarters ignited a controversy that got Baddour’s attention.

“It’s my aim to do everything I can to get it right,” Baddour said in explaining his decision to re-examine the case. “The result may not be something everyone agrees with.”

T. Gregory Doucette, a Durham lawyer who graduated from N.C. State and North Carolina Central University’s Law School, was a non-voting student member of the UNC board in 2008.

Doucette, who’s been sharply critical of the board during the settlement controversy, said he’s appeared before Baddour a number of times and believes the judge’s concerns are sincere.

“He does try to get it right,” Doucette said. “Some judges don’t. But he does try to reason through it and come to the right conclusion. To have his name in the press as part of this and to face that criticism that he just stamped this and there are serious problems with it, I’m sure that hurt.”

“The Orange County bar is a small bar,” Doucette added. “The people who are judges are a small group. I think there are some perception concerns that stung him, so he’s more concerned about this than he was in the beginning.”

Further challenges possible

Whatever the eventual outcome of Baddour’s re-examination and the Daily Tar Heel suit, Doucette said there could be more legal action pending over the Silent Sam settlement.

“I think there’s enough evidence available for a suit over breach of fiduciary duty by the board,” Doucette said, pointing to comments in court last month by attorney Ripley Rand, who represented the UNC system and the board.

“The Board of Governors did not want to win this case,” Rand said. “The Board of Governors wanted finality, to bring this issue to a close.”

Rand told the judge the UNC board struck the deal with the Sons of Confederate Veterans in order to get out of a tough position. Because of safety concerns, the board didn’t want to return the statue to campus after it was torn down by protesters last year. But a 2015 state law pertaining to such monuments suggested they would have to, Rand said, without an agreement to transfer ownership.

There were complicated questions of law on the statue’s ownership that go back to its placement on the UNC-Chapel Hill campus in 1913, Rand said. The board could have fought out those legal questions all the way to the Supreme Court, he said, but that wouldn’t have guaranteed a definitive solution.

Had a lawsuit been brought to compel the university to put the statue back on campus, leaders in the General Assembly might have intervened, Rand said. Rather than risk such a suit and outcome, Rand said, the board struck a deal with the Sons of Confederate Veterans.

The problem with that, Doucette said, is it creates a situation wherein no one represents the interests of students, faculty, staff and alumni, who’ve overwhelmingly opposed the deal.

Fink agreed.

“There are questions that need to be asked about how the agreement was made,” Fink said. “Usually, even in a situation where you’re agreeing to a settlement, the opposing party in the case doesn’t want to be there…but when they both want to be there for the same thing, then that’s when you need someone to ask questions to prevent that kind of collusion where everyone’s interests aren’t really being addressed.”

“In principle, the university also should be representing the constituents of the university,” Fink said. “That’s their duty.”