Wednesday, August 4, 2021

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Graham, NC 27253
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Editorial: Concerns about Graham’s investigation of Lee Kimrey, its origins, and procedures followed

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We’re always concerned when public bodies go behind closed doors to discuss what is, ostensibly, public business.

But this week’s closed-door huddle by Graham city councilmen brings up a whole additional area of concern.

It appears that the council has agreed to begin a criminal investigation into whether then-councilman Lee Kimrey broke state ethics laws when he prevailed on the city to clear a lot he’s buying on Pine Street near Graham Middle School.

Kimrey, a reputable local contractor, plans to build a 3-bedroom “spec house” on the lot.

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City workers sawed down trees, hauled them off, uprooted the trunks, and graded the land, all in preparation for home construction.

We acknowledge that it was probably questionable judgment for him to think that city public works department employees should have been instructed – by their superiors, not him – to undertake such a project.

At a minimum, he surely must have known that it wouldn’t look good, or proper – even if, as he has insisted, he wasn’t getting any special treatment.

And for him to do so in the middle of a re-election campaign was, at a minimum, a serious misjudgment.  It may well have cost him the several dozen votes by which he lost his seat on the council to Jennifer Talley and newcomer Ricky Hall.  If anything, Kimrey should have, himself, taken sufficient precautions to have an absolutely clear authorization to allow the city to proceed with the work – so that there could be absolutely no appearance or inference of impropriety, favoritism, special treatment.

We’ve long believed in the adage of have public servants being “purer than Caesar’s wife,” the long-standing phrase connoting that, in the public arena, one must be above suspicion.

The public works director, Burke Robertson, told the newspaper in August, when questions first arose about the propriety of the city doing work on Kimrey’s land, that it was rather standard procedure for the city to undertake clearing land in return for any resident allowing a sidewalk across his lot.

But Kimrey was not then just “any resident.”  He was a member of the city council.  Some things that might be acceptable for members of the public at large are not acceptable when they’re done on behalf of an elected official.

But in addition to questioning Kimrey’s judgment, we have to question city officials’, as well.

Public works director Robertson insisted to us in August that the agreement was a based on a “gentleman’s handshake agreement” with the previous property owner, former city councilman Jim Albright, which was simply extended to Kimrey as the new property owner.

But when this newspaper filed a public records request, asking  city officials to provide any documentation for the agreement with Albright, or with Kimrey, there was none provided.

Anything that’s about to benefit a sitting councilman should certainly have been significant enough to have been run by the city manager, Frankie Maness, who, in turn, should certainly have consulted with the city’s attorneys.

It is unclear whether either precaution was taken – either at all, or at least seriously. 

What is abundantly clear is that no one bothered to get anything in writing.  In fact, the city didn’t produce any written agreements about any easements, sidewalks, or other projects when this newspaper requested them in August.

Such a practice always raises suspicions about backroom deals, special favors, or other shenanigans being undertaken at taxpayer expense.

Those suspicions, we stress, are raised about the role of city officials, not Kimrey.

We as a society, in general, and a municipality the size of Graham in particular, should be beyond “handshake agreements,” particularly when dealing with a councilman or even a former councilman.

So, is there something to investigate?  Perhaps.  But we suspect there’s almost as much fault, if not more, that will be found with lax city administration, that could have allowed something like this to happen, as with Kimrey himself.

Should council decide to investigate a former councilman behind closed doors?

Here’s another problem with the investigation of a former councilman.

North Carolina’s Open Meetings Law explicitly prohibits members from going behind closed doors to discuss something about another sitting member of any council or board: “A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its owner members except in an open meeting.”

If, in fact, the point of the investigation is to consider Kimrey’s “performance” or “character” for actions while he was on the council, apparently a potential conflict with the clearing of the lot for his construction company, we think the council would be better served to discuss those issues in open session.

As the newspaper’s publisher noted Tuesday night, we believe it is “a logical application” of the prohibition on discussing current members’ actions or performance in closed session to extend that principle to former members, as well.  Especially one whose service on the board, and alleged actions, are so recent.

Other problems with procedure

But now to this week and the procedure used to begin the investigation.

The city went into a 22-minute closed-door meeting at what had been the end of the council’s public meeting.

Newly-elected council member Jennifer Talley was the last council member being asked by the mayor if she had any items not on the agenda to be considered.

Talley listed six, the last of which was the desire for a closed session to discuss “an investigation.”

In response to this newspaper publisher’s objections, Talley said that this was her only recourse when mayor Jerry Peterman would not put any of her six items on the agenda for discussion during the “regular” part of the monthly meeting.  (He put one, but not the six she raised at the end of the meeting.)

Peterman insisted that the closed session had not been one of Talley’s requests.

Nonetheless, Talley has a point.  (And so does Peterman, more on that in a moment.)

We’ve never gotten into the sausage-making of how mayors, city managers, and other city officials “decide” what to include on an agenda, in what order, etc.

As mayor, Peterman does, in fact, have a great deal of power and authority, over setting each month’s agenda.  As he should.

But it seems to us Graham might need to revisit its unofficial “rules” or practices for how and when things can be added to the council’s agenda, especially when requested by other members of the council.

Here’s the irony about Graham’s current practice about what can be allowed on the monthly agenda.  Graham, unique among local municipalities as best we can tell, has what we’ve always considered an unorthodox and unwieldy provision that allows “requests and petitions from citizens” to be added to the agenda.  These can be any topic based solely on a single request from any individual citizen to put something  on the council’s agenda.

A few residents have taken advantage of this provision repeatedly. And sometimes, those requests are for policy changes, amendments to ordinances, some rather substantive changes, etc.

And to our utter dismay, Graham’s council will sometimes take them up, hear the resident, and change the policy on the spot.

Without having been vetted by any staff research, review, or report.

Even more alarming, they’ll hear the item without it being reviewed by any of the advisory boards and commissions that are ostensibly to provide advice to the council about a wide range of topics.

We’re all for public input, but it seems to us Graham may allow it too broadly, or at least without adequate safeguards for other residents’ rights to know about the issue and weigh in if they care to do so.

So, here’s the irony this week.  If Jennifer Talley, private citizen, had submitted six items that she wanted to be considered under “requests and petitions from citizens,” she’d probably have been able to get each one of them on the agenda – at least based on past practice.

So it does seem a bit strange that a sitting council member, with largely the equal voting authority as the mayor, could be precluded from getting her topics included.  In essence, it could be argued she was allowed less consideration as a council member at this week’s meeting than if she were simply a private citizen (or acting as one).

Now, here’s where some reasonableness is needed. Talley is a no-holds-barred business woman.  She led the ticket in the fall campaign.  She has lots of ideas.  She does lots of research.  She’s already demonstrated, in only her first two meetings of her newest term (she served six years as a council member earlier), that she is attentive, well-versed, well-prepared and will be a formidable, active member of the council.

But, to quote another Roman adage, “Rome wasn’t built in a day.” Important work takes time.

She cannot realistically expect to have all of her laundry list of needed city reforms handled in her first or second council meeting.

She probably needs to adopt a somewhat measured pace.  We’re glad to see a fully-engaged member; Graham has suffered in some past years with too many members who were little more than what we’ve always termed “seconders”; they could second someone else’s motion, but they rarely had an original thought, idea, or motion of their own, and in some cases, rarely spoke up at all during most council meetings.             Graham city council meetings are not likely to be dull.  But they should be conducted with the foremost consideration for the rights and considerations of the public.  After all, at least in theory (and name), Graham’s city council is a public body, ostensibly serving all of the citizens of Graham.

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