{ "id": 4156577, "name": "ANDRE D. KNIGHT, Plaintiff/Appellant v. ROOSEVELT HIGGS, GLADYS SHELTON, In her Individual Capacity and Official Capacity as a Member/Chairperson of the Edgecombe County Board of Elections, BETTY LEWIS, In her Individual Capacity and her Official Capacity as a Member of the Edgecombe County Board of Elections, SAMUEL BRANCH, In his Individual Capacity and Official Capacity as a Member of the Edgecombe County Board of Elections, and the EDGECOMBE COUNTY BOARD OF ELECTIONS as a quasi-judicial body politic, Defendant/Appellees", "name_abbreviation": "Knight v. Higgs", "decision_date": "2008-04-15", "docket_number": "No. COA07-322", "first_page": "696", "last_page": "705", "citations": [ { "type": "official", "cite": "189 N.C. App. 696" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "632 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636331 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "588" }, { "page": "588-89", "parenthetical": "discussing the competing policy interests inherent in the attorney-client exception" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0586-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 163-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "525 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "792", "parenthetical": "noting that the burden to demonstrate the need for the attorney-client exception lies with the governmental body" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240989 ], "year": 2000, "pin_cites": [ { "page": "575", "parenthetical": "noting that the burden to demonstrate the need for the attorney-client exception lies with the governmental body" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0567-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "145 S.E. 28", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "196 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625441 ], "year": 1928, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0184-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 143-318.9-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "477 S.E.2d 926", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53923 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0178-01" ] }, { "cite": "468 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "522" }, { "page": "522" }, { "page": "521", "parenthetical": "stating a belief that the General Assembly intended \"to curtail exactly this type of unwarranted secrecy by public bodies\"" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 49", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915373 ], "weight": 4, "pin_cites": [ { "page": "55" }, { "page": "55" }, { "page": "54" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0049-01" ] }, { "cite": "392 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1990, "pin_cites": [ { "page": "584" }, { "page": "615" }, { "page": "585", "parenthetical": "citations omitted" }, { "page": "624" }, { "page": "590" }, { "page": "616" }, { "page": "586", "parenthetical": "noting that one biased Board member's participation in Crump's hearing \"would cause that hearing to deny Crump procedural due process\" regardless of the meeting's outcome" }, { "page": "622" }, { "page": "589", "parenthetical": "concluding that the Board \"was required to afford Crump, at a minimum, an unbiased hearing in accord with principles of due process\"" }, { "page": "590" } ], "opinion_index": 0 }, { "cite": "326 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307658 ], "year": 1990, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0603-01" ] }, { "cite": "99 L. Ed. 942", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1955, "pin_cites": [ { "page": "946" } ], "opinion_index": 0 }, { "cite": "349 U.S. 133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11333990 ], "year": 1955, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/us/349/0133-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 163-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 163-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "605 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "733-35", "parenthetical": "reviewing the findings of fact and conclusions of law to determine the appropriateness of a denied recusal motion" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 426", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411558 ], "year": 2004, "pin_cites": [ { "page": "428-31", "parenthetical": "reviewing the findings of fact and conclusions of law to determine the appropriateness of a denied recusal motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0426-01" ] }, { "cite": "178 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379879 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "713" }, { "page": "714-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0711-01" ] }, { "cite": "265 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "300 N.C. 21", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559728 ], "year": 1980, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0021-01" ] }, { "cite": "577 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "308-09" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190595 ], "year": 2003, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0343-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "441 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "concluding that the trial court erred in affirming a residency determination by a local Board of Elections" }, { "page": "601" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 182", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527314 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "concluding that the trial court erred in affirming a residency determination by a local Board of Elections" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0182-01" ] }, { "cite": "270 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 163-90.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(c)" }, { "page": "(a)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "opinion_index": 0 } ], "analysis": { "cardinality": 871, "char_count": 21402, "ocr_confidence": 0.752, "pagerank": { "raw": 9.805491903062687e-08, "percentile": 0.5329152394599067 }, "sha256": "b27287d583848da7df770e4313c3aff2265e2080fc4f1ad25373356e746c7eb9", "simhash": "1:7b9545a267df6c7a", "word_count": 3553 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "ANDRE D. KNIGHT, Plaintiff/Appellant v. ROOSEVELT HIGGS, GLADYS SHELTON, In her Individual Capacity and Official Capacity as a Member/Chairperson of the Edgecombe County Board of Elections, BETTY LEWIS, In her Individual Capacity and her Official Capacity as a Member of the Edgecombe County Board of Elections, SAMUEL BRANCH, In his Individual Capacity and Official Capacity as a Member of the Edgecombe County Board of Elections, and the EDGECOMBE COUNTY BOARD OF ELECTIONS as a quasi-judicial body politic, Defendant/Appellees" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe failure of the defendant Board of Elections to consider a recusal motion alleging partiality of a board member, supported by the affidavits of three persons, creates a question as to the propriety of the Board\u2019s decision. The Board violated the Open Meetings Law by this failure and also by twice going into closed sessions without a motion or stating the purpose for the closed session. The resulting decision must be vacated and appellant is entitled to a new hearing. Upon remand, the trial court shall consider the imposition of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 143-318.16B and further remand the matter to the Board with detailed instructions for proceedings consistent with this Opinion.\nI. Procedural History\nIn . August 2006, defendant-challenger Roosevelt Higgs (Higgs) filed a challenge to Andre Knight\u2019s voter registration, asserting that Andre Knight (Knight) did not reside at 1517 Cherry Street in Rocky Mount, Edgecombe County, North Carolina. Higgs asserted that Knight\u2019s residence was at one of two addresses in Rocky Mount, but located in Nash County. Higgs\u2019 challenge was brought before the Edgecombe County Board of Elections (\u201cBoard\u201d). The Board set the matter for public hearing on 9 October 2006. The hearing commenced on that date but was not concluded until 17 October 2006.\nPrior to the hearing, Knight moved that Gladys Shelton (Shelton), chair of the Board, be recused for the reason that she had publicly stated that Knight did not live in Edgecombe County. The motion was supported by affidavits from three individuals who heard the statements. This motion was not heard by the Board at its hearing, but was summarily denied by Mr. DeLoatch, attorney for the Board. The Board then heard Higgs\u2019 argument that utility and tax bills before the Board showed that Knight did not reside at the Cherry Street address. Following Higgs\u2019 challenge, Knight presented evidence to prove residency at the Cherry Street address and testified that he moved to Edgecombe County in order to run for Rocky Mount City Council as the Ward One representative.\nAt the conclusion of the 9 October 2006 session, the Board went into closed session without a motion, and without any explanation as to why they were going into closed session, stating only that the Board would \u201cgo into Executive Session for just a moment\u201d and then reconvene. The Board was gone for 28 minutes. Upon its return, Shelton stated that the Board had discussed procedure with its attorney and then announced that the Board members would talk among themselves and \u201cmake some kind of decision.\u201d The Board then went into a second closed session. Upon the members\u2019 return to the open meeting, it was announced that the hearing would resume on 17 October 2006.\nAfter reconvening on 17 October 2006, the Board ruled 2 to 1 that Knight was not a resident of Edgecombe County. At all times between the filing of Higgs\u2019 challenge and the hearing, Knight represented Ward One on Rocky Mount City Council. Ward One included the property located at 1517 Cherry Street in Edgecombe County.\nOn 23 October 2006, Knight appealed the Board\u2019s decision to Edgecombe County Superior Court. In his complaint, Knight asserted the following claims: (1) appeal of the Board\u2019s decision of 16 October 2006; (2) nullification of the Board\u2019s decision for alleged violations of the Open Meetings Law, N.C. Gen. Stat. \u00a7 143-318.11(c); (3) relief for violations of his due process rights and his rights to vote and hold office; (4) attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 143-318.16B; and (5) a temporary restraining order and preliminary injunction against enforcement of the Board\u2019s decision.\nOn 24 October 2006, the trial court granted a temporary restraining order, preventing enforcement of the Board\u2019s order to remove plaintiff from Edgecombe County\u2019s list of registered voters.\nOn 21 November 2006, Judge Brown entered an order affirming the ruling of the Board. The order contained no findings of fact. Applying the whole record test, the trial court made three conclusions of law:\n(1) there were no procedural errors which denied the appellant due process of law and a fair hearing; and\n(2) the decision of the Board of Elections has a rational basis in the evidence before the Board; and\n(3) there is substantial evidence to support the conclusions of the Edgecombe County Board of Elections.\nOn 29 November 2006, Knight appealed this order to the Court of Appeals. On 6 December 2006, this Court granted Knight\u2019s motion for a temporary stay. On 19 December 2006, this Court issued a writ of supersedeas. During the pendency of this appeal, Knight was reelected to the Rocky Mount City Council from Ward One.\nDefendants did not file a brief in this appeal.\nII. Standards of Review\nA. Appeal of the Board\u2019s Decision\nJudicial review of the decision of a local Board of Elections to remove a voter\u2019s name from the County registration rolls is permitted by N.C. Gen. Stat. \u00a7 163-90.2(d). In reviewing the decision by a board sitting as a quasi-judicial body, the Superior Court acts as an appellate court. The scope of its review includes:\n(1) Reviewing the record for errors in law,\n(2) Insuring that procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,\n(4) Insuring that decisions of [the Board] are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nConcrete Co. v. Board of Commissioners, 299 N.C. 620, 626, 265 S.E.2d 379, 383, reh\u2019g denied, 300 N.C. 562, 270 S.E.2d 106 (1980). Sitting as an appellate court, the trial court does not review the sufficiency of evidence as presented to it but reviews the evidence presented to the board. See id. Subsequent review by this Court is limited to whether the trial court committed any errors of law. Farnsworth v. Jones, 114 N.C. App. 182, 441 S.E.2d 597 (1994) (concluding that the trial court erred in affirming a residency determination by a local Board of Elections).\nB. Open Meetings Law Violations\nAllegations that a party violated the Open Meetings Law are considered by the Superior Court in its role as a trier of fact.\n\u201cIt 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\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d 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\u2019s 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). \u201cConclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.\u201d Food Town Stores v. City of Salisbury, 300 N.C. 21, 26, 265 S.E.2d 123, 127 (1980).\nGannett 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.\nIII. Analysis\nA. Motion for Recusal\nIn his first argument, Knight contends that the trial court erred in affirming the Board\u2019s decision because the Board failed to properly consider his motion to disqualify Shelton and instead delegated the decision to its attorney. We agree.\nKnight\u2019s complaint specifically alleged that the Board failed to rule upon his motion to disqualify Shelton. The court below failed to address this claim other than to summarily conclude that there were no procedural errors which denied Knight his due process rights. Neither the Board\u2019s decision nor the order from the trial court contain findings of fact regarding this question, nor do they contain any conclusions of law resolving this question. Cf. Lange v. Lange, 167 N.C. App. 426, 428-31; 605 S.E.2d 732, 733-35 (2004) (reviewing the findings of fact and conclusions of law to determine the appropriateness of a denied recusal motion). This constitutes reversible error.\ni. The Board Failed to Act Corporately\nAt the hearing before Judge Brown in Superior Court, Mr. DeLoatch, attorney for the Board, stated that he made the ruling based upon his own personal knowledge of the events and without consulting the Board. Under the provisions of N.C. Gen. Stat. \u00a7 163-86 (2005), it is the County Board of Elections that hears voter registration challenges made pursuant to N.C. Gen. Stat. \u00a7 163-85 (2005). The Board, not its attorney, is the decision-making body. When a challenge is made to the impartiality of a member of the Board of Elections, it must be considered and ruled upon by the Board. See N.C. Gen. Stat. \u00a7\u00a7 163-86, 143-318.10(d). The record on appeal and transcripts of the hearings before the Board are devoid of such deliberations and ruling. While the Board certainly has the right to consult with its attorney concerning such a challenge, it may not delegate its decision-making authority.\nii. Knight\u2019s Due Process Rights\nIt is well-established that the deprivation of a liberty interest requires due process protection.\nWhenever a government tribunal, be it a court of law or a school board, considers a case in which it may deprive a person of life, liberty or property, it is fundamental to the concept of due process that the deliberative body give that person\u2019s case fair and open-minded consideration. \u201cA fair trial in a fair tribunal is a basic requirement of due process.\u201d In re Murchinson, 349 U.S. 133, 136, 99 L. Ed. 942, 946 (1955).\nCrump v. Bd. of Education, 326 N.C. 603, 613, 392 S.E.2d 579, 584 (1990). \u201cAn unbiased impartial decision-maker is essential to due process.\u201d Id. at 615, 392 S.E.2d at 585 (citations omitted). Not only unfairness, but the very appearance of unfairness, is to be avoided. Id. at 624, 392 S.E.2d at 590. The affidavits filed by Knight alleged that Shelton had publicly stated that Knight did not reside in Edgecombe County. Knight\u2019s county of residence was the very issue before the Board, and these affidavits raised a reasonable question concerning Shelton\u2019s ability to give Knight a fair and impartial hearing. See id. at 616, 392 S.E.2d at 586 (noting that one biased Board member\u2019s participation in Crump\u2019s hearing \u201cwould cause that hearing to deny Crump procedural due process\u201d regardless of the meeting\u2019s outcome); id. at 622, 392 S.E.2d at 589 (concluding that the Board \u201cwas required to afford Crump, at a minimum, an unbiased hearing in accord with principles of due process\u201d).\niii. Board\u2019s Decision Provided No Basis for Review\nThe Board was required to consider Knight\u2019s challenge and make a decision as to whether Shelton should have been recused from sitting as a decision-maker on Higgs\u2019 challenge to Knight\u2019s voter registration. Instead, in a 2-1 vote, the Board upheld Higgs\u2019 challenge to Knight\u2019s right to remain a registered voter in Edgecombe County, with Shelton voting in the majority. The Board\u2019s failure to properly consider Knight\u2019s motion to recuse a potentially biased member resulted in a decision that clearly carries an appearance of impropriety. See Crump at 624, 392 S.E.2d at 590. Based upon the holding of our Supreme Court in Crump, supra, we hold that the trial court erred in concluding that \u201cthere were no procedural errors which denied the appellant due process of law and a fair hearing.\u201d The decision of the Board must be vacated, and this matter is remanded to the trial court for further remand to the Board of Elections for a new hearing. The new hearing is to be conducted only after a proper consideration of Knight\u2019s motion to recuse Shelton, if necessary.\nB. Open Meetings Law\nIn his second argument, Knight contends that \u201cthe superior court erred in affirming the Board\u2019s decision in that the Board violated the Open Meetings Law, G.S. \u00a7 143-318.11(c), by going into closed session\u201d on 9 October 2006, without a vote of the Board or stating its purpose for such a session. We agree.\n\u201c[T]he overriding intent behind the Open Meetings Law [is that] public bodies should act in open session because they serve the public-at-large[.]\u201d H.B.S. Contractors v. Cumberland County Bd. of Education, 122 N.C. App. 49, 55, 468 S.E.2d 517, 522 (emphasis and citation omitted), review improv. allowed, 345 N.C. 178, 477 S.E.2d 926 (1996); N.C. Gen. Stat. \u00a7\u00a7 143-318.9-10 (2005). A Board may act only as a body and only in a meeting. See O\u2019Neal v. Wake County, 196 N.C. 184, 187, 145 S.E. 28, 29 (1928).\n(1) N.C. Gen. Stat, \u00a7 143-318.16A\nThe order entered by the trial court contains neither findings of fact nor conclusions of law that demonstrate that it fulfilled its duty to ensure that procedures specified by the Open Meetings Law were followed. See H.B.S. Contractors, 122 N.C. App. at 55, 468 S.E.2d at 522 (analyzing discretionary rulings under N.C. Gen. Stat. \u00a7 143-318.16A).\nThe Board is a public body as defined in N.C. Gen. Stat. \u00a7 143-318.10(b). Within the definition of \u201cofficial meetings of public bodies,\u201d the statute includes:\n[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 for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body.\nN.C. Gen. Stat. \u00a7 143-318.10(d).\nThere is an exception to this general rule, allowing for closed sessions of public bodies only for the specific purposes enumerated in N.C. Gen. Stat. \u00a7 143-318.11(a). The procedure for going into a closed session is set forth in N.C. Gen. Stat. \u00a7 143-318.11(c):\n(c) Calling a Closed Session. \u2014 A public body may hold a closed session only upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in subsection (a) of this section. A motion based on subdivision .(a)(1) of this section shall also state the name or citation of the law that renders the information to be discussed privileged or confidential. A motion based on subdivision (a)(3) of this section shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.\nId. (2005).'\nOn 9 October 2006, the Board twice went into closed session. On the first occasion, Shelton announced \u201cWe\u2019re going to go into Executive Session for just a moment and then we\u2019ll be back.\u201d This action clearly violated two of the requirements of N.C. Gen. Stat. \u00a7 143-318.11(c). First, there was no motion and a vote by the Board to go into closed session. The chair of the board, acting alone, does not have the authority to direct that the board go into closed session. Second, there must be a statement of the purpose of the closed session, and the purpose must be one of those permitted under subsection (a) of N.C. Gen. Stat. \u00a7 143-318.11.\nWe note that upon the return of the Board from closed session, Shelton stated that \u201cWe talked about procedure with our attorney.\u201d However, this statement does not cure the Board\u2019s original omissions. The statement of the purpose for the closed session must precede, rather than follow, a motion and vote to go into closed session. In addition, meeting with the attorney to discuss procedure does not fall under any of the exceptions set forth in subparagraph (a). See Gannett Pacific, 178 N.C. App. at 714-16, 632 S.E.2d at 588-89 (discussing the competing policy interests inherent in the attorney-client exception); Multimedia Publ\u2019g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 575, 525 S.E.2d 786, 792 (2000) (noting that the burden to demonstrate the need for the attorney-client exception lies with the governmental body). The mere mention of \u201cprocedure\u201d is insufficient to invoke the attorney-client privilege that is recognized under the statute. See N.C. Gen. Stat. \u00a7 143-318.11(a).\nThe initial violation was compounded by a second closed session announced by Shelton so that the Board could \u201ctalk among ourselves and make some kind of decision.\u201d There was no motion and no vote taken on Shelton\u2019s announcement, nor is the stated purpose to be found anywhere among the permitted exceptions enumerated in subsection (a). To the contrary, deliberation on the record is one of the enunciated principles of the Open Meetings Law. See N.C. Gen. Stat. \u00a7 143-318.10(d); H.B.S. Contractors, 122 N.C. App. at 54, 468 S.E.2d at 521 (stating a belief that the General Ass\u00e9mbly intended \u201cto curtail exactly this type of unwarranted secrecy by public bodies\u201d). We hold that these two closed sessions, held without a motion and a statement of purpose, violated the Open Meetings Law.\nThe Board\u2019s failure to consider Knight\u2019s recusal motion in a public setting, supra, also violated the Open Meetings Law. The trial court\u2019s failure to make conclusions of law that demonstrate consideration of the statutory factors for such violations, N.C. Gen. Stat. \u00a7 143-318.16A, is reversible error.\n(2) N.C. Gen. Stat. \u00a7 143-318.16B\nOne of Knight\u2019s claims for relief was for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 143-318.16B (2005). Such an award is discretionary under the statute. Id. This Court has adopted the merits test as the proper standard for awarding attorney\u2019s fees to \u201cprevailing\u201d parties pursuant to N.C. Gen. Stat. \u00a7 143-318.16B. H.B.S. Contractors, 122 N.C. App. at 57, 468 S.E.2d at 522. Knight\u2019s pleadings in Superior Court clearly sought to establish a violation of the Open Meetings Law. We have determined as a matter of law that such violations occurred. We hold that Knight is a prevailing party under the statute, id., and the taxing of attorney\u2019s fees should be considered by the trial court upon remand.\nVI. Conclusion\nThe Board of Elections violated Knight\u2019s due process rights when it failed to address a motion for recusal that was supported by affidavits establishing a reasonable basis to challenge the impartiality of a member of the Board. The Board violated the Open Meetings Law by failing to consider the motion and by twice going into closed session without a motion or stating its purpose.\nSince this matter is being remanded to the Board for a new hearing, we do not remand this matter to the trial court for determination of whether the Open Meetings Law violations also constitute a basis for vacating the Board\u2019s actions pursuant to N.C. Gen. Stat. \u00a7 143-318.16A. This matter is remanded to the Superior Court of Edgecombe County for a determination of whether an award of attorney\u2019s fees is appropriate. See N.C. Gen. Stat. \u00a7 143-318.16B. The trial court shall then remand the matter to the Board for a new hearing, with instructions for the Board to first consider and rule upon the recusal motion. In its order, the trial, court shall instruct the Board to support its conclusions of law with detailed findings of fact that reflect the rules of residency provided in N.C. Gen. Stat. \u00a7 163-57 (2005) and the three-part test set forth in Farnsworth v. Jones, 114 N.C. App. 182, 187, 441 S.E.2d 597, 601.\nBecause of our holdings above, w\u00e9 need not reach appellant\u2019s remaining assignments of error.\nVACATED and REMANDED.\nJudges McGEE and GEER concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Tharrington Smith, L.L.P., by Michael Crowell, and Lawrence Best & Associates, by Antonia Lawrence, for plaintiff-appellant.", "No brief (s) filed for defendant-appellees." ], "corrections": "", "head_matter": "ANDRE D. KNIGHT, Plaintiff/Appellant v. ROOSEVELT HIGGS, GLADYS SHELTON, In her Individual Capacity and Official Capacity as a Member/Chairperson of the Edgecombe County Board of Elections, BETTY LEWIS, In her Individual Capacity and her Official Capacity as a Member of the Edgecombe County Board of Elections, SAMUEL BRANCH, In his Individual Capacity and Official Capacity as a Member of the Edgecombe County Board of Elections, and the EDGECOMBE COUNTY BOARD OF ELECTIONS as a quasi-judicial body politic, Defendant/Appellees\nNo. COA07-322\n(Filed 15 April 2008)\n1.. Elections\u2014 motion to recuse board of elections member\u2014 delegation to attorney \u2014 due process violations '\nA county board of elections violated plaintiffs due process rights when it delegated to its attorney the decision on a motion to recuse a member and decided the underlying issue of whether to remove a voter\u2019s name from the county registration rolls without addressing the challenge to the board member. While the board may consult with its attorney, it may not delegate its decision-making authority.\n2. Open Meetings\u2014 board of elections \u2014 closed session \u2014 no vote or stated purpose\nA county board of elections violated the Open Meetings Law by going into closed session without a vote or stating its purpose. N.C.G.S. \u00a7 143-318.11(c).\n3. Open Meetings\u2014 violation as matter of law \u2014 attorney fees\nOn remand, the trial court should consider the taxing of attorney fees where violations of the Open Meetings Law were established as a matter of law. N.C.G.S. \u00a7 143-318.16B.\nAppeal by plaintiff from judgment entered 21 November 2006 by Judge Frank R. Brown in Edgecombe County Superior Court. Heard in the Court of Appeals 16 October 2007.\nTharrington Smith, L.L.P., by Michael Crowell, and Lawrence Best & Associates, by Antonia Lawrence, for plaintiff-appellant.\nNo brief (s) filed for defendant-appellees." }, "file_name": "0696-01", "first_page_order": 728, "last_page_order": 737 }