We hate to “go after little towns” when they don’t comply with the North Carolina Open Meetings Law, but everyone – both small towns and larger cities – needs to obey the law.
[First, a personal acknowledgement: in addition to our consistent, constitutional, and instinctive reactions to secrecy in governments of any and all sizes, we probably should at least mention that the newspaper’s publisher himself resides within the boundaries of Swepsonville. We don’t believe that affects the newspaper’s editorial judgment on these matters or our news coverage of the related issues, but just so readers know. . . .]
And we hate to get readers into the “heavy weeds” of legalities, but the principles are pretty straightforward to understand.
Fundamentally, it’s probably important to recognize the overriding general principle that is to govern all local governments, as stated in the first part of the North Carolina Open Meetings Law: “Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.”
We love the overall principle and we acknowledge that we are not real fans of about a half-dozen exemptions that do, in fact, exist within the same statute that allow public bodies to go behind closed doors for certain, defined purposes.
But when they do so, we really must insist that they stay within the confines that the law specifies. Of course, the tendencies of governments of all sizes is to try to redefine, broaden, or entirely override those narrowly-defined exemptions.
Two provisions involve Swepsonville’s recent violations of law, in our judgment.
We’re never keen on secrecy surrounding “economic incentives,” but there are specific guidelines for when county commissioners, city councils, or even small town councils like Swepsonville’s can go behind closed doors to discuss such potential incentives.
The limited proviso is: “To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations. . . .”
While this newspaper’s publisher is not an attorney, he, like most of our readers and average citizens, can read straightforward English.
Please note, and we would emphasize: “in the area served by the public body.”
Instead, Swepsonville’s town council for four consecutive months wanted to discuss potential benefits to Sheetz, which wants to build a gas station and convenience store on two properties that are not within Swepsonville, but rather across the street from the town’s current boundaries.
The town council went into closed session to discuss how to lure the company, but the very obvious problem is that properties involved (two lots at the northeast corner of North Jim Minor Road and N.C. 54) are not in the town’s limits and are not otherwise served by any town’s services, including Swepsonville’s.
In his letter to the newspaper this week, the town’s attorney throws up a smokescreen about other properties on the east side of N.C. 54, potential future growth, etc. All well and good. They’re within the town’s jurisdiction.
There just aren’t any “businesses or industries” that fit the statutory definition. It would be one thing to talk about something for Honda Manufacturing, which has a huge plant around the corner from this location, and squarely within Swepsonville’s jurisdiction.
But a Sheetz gas station is not.
And we also find it rather audacious for the town council to consider spending even a dime on attracting a gas station/convenience store as something that warrants any kind of overture or municipal dollars. Really?
But the town council members, apparently with a straight face, think spending 100 grand on the idea is somehow worth it. But we digress from the actual illegalities to simple common sense.
We think Sheetz is a great company. We’ve been pleased since the company (based in Pennsylvania) has branched out into North Carolina and has proposed a fifth location here (and another new station, with tractor trailer service) just across the county line, but still within Mebane, for yet another location. [See separate stories in this week’s edition.]
But the company is, by definition, a business. They’ve no doubt considered Swepsonville a preferable municipality, at least partially since it has no property tax, rather than ask Graham to annex the same property, which is also close to Graham’s municipal limits. But if it were in Graham, the company would have to pay annual property taxes.
Second violation of law with closed meetings
The town council’s second violation of law was to go into closed session to deal with property acquisition. As noted previously, the motion quoted only part of that statute.
We had thought that this was somehow related to the two Sheetz properties, but Swepsonville’s lawyer this week assures us that the second matter is entirely unrelated to the Sheetz annexation and rezoning.
We’re still a little suspicious. All four months had the identical motions, but OK, let’s assume it’s just a coincidence.
This newspaper won a lawsuit two decades ago (against the city of Burlington) in which the courts of the state found that before considering a property acquisition in closed session, the public body must identify the property(ies) to be discussed, the owners, and the potential public purpose for which the public body is considering the acquisition/purchase.
All the strategizing about price, potential offers, and other terms can be discussed in private, but these basics must be revealed publicly.
There was already a state attorney general’s advisory opinion that took the same position, but Burlington’s then-city attorney Bob Ward (now a city councilman there and serving as Graham’s municipal attorney) didn’t want to abide by that advice.
So we took the city to court – and eventually prevailed. Legislators had narrowed the exemption for going into closed sessions (a rare win for public transparency) a few years previously, which is how we knew what needed to be revealed before the public body in Burlington went into a closed meeting.
Nowhere did Swepsonville’s town council acknowledge that its members wanted to talk about the possibility of purchasing either/both of two properties – of roughly 9 and 24 acres – that are adjacent to the town’s ballpark, which by the way has existed for seven decades longer than the town itself.
In fact, we notice that the ballfield will have its 100th anniversary next year, so maybe town councilmen want to expand it as a birthday present. Just guessing.
All well and good, but in any event, the town council must identify any properties being considered, the owners, and the potential purpose(s) for acquiring it/them.
Conflict of interest for town’s attorney?
Here we’ll reiterate our caveat about not being trained in a law school.
We were, quite frankly, flummoxed when we saw Swepsonville’s town attorney, Paul Koonts, listed on Mebane documents as the attorney who would be representing Sheetz at a Monday night planning board meeting that the newspaper typically covers each month.
The idea that the town’s attorney, while advising the small municipality about its negotiations with Sheetz, would turn around and represent the very same company on an annexation and rezoning matter on a different Sheetz station (in Mebane), just doesn’t look right.
At a minimum, it seems to us that Swepsonville’s hired attorney, Koonts, should have been more forthcoming about his multiple roles with Sheetz. He says these are two separate issues, two separate municipalities, and there is no conflict in his respective roles.
And while that may be true, it’s still not a very good look.
There are some indications from state statutes and legal ethics rules governing private sector municipal 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 Swep-sonville’s town council and Sheetz – to allow his multiple roles.
He says he told each of them, but there’s no authoritative documentation of their having been informed, much less of their explicitly agreeing to allow it.
This is particularly important for Swepsonville, which would have no reason to suspect their attorney would be representing the company in another matter before a nearby municipality.
And in this day of such public skepticism about government spending, especially when they involve public funds – and government, in general – we think the better part of discretion would have been to avoid such dual representation altogether.
