Swepsonville town attorney Paul Koonts is insistent that the town council did not violate the state’s Open Meetings Law in either of two portions of motions that were made to allow the members of the Swepsonville town council to go into closed sessions during its July, August, September, and October meetings.
The newspaper’s publisher, Tom Boney, Jr., had accused the municipality of just such impropriety in a letter to Koonts last week, which also demanded to have access to the minutes from what the publisher termed the four “improperly closed meetings of the town council.”
In a response to a public records request both to Koonts and to town administrator Brad Bullis, the two provided documents related to the upcoming public hearing for an annexation and rezoning of two properties at the corner of North Jim Minor Road and N.C. 54.
Koonts did not provide copies of the closed session minutes, as Boney had specified.
Part of Boney’s objection was that the provision for considering economic incentives, such as those being contemplated for Sheetz (the town proposes to reimburse the company $100,000, or about 25 percent of the cost of running sewer lines across N.C. 54) is that the state law deals with “the location or expansion of industries or other businesses in the area served by the public body.”
Koonts says in his response to the newspaper on November 11, “The process of evaluating economic development on the east side of NC Hwy 54 has been a topic of council meeting since 2017 when the initial 20-year moratorium of Swepsonville expansion expired.”
Boney said this week, “The statute doesn’t talk about ‘planning process,’ or the ‘future well-being of Swepsonville,” as Koonts describes. The statute explicitly provides the ability to go into a closed session for ‘the location or expansion of industries or other businesses in the area served by the public body.’”
In his November 11 letter to Boney, Koonts said the publisher’s “definition of ‘area’ is much more restrictive than the definition” [in state statute], a characterization the published rejected. “The two properties being considered for annexation are, by definition, not currently in Swepsonville and thus not in the ‘area’ served by it,” Boney explained.
Boney said this week, as he wrote to Koonts last week, that discussing two parcels that are outside of Swepsonville’s boundaries behind closed doors is “not in the area served by the public body,” and thus “not eligible for discussion in closed session, based on the clear, unambiguous language of the statute.”
Boney had also objected to the use of a second portion of the exemptions that allow closed meetings to discuss property acquisition. In litigation that went to the state supreme court in 2002, the newspaper helped establish the precedent that when public bodies go into a closed session to discuss a possible property acquisition, they must divulge (while still in open session): the identity of the property, the owners, and the purpose for which the public body is considering the purchase.
Instructions on “price and material terms” may be conducted in a closed session, but certain other information must be revealed beforehand.
Koonts insisted this week that the town had not violated “either the letter or the intent of the Open Meetings Law.”
While Boney’s original letter assumed that the second provision also dealt with the Sheetz property, Koonts said it had not.
In his response this week, Koonts did acknowledge that the council had discussed behind closed doors their potential interest in acquiring one or both of two potential sites adjacent to the town’s current ballpark site.
“In the future,” Boney said, “the council must reveal this information in open session.”
Is there a conflict of interest?
Koonts was also insistent during an interview prior to a Mebane planning board meeting Monday night that there was no conflict of interest in his representing the Sheetz company in its annexation and rezoning request before Mebane public bodies while representing the town of Swepsonville for Sheetz’ similar annexation and rezoning requests there.
Public documents at the Monday planning board meeting stated that Koonts was representing Sheetz, Inc. before Mebane’s planning board.
“These are two different matters, two different towns,” Koonts said in disavowing any conflict in response to a question from the newspaper’s publisher about a potential conflict of interest in his dual representation.
He said he had “discussed [his representation] with both clients” and neither objected to his participation. He noted that attorney Ryan Moffitt with the Vernon Law Firm would be representing Sheetz before Swepsonville’s town council at Tuesday night’s public hearing on the company’s annexation and rezoning requests there.
He also said he was not a “decision-maker in [Swepsonville’s] process anyway.”
“I’m not an attorney,” Boney acknowledged this week, “but at a minimum, it seems to me Koonts should have been more forthcoming about his multiple roles with Sheetz.
“There are some indications from state statutes and legal ethics rules governing both private sector and government attorneys that, in this kind of case, an attorney should have gotten what the statute calls ‘informed consent, confirmed in writing’ – i.e., from both Swepsonville’s town council and Sheetz – to allow his multiple roles,” the publisher said in an editorial in this week’s edition.
“As I understand it, from his own description, he did not,” Boney said. “He says he told them, but there’s no authoritative documentation of their having been informed, much less of their explicitly agreeing to allow it.”
“And in this day of such public skepticism about government spending, especially when they involve public funds, I think the better part of discretion would have been to avoid such dual representation altogether,” Boney said.
