In Swain County, one commissioner’s habit of tape-recording closed session meetings is making fellow board members nervous.

Commissioner David Monteith has been using a tape recorder in closed sessions for about a year. He maintains that the number of questions he asks during meetings makes it difficult for him to keep up with a pen and paper. Therefore, Monteith says, a tape recorder is the easiest way for him to take notes on what’s transpired.

It’s not Monteith’s job to take notes — the county clerk does that — so for him, it’s a personal choice.

In fact, says David Lawrence, a professor at the University of North Carolina’s Institute of Government, it’s somewhat unusual for a county commissioner to tape record a session.

“Most boards don’t permit it,” he says. “They don’t really want to have a tape recorder because they want to maintain confidentiality of a closed session and are fearful that it would come out.”

Apparently, Monteith’s tape recorder made commissioners Steve Moon and Phil Carson uncomfortable enough at a recent closed session that they requested it be turned off.

Monteith was upset and questioned why no one had a problem with his tape recorder until that point.

After consulting with the Institute of Government, County Attorney Kim Lay issued a recommendation that Monteith get the approval of the board before tape recording closed sessions. So at the following county commissioner meeting, Monteith individually polled each member.

The four commissioners told Monteith they objected to his tape recording of sessions.

“That thing could get lost. Someone could pick it up and listen to it — that’s the only reason I’d object to it,” said Chairman Glenn Jones.

Lay had a similar opinion. She said that having additional copies — be it written or recorded — of closed session meeting minutes increased the risk of them getting out to the public.

Lay added that her new recommendation was that nothing besides minutes kept by the clerk should leave the room.

In the end, the board voted 3-2 to let Monteith take written notes and get rid of his recorder. Jones and commissioner Genevieve Lindsay voted against permitting Monteith to keep any form of notes on closed sessions.

A lone wolf

Monteith is a recurrent voice of dissent on the board of commissioners, and is often the odd one out when it comes to taking a vote on various issues. An avid North Shore Road supporter, Monteith represents a segment of the Swain County population that is frequently critical and skeptical of the actions of county officials.

Commissioners briefly called into question whether Monteith had an ulterior motive for his note-taking — namely, sharing what has happened at closed sessions with others.

Monteith scoffed at this notion, however. He says he took the same oath of office as everyone else and is well aware of the confidentiality of closed sessions.

Closed session minutes become public record after a certain period of time as long as they don’t interfere with the original purpose of the closed session (i.e., reveal information on a legal matter still pending, for example).

The question at hand, then, is whether the board should follow attorney Lay’s advice and allow only the county clerk to record closed session minutes. Monteith, however, could have a strong case for his note taking. An inquiry by The Smoky Mountain News into the county’s closed session minutes reveals at least one set that the county is missing.

Closed session discrepancy

Upon request, Swain County produced all sets of closed session minutes from 2007. However, the county had no record of a closed session that occurred July 10, 2007.

The July 10 public meeting, which as attended by a reporter from The Smoky Mountain News, was a particularly contentious one. The county board abruptly cancelled a public hearing it had voted to hold on the issue of the North Shore Road. When commissioners voted to cancel the hearing, it was unclear whether an official vote had been taken. Before the vote could be clarified, however, commissioners went into closed session. Members of the audience waited 30 minutes for commissioners to return and clarify their vote.

The Smoky Mountain News noted the closed session in an article about the North Shore Road public hearing cancellation. Monteith also has a written record showing matters regarding the county sheriff that were discussed in that closed session.

The county, though, did not include that closed session in the minutes turned over to The Smoky Mountain News. Minutes from the open meeting don’t reflect that a closed session took place, and County Manager Kevin King could not offer an explanation for the missing minutes.

Without Monteith’s notes, there would be no record of what occurred in that closed session.

There is also question of whether the county’s notes are detailed enough.

The open meetings statute that governs the taking of minutes in closed session is vague. Notes must only be detailed enough “so that a person not in attendance would have a reasonable understanding of what transpired.” In some cases, says Lawrence, that can mean as few as four sentences.

North Carolina Press Association lawyer Mike Tadych studied Swain County’s official minutes from six different closed sessions and compared them to rough draft copies from the same closed sessions obtained by Smoky Mountain News. He found that in nearly every instance, information contained in the rough draft disappeared in the final version.

Tadych questioned why the county would have left out information.

“What’s the point? To put out the sanitized version just doesn’t make any sense, and it doesn’t accurately reflect what’s going on,” he said.

Tadych called the discrepancy “problematic.”

“I think to take out substance that has been gathered that as far as you and I know is accurate in favor of being vague, it doesn’t comply with the spirit,” of the open records law, he said.