For at least five years, Asheville City Council members have debated and grappled with some of the most pressing issues facing Asheville in regularly scheduled private meetings with city staff — meetings that are outside of public view.
In “check-in” sessions, which appear to be structured to avoid the requirements of the state’s open meetings law, small groups of council members meet the week before each public council meeting in closed sessions with no minutes or recordings taken.
They discuss controversial and weighty topics of vital interest to the public including homeless encampments and shelters, development projects, and the proliferation of hotels, according to meeting agendas reviewed by Asheville Watchdog.
Most recently, council members received a detailed briefing of the holiday water system failures that left tens of thousands of Asheville homes and businesses waterless — five days before the council’s first public airing of what happened.
“I definitely think it creates issues with trust,” said Patrick Conant, an Asheville software developer and open-government advocate. “People have expressed concerns,” he said, that important city proposals are “being worked out behind closed doors.”
At least one other city council in North Carolina, Raleigh, holds similar closed sessions. But many other public governing bodies, including other cities and the Asheville Board of Education, discuss pending or upcoming business as a group in “work sessions” that are open to the public.
“It’s understandable that elected officials need to discuss ideas, review upcoming topics and talk with staff,” said Conant, whose company created and runs Sunshine Request, a platform for filing and tracking public records requests.
But “many other government entities do that in a public work session where the public and the press are able to see these discussions happen,” Conant said. “The City of Asheville has chosen instead to create this, in my opinion, complex process to have these same discussions, but to do it entirely behind closed doors.”
Homelessness, Hotels, Hot-Button Issues
North Carolina law requires all official meetings of a public body to be open to the public and minutes recorded. But an official meeting is defined as a “majority of the members.”
By design, Asheville’s check-ins consist of no more than two council members and the mayor in each — not enough for a quorum and therefore, according to the city attorney, not an official meeting.
Check-ins are held the Thursday before a Tuesday City Council meeting and are attended typically by the city manager, city attorney, and key staff. Three separate 90-minute check-ins are scheduled on the same day, each session covering the same agenda and the same material.
Asheville City Clerk Maggie Burleson said the practice appears to have started about five years ago under interim City Manager Cathy Ball. Ball, who is now the city manager in Johnson City, Tenn., did not respond to requests for comment.
Council members review business on upcoming agendas of the council and committees, confidential legal matters and “other issues/concerns.” According to check-in agendas — typically the only public record of the meetings — council members have discussed “homelessness,” a proposal for a “camping village,” affordable housing, and other contentious issues before they came up for a public vote.
The check-in agenda for Feb. 3, 2022, for instance, included limiting “food distribution in parks,” a proposal that had rankled homeless advocates and generated a petition in opposition. Another item up for discussion was “Memorial Stadium,” the city-owned stadium behind McCormick Field that had become a source of friction with residents of the historically Black East End/Valley Street neighborhood over a promised new track that wasn’t being delivered. The next month, the Council approved stadium improvements that included a six-lane track.
The controversial Merrimon Avenue “road diet,” reducing a portion of the main thoroughfare in North Asheville to three lanes from four, was on the agendas of at least three check-in meetings before council voted in public to approve it in May 2022.
Conant, who has submitted several public records requests to the city for check-in documents, said he was dismayed to learn how much discussion had occurred outside of public view about how the city should spend federal COVID-19 relief money.
“The way the city decided to allocate those funds was either discussed in the check-in meetings or by council members ranking and basically voting on the projects they wanted to fund via a shared Google spreadsheet,” Conant said. “It was nearly $20 million, a once-in-a-decade, once-in-a-generation opportunity for the city to have this infusion of additional funding.”
He added, “Who knows if the same projects would have been selected if the public actually had the opportunity to weigh in more on the process?”
Gauging Council’s Temperature
The city maintains that no votes are taken in check-ins and that all decisions are made in the public meetings. But the check-in discussions do include polling council members for their views and shaping the proposals that will come up for a vote, as one recording of a January 2021 meeting on the city’s hotel moratorium shows.
Normally, the city takes no minutes and does not record check-ins, but the hotel moratorium virtual meeting was recorded at the request of a council member who was unable to attend. The city made the recording public in response to a records request from Conant.
At the end of a staff presentation on a new zoning overlay district that would allow the city to impose more conditions on hotel developers, Mayor Esther Manheimer and City Manager Debra Campbell summarized council members’ views.
“It sounded like a majority of folks were ready to do something with this new concept,” Manheimer said. She asked staff, “Do you feel like now that we’ve completed these check-ins, you know what you’re bringing back to council?”
Legality Up for Debate
Asheville City Attorney Brad Branham contends the check-ins are legal and points to the “Open Meetings and Local Governments in North Carolina” book by professors at the UNC School of Government.
“It says individual public officials do have the right to meet with their colleagues individually and in small groups, and the law requires public access only when a majority of the board is gathered together simultaneously,” Branham said. “The limitation on this is the board can’t rely on these individual meetings to take official action, which we don’t.”
The law also says an informal gathering of elected officials is not an official meeting “unless called or held to evade the spirit and purposes of this Article.”
And that is precisely what critics of the check-in process say is going on.
Hugh Stevens, general counsel emeritus of the North Carolina Press Association, said the Asheville procedure is “clearly contrary to the intent of the open meetings law,” which he helped draft more than 40 years ago.
Breaking a meeting into segments doesn’t change its result, Stevens said.
“It’s just another version of the underhanded attempts to get around the law and have decision-making done out of public view,” he continued. “It’s almost impossible to imagine any other purpose than to avoid public transparency.”
Stevens shifted his voice to a drawl: “We have a phrase in North Carolina: ‘It may be legal, but it ain’t right.’”
Brooks Fuller, executive director of the North Carolina Open Government Coalition, said that while check-in briefings may not violate the law, “They tip-toe up to the line.”
‘Opaque and Inefficient’
By limiting each check-in to no more than two council members and the mayor, the city says, the meeting does not constitute a majority of the council. But often, those two council members serve on the same committee, which does constitute a quorum.
“They’re bringing together, in many cases, quorums of their council committees discussing either topics that will come before those committees or reviewing the agenda for those committees’ upcoming meetings,” Conant said.
And he noted that during check-ins, the city attorney briefs council members on legal and personnel matters. The law allows elected officials to discuss those matters in closed sessions of official meetings, but the minutes become public once the matter is resolved. In check-ins, no minutes are taken.
“They have to do the same meeting at least three times to repeat the same information to each group of council members,” he said. “In my opinion, it’s an opaque and inefficient way for city council to do public business.”
At a minimum, Conant said, the check-ins are inefficient.
Not Ready for Prime Time
Check-ins apparently began and have continued because a majority of council favors them over public work sessions. The topic came up at an annual retreat in March 2022.
“There’s definitely some concern in the community about transparency,” Mayor Manheimer said. “I can understand that perspective.”
At a time when the city has limited resources, Council member Kim Roney said, “We’re spending upwards of 6 to 8 hours of staff time” on check-ins — with no official minutes.
Then-Council member Gwen Wisler said she needed to be able to ask questions and have staff answer honestly, and that often her first question was not “well thought through … I probably wouldn’t want to see it on the front page of the paper.”
Check-ins, said Council member Sheneika Smith, provided an opportunity for the elected officials to “be a little raw and more candid.”
“We can kind of show that we don’t know a lot about an issue,” Smith said. “But when we’re in public, ‘lights, camera, action,’ you want to appear refined and knowledgeable, and that holds people back from asking questions.”
Other Cities Weigh In
Asheville Watchdog asked officials with North Carolina’s largest cities about their communications with elected officials. Of the five that responded, four, including Winston-Salem, said they do not hold meetings similar to check-ins.
Cary holds work sessions “where all members of council and public are present” on a quarterly basis and as needed for specific topics, said Town Manager Sean R. Stegall. “In addition, I send out a weekly report to the council as a means of communication.”
The Greenville City Council holds monthly workshops “for the Council to get an update on various topics, discuss the topics, and provide feedback to staff,” said spokesman Brock Letchworth. “No action is taken during these workshops, and they are open to the public and televised.”
Asheville’s check-ins are “kind of unique,” said Jeron Hollis, spokesman for High Point, where council members communicate through the city manager.
“As far as High Point, we don’t do anything like that,” he said. “It just sounds like it would be time-consuming, if nothing else.”
Branham, Asheville’s city attorney, said Charlotte had something similar to check-ins when he worked there before coming to Asheville in 2019. Charlotte officials did not respond to requests for comment.
Raleigh appears to have a process similar to Asheville’s. The city manager meets with groups of council members in private sessions called manager’s briefings.
“There’s not a formal schedule of those,” said Lou Buonpane, chief of council services. “They are not in advance of a specific council meeting. … They’re really generally discussing topics that the city manager wants to get some feedback from council on.”
Buncombe County: A Hybrid
The Buncombe County Commission used to hold regular closed meetings with small groups of commissioners called “three-by-threes” but switched to public work sessions about four years ago, said Commission Chairman Brownie Newman.
“These three-by-three type communications were the primary way that commissioners and county management would kind of huddle on issues before issues were addressed in formal meetings,” he said.
Following the 2019 sentencing of former County Manager Wanda Greene and three other county employees on federal corruption charges, “a self-reflection process took place in county government,” Newman said. “How do we do better? How do we make all this more open and accessible to the public?”
Now, in briefing meetings held the same day before a regular commission meeting, “we preview a lot of issues that are going to be on the commission’s agenda… or take time for informational presentations and things like that,” Newman said.
Agendas are published on the county’s website, and the meetings are open to the public and recorded.
“It just seems like a much better use of the staff’s time rather than sitting in a whole bunch of separate meetings all day long,” Newman said. “And I did feel like, hey, these are interesting public policies that are being discussed. I think the community would be very interested to hear this information as well and to hear how the elected officials are discussing them.”
The commission still has “three-by-threes” — not open to the public — about four or five times a year on specific topics like personnel policies or the comprehensive plan, he said.
“I do think from time to time there might be some topics where it makes sense to have a smaller meeting,” Newman said. “It shouldn’t be the normal way that deliberations and communications happen around commission discussions, in my opinion.”
Time for a Change?
Asheville’s mayor would like to see the council switch to public work sessions and is trying to build support for that.
“If these check-ins are a barrier to folks having confidence that they’re getting all the information that the council is receiving before it makes a decision, then I think we need to move away from that process,” Manheimer said. “We continue to discuss this as a council, and there’s not yet a majority support to do that.’’
The mayor said she is now talking to council members and the city manager “to get some momentum” and that council will revisit check-ins at the upcoming retreat in March, if not sooner.
Council member Roney said she supports a switch to public sessions, as does Maggie Ullman Berthiaume, the council’s newest member.
“The intention of having the council informed before public meetings is appreciated, but I honestly just think it got out of hand,” Roney said.
“I understand that some folks feel really concerned about the privacy that’s happening and that there’s mistrust,” Ullman said. “Doing everything in good faith to demonstrate good will towards trust and transparency is important, so I’m totally comfortable and eager and open to pursue trying something different.”
Council member Smith said she is open to more work sessions, “especially around topics with lots of public interest, but not to replace check-ins.”
She called check-ins highly useful and said that “the smaller group setting allows time for individual members to delve deep into issues of interest without the burden to share space for others’ concerns.”
At least one more council member would have to support the change, and the mayor may now have the votes.
Council member Sage Turner said that while check-ins “can be a tool for greater communication and efficiency,” she understands concerns about transparency.
“Asheville has very active, very engaged residents,” Turner said. “I support moving to work sessions and utilizing check-ins or briefings as needed.”
The remaining two council members, Sandra Kilgore and Antanette Mosley, did not respond to Asheville Watchdog’s requests for comment.
Stevens, who consulted closely with legislators when the current open meetings law was written, said he has no patience for elected officials who claim to see no connection between secret check-in briefings and the law’s requirement to make policy in public view.
“I think the response to that is ‘bullshit,’ or some nicer version of that word,” he said.
Conant said he hopes the council will eliminate check-ins.
“I would love to see them switch to a more transparent way of doing business,” Conant said. “There’s no reason that the city couldn’t simply do this work and have discussions in view of the public.”
Editor’s Note: This story has been updated to include comment from Asheville City Council member Sage Turner, who responded after deadline.
Tom Fiedler contributed to this report.
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and surrounding communities. Sally Kestin is a Pulitzer Prize-winning investigative reporter. Email skestin@avlwatchdog.org. Tom Fiedler is a Pulitzer Prize-winning political reporter and former executive editor of The Miami Herald. Email tfiedler@avlwatchdog.org.
I 100% agree with checkin and think they should remain. People like Patrick Conant dont understand that if member of the public writing to their Council Members and express their concerns, the releases this information to the the world, and then those people get doxxed and harrassed. How do you protect citizens who have alternate ideas, or points of view to you. How else can a Council Member be brought up to speed on every topic in the City, they cannot possibly know every thing that is going on. This is a part time gig that pays nothing. They cannot read every email, especially as some people write dissertations to Council. Give them a break. Being a Council member has to be the worse job in the world.
no pay? then don’t accept the position!..closed sessions(except for personnel issues) is BS.!
Politicians who don’t trust the people to hear what they’re talking about don’t deserve the people’s trust about anything.
See NC 143-318.11 re Closed sessions — there’s a long list of exceptions to enable the “smoke-filled room” to convene. I personally think legislatures can get a lot more good things done behind closed doors because the legislators don’t have to pander to every special interest in advance of rendering their decision. Have our nation’s politics become more productive because of “Sunshine Laws”? I don’t see it!
If you need the check in’s to get members up to speed then make them public!
What are you afraid of?
If you’re more worried about *your* image than you are about doing the people’s business in public, you shouldn’t be a public servant.
I would much rather see my elected officials “ask a stupid question” or be seen to be actively learning than have important matters decided behind a veil of secrecy. The check-in process at best comes across as an opportunity for wheeling & dealing, and at worst makes possible strong-arming and corruption. It also makes a mockery of public hearings at Council meetings, because the vote have already been tallied behind closed doors.
As a candidate, I argued strongly for transparency and accountability. I’m pleased to hear that our newest councilmember is supporting eliminating this undemocratic process which undermines public trust. And I am encouraged that Mayor Manheimer is also coming around.
Without going into a dissertation, bottom line, TRUST is the issue! What IS the Mayor and Council afraid of?
Too many people knew of this problem but still voted the same usual suspects back into office last November. Throw the bums out is the only genuine solution, but not enough voters took that option.
A city manager with backbone would advise the mayor and council against these meetings. My husband, a retired public administrator, has repeatedly done so with the chair and members of public boards for whom he worked. Similar situations come up repeatedly, and a strong administrator will protect elected boards from making mistakes like this. IT IS THEIR JOB.
(Otherwise, they wind up, eventually, with an AVL Watchdog on their tails.)
This council works for us. Keep the check-ins if you want but keep minutes and open them up to public view. If they don’t like being viewed, fine. Then just stop being on the council. Bottom line: skirting the rules “smells” bad and creates distrust. PS: thank you Asheville Watchdog! Another donation on the way.
Three identical check-ins are serial meetings, which violate the intention of the open meeting laws. In CA serial meetings are against the law. They are blatant middle fingers to transparency, and therefore to the public, and horribly inefficient and wasteful of staff resources. Again, a middle finger to the taxpayers. Appalling.
From Investopedia:
“Sunshine laws are in place to ensure certain activities are conducted in an open and ethical nature. This allows members of the public to bear witness to certain activities or to request access to records pertaining to certain topics. They are designed to limit corruption within the affected organizations and increase public trust through willing transparency.”
We already have a lot of distrust of public officials in this country. If for no other reason that to engender public trust, the Council should either stop these regularly scheduled meetings that are clearly intended to get around the Sunshine Law or start recording them so that at least minutes are available to the public. If these public officials are afraid of their questions and candor being made public, then they should not run for public office. If they need more education on a particular topic out of the public eye they can always schedule an educational session with a staff member.
With the latest water outage debacle affecting over 1/2 of the citizens in the City of Asheville, I have lost confidence and trust in the county and city elected officials to be honest with the people paying their salaries. There is no more tolerance for sneaky meetings. If a subject affects any citizen, then that subject ought to be discussed openly. No more secrets and underhanded meetings, no more monies filtered to personal agendas. These elected officials are supposed to be representing all citizens of our county and our city, not just themselves. Currently we have poor guardians of our county and city.
I would usually say that council members talking (not a quorum )- and not being recorded- to try to figure things out- would be OK- but–I do NOT have this feeling for Asheville City Council. I think the city residents are mostly “liberal” and the council is more liberal than the average of the citizens- I am not happy that so much of their effort – and our money- goes to Ramada Inns- and Reparations- takiong down an obelisk that could have been renames and explained. Not sure we should have started Pack Square design and adding things to what should be very open and as amenable to multiple use as possible. The infrastructure needs help – The sidewalks are in disrepair- bricks missing- people tripping..(see this regularly) the expensive and nice trash containers look like trash even when empty- the downtown has litter all over –the workers emptying the trash containers sometimes leave a real mess. the Litter is mostly off the roads – which do get a street sweeping — the water system never had a plan for cold weather-? Who is responsible-? Make a change.. The city is not providing recreation for “all of us”.. We ask- and nothing happens. They can’t seem to grasp how to limit the NOISE- as in Greenville SC “NOISE-that which disturbs a person of normal sensitivity ” It’s duration- Its the kind of noise–matter (and NOISE is not -as in Asheville just– ” loudness” ..) Some say we need another moritorium on hotels- if that is even legally possible- that would be a great accomplishment ..The core is exploding with construction approvals.. so much more to say- but that’s enough – for now.
“The city maintains that no votes are taken in check-ins and that all decisions are made in the public meetings” – as tiring as the faux transparency is the constant disdain the Council seems to have for residents. We’ve all seen Council meetings – we’re talked to, and then there’s a brief session where we’re allowed extremely limited time to say something – no Council person ever responds, and comments are never factored into the discussion. Then there’s a 6-1 vote and it’s over. The check-ins aren’t the problem, it’s the Council’s public facing approach to governance.
Yes, the disdain and smug dismissive shrugs shown by many sleepy members of council during public comments is disheartening. What an unimpressive group (but at least Wisler is gone). One of the few times I’ve ever seen much life from them was when they were showered with pom poms from the pickle ballers…nothing against pickle ball per se…but some of us are trying to maintain some quality of life and peaceful enjoyment of homes we’ve worked a lifetime to afford. If they’re so sleepy and overworked and underpaid, you’d think they’d reduce the redundant inefficient check-ins…I believe that some of these check-ins could be held in executive session with notes to educate future councils as to why and how things were done.
I have no doubt that City Council deliberated during a check-in meeting regarding the expansion of the Wesley Grant Sr. Southside Community Center. When project was first brought to council for approval, council abstained from voting on the matter because they had concerns. Council never publicly engaged on the matter, instead they slipped the exact same proposal into the consent agenda in January of 2022 and approved it without a vote or comment. Possibly the single largest expenditure of General Obligation Bond Funds and they couldn’t be bothered to vote on record.
Apologies on the typos — but a pertinent error I made was to say that council did not vote on the consent agenda. They did vote on the consent agenda but they did not hold a direct vote on Community Center. Consent agendas are usually laundry lists that receive little to no scrutiny.
Something nefarious is going on here for sure… they’re actually speaking with one another concerning city business candidly and at length without the woke public listening in on every single word of it? Are you trying to tell us that the monthly -open to the public- City Council meetings are simply a choreographed charade with a prior agreed upon predetermined outcome? Def has to stop before they sell our precious little city right out from under us to HCA! ….so anyway, when and where does the 24/7 woke foolishness end? sigh.
Grateful to see Hugh Stevens, formerly of the NC Press Association, still kicking and taking names. He’s been fighting for openness in government for half a century and knows more about effective government than most elected/appointed officials.
There is no excuse for hiding the public’s business so (to paraphrase one council member) “we don’t look stupid.” Sorry, that’s not working. And it’s long past time to bring the city manager out of $240,000 a year hiding and answer some damn questions.
I see both sides of the debate.
On one hand, it feels very wrong to see a public body meeting in private to discuss public matters off the record and I strongly feel that some sort of record of the discussion should be given to the public. It’s clear that these sessions are designed to skirt the laws around official meetings.
At the same time, our political environment is becoming increasingly performative on all levels and politicians will take every opportunity to twist honest questions and thoughtful discussion by their peers into political ammunition. It’s why I would personally never consider running for office. My experience in the private sector has also taught me that big meetings with all stakeholders tend to be the least efficient and it’s often much easier to communicate in smaller meetings.
I think a reasonable compromise would be to fully record all of these meetings for public release 6-12 months after taking place. This way, stakeholders in the meeting aren’t afraid that what they’re going to say will be released to the public immediately with the understanding that the full record would be made public down the road. It would be harder to use old recordings for political gain unless serious misconduct occurred and the public would eventually have the full record of what’s said.
Hugh Stevens has it right. It’s bulls**t. Asheville was my hometown until 1996. I live in Mills River now so I’m very familiar with the smell.