Is there something in the drinking water down in Johnson County?
First, in April, Republican board of education member Ronald Johnson was indicted for allegedly extorting a Republican congressional candidate into pressuring a woman to recant her claim that she’d had an affair with Johnson.
The indictment also alleged that Johnson secretly recorded a closed session of a school board meeting, failed to comply with records requests, and attempted to transfer two special needs students “as an act of personal retaliation.”
Johnson responded in June with an equally wild federal lawsuit against the school board, its attorneys, the town of Smithfield, various police officers, the district attorney, a special prosecutor, and others. The 111-page complaint alleged that Johnson—a fired Smithfield police detective—was the victim of a conspiracy that began after he defended a school employee who had accused the school board’s attorney of harassment.
The lawsuit also claimed that Johnson’s affair—the relationship at the heart of the extortion charge—began when his paramour threatened to “bite it off” if he didn’t allow her to perform oral sex on him while he was driving. Johnson then said the woman threatened to tell his wife unless he had intercourse with her—which he did, for nine months. (Their first rendezvous occurred in December 2020 while Johnson was in Virginia Beach visiting comic book shops, the lawsuit says.)
One of Johnson’s biggest supporters on the school board—and the only member not named as a defendant in his lawsuit—is Michelle Antoine, who was elected in November on an anti-critical-race-theory platform. Last week, she, too, sued the school board and its chair, alleging … something.
We don’t know exactly what because her attorney, Steven Walker, asked Superior Court Judge Thomas Lock to seal her complaint and request for a temporary restraining order, which is normally a public record. Walker argued that “the filing contains information that, the release of which, would constitute a publishing of defamatory material against plaintiff.” Lock immediately agreed. (Walker was chief of staff to former Lt. Gov. Dan Forest.)
The News & Observer reported that the day Antoine sued, the school board was scheduled to hear a report about a grievance an employee filed against her, but it was removed from the agenda “per court order.”
This is a public official suing a government agency, possibly to prevent the public from learning about allegations of her own misconduct, and she wants it to be secret. As Brooks Fuller of the North Carolina Open Government Coalition told the N&O, sealing such a complaint is “incredibly uncommon to the point of being unheard of.”
Antoine also filed a motion to bar the public from attending a hearing scheduled for yesterday, saying an open hearing would “thwart the fair administration of justice.” But before that hearing could take place, the school board removed the case to federal court, explaining in a court filing that Antoine’s lawsuit alleges violations of her civil rights and federal due process and equal protection guarantees.
Antoine’s allegations remain sealed, for now. But her case was assigned to Judge James C. Devers III, who has a reputation for disliking secrecy. Today, in fact, the Fourth Circuit Court of Appeals heard the case of a college student whom Devers said could not anonymously sue one of two women who accused him of sexual assault.
Correction: The original version of this article incorrectly stated that Steven Walker had been chief of staff to Lt. Gov. Mark Robinson. Walker served as chief of staff for the previous lieutenant governor, Dan Forest. We regret the error.
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Speaking of Public Records …
In December 2020, a contractor Charlotte hired to help its elected officials work together more efficiently sent council members a survey on “transformative leadership.” But when a reporter with WBTV asked to see their responses, the city said it had “determined that documents that are solely in [the contractor’s] possession are not subject to public records law.”
To be clear: These were documents city council members created pursuant to a taxpayer-funded contract. Without question, they are public records. But the city argued that because a third party possessed them, the law didn’t apply.
WBTV sued in June 2021, and a year of legal wrangling followed. On June 10, 2022—weeks after the city primary—the city turned over the responses and asked a judge to dismiss WBTV’s lawsuit as moot, which he did. But WBTV appealed, seeking both attorneys’ fees and a declaration that the law required Charlotte to produce the records.
On September 12, a Court of Appeals panel agreed and, in the process, appears to have closed a loophole ripe for exploitation.
“At the center of this dispute,” Judge Allison Riggs wrote for the unanimous panel, “is whether … a government agency [can] place public records solely in the possession of a third party or otherwise ensure that only the third party has immediate access to what would undoubtedly be public records if in the possession of the government agency and then assert that the documents are not subject to disclosure under the Public Records Act?”
(The day before the appeals court published the decision, Gov. Roy Cooper elevated Riggs to the N.C. Supreme Court. So if Charlotte appeals, she won’t be able to participate.)
State law says that government agencies have to produce documents in their “custody.” Charlotte claimed that it was exempt because it did not have “actual possession” of the records.
But the appeals court pointed out that the words “actual possession” don’t appear in state law, and Charlotte did have “constructive possession” of the documents, meaning “a title granting an immediate right to actual possession.” The city’s contract with Ernst and Young requires the contractor to “promptly provide the Contract data … upon the City’s request.”
More broadly, the court ruled that “records created or received by a government entity, even when stored or held by a third party, are subject to disclosure under the Public Records Act”—a win for nearly two dozen media organizations and nonprofits that told the court that Charlotte’s position would “hamper reporting on matters of public concern and incentivize agencies to transfer records to private parties to avoid accountability and public oversight.”
Back in the News
Last week, supporters of Charles McNeair, a Black man convicted 43 years ago of raping a white woman in Lexington, met with Gov. Roy Cooper’s general counsel about McNeair’s clemency petition.
“I left frustrated,” said Wanda Cox, co-chair of the nonprofit group supporting his petition.
McNeair, who was 16 at the time of his arrest, is serving a life sentence after pleading guilty to second-degree rape, but he maintains his innocence. As we reported in May, he said he took the plea to avoid a possible death sentence. It was the 1970s, the Ku Klux Klan was active in Lexington, and the district attorney was a well-known racist.
But McNeair has little hope of proving his innocence. Lexington police did not have much physical evidence when they charged him. And in the years since, the criminal investigative file for his case has vanished; it’s unclear if the cops collected a rape kit or seized the weapons they claimed McNeair used.
If McNeir was convicted of the same crime today, the most he would get is 10 years in prison.
Cox and her group have lobbied legislators and members of the Lexington City Council to help get McNeair released. In June, the Lexington City Council unanimously passed a resolution in support. State Sen. Steve Jarvis claims the city’s police chief also supports McNeair’s release—though the chief could not be reached for comment—and neither the county sheriff nor district attorney have opposed his clemency petition.
McNeair’s supporters don’t know when, or if, Cooper will respond. The governor has until he leaves office in December 2024 to act.
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