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Does law allow city’s huddle on Panthers?

By Taylor Batten
Editorial Page Editor

Most people agree that elected officials generally should make decisions openly and transparently. Government of, by and for the people, you know.

But the line between what must be done publicly and what can be done behind closed doors can get fuzzy fast. Charlotte’s City Council might have crossed that line in its secret talks about helping the NFL’s Carolina Panthers, and the question now might go before a judge – and conceivably on to the state Supreme Court.

Council members privately voted in February to give the Panthers $144 million for stadium renovations and other needs, pending legislative approval. The plan would have raised taxes by nearly a billion dollars over 30 years, and paid for a slew of projects beyond helping the Panthers. The vote culminated five months of confidential negotiations – and no public input.

The decision divided the community. The question now, though, is not whether the city made a good deal. It is whether it violated the Open Meetings Law.

The pertinent law says elected officials can go into closed session “to discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations.”

A group of former and current broadcasters, led by Mike Cozza and Wayne Powers, plans to file a lawsuit in Mecklenburg Superior Court on Thursday morning, alleging the council violated that law in four ways. City Attorney Bob Hagemann says the city abided by the law.

I don’t know or care about whether the plaintiffs have any motives beyond good government. I wanted to delve deeper into the substance of their allegations. To my eye, they and the city each have strong arguments and weaker ones.

• The first question is whether the Panthers were a flight risk. If not, their “location” is not in question and the law does not apply. The plaintiffs point out that Richardson repeatedly said he had no intention of moving the team. Hagemann points out that Richardson never said he wouldn’t sell the team, and the new owners could move it. Hagemann adds that Richardson’s lawyer indicated that was an immediate possibility if the city didn’t act. Advantage: City.

• The plaintiffs argue that the law allows secret negotiations only about paying incentives, not raising taxes. Hagemann says there is no established case law addressing this question. He points to the statute’s wording “matters relating to…” Raising taxes to fund the Panthers’ incentives is a “matter relating to” the incentives, he argues. Close call, but I doubt the statute was written with the intention of allowing governments to craft plans to raise taxes or create new ones in closed session. Advantage: Plaintiffs.

• The City Council voted to support a 1 percent hike in the prepared food and beverage tax for 30 years. That would have raised hundreds of millions more than needed to fund the Panthers’ incentives. The rest could be used to build a large array of publicly owned amateur sports facilities, city officials said at the time, and perhaps renovate the Panthers’ stadium again down the road. Hagemann defends this, saying the city needed the hospitality industry’s support to get the new tax through the legislature. Again, Hagemann argues, it’s a “matter related to” the incentives. I follow the logic but it’s an interpretation that renders the law’s restrictions meaningless. Advantage: Plaintiffs.

• Finally, council members extensively debated in closed session whether they should be doing this in closed session. The law says such debates should be held publicly. Hagemann dismisses the charge. “I just view that as political hand-wringing and debate. It was caught up in debate over whether we should” help the Panthers at all. Advantage: Plaintiffs.

I think of Hagemann’s as the “If you give a mouse a cookie” defense. In Laura Numeroff’s children’s book, if you give a mouse a cookie, he’s going to ask for a glass of milk; if you give him a glass of milk, he’s going to want a straw and on and on. If you give the Panthers incentives, you’re going to need a tax to pay for it. If you need a tax to pay for it, you’re going to need to give a bunch to the hospitality industry to win political support. And so on.

Both Hagemann and the plaintiffs raise important questions. However the lawsuit turns out, it will be valuable to have a court interpret just what the law allows when discussing tax dollars for private business.

Reach me at tbatten@charlotteobserver.com; on Twitter @tbatten1.
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