Wednesday, August 4, 2021

114 West Elm Street
Graham, NC 27253
Ph: 336.228.7851

Graham council meeting a real mess that needs to be cleaned up

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We’re almost always on the side of having high ethical standards for public officials, and we have frequently urged that board members adopt a standard of avoiding “even the appearance of impropriety,” although the actual state law has a much narrower standard, requiring instead that members not participate in votes only when they may stand to have a “direct financial benefit.”

But what happened in Graham this week is bizarre, indeed, and not the least bit ethical or high-minded. In more than 30 years of covering local governments, we’ve never seen it before. Never seen a recusal imposed by other board members, without first being requested by the affected board member.

Instead of a member asking to be recused from a vote, a fellow council member insisted during Graham’s city council meeting that one of her colleagues should be recused – i.e., forcibly removed from being allowed to participate in the discussion and vote.

Council member Melody Wiggins claimed that fellow council member Jennifer Talley should be recused from discussion and vote on a proposed food truck ordinance “since she is a business owner who uses these.”

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Now understand from the outset: Wiggins and Talley don’t get along very well. (That’s an understatement.) They see a host of municipal issues and policies differently – and they don’t appear to have much liking for one another. They mix about like the proverbial oil and water.

But Wiggins’ stated reason for insisting on banning Talley from the discussion and vote has to be one of the flimsiest we can imagine; Wiggins did not define, quantify, or even explain exactly how Talley had any conflict, much less one so serious as to warrant her removal from council deliberations. There was no explanation of exactly how Talley – who with her husband, Chuck, owns several downtown businesses and buildings – had some sort of conflict, sufficient to violate state statutes, and at a level so serious as to require her recusal.

“Since she is a business owner who uses these [i.e., food trucks]”: That’s it. That’s the extent of the explanation for why Talley should not have been allowed to vote.
The special irony in Wiggins’ description is that Talley, before she was elected to the council in 2019, was a vocal opponent of loosening and expanding the availability of food trucks in Graham.

Guidance from the School of Government at UNC-Chapel Hill, which advises local governments on compliance with a host of state statutes, makes abundantly clear that Wiggins’ terse description does not come close to identifying the relevant facts or applying a specific legal standard sufficient to justify her removal.

City officials were also delinquent in not having the city’s attorney, Bob Ward, present on their Zoom teleconferencing call to help sort out the legalities. The other attorney, Ward’s partner in private practice, Bryan Coleman, is a nice fellow, but woefully uninformed on municipal law in general, and the state’s ethics laws in particular.

His “advice,” such as it was, to the council was that they could do pretty much whatever they wanted, and specifically that they could decide whether to exclude Talley from participating, was laughably inadequate.

Although we seriously doubt Talley was laughing – then or since.

Now, we also noted during the Zoom meeting that Coleman did not look up anything – no checking any statute or law books – to reach his seemingly spontaneous conclusion, which also makes us wonder whether the fix was in on this whole episode before the meeting even started.

In fact, if Coleman had done even a modicum of research, he would have found it is not all at clear that the council has any statutory authority to impose its decision, even by majority vote, to exclude a fellow member’s participation.

And, if it does, surely they must have some more concrete, factual, measurable, or tangible standard other than “she’s used one of these” in the past.

In fact, experts at the School of Government cite as examples that, as a general rule, one measure of a conflict is how many people are affected: every city resident pays property tax, so participating in a vote on setting the property tax rate is not a conflict of interest for any member of the city council.

Similarly, zoning issues are rarely going to raise a financial conflict of interest – unless the council member actually has a stake the in the property being requested for rezoning. Now, we’re quite sure there are times members might not want to have to vote, whether on controversial zoning issues or otherwise, but controversy, per se, does not constitute a conflict of interest.

Most conflict-of-interest prohibitions involve an actual and substantive financial involvement. Again, being one of 1,000 signers of a petition probably is not sufficient; being the owner of a firm doing business with the city or seeking a new city contract would be.
It also seems to us that the ad hoc way in which Wiggins brought up the alleged conflict was inappropriate.

Talley, who is usually at no loss for words on any topic, appeared to be so flustered by the assault on her ethical standards that she didn’t respond as much (in length) or as forcefully (in volume) as she typically would, and was then quickly silenced by her colleagues who imposed the ban on her participation on a 3-2 vote.

This effort to disqualify Talley on an issue as insignificant – and ultimately non-controversial – as dealing with food trucks, makes us wonder what else her council opponents will use as a pretext for efforts to cancel Talley’s participation in council deliberations.

Talley did not appear to have been given any advance notice whatsoever about any question about her participation.

At Burlington city council meetings, for example, the city clerk asks, at the beginning of each meeting, whether any member has a conflict of interest over any item that is listed on that meeting’s agenda, standard procedure for many elected and appointed boards in the county.
If Graham used this procedure, at least the matter could be addressed and resolved well in advance of the agenda topic.

At a minimum, the city council needs to insist that the senior attorney they hired should be present at their meetings – whether by Zoom if they continue in virtual sessions, or in person if/when they resume meeting in the council chambers. The council even changed the meeting night a year or so ago, at least partially to improve the odds that Ward would be able to be present. But he rarely has been.

Graham used to meet on the first Tuesday of each month, which is the same night Burlington meets and meant Ward – who is also a Burlington city councilman – could not be present in Graham, since he had to tend to his own duties in Burlington. (Which is why it was not a good idea to have hired him in the first place, but we digress.)

Talley is typically a resourceful, creative, and diligent council member. We don’t know how she will respond to the way her rights – and, more fundamentally, those of Graham residents who voted to have her represent them on the council – were quashed this week, but we suspect she will not allow this outrage to go unchallenged.

Nor should she.

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