Request asking what City Council knew about legality of short-term rentals ordinance unanswered for months

Request asking what City Council knew about legality of short-term rentals ordinance unanswered for months
Published: Jun. 10, 2022 at 4:50 PM EDT
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WILMINGTON, N.C. (WECT) - For nine weeks the City of Wilmington has failed to provide documents requested by WECT that would provide a closer look at the city’s short-term rental ordinances City Council approved several years ago, and whether elected officials knew what they were doing violated state law.

Following the announcement that the City of Wilmington would not appeal the N.C. Court of Appeals decision ruling the rental ordinance illegal, WECT submitted a public records request to City Clerk Penny Spicer-Sidbury on April 8, 2022.

That request asks the city to provide closed-meeting minutes where City Council discussed with attorneys the legal implications and challenges they faced with implementing the restrictions. It also included requests for emails from City Council to attorneys with questions regarding short-term rentals.

The state law regarding rental requirements at the time was explicit about what a city could and could not require. So, there are questions as to whether City Attorney John Joye or his staff explained the state statute that explicitly prohibited the ordinance’s City Council enacted, and the possible legal ramifications.

A Superior Court Judge ruled the ordinance was ‘void and unenforceable,’ while the N.C. Court of Appeals upheld part of that decision calling the language of the law ‘no way ambiguous.’

Public Records law

For the most part, public records are to be turned over to anyone who requests them.

Since the government belongs to the people, open records laws help ensure that people know what their representatives and employees are doing.

“In North Carolina, public records are the property of the people. So you’re not asking for their records, you’re asking them to give you your records that you own. But there, it’s also important to have strong public records laws, because it kind of forces government to act in a way that knows that they’re being watched,” Kym Meyer, an attorney for the Southeastern Environmental Law Center and the Immediate Past President of the North Carolina Open Government Coalition said.

But, there are exceptions to the law when things are considered confidential. Attorney-client privilege is one of those exceptions for public bodies consulting with an attorney, as are closed meeting records, but they are not private forever.

“Under the open meetings law, they can go into a closed session to get advice from their attorney. But when that matter is over, that there’s no reason for the continued attorney client privilege,” Mike Tadych, an attorney with Stephens, Martin, Vaughn, and Tadych law firm said.

In response to a request for comment, Jerod Patterson, Communications Director for the City of Wilmington, said part of the reason for the delay comes down to staffing at the City’s attorney’s office.

“The request was submitted on Friday 4/8, processed by the Clerk’s office and sent to the Information Technology office on Tuesday 4/12. The Information Technology office extracted relevant emails and sent those to the City Attorney’s office on Thursday 4/14. Because this request involves active litigation, the City Attorney’s office must review each email line by line,” he said.

“The personnel in the attorney’s office who performs these reviews was on medical leave from 4/22-6/3, which has impacted the time necessary to fulfill this request. Having now returned to work, the request should be fulfilled shortly. Updates were provided to the requestor via email on 4/29 and via telephone,” he said.

Despite the fact the City is not appealing the court’s decision, there could still be litigation regarding the payment of legal fees to the plaintiff’s attorneys.

Patterson is correct about the update provided in late April from Spicer-Sidbury after two attempts to ensure she received the request. There was no explanation as to the personnel who would review these records being out for medical leave.

“Thanks for your follow up and yes, we received your records request and it is being processed. Staff is working on it. Please be reminded that my office receives numerous records request and I do not acknowledge receipt of each and everyone of them, but a requestor can check with me for any updates and I will respond accordingly. As a reminder, records requests can take up to 4 weeks to process or longer as it is depended on staff’s workload,” she said. “Requests are handled as they are received.”

Regardless of the City’s staffing, the attorney’s office does have multiple attorneys and it’s possible records requests could still be processed.

Although ambiguous, Tadych said things like meeting minutes, which must be recorded by law, are already in existence and should be available quickly.

And the law says unless the release of these minutes would frustrate the purpose of the closed session, they must be released. It’s unclear what could be frustrated by releasing the closed meeting minutes since the courts have already struck down the law, or how releasing the minutes could impact any pending litigation.

“If it’s something that’s in existence, the time period is relatively short. The law says it must be handed over as promptly as possible, and so you’ve got this request out, the documents are extant, somebody should be able to go to a computer, a filing cabinet, pull those things out, let you inspect them; and if you want copies, you get copies,” he said.

Since some emails must be looked over to ensure no confidential information is released, it is permittable to allow review and possible redactions of those documents which does take time and staff resources.

“If you ask for 10,000 documents, they’re not obligated to get them to you the next day. Where the line is, is tricky, and a little bit unresolved,” Meyer said.

However, without any production of records after more than two months, Tadych questions the lack of response from the City.

“Your request has been pending nine weeks or so they should have been able to give you something by now. And and certainly the minutes they exist, and so you should have them. With respect to the emails, what we recommend folks do is say give them to me on a rolling production,” Tadych said.

There are also questions about who the ‘custodian’ of records is due to another ambiguous wording of state law.

“For cities, G.S. 160A-171 creates the office of the city clerk, and provides, among other duties, that the clerk is “the custodian of all city records,” according to the UNC School of Government.

And that law is what the city relies on, and amended it’s public records request to go through the city clerk.

“In 2014, City Council centralized all public records and public record request functions under the City Clerk’s office,” Patterson said.

However, that idea that only the city clerk is the custodian of records is debated.

“David Lawrence, in his book on public records for local governments, suggests that the best reading of this provision is that the clerk is responsible primarily for official city and board records, including minutes, ordinances, policies and the like, but perhaps not for literally all of the city’s records. He interprets the concept of “office” to roughly coincide with departments (but not individual, physical offices) and suggests that having a single individual as custodian (such as the clerk or the manager) for the entire unit would be inconsistent with the requirement for custodians to provide access,” according to the UNC SOG.

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