City attorney, mayor respond to Graham Holt censure
Last week’s press conference at the Civil Rights Museum was not the first public discussion of attorney Graham Holt’s alleged violation of a Judge’s gag order. At the Tuesday, Sept. 3 meeting of the Greensboro City Council, several speakers addressed the body camera videos of Zared Jones’s 2016 arrest, which both Holt and the council are allowed to view but not disclose.
On Thursday, I called Mayor Nancy Vaughan and asked her if the city could have redacted sections of Holt’s email before publicly releasing it, as there have been redactions in previous city emails received via public info requests.
“There are three ways he could have communicated,” she said. “The open portal, direct email, or he could have dropped it off as he’s done so many letters before. For whatever reason, he was motivated to do it the way that goes to the open portal. The only way to redact it would have been to redact the entire thing.”
Vaughan said that council “would like to have this case play itself out before we watch the video” and that Holt “has said things that may or may not be accurate,” adding, “I disagree with the way he has described other interactions in the past.”
When I spoke to the mayor, the video of the Tuesday night council session had not yet posted to the city website, for reasons described in the YES! Weekly article “Upcoming Greensboro town hall meetings may be videotaped, but not televised.”
On Saturday, the video posted. In it, Zared Jones, Homeless Union of Greensboro’s Marcus Hyde, and former civil rights attorney Lewis Pitts can be seen addressing the council about the sealed GPD body camera videos. Near the end of the meeting, Mayor Vaughan has Pitts ejected for asking from the audience for the council to answer Hyde’s questions.
At-large Representative Michelle Kennedy and District 1’s Sharon Hightower asked when the council would watch the videos they’re forbidden to describe to third parties. Kennedy stated that she’d requested this before and Hightower expressed frustration that the council had not viewed them. City attorney Chuck Watts said they could at any time, either individually or together.
When questioned by At-large Representative Marikay Abuzuaiter about whether Holt’s email being sent through the city portal meant the city was forced to release it publicly, the city attorney made the following statement:
“About a year ago, he submitted the email to you all individually. For whatever reasons, this time he basically cut and pasted that same email and submitted it into the portal, which created a different circumstance, where it’s out of my control whatsoever, and it goes directly to the public to be available just as they got it. And so that’s what the difference is between and now, even though the emails were virtually the same.”
Watts also acknowledged that his office has “the opportunity to review it to make sure there’s not anything confidential. If there is, it comes out of it, but there has to be a legal basis for there to be confidentiality.”
Over the weekend, I emailed Watts about the apparent contradiction between “it’s out of my control whatsoever” and his acknowledgment of circumstances under which emails can be withheld. He returned my call at 8 a.m. on Monday.
“When the stuff comes into the portal, it’s basically going out to the public,” he said, “and is not just something that’s part of our records that gets disclosed in the event of PIRT request. That was the distinction that I was trying to make.”
He acknowledged that emails sent to the portal could be pulled for legal review. “Which is what we did in this instance.” But, he said, “it is going out unless there’s statutorily-based authority to not have it go out.” However, he also acknowledges that emails sent to that portal do not go out “immediately,” and that some time elapses between the reception of Holt’s email and its public release.
“We knew that this letter appeared to violate the judge’s order. My concern was, and again, lawyers are people who sometimes represent criminals, and if anybody goes to jail, I don’t want it to be me.”
He explained that his concern “was that we would not and should not participate in contemptuous behavior, which may be what Mr. Holt was trying to do.” He said that he found it “curious” that Holt had sent “essentially the same letter” to the council the year before (after being put under a gag order), but that the earlier letter had not gone through the portal.
“So, his motivations there were curious to me, but my concern was, I didn’t want to get the judge pissed off at me or have her sanction me or my office because we furthered his contemptuous behavior. So, I did reach out to the judge and ask her if she wanted to talk about this, how she wanted to handle it, you know, broadly describe the situation to her. She asked me to send the letter over.”
He said that he had a copy printed out and hand-delivered to Judge Susan Bray’s office.
“She chose not to look at it, and instead asked the parties, meaning my office, police lawyer Amiel Rossabi, and Graham to show up for a meeting, which we did. And she did ask us to see if there was some way we could resolve the matter. Which was curious to me, but my main concern was, what should I do with the document.”
Watts said that, in order to not disclose the email from Holt to the public, he would have needed an order from Judge Bray.
“So, we actually agreed to see if we could enter into some kind of consent order that would direct me not to disclose it.”
I asked if he had discussed this matter with the city council, and if the council had directed him to ask Judge Bray to suppress Holt’s email as part of her gag order, or if they directed him to ask her to let it go out.
Watts indicated that, due to the confidentially of a closed session between the council and their counsel, he could not speak to that. “But needless to say, you can disclose that I was asked about that and we chose not to. There was no support for engaging in that.”
He said that he emailed Judge Bray the day after the closed session. “That email basically said we were not interested in a consent order [to suppress the email], as unfortunately, I didn’t see any legal basis. I think the judge replied and said she wouldn’t have any jurisdiction over us in respect to this matter.”
“What’s critical, what some of the laypeople have missed, is that Graham Holt petitioned the court, stepping apart from anybody in the city, to see the videotape. That motion was granted by the judge, and there was an exhibit attached to that order, expressing certain limitations placed on his ability to talk about it. Separately, before I got to Greensboro, the council submitted a motion to the court, in a separate civil action, filed a motion to see the videotape. And that motion was granted, subject to a similar exhibit A [meaning to the restriction placed on Holt.]. They’re not the same; they’re similar.
The point, he said, was that Holt’s violation of Judge Bray’s order has nothing to do with the city. “We are not a participant in that; we’re not a party to that litigation. The city’s order is a separate piece of civil litigation. We appealed that. The city’s position is that we challenge the judge’s authority to gag the council, but we do it in the way that lawyers do it. And that’s by filing an appeal.”
“So, we’re together with Graham in the sense that we don’t think that she should be gagging people. But Graham’s mistake is that he’s apparently disrespected the judge’s authority to issue such an order. That’s gonna be his problem. I’m not the prosecutor of his case; I don’t have a dog in that hunt. We’ll be curious, of course. It may inform us, by how she treats a similar order, about how she may treat any of the council people if they were to behave in a similar fashion.”
Wats said that he tries to guide the city council “to stay within the bounds of the law,” but ultimately, they’re independent actors and that he doesn’t have any role “ in trying to direct what they decide to do; I just try to make sure that they are well-advised in whatever choice of action they choose.”
He again emphasized what he saw as the difference between the last time Holt wrote the council about this matter and this time. “In this instance, I tried to figure out what my office should do with a document that is going to go public if I don’t have a basis to prevent it from going public. What happened with his original communication with the council was that it is available for public disclosure but upon request. Since no one knew that it existed except for him and the council members, no one requested it.”
Emails sent to me in response to City of Greensboro Public Records Request #10385 document that it was the city attorney’s office that alerted Judge Bray to the existence of Holt’s email, and not its subsequent public release.
On Aug. 21, Watts emailed Judge Bray. Section of his email titled “CGS 143-318.10(e) (closed session minutes)” is blacked-out, but indicates the matter was discussed at a closed council meeting, and that Watts informed the judge of what was decided at that meeting.
In another email sent that day, Watts wrote the following to Judge Bray:
“I am not sure how questions of my office’s handling of a public document or the full disclosure of the video came to be relevant under these circumstances, but I feel compelled to at least make a comment to you on this exchange from my clients’ perspective. My clients believe that the court’s order in their separate petition to the court that restricted their ability to discuss the content of the video and required that they execute a pledge not to discuss the content of that footage in order to see it was a violation of their 1st Amendment rights. Thus, they have appealed that ruling and are contemplating what further appellate options are before them under the law.
“They have, however, respected the authority of the court and its orders by actually refraining from seeing the video at all. In part, this decision was made out of respect for the court’s ruling and their desire not to intentionally or inadvertently violate that restriction. It would be the height of irony if attorney Holt’s ill-considered communication resulted in anything other than some appropriate sanction upon him.”
Watt also wrote that his clients, meaning the city council, “clearly have the right to distribute Mr. Holt’s email and may have already done so.”
On Tuesday, I texted Mayor Vaughan and asked her if, in council’s closed session with the city attorney, the council instructed Watts not to enter into an agreement to withhold Holt’s email from being released to the public. The mayor said that yes, that was council’s directive to Watts, and upon his receiving it, the email was released via the portal.
“But what I think is important here is that he chose to send us the email in the most public way possible. He has sent us previous messages describing what he alleges is on the tape. It’s been my position that the council should not view the tape until we’re given permission to talk about it. I’ve not viewed it, but some who have told me that Mr. Holt’s description is not accurate.”
On Sept. 13, the city of Greensboro public records office released the unredacted version of city attorney Chuck Watts’ Aug. 21, 2019 email to Superior Court Judge Susan Bray. The unredacted email is at the end of this article. On Sept. 10, Roch Smith, owner of the blog Greensboro 101 filed public information request #10444 asking for the restoration of passages redacted from email supplied in response to Ian McDowell’s request #10385. As a city official had disclosed to McDowell what was discussed and decided at the closed session described in Watt’s email, the city attorney instructed the public records office to release the complete email, the text of which appears below:
From: Watts, Chuck To: Bray, Susan E. Cc: Amiel Rossabi; Sizemore, Polly; firstname.lastname@example.org; Harrell, Andrea; Davis, Rosetta Subject: Re: body worn camera case Date: Wednesday, August 21, 2019 10:48:03 AM
Judge Bray, First, I want to thank you for taking the time to review the information that I, as an officer of the court, felt compelled to provide to you. Second, last evening during a closed session with the Greensboro City Council, I received instruction from the Council that I am not to enter into any consent order in connection with this matter. They seemed to believe that it was appropriate for me to provide you with the information but, beyond that, the City of Greensboro is not involved in Graham Holt’s petition to the court and certainly not involved in your consideration of whether Mr. Holt’s actions were in any sense contemptuous or otherwise voilative [sic] of any professional responsibilities that he may have.
Of course, the Council is an interested spectator in your treatment of this order given that they are subject to a similar order. With respect to that order, while I appreciate your suggests, they have now on two separate occasions chosen to focus upon the appealate [sic] process. I would expect that to be their approach until that process is exhausted. Also, Council gave me clear instructions that, unless ordered to do otherwise, I am to follow our normal procedures regarding the portal disclosure process. I hope you and the other parties to our meeting yesterday understand their instructions and why I was not able to anticipate their position regarding this matter on yesterday. Given the exigencies of time and all the other matters on yesterday’s Council agenda, I simply had not had time to be in a place where I could have provided a reasonable forecast of their position on this matter. I apologize for that.
Respectfully, Chuck Watts Greensboro City Attorney