Selective Compliance

Hostetler advocates an approach to legal compliance in which the law serves not only as a collection of binding requirements but also as a framework to be navigated strategically in pursuit of the Academy's educational mission. Under this philosophy, charter school governance involves identifying and exercising the flexibility permitted by law to advance institutional objectives. Hostetler characterizes this approach as “strategic legal compliance,” emphasizing the importance of using available legal discretion to further the school's purposes.

TJCATruth.com is particularly interested in this legal framework—and looks forward to seeing TJCA apply the same enthusiasm to the laws that do govern it.

Attorney David Hostetler interprets North Carolina's charter school legal framework in terms of “carve-ins,” rather than “carve-outs.” Under this interpretation, charter schools begin with a broad exemption from many state education statutes and regulations governing traditional public schools, with certain requirements specifically made applicable through the Charter Schools Act. Hostetler suggested that “carve-ins” more accurately describes this structure: rather than identifying exceptions to a generally applicable body of education law, charter schools operate with substantial statutory flexibility, subject to those requirements expressly imposed upon them and other independently applicable laws.​​

Hostetler interprets North Carolina charter schools as occupying a hybrid legal position: privately incorporated nonprofit organizations operating public schools. This structure subjects TJCA to overlapping legal frameworks, including the North Carolina Nonprofit Corporation Act, the Charter Schools Act, and other statutes governing public institutions. While the nonprofit corporation is a private legal entity, the school it operates is expressly designated a public school under state law. Consequently, its private corporate structure does not eliminate the public obligations specifically imposed upon charter schools.

Hostetler recognizes that TJCA's legal obligations extend beyond requirements imposed directly by statute. The Academy's charter, articles of incorporation, bylaws, adopted policies, and contractual agreements establish additional binding standards that the institution must observe. Under this interpretation, rules voluntarily adopted by the Academy can create enforceable institutional responsibilities, even where state law permits greater flexibility. Compliance therefore requires consideration of both externally imposed legal requirements and obligations established through the Academy's own governing documents.

Hostetler interprets the fiduciary responsibilities of TJCA board members as requiring good faith, due diligence, institutional loyalty, and the exercise of reasonable oversight. Under this framework, board members must prioritize the Academy's overall welfare and integrity above their individual interests, including interests arising from their status as parents. Personal perspectives may inform a director's judgment, but should not override the director's obligations to the institution. Hostetler places particular emphasis on the board's responsibility to ensure that the school operates consistently with its mission and governing standards.

Hostetler distinguishes between the governing board's responsibility for institutional oversight and the administration's responsibility for daily school operations. Under his recommended governance model, board members should exercise oversight, establish policy, and monitor institutional performance without routinely intervening in administrative decisions. He considers excessive involvement in operational matters potentially detrimental to effective governance, even when motivated by legitimate concerns. His approach favors clearly defined authority, delegation of responsibilities, and separation between board-level governance and administrative management.

Hostetler acknowledges that North Carolina's Public Records Act permits requests from any person, without restrictions based on citizenship, residency, age, or the purpose of the request. Under the existing statute, requesters are not required to demonstrate a particular interest in the records or explain how the information will be used. Although Hostetler accepts this as the governing legal standard, he expressed a preference for a narrower law that would primarily extend access to North Carolina citizens, with separate provisions addressing out-of-state requesters.

Hostetler interprets the definition of a public record as encompassing documents, correspondence, and other recorded information made or received in connection with the transaction of public business. Whether a record qualifies depends principally on its relationship to school business, rather than its format, storage location, or the particular communication system used. Materials relating exclusively to private matters generally fall outside this definition, while communications concerning TJCA's institutional activities may be subject to public records requirements even when created through informal channels.

Hostetler interprets North Carolina's Public Records Act as extending to communications concerning school business regardless of whether they occur through official TJCA systems or privately owned devices and accounts. Emails, text messages, and other electronic communications created or received through personal accounts may therefore constitute public records when their content concerns the transaction of public business. The use of personal technology does not, by itself, remove otherwise public information from the scope of the statute.

Hostetler describes the responsibility for locating public records within personal communication accounts as resting, in practice, with the employees or officials who maintain those accounts. Under the approach he described, TJCA relies on individuals to search their own personal emails and messages for responsive school-related communications. Although these records may be subject to public disclosure requirements, Hostetler acknowledged uncertainty about the mechanisms available to the institution for independently searching privately controlled accounts.

Hostetler interprets North Carolina's records retention requirements as permitting the disposal of certain communications that possess only temporary or incidental administrative value. Under this approach, routine emails, preliminary drafts, and other materials lacking continuing significance may qualify for deletion, provided their disposal is authorized under applicable retention schedules. Records documenting substantive institutional decisions or important public business generally require longer preservation. His interpretation emphasizes that not every public record must be retained indefinitely and that retention requirements depend on the record's classification and purpose.

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TJCATruth.com would like to note that the North Carolina State Archives clarifies that public records may only be destroyed pursuant to applicable records retention authorizations. A record's age, inconvenience, or electronic format does not independently authorize its deletion.

Hostetler interprets public records law as distinguishing between information protected from public disclosure and information that must be made available upon request. Under TJCA's stated position, records exclusively concerning an individual student's protected information are confidential, while documents containing both confidential and publicly disclosable material must be reviewed and appropriately redacted. The presence of protected information does not automatically justify withholding an entire document when nonconfidential portions can reasonably be separated and disclosed.

Hostetler interprets N.C. Gen. Stat. § 132-6.2 as potentially authorizing recovery of personnel expenses incurred specifically in responding to public records requests. He emphasizes the statute's exclusion of costs that would have been incurred regardless of the request, reasoning that labor required solely because a request was received may qualify as an additional expense. His interpretation also raises the possibility that contracted professional services, including legal review, might be recoverable, although he acknowledges uncertainty regarding the statute's treatment of attorney fees and other professional costs.

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TJCATruth.com would like to note that Section 132-6.2(b) authorizes special service charges only under specified circumstances, including requests requiring extensive clerical or supervisory assistance or qualifying extensive use of information technology resources. The fact that an expense arises because of a records request does not, by itself, establish that it is recoverable under the statute. Nor does the provision expressly authorize charging requesters for attorney fees.

Hostetler interprets an official meeting under North Carolina's Open Meetings Law as a gathering or simultaneous communication involving a majority of a public body's members for the purpose of conducting public business. This includes deliberations, discussions, and other transactions of matters within the body's authority, regardless of whether a formal vote occurs. Under this definition, the law applies not only to full board meetings but also to qualifying committee meetings and electronic gatherings. The decisive considerations are the participation of a majority and the purpose of conducting public business.

Hostetler interprets the Open Meetings Law's simultaneous-communication requirement as creating uncertainty concerning group emails, text messages, and other exchanges that occur over time. Under his interpretation, sequential electronic responses among a majority of board members do not necessarily constitute an official meeting, particularly when the communications are separated by substantial intervals. He distinguishes these exchanges from rapid, conversational communications that more closely resemble a live meeting. Describing his approach as more flexible than DPI's, he recommends directing individual replies to the board chair rather than engaging in group-wide electronic discussions, or, as he put it: hitting reply-all.

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TJCATruth.com would like to note that N.C. Gen. Stat. § 143-318.10(d) contains no specific time interval establishing when electronic exchanges become simultaneous communication. Consequently, a delay between messages—or routing responses through an individual board member—does not create an express statutory exemption from the Open Meetings Law.

Hostetler distinguishes informal social gatherings from official public meetings based on the purpose of the gathering rather than merely the number of board members present. Under his interpretation, board members may participate in private social activities, potentially even with a majority or the entire board in attendance, without triggering the Open Meetings Law, provided the gathering is not intended to conduct public business. This distinction does not extend to gatherings arranged or used to circumvent the law's requirements for public deliberation.

Hostetler interprets North Carolina's Open Meetings Law as establishing distinct procedural requirements for regular, special, and emergency meetings. Regular meetings operate under an established schedule, with changes to that schedule requiring appropriate advance notice. Special meetings generally require at least 48 hours' notice identifying their purpose, while emergency meetings are reserved for unexpected circumstances requiring immediate consideration. Under his interpretation, a body's ability to conduct business and the notice it must provide depend upon the meeting's classification.

Hostetler interprets emergency meeting procedures as allowing substantially reduced advance notice when circumstances require immediate action. In describing the timing requirement, he suggested that emergency meeting notices could be provided “as soon as possible before or, um, I suppose even after” the meeting. His interpretation therefore raises the possibility of notifying the public or qualifying media organizations only after an emergency meeting has occurred, although he expressed this as a tentative conclusion rather than an established legal rule.

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TJCATruth.com would like to note that N.C. Gen. Stat. § 143-318.12(b)(3) explicitly requires notice to qualifying media organizations immediately after members of the public body are notified—not at the board's discretion after the meeting has concluded.

Hostetler interprets North Carolina's meeting notice provisions as allowing qualifying media organizations and other individuals to request direct notification of certain public meetings. He also recognizes the public body's authority to establish procedures governing the maintenance and renewal of these requests. Under his interpretation, TJCA may require annual renewal of qualifying media notification requests, rather than treating every request as indefinitely effective.

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TJCATruth.com would like to note that 143-318.12(b)(2) distinguishes media organizations, whose requests may be subject to annual renewal, from other individuals, whose requests may be subject to quarterly renewal. The statute also establishes different fee provisions, including a prohibition on charging for notices delivered by email. At this time TJCA has no such established procedure requiring annual renewal of such requests.

Hostetler interprets North Carolina's Open Meetings Law as permitting public bodies to conduct closed sessions only under specifically enumerated statutory exceptions, rather than whenever confidentiality might be convenient or desirable. Under his interpretation, certain attorney-client communications, real estate negotiations, and employment-related matters may justify excluding the public, but contract negotiations do not automatically qualify for closed-session treatment. The legality of excluding the public depends on whether the particular subject falls within an authorized statutory exception, rather than the board's preference for discussing it privately.

Hostetler interprets the Open Meetings Law as requiring documentation of closed sessions even when their proceedings are protected from public disclosure. Under this interpretation, a public body must maintain minutes and a general account of its closed-session proceedings, providing sufficient information to establish what transpired while preserving information legitimately subject to confidentiality. The requirement to protect privileged or confidential information does not eliminate the separate obligation to maintain an appropriate institutional record of closed-session business.

Hostetler interprets North Carolina law as granting charter school governing boards discretion over whether to provide public comment opportunities during official meetings. Under this interpretation, the public's right to attend and observe an open meeting does not automatically include a right to address the board. TJCA may therefore elect to provide public comment at every regular meeting, offer it less frequently, establish alternative methods of receiving input, or discontinue the practice, subject to applicable constitutional requirements and its governing policies.

Hostetler distinguishes between conduct that disrupts an official meeting and public comments that merely create discomfort or awkwardness for board members. Under his interpretation, genuinely disruptive conduct may justify intervention under established meeting procedures, while criticism or uncomfortable remarks that do not interfere with proceedings present different First Amendment considerations. He characterized the treatment of awkward but non-disruptive public speech as a legally uncertain area, recognizing that the board's authority to maintain order must be considered alongside constitutional protections for expression.

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TJCATruth.com would like to note that criticism of school administration, disagreement with board decisions, or remarks that make officials uncomfortable do not, by themselves, constitute disruption. The First Amendment limits the authority of public bodies to restrict speech based on viewpoint, even when a public comment period is otherwise optional.

Hostetler interprets a governing board's authority to establish reasonable public comment procedures as potentially allowing preference for individuals who have not previously spoken. Under his proposed approach, a board facing limited speaking time could prioritize new speakers over individuals who have already addressed the same concerns in earlier meetings. Those receiving lower priority could be offered alternative methods of submitting their remarks. He presented this as a potentially permissible method of allocating limited speaking opportunities rather than as an unrestricted authority to prohibit recurring criticism.

Hostetler interprets a governing board's discretion over public participation as allowing written or asynchronous submissions to serve as an alternative to live public comment. Under this approach, the board may establish submission procedures, impose reasonable length limitations, and receive comments for inclusion in the institutional record without promising individual responses. His interpretation treats the opportunity to communicate with a governing board as distinct from an entitlement to speak during an official meeting.

Hostetler interprets North Carolina law as allowing charter school boards to establish their own reasonable procedures for conducting meetings without formally adopting Robert's Rules of Order. He favors more flexible procedural standards, arguing that highly detailed parliamentary requirements can create technical obstacles to otherwise legitimate board decisions. Under this approach, orderly governance does not require adherence to a particular parliamentary manual, provided the board complies with applicable law and its own binding governing documents.

Hostetler interprets the Open Meetings Law's majority requirement as permitting fewer than a majority of committee members to engage in discussions without necessarily creating an official public meeting. In the example of a five-member committee, two members could discuss committee matters privately because their participation would not satisfy the statutory majority threshold. Such conversations do not, by themselves, constitute official meetings, although the members would lack the quorum necessary to conduct formal committee business.

Hostetler interprets North Carolina's meeting notice provisions as potentially allowing committees that meet irregularly to classify their gatherings as regular meetings even when no fixed recurring schedule has been established. Under his interpretation, a committee wishing to consider a broad range of business could provide seven days' notice and treat the gathering as regular, rather than calling a special meeting subject to the purposes specified in its notice. He distinguishes between meetings intended for general committee business and those convened for particular subjects.

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TJCATruth.com would like to note that N.C. Gen. Stat. § 143-318.12(a) applies the seven-day requirement to changes in an established, filed regular-meeting schedule. Meetings held outside that schedule generally fall under the separate notice provisions of subsection (b), including the 48-hour requirement for nonemergency meetings. Merely providing seven days' notice does not necessarily transform an otherwise special meeting into a regular one.

A procedural interpretation considered by TJCA board members involves requiring individuals wishing to speak during public comment to submit their proposed remarks for advance review. Under the contemplated approach, submissions could be evaluated against established speaking policies, including possible restrictions on repetition, before the individual would be permitted to address the board. The concept would treat public comment as a conditional opportunity subject to administrative screening. Board members acknowledged that the Academy had considered such procedures but had not adopted them, and Hostetler did not expressly endorse advance approval of speech.

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TJCATruth.com would like to note that requiring advance submission of remarks for approval would raise significant First Amendment questions, particularly if permission to speak depended on the viewpoint expressed or criticism directed toward the Academy. The legality of such a policy would depend on its actual terms, application, and the constitutional standards governing the public comment forum.

Hostetler's written legal interpretation recognizes remote participation in public meetings as permissible while characterizing the application of quorum and voting requirements to remote participants as legally uncertain. This distinction separates the ability to attend a meeting electronically from the question of whether remote participants may be counted toward the quorum or exercise voting authority under particular circumstances. His interpretation identifies electronic participation as an accepted meeting practice while leaving certain procedural consequences dependent on applicable law and governing rules.

Hostetler favors establishing predictable committee meeting schedules, even when individual meetings may ultimately be unnecessary. Under this approach, committees can adopt an advance schedule of anticipated meetings and cancel or modify individual sessions as circumstances require. He considers this preferable, in many cases, to repeatedly convening unscheduled meetings, because a regular schedule creates clearer procedural expectations and provides a framework for satisfying applicable notice requirements.