CHARLOTTE, N.C. (WBTV) – New emails obtained by WBTV show the Republican majority on the Council of State objected to an order issued in mid-March by Governor Roy Cooper closing bars and restaurants to in-person dining.
The Council of State is made up of Cooper and the nine other state-wide elected officials in North Carolina. The body meets once a month and its biggest task, typically, is to approve the sale or transfer of state property. Votes taken by the Council of State are rarely controversial.
But a request from Cooper for the body to concur with two executive orders he issued on March 17 was anything but routine.
Council members first received an email from a lawyer at the N.C. Department of Public Safety, Will Polk, advising them to “please stand by for a concurrence e-mail on a new Executive Order related to COVID-19.”
That email was sent at 11:25 a.m. on March 17.
Polk followed up with the second email formally seeking concurrence a little more than an hour later, emails show, at 12:42 p.m.
In the email, Polk told the officials Cooper was seeking concurrence on two items: one related to waiving some regulations that would allow the state to expand eligibility for unemployment benefits and a second to close bars and restaurants to indoor dining.
“The Governor respectfully requests your concurrence on these matters by 1:15 p.m. on March 17, 2020,” Polk’s email concluded.
WBTV first requested the emails from Polk and any responses he received on March 17 under the North Carolina Public Records Act, which requires state agencies to produce records “as promptly as possible.”
But DPS did not produce the records until late last week, the same day WBTV and a coalition of 26 other media outlets filed a public records lawsuit against the agency, the N.C. Department of Health and Human Services and Cooper.
The emails show all three remaining members of the Council of State—Attorney General Josh Stein, Secretary of State Elaine Marshall, State Auditor Beth Wood—concurred with both items.
DPS did not produce any emails showing how one Council of State member, Superintendent of Public Instruction Mark Johnson, voted.
Four Republicans—Lieutenant Governor Dan Forest, Labor Commissioner Cherie Berry, Agriculture Commissioner Steve Troxler and Insurance Commissioner Mike Causey—concurred with the first item, which would expand unemployment benefits.
State Treasurer Dale Folwell, the remaining council member, never explicitly rejected the first item but questioned Cooper’s handling of the matter via email.
“To repeat: The Governor himself needs to address compliance of #1 with the Council of State for there to be a motion,” Folwell wrote in one of several email he sent Polk questioning the manner and methods of the way in which Cooper was seeking concurrence.
None of the five Republican council members whose emails are included in the DPS production concurred with the second request, to close bars and restaurants to in-person dining.
“The Governor needs to set up a process to discuss and amend Item #2 in order to potentially UNIFY the NC Council of State against COVID 19,” Folwell wrote in the same email in which he called for Cooper to address the compliance of his proposal regarding unemployment benefits.
Other Republican members expressed the same frustration as Folwell at not having had any time to discuss the proposals.
“On Item #2, Commissioner Berry would like to have been afforded the courtesy of commenting on this item before it was made public,” Berry’s chief of staff, Art Britt, said in an email back to Polk.
In the first of two responses, Causey first called for additional debate on the second item.
“I feel this needs further discussion,” Causey said.
Forest, who is challenging Cooper in this year’s race for governor, raised a number of questions about the proposals, including the timing of communication to the Council of State.
“In #2 are you asking for concurrence in something the Governor has already announced?” Forest asked.
Folwell, the state treasurer, asked multiple times for a final vote count. An email with the final tally was not included in the emails produced by DPS.
Ultimately, Cooper issued both executive orders and bars and restaurants were ordered to close for in-person dining. Restaurants have since been allowed to re-open at a reduced capacity as part of phase two of the state’s re-opening but bars remained closed.
In the time since this vote in mid-March, Cooper and his staff have disputed whether concurrence from the Council of State is required for the governor to issue emergency executive orders.
That stance was reiterated by a second DPS attorney, Ashleigh Vargas, in the email producing the emails to WBTV.
“As a reminder, for the March 17 order limiting sale of food and beverages to take out, drive-through and delivery, the order did not require concurrence as the Governor and the Secretary of DHHS have the authority to do this under state public health and emergency powers law,” Vargas said.
She did not respond to a follow-up question from a reporter asking why Cooper sought concurrence from the Council of State if it was not required.