Asheville’s City Attorney has consistently taken stances against basic government transparency. It’s time for Council, and the people, to demand better of a major public servant
Above: Asheville City Attorney Robin Currin. File photo by Max Cooper.
Recent events in Asheville have turned an eye, for a moment, towards an office that doesn’t usually get much attention: city attorney.
In late February, Charlotte City Council amended its nearly 50-year-old nondiscrimination ordinance to include gender identity and sexual orientation. Shortly after LGBT rights groups pressed for Asheville to adopt a similar ordinance, partly as a show of solidarity with Charlotte in the face of impending action from the state legislature (which would shortly passed HB2 in reaction). While opinions among various Council members differed about how to proceed, the city eventually decided not to go forward.
At the heart of that decision was the legal advice of City Attorney Robin Currin: she completely disagreed with Charlotte’s city attorney, who asserted that local governments had the right to add local protections against discrimination, including when it came to access to public accommodations like bars and restaurants. Instead Currin claimed that cities don’t have the right to regulate private businesses the way Charlotte’s nondiscrimination ordinance did.
At the last Council meeting, where the elected officials strongly condemned HB2, representatives of LGBT groups and some Council members pushed for a nondiscrimination ordinance, including as a form of “political civil disobedience” in reaction to HB2, and three released a statement late last week asserting they were ready to proceed.
While it remains to be seen which direction Council goes on this, the whole affair was an instructive example of the sway Currin’s office wields. Here were two city attorneys, both looking at the same laws, coming to completely different conclusions and shaping the way their respective Councils acted.
If that was the only controversy, it would be a worthy reminder of the power even supposedly apolitical offices wield when it comes to determining what actions a local government will or won’t take.
But it’s not, and the others have received far less notice. That’s unfortunate, because they form a troubling picture of how the city attorney has used that considerable power on a very key issue: since the city hired Currin, a former development attorney, in 2014, she has consistently come down against basic government transparency, especially concerning the public’s ability to access key records. That’s absolutely worth attention, because at this point it involves enough actions over a long enough time that it indicates not a simple disagreement or one-time mistake, but a pattern of behavior and belief.
Currin started this early, amid the Asheville Police Department’s scandal over its shambles of a video archive. This included a multitude of videos of peaceful protests where no crimes were committed or even charged, with no clear procedures for disposing of the tapes. The city’s initial rationale was that the videos were useful for training purposes but members of the public, rightly, had concerns about surveillance.
The city itself acknowledged no crimes were committed, no actionable criminal evidence resulted, and some of the videos were over a decade old. But while the APD justified their use as solely for training purposes, Currin’s office instead claimed that they were still “criminal investigative records” and thus sealed from public view. This ran counter to open records law, and it promptly landed the city in court facing the Asheville Citizen-Times, with a lawsuit noting the “chilling” effect such secrecy has on the right to protest.
By itself, that case was troubling enough. But more happened over the ensuing years.
Take, for example, the case of Asheville’s Civil Service Board. Established by state law, the board has a lot of power: it can reverse firings, demotions or other actions by city management. At the height of the controversy over the APD’s leadership, it was also the subject of major debate in 2014 and 2015 about whether it protected employees guilty of misconduct, including police officers, or if it was a key part of safeguarding worker’s rights and an essential check on the power of top city managers. Given the issues of power and conduct involved, it was a natural that journalists and the public would take a closer look and seek some answers.
While some of their deliberations are closed, the board’s grievance hearings are generally open to the public, who can attend and hear witnesses, evidence and differing arguments offered by the sides’ respective attorneys. Indeed, as scrutiny increased, media started covering these hearings directly.
The Blade and some other local media outlets requested the minutes and documents of previous grievance hearings to get a better idea of how the board had worked over the past few years and provide the public with more context to the current controversy and decisions.
One might think that a basic account of a hearing open to the public and the facts or evidence presented there would also be open to the public. That’s generally the case. But, according to Currin’s office, after the hearing wrapped all the things presented, in public, magically became closed records, part of an employee’s personnel file and, you guessed it, hidden from public view.
Then there’s the issue of body cameras. The call for these has emerged as one element of a push towards greater accountability from law enforcement, including in Asheville. The Buncombe County Sheriff’s Office has already rolled them out and the APD is about to as well.
Naturally, the specifics of a department’s policies on body cameras matter, and there are genuine issues of privacy and accountability to balance. But as the North Carolina Press Association noted, most body camera footage is clearly public record under state law, fitting within the public’s right to know the circumstances of an arrest by officers who are, after all, supposed to work for the public.
But the policies pushed by Currin’s office once again sided heavily with keeping records secret, even when not directly tied to a criminal investigation. Indeed, Assistant City Attorney John Maddux reasserted an incredibly broad interpretation of “criminal investigation or intelligence record” claiming it covered anything that was or might be related in any way to preventing or solving crime.
One should find that interpretation absolutely chilling, if one thinks about exactly how much of the operations of a major part of local government — a part that can use force and detain people — it would hide from scrutiny.
Members of the local groups of Black Lives Matter and Showing Up for Racial Justice have raised issues with these policies. Their concerns — that without real public accountability body cameras aren’t the reform they need to be — deserve to be taken seriously and form the basis of any future rules, but given the actions by Currin’s office, that seems unlikely without a lot of public pressure.
One of these incidents might be a mistake or disagreement. Two is troubling. Three is a trend. Again and again, Currin has sided with secrecy and institutional power over transparency and the public’s right to know. The ludicrously broad interpretation of “criminal investigative records” used by her office first showed up in the protest video lawsuit, and then again as the basis for the city’s whole body camera policy. In both cases open records experts (and from experience, the press association has some of the best) found Currin’s interpretations lacking. In the Civil Service Board incident, like the case of the protest videos, we see the city attorney’s office using conflicting rationales (records of a hearing open to the public suddenly becoming part of a sealed personnel file, videos supposedly for training purposes suddenly become criminal records) with the same end result: hiding important parts of the operations of city government from the public’s view.
I’d like to have asked Currin about these issues over the years, to plainly put questions to her about how she sees her role and how she responds to the criticisms of her actions — plenty of city officials, agree with them or not, are willing to field such questions — but she’s made a point of never talking to local journalists (other than an occasional aside at a Council meeting). While there’s no official city policy barring city attorneys from doing so — believe me, I’ve asked — there is a de facto policy. It’s not just Currin either. After a particularly contentious meeting on busking restrictions last year, I asked Maddux if he’d be willing to talk further about the legal rationales for the city’s position and what other cities’ ordinances they’d researched. I was informed that city attorneys don’t talk to the press.
Of course, some friction is to be expected: the job of the press is, after all, to aggressively scrutinize those in power, especially in government. The job of the government attorneys is, in part, is to defend those institutions.
So one might think that this secrecy, however wrong, is simply how city attorneys act. It’s not. Covering city politics for over a decade I dealt with Currin’s predecessor, Bob Oast, frequently. At some points I found myself in disagreement with him. Along with several other reporters and media outlets, I even ended up as part of a lawsuit with the city and the district attorney’s office over access to the APD evidence room audits.
But there were other points where Oast acted quickly to protect open records. In 2008, while working for Mountain Xpress, Rebecca Bowe and I sought city records of complaints about landlords failing to keep properties in a safe condition, as part of a larger investigation into tenants’ rights.
We were told by staff that these records weren’t open to the public. That was completely false, and after we informed Oast of the refusal, he promptly directed them to turn the documents over.
Despite the natural tension both Oast and his interim successor, Martha McGlohon, also upheld basic transparency on a number of occasions, including contra the wishes of other city staff.
They were also willing to talk to media and others about the legal rationale for city ordinances and actions. That isn’t uncommon: I’ve interviewed plenty of city, town and county attorneys around the country over the years and while their duties can constrain them from making statements on certain topics, they can also offer a lot of essential context for some of the most important decisions governments make.
If you doubt the importance of such information, look at the times Currin’s office has repeatedly invoked the “criminal investigative records” exception: today’s legal justifications are tomorrow’s city laws, and they form a major part of what governments believe they can do and the approaches they’ll take.
So Currin’s policy of silence is unusual as well as bad: it’s sad when attorneys for other local governments around the state are willing to be more open with Asheville’s media watchdogs than one employed, at the end of the day, by the people of the city they cover. If journalists who are paid and trained to get answers from local government can’t get them, how will a member of the public without that time or experience fare?
Currin and the assistant city attorneys are paid generous salaries from public funds ($171,649.50 a year in her case); they can field a few questions once in awhile. Plenty of other city staff have proven themselves perfectly capable of doing just that.
Notably, Currin’s actions come during the same time period that the city has rolled out the incredibly useful SimpliCity tool and partnered with groups like Code for Asheville to try and improve open government. The APD had also — pre-Currin — made some strides towards greater transparency, like putting its incident reports online. So it’s also especially sad that at a time when the public, advocacy groups and others among city staff are honestly trying to take a more transparent path that an office with the power of the city attorney repeatedly pushes in the direction of reaction rather than reform.
That matters because the areas where Currin’s broad interpretation of “investigative reports” and “personnel records” affect key city institutions at a particularly key time. Right now, for example, there are serious discussions of a major increase in policing downtown. While there are certainly some legitimate problems in the area — brawls and harassment from drunken tourists, for example — there’s also a natural cause for concern and scrutiny given the recent tumultuous history of local police agencies and any rearrangement of the APD will need to be transparent and responsive to the public or run the risk of even worse problems than before.
Chief Tammy Hooper has repeatedly stated her commitment to improving the APD and has, to her credit, shown a willingness to field her share of hard questions (though she’s also backed Currin’s legal interpretation on body camera footage). But even if she’s 100 percent sincere, any meaningful reform will depend on a city government that, from top to bottom, takes the need for public scrutiny and input seriously. That can’t succeed while the attitude of the city attorney’s office is essentially “shut up and don’t ask questions.”
Too often it’s easy to view city staff as mere functionaries, carrying out the letter of this or that law or policy. They’re not. Like everyone else, they have agendas, viewpoints, political ideals and goals both petty and grand. Anyone who’s been in a courtroom or seen the national wranglings over the composition of the U.S. Supreme Court know that lawyers, like anyone else, can differ massively on how public power should be used and that “it’s the law” can be deployed to justify plenty of terrible ideas.
There are over 1,100 city staff and among them I’ve encountered everyone from deceitful, incompetent bigots to honest, capable public servants, along with everything in between. That being the nature of humanity, we hope that elected officials (and public pressure, when they fail) will, at the end of the day, hold them to account.
In Currin’s case, she answers directly to Council, people we elect not just to work with city staff but also to monitor, question and, yes, overrule and censure them when it’s merited. Checks and balances, after all, only work if there are leaders willing to check and balance. The buck stops with them, and any local elected official anywhere should always remember that.
The city of Asheville is not simply another corporate client, it has power and funds on the condition that it uses them on behalf of the city’s populace and that obligation extends to everyone that works for it. At least, that’s how it’s supposed to work. Right now the people of Asheville are poorly served by one of their major public servants’ repeated dismissal of basic open government. It’s time for that to change.