Court rules in favor of press freedom in Kitty Hawk
A Dare County superior court judge has ruled that the town of Kitty Hawk must pay a biweekly Outer Banks newspaper $75,000 to cover attorney fees incurred during a lawsuit to access billing records by a private law firm contracted by the town. Plaintiffs in the case welcomed the decision as an incentive for government to comply with state public records law.
The June 18 order by Judge Richard Parker characterized the Vandeventer Black law firm’s use of the courts to thwart The Outer Banks Sentinel’s efforts to review the records as “totally unwarranted,” and referenced a strategy by the defendants “of contesting even the most minor issue.”
The NC Court of Appeals upheld a lower court ruling in January requiring the town’s lawyers to release the billing statements, along with engineering and surveying records related to oceanfront condemnation.
The Outer Banks Sentinel, like YES! Weekly, is owned by Womack Newspapers.
“The town of Kitty Hawk did not act with substantial justification in denying access to the requested public records,” Parker wrote in his ruling, “nor do any circumstances exist that would make an award of attorney’s fees unjust.”
The court did not grant the full amount of legal costs requested by The Outer Banks Sentinel – $112,000 – but left the door open for the newspaper to pursue the balance through legal action against the law firm.
“The court is reluctant to assess the taxpayers of Kitty Hawk the substantial fees sought by plaintiff in this case,” Parker wrote. “However, such an award is justified. Disputes arising under the public records law ordinarily do not require the number of hours of work expended in this case, but that fact is largely attributable to the positions taken and the tactics employed by the defendants and their counsel.”
The newspaper’s quest for the records began in 2004 when a reporter stumbled across a budget amendment of $100,000 to allow the town to cover its legal fees, Managing Editor Sandy Semans said. The reporter reviewed the legal costs and uncovered several lawsuits involving the town.
The matter quickly became mired in small-town politics and acrimony.
One of the lawyers employed by Vandeventer Black was the husband of one of the town council members, Semans said. The newspaper found that the town of Kitty Hawk, with a population of less than 3,000, paid about $1 million to the law firm over a period of about three years.
Mayor Clifton Perry said he wanted to hand the records over to the newspaper from the start, but found himself outvoted on the five-member council. The law firm offered to handle the lawsuit filed by the newspaper pro bono.
Later, after the 2005 election brought about a significant change in leadership, Vandeventer Black repeatedly appealed rulings against the town against council members’ wishes.
“I always wanted to give them the bills because I didn’t think there was anything that would make any difference,” said Perry, who was elected mayor in 2005. “The odd things is – I’m not grumbling about the decision that the judge made – he said, ‘Well, the council should have overridden the attorney,’ but the town hires an attorney to get legal advice. We didn’t get good legal advice.”
Robert Trivette, a lawyer employed by Vandeventer Black and the husband of former Kitty Hawk Town Councilmember Donna Trivette, declined to comment on the case.
Perry said he was not aware of local officials holding any financial interest in the condemnation proceedings the town and its lawyers tried so hard to keep secret.
“The purchases were to try to protect the road, and trying to keep the berm up,” he said. “Most of the property has washed away. There’s nothing to develop. There’s a little beachfront and the ocean. It’s non-buildable land.”
He added that he has been consistently opposed to using condemnation proceedings to acquire land.
“It was a matter of condemnation rather than trying to work it out with the property owners,” he said. “I don’t like it and the general public don’t like it.”
Semans said she remains unclear about the town’s motivations for trying to keep the billing records and other materials secret.
“I think to a certain degree they were following the advice of their attorney,” she said. “There were one or two members who just were not going to be told what to do, whether it was the law or not. As for the law firm, I think there’s some questions about their billing that maybe they didn’t want to come out.”
An employee at Vandeventer Black’s Kitty Hawk office said on June 22 that Norman Shearin, the lead attorney on the public records case, would be unavailable for comment until Tuesday (a call to the law firm’s Raleigh office went unreturned).
In an affidavit sworn by Semans in May, the editor argued that forcing the town to pay the newspaper’s legal fees sent an important message about the need for transparent and democratic government.
“The current woes in our nation’s capital didn’t begin in Washington, DC,” she wrote. “The disrespect and disregard for laws aimed at providing accountability of government action were learned when the now-national officials were still on the local level. Local government gone awry can be compared with robbing a candy store; national government has moved to grand theft auto.
“If the citizens are to rightfully reclaim their role in the process, then the clean-up must begin at the local level,” she continued. “It seems at this point in time that only the courts can draw the line in the sand providing a check on improper government action. Hopefully a line of this sort can be drawn in the sand of the Outer Banks.”
Perry said the town of Kitty Hawk fully intends to pay the newspaper’s fees. The court set Friday as a deadline.
“We don’t have much choice,” the mayor said. “That’s the decision the judge made. To try to take it to a higher court would be foolish.”
Both Perry and Semans emphasized that there are no outstanding issues between the town and the newspaper.
“This situation was very bizarre, and I’ve never seen anything quite like it,” said Semans, a veteran newswoman. “It raises an important question about local government attorneys: Are their clients the board members or the citizens? And is their job to protect their board members or to protect the constituents of their board members? In this case, they could certainly have not been representing both.”
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