1. Open Meetings, Public Records, Conflicts of Interest, EMC Bylaws, and Penalty Remissions* Jennie Wilhelm Hauser Special Deputy Attorney General Presentation for the EMC September 12, 2013 *The opinions contained are those of the author

2. Open Meetings and Public Records “Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina... exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.” N.C.G.S. 143-318.9

3. Open Meetings and Public Records The Legislature has ensured the ability of the people of North Carolina to watch their government in action and to have access to public records.

4. Open Meetings Official Meetings – include meetings of EMC committees and study groups Gathering of a majority of the members of the EMC or committee to conduct EMC business, including deliberations Cannot evade Open Meetings Law by circulating e-mails discussing EMC business or holding a “social event” if EMC business is discussed

5. Open Meetings Meeting Notice – Regular meeting, “special called” meeting, emergency meeting Teleconferences Public recording and broadcast of meetings – DENR webcast

6. Open Meetings Deliberation Voting Closed sessions: legally confidential information, attorney-client discussions Motion required to enter closed session and re- enter open meeting Meeting of staff not subject to Open Meetings Law

7. Public Records Public records and public information are the property of the people of North Carolina. Public records include written materials and other information created or received by the EMC members and the EMC’s staff in connection with public business.

8. Public Records Any person has the right to examine or obtain a copy of public records. People requesting public records do not have to reveal their identity or the reason for requesting the information. The “personal” records that EMC members create in conducting EMC business, including e-mails, are public records.

9. Public Records Anyone denied access to public records may bring a civil action in court against the agency or the official who denied access. If the court orders the agency or official to provide access to the public records, the court SHALL order the agency or official to pay attorney’s fees if the denial of access was without substantial justification.

10. Conflicts of Interest Pursuant to the State Ethics Act, an EMC member must remove himself or herself, to the extent necessary to protect the public interest, from any proceeding in which the member has an actual conflict of interest or in which the member’s impartiality might reasonable be questioned due to the member’s familial, personal, or financial relationship with a participant in the proceeding. NCGS 138A-36(a) and (c).

11. Conflicts of Interest The requirement to “recuse” applies to rule- making and to quasi-judicial decisions such as remissions, declaratory rulings, and variances. The member is required to determine whether there is a conflict of interest with a matter before the EMC. The member may confer with the Chairman and with the EMC’s legal counsel and may seek the opinion of the Ethics Commission.

12. Conflicts of Interest Actual Conflict of Interest – EMC Bylaws require the member to immediately discontinue any involvement with the matter and to file a written statement of the conflict with the Chairman to be read into the record or announce the conflict at the next EMC meeting. Potential Conflict of Interest – EMC Bylaws require the member to withdraw from participation in the matter unless the member discloses the nature of the potential conflict in the record. If the member decides to participate in the face of a potential conflict the member must also disclose the reason the potential conflict does not cause them to withdraw

13. Internal Operating Procedures Regular meetings in January, March, May, July, September, and November Standard Order of Business – normally Action Items precede Informational Items The EMC shall take no actions on rulemaking issues that have not been acted on by the appropriate committee “at a scheduled meeting of the committee which was held prior to a previous Commission meeting.”

14. Internal Operating Procedures The EMC Chairman appoints committees, designates the chairman of each committee, and is an ex officio member of all committees. The EMC Steering Committee is comprised of the EMC Chairman and Vice-Chairman and the designated chairman of each standing committee.

15. Internal Operating Procedures Robert’s Rules of Order govern the EMC meetings, including committee meetings, where applicable and not inconsistent with applicable statutes and the EMC’s Bylaws. The EMC Chairman and the chairman of any committee may vote, or may not vote, on any issue. If a tie occurs, the motion fails.

16. Internal Operating Procedures The Chairman appoints hearing officers for any required public hearings. With respect to quasi-judicial matters, such as variances and remissions, members shall refrain from communicating outside of formal proceedings with persons unless all parties are given the opportunity to participate. EMC members have the responsibility to review and become familiar with all hearing records prior to the meeting at which the decision will be made.

17. Internal Operating Procedures Decisions on certain motions, such as leave to file amicus curiae briefs and leave to intervene, are determined by the EMC Chairman. Regular attendance at meetings is a duty of each member. Governor’s appointees have additional attendance requirements under EO 34.

18. Remissions The EMC’s enabling statute requires a committee on civil penalty remissions. Currently the EMC operates with two Remissions Committees. In order for a violator to seek a remission (i.e., reduction) of the civil penalty assessed by DENR, the violator must stipulate to all the facts alleged in DENR’s assessment and agree that an evidentiary hearing is not necessary and the only issue for resolution by the appropriate Remission Committee is the reasonableness of the penalty.

19. Remissions Once received, a request for remission is reviewed by the Division Director. The Director and the violator may resolve the matter. The EMC Chairman determines whether oral presentations will be allowed. The Chairman designates a three-person sub-group of the Remissions Committees to review the remission request, the Director’s recommendation, and the group recommends to the EMC Chairman whether to allow oral presentation before the committee.

20. Remissions The appropriate Committee on Remissions considers the request for remission and makes the final decision on the request. The Committee must consider the factors in N.C.G.S. 143B-282.1(c). The Committee can remit the entire amount of the penalty only when the violator has not been assessed civil penalties for previous violations and when payment of the civil penalty will prevent payment for the necessary remedial actions.