Tuesday, July 5, 2011


Local activists who've used public records to hold government's feet to the fire

by Jon Elliston, David Forbes and Jason Sandford in Vol. 16 / Iss. 34 on 03/17/2010

March 14 to 20 is this year's Sunshine Week — an annual, nationwide celebration of the critical importance of government openness and freedom of information. Discovering and reporting the inner workings of government is part of Xpress' mission, so it's a week we take special note of.
Trying to change a channel: Davyne Dial, who pushed for the release of records she believed public-access station URTV is obligated to reveal. Photos by Jonathan Welch (unless otherwise noted)

Year round, we maintain the Xpress Files, an online archive of government documents on everything from local development rules to police reports to environmental-impact statements (see mountainx.com/xpressfiles). It's something we typically highlight during Sunshine Week, but this year, we decided to turn the spotlight on local activists who pried open public records and used them to advance their respective causes. Here's what they had to say.
URTV dispute

Who: Davyne Dial, former URTV producer and board member

What was your mission, and how did you get involved?

"While on the board, we had questions about the financial records; we wanted management to be a little more forthcoming. When I started asking questions, I was sent an e-mail by the board president [Jerry Young] telling me I was suspended." Dial was later removed in a controversial vote by URTV members.

How did you get the public records?

"We still haven't gotten them. Through an attorney we requested the records, and their attorney said they didn't have to provide the records. We pressed hard, lobbying City Council [which, along with Buncombe County, oversees the public-access channel]."

What obstacles did you encounter?
"It was such a fight, and we encountered such hostility. I was suspended, then removed. We started to ask: Why this fight over some basic records? The fight still continues."

What did you find in the records, and what did you do with that information? What impact has it had?

"We're still waiting on the records, but in the city's new management agreement, they clamped down with requirements that URTV be open about its meetings and records. I think society would be better if things were more open and transparent, and this was my way of pressing for that wall to open up just a crack." After Dial and other activists pressed for greater openness, URTV also began allowing its meetings to be filmed, abolished a controversial secrecy oath for board members and started posting more meeting minutes online.

Any advice for other activists seeking to find and use public records to advance their cause?

"I suggest that they think carefully about what a whistle-blower can expect and about their next steps when they face opposition. You're going to get a lot of hostility. But if you're in the right, stay the course anyway. You have no good reason to back down."


Editor's note: During the time before the scheduled meeting, Pastor Jerry Young stood outside URTV and told people coming to vote that the meeting had been canceled and no voting would take place. Inside , General Manager Jonathon Czarny also worked to confuse and skew the voting by spreading vicious rumors about Ms. Dial. As shown in the video, no meeting was ever called to order, and Ms. Dial was never allowed access to the membership list (this access was required in NC statutes governing this type of special meeting), to notify her supporters of the special meeting. Also Jonathon Czarny oversaw the voting, thereby making the vote a free choice, impossible. The atmosphere at URTV facilities became one of extreme division.



URTV staff: members vote 33-12 for board member’s removal; controversies continue Suspension after requesting financial records.
by David Forbes on 05/01/2009

Davyne Dial
Members remove Director

URTV members voted 33-12 on Wednesday to dismiss outspoken board member Davyne Dial, according to figures from URTV staff. However, Dial and her supporters have taken issue with the process.

The URTV studios were the scene of no small amount of tension and arguments. An Asheville police officer was in the offices during the proceedings.

Dial’s detractors asserted that the station is running well and that her actions caused negative publicity for the public-access channel.

“We’re moving forward, we’re trying to make this work,” URTV producer David Connor Jones said. “But negative stuff — portraying URTV as a shambles and not working properly — how does that help the membership? She’s being removed from the board because a lot of people are dissatisfied.”

Dial and her supporters replied that she’s just tried to bring attention to management and transparency issue,s and that she should not be penalized for, in the words of URTV producer Sean McNeal, “exercising her First Amendment rights; she’s being censored.”

The poll, lasting from 1 to 10 p.m. in URTV’s office,s was a last-minute change from a member’s meeting originally scheduled for that night. In objection to the change, Dial and others held a “nonmeeting” to discuss issues facing the station.

Board member Sandra Bradbury was there, and said that while the notice changing from a meeting to a poll had been signed “URTV Board of Directors,” she’d had no knowledge of it.

“It seems like they’re going off on their own and having secret meetings,” she said. “I hadn’t heard anything about it.”

Dial confirmed she had retained an attorney who had called URTV and said that any votes counted before 7 p.m. were invalid.

“I retained an attorney because this process is not legal,” she said. “Me standing on my own and saying that wouldn’t have the same weight. I did not threaten to sue, the attorney just said, ‘Hey, if you do this, it’s not legal.’”

But Treasurer Joe Scotto said that transparency concerns have been resolved and that URTV is following the state’s open-meetings law, as its required to do by its contracts with the city and county, who funnel a portion of cable fees to the channel.

“There’s no secret meetings,” he said. “Our meetings are open, they’ve been filmed. We’ve addressed these concerns.”

“You failed to speak up, Joe — you were a part of it,” Board member Richard Bernier, who’s also facing a dismissal attempt, said of transparency concerns.

“The issues that have been resolved — about open meetings — have only been done because me and Richard and I have been insisting these things are done,” Dial said. “If nothing else happens, and I get kicked off the board, I feel pretty good because things are looking up, people are paying attention. This is an important public entity to our community. I’m sorry that it had to come to this point, but you have a management style that forces a push-comes-to-shove situation, which is extremely unfortunate.”

Both Dial and Bernier said they’re willing to sit down with URTV’s management and other board members to work out their disagreements.

After the vote, Dial sent out a list of criticisms of the process, including that her supporters hadn’t been told to vote after 7 p.m. while her opponents had, and that the necessary membership meeting had never been called to order.

— David Forbes, staff writer

After bad press for improper removal of Board Members URTV tries a different tactic.

URTV attorney explains call for special meeting to remove board member

by David Forbes on 04/06/2009

A petition presented by URTV producer Dale Joyner calling for the removal of outspoken board member Davyne Dial at the last meeting of the public-access channel’s board of directors constituted a call for a special meeting of the channel’s membership, URTV attorney Scott Dillin asserted in an e-mail today.

Dial, along with board member Richard Bernier, has pointedly criticized the management of the station and what she sees as issues of transparency. On Feb. 9, the board’s executive committee voted to recommend the removal of Dial and Bernier.

“The Special Meeting was called by the members, at the last board meeting, via [Joyner’s] petition,” Dillin wrote, in response to requests by Xpress to clarify the meeting process. “Under the bylaws, such a petition would constitute a request by 10% of the members (I recollect approximately 26 were said to be on the petition) for such a meeting.”

Usually, URTV bylaws require a 2/3rds vote by the Board of Directors to remove a member, and this is the method that has been used in the past. State law does allow the members of some nonprofits to remove board members they’ve elected.
“Other positions on the Board, such as Mr. Bernier’s seat, are appointed by the Board itself or Asheville City Council, and so on, and are not subject to removal by the Members,” Dillin noted.

“In the end,” he added, “this is probably a positive for all parties involved, as it requires notice be sent to all members, giving all parties with an interest in the proceedings an opportunity be present and cast their vote reflecting their position on the removal of the member.”

In presenting her petition, signed by 26 URTV producers, Joyner called on the board to “discuss the dismissal of Davyne Dial,” whom the petition accuses of spreading “undue negative publicity and false rumors to URTV that have served to bring URTV negative press at a very critical period.” As read, the petition did not mention a special meeting of the membership.

The special meeting will be held at 7 p.m. on Wednesday, April 29, in the URTV studios.

— David Forbes, staff writer

Following the improper attempt at removal of two Directors

Asheville City Councilman Bill Russell (liaison to URTV) was contacted by email. Email was necessary as Councilman Russell had never found time to attend a single Board meeting of URTV while he was assigned as liaison, even though this Board was on his watch.

On Wed, Mar 4, 2009 at 9:05 AM, Davyne Dial wrote:
To: Mr. Bill Russell
Liaison to URTV

Dear Mr. Russell

I wanted to let you know that I've heard that the URTV board has met (in secret) and officially voted Mr. Bernier and myself (Davyne Dial) off the Board of Directors. We were not notified of a "special" meeting, nor were we ever given the reason for our dismissal. Neither was Sandra Bradbury notified of a special meeting by the Board. That made a total of at least three board members who were missing from the meeting.

We have not been "officially" notified of this decision; however mention was made of the Board decision yesterday evening at the County Commission meeting. So you may want to verify from someone at URTV. I suspect this was an effort to avoid the bright light of transparency and the possible presence of the press had this meeting been done in the proper fashion.

Here is my official statement on this.

"It appears the the Board of Directors has cherry picked certain members to attend a secret "special" meeting to vote on Mr. Bernier's and my dismissal. Wouldn't all boards like to be able to conduct business like this? Who needs to debate and listen to differing points of view anyway?

We were never informed of the reasons for this decision to remove us, and due to not being informed of the meeting we were unable to offer any rebuttals for the Board to consider. This move is another sad example of the rules and regulations of URTV being necessary and strictly enforced for the members or producers of URTV, but not an important guide for proper behavior for the management of URTV.

It appears that while the Board has chosen the easy way out, my feeling is this opens up a whole new hornets nest of controversy about the continued flaunting of established rules and regulations."

Davyne Dial

Mr Russell replied withing a few days and asked Ms. Dial to please forward her observations to City Manager Gary Jackson.

That letter is available at this link. | Letter to City Manager Gary Jackson

Thursday, June 23, 2011

Bernier and Dial request tape of secret executive meeting

In violation of their own bylaws, a chosen few (Executive Committee) decide to get rid of Board Members who are requesting URTV comply with open meeting law, comply with terms of the City/County management agreement and comply with open records law. They feel not doing so jeapordizes of public access in Buncombe County.

The only way Board Members may be removed is by a 2/3rd majority of the whole Board of Directors, Knowing this fact, instead the President (Jerry Young) treasurer (Joe Scotto) Vice President (Bob Horn) and Secretary (Ralph Roberts) supposedly (since no minutes or recording was ever forthcoming this "meeting" is in question), met in secret and decided to illegally remove two Board members. Following is email dialog on this situation

From Davyne Dial dixiegirlz@gmail.com

To Pat Garlinghouse , richard bernier

Date Wed, Apr 8, 2009 at 7:54 PM

Subject: Secret meeting tape / NC Open Record laws & David Gantt
To: Pat Garlinghouse Executive Director URTV

Mrs. Garlinghouse,

Mr. Richard Bernier and myself are asking that the "tape" made in secret meeting regarding our dismissal, be made available for listening on Friday afternoon. In the event you are unable to be at URTV on Friday, April 10, 2009, please make this available for listening to by staff of URTV.
In a recent meeting with Commissioner David Gantt, we were assured that URTV does come under NC open record laws(statute posted below). And that our responsibility as Board Members is to oversee financial issues. Therefore Mr. Bernier and I would also like copies of last years, and the three months of 2009 of the check register, copies of credit card expenditures and also we understand we are have a right to the list of all URTV members and their contact information. So we are requesting that list also.
Please confirm receipt of this email.


Davyne Dial

Richard Bernier
Board of Directors URTV
The response to this letter was to deny access of this information to Mr. Bernier and myself. Shorty after, Mr. Bernier and I were left completely “out of the loop” and forced off the Board of Directors.
On April 10, 2009 (19 days before the “vote” on my dismissal), I received these emails from Young & Garlinghouse (emphasis, mine):


On Fri, Apr 10, 2009 at 3:06 PM, Jerry Young wrote:
Dear Richard and Dayvene,

I am writing you as Board President of URTV, the purpose of my letter to both of you is to inform you that your membership is suspended.

Richard, you have refused to pay your membership! I have previously informed you of this matter which is expected of all our membership. Therefore, you should not be speaking to anyone on behalf of URTV. As president I am the only authorized person to speak for URTV.
Davyne, as you are aware you have been officially noted that you are up for dismissal from the board and as a result you also should not be speaking in behalf of URTV. As president I am the only authorized person to speak for URTV.

Sincere regards,

Jerry Young - President

From pat@urtv.org

To Davyne Dial

Cc jericho007

Date Fri, Apr 10, 2009 at 10:43 AM

Subject RE: Secret meeting tape / NC Open Record laws & David Gantt
i am not authorized by the URTV board of directors to release this information at this time. pat

Monday, June 20, 2011

URTV executive committee votes to remove two board members

In an illegal move to silence Board Members first amendment rights the executive committee attempts to improperly remove two Board Members:

In a closed session on Monday, Feb. 9, URTV’s executive committee voted to remove board of directors members Richard Bernier and Davyne Dial, who have criticized what they see as a lack of transparency at the public-access channel.

Bernier told Xpress that he found about the removal when he received a letter informing him of the vote and that in 10 days (on Feb. 19), “a special meeting will be held. In executive session, you will be given an opportunity to present your case. After speaking, you will leave the room and the board will vote.”

The letter is signed by Board President Jerry Young and Secretary Ralph Roberts and does not disclose the reasons for Bernier’s dismissal.

Both Bernier and Dial said they hadn’t been notified of the special meeting beforehand. The move comes on the heels of several controversies at the channel, including those over a confidentiality clause in an oath administered to board members (which was later changed), denial of a request to film a meeting and a memo from Young that muzzled board members’ ability to the press about station business.

“We have done nothing more than follow up on a request to film the meeting; since then there’s been all this negativity towards us,” Bernier told Xpress. “All we’ve done so far is try to address some basic transparency issues, because we want URTV to survive. These basic issues should have been resolved years ago.”

Dial, meanwhile, said she was notified of the vote by another board member and hadn’t yet received a letter.

“We need to be beyond these issues to deal with matters of sustainability and outreach — and we’re not,” Dial said. “What this action looks like to me is that it reveals an attitude of disrespect for the laws and rules that have been put into place. It’s like, ‘You have to follow the rules if you’re a member or mere producer, but we don’t have to follow the rules, we’re the people in charge [and] we can make up our own rules up as we go.’ Which is exactly what they’ve done. The rules aren’t for them, they’re for the little people. They think they don’t have to pay attention to what the management agreements with the city and county say.”

Bernier asserts, “I’ve only asked questions and amplified the community’s interest at board meetings, brought some issues to light. What have I done wrong? They’ve yet to advise me of that. I’d like to know what I’ve done wrong.”

URTV bylaws allow board members to be removed by a vote of two-thirds of all board members currently in office.

Under the state’s open-meetings law, which URTV is required to follow by its agreements with both the city of Asheville and Buncombe County, only matters of personnel (paid staff), property acquisition or consultation with legal counsel may be dealt with in closed session. In all those cases, the board must still begin its meeting in open session before voting to hold a closed session and citing the legal justification for such a move. On Feb. 9, at the beginning of the meeting time for the executive session, the doors to URTV’s offices — the announced meeting place — were locked.

Dial has sat on URTV’s board since last July, Bernier since September.
Executive Committee votes to remove two board members

— David Forbes, staff writer

Monday, June 13, 2011

City Attorney Bob Oast's opinion on URTV's responsibility regarding Open Meeting Laws

This statement from Bob Oast was presented by City council liaison to URTV Robin Cape (presented to the Board of Directors Oct. 23, 2006)

I have looked through our agreement with URTV, and in URTV’s articles of
incorporation. I find nothing in there that requires that their meetings be
open to the public, or otherwise conducted in accordance with the Open
Meetings law. They are not a “public body” that is explicitly subject to the
law. That does not mean that the law does not apply to them, however.
It is my understanding that URTV operates substantially with public money
(cable subscriber paid PEG funds allocated by the City and County). Its
function is the management of a TV facility for the public access station.
The equipment and space it uses is paid for with public (PEG) money as
well. A North Carolina Court of Appeals case, News and Observer
Publishing Co. v. Wake County Hospital Systems, Inc., 55 NC App. 1
(1981), held that a non-profit agency contracting with a county to operate a
public hospital is subject to the Public Records law. The main factor that led
the Court to that conclusion was that the non-profit operated largely with
public money; clearly that is occurring here. Other factors might be the
extent to which the non-profit agency is controlled by the government with
it(sic) contracts or the extent to which it performs a governmental function.
It appears that the City and County exercise some degree of control over
URTV’s operations. While TV might not by itself be a governmental
function, a strong argument could be made that public access TV is by
definition governmental.
Even though the Wake County case involved public records and not open
meetings, I think that the same arguments could be made. On this basis, I
think that URTV is subject to the Open Meetings law. This means that the
meetings are required to be open (except for legally-permitted closed
sessions). This further means that “any person may photograph, film, taperecord,
or otherwise reproduce any part of a meeting required to be open.”
NCGS 143-318.6.
Since the County has some involvement with URTV as well, I’d want to
review my opinion with their lawyer, but the law is pretty clear and I don’t
think there will be any disagreement. I’ll try to do that today.
Of course, I think your reasoning that “it’s public access, for cryin’ out loud”
makes the most sense.
I hope that this is responsive to your question; if you need any further
information or need me to address the URTV board, please let me know.