Franklin followed the law by leaking Duke’s counteroffer

The town of Franklin acted appropriately by making public the terms of an out-of-court settlement offer extended to the town by Duke Energy.

The offer was aimed at getting the town of Franklin and Jackson County to drop their opposition to Dillsboro dam removal. Duke Energy hoped the offer would stave off a move by Jackson to use eminent domain to seize the dam and adjacent shoreline for the creation of a park.

Duke Energy insisted its offer should remain confidential, but the town of Franklin disseminated a copy of the offer to the media last week.

“They did it right,” said Mike Tadych, an attorney with the North Carolina Press Association who is an expert in public record and open meeting laws. “It would be illegal to enter into a confidential settlement agreement.”

Franklin leaders voted unanimously to reject Duke’s offer. Jackson County leaders likewise rejected it by a vote of 4 to 1.

Duke Energy said its offer was borne out of court-ordered mediation talks, which are supposed to be confidential.

It’s different when elected bodies are involved, however, Tadych said. Sunshine laws mandate openness by elected government bodies and trump any claim of confidentiality.

Attorney-client privilege entitled the town of Franklin and Jackson County to discuss Duke’s offer behind closed doors — which they both did. But once they formally voted on the offer, attorney-client privilege evaporated.

“As soon as it became water under the bridge, it became a public record,” Tadych said.

Elected leaders cannot keep what they are voting on secret. It would be akin to Congress voting on a bill, but not telling the public what was in it.

“You cannot vote by reference,” Tadych said.

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