Huntersville Board agenda – April 17, 2017

There is a town board meeting tonight at 6:30pm – the pre-meeting starts at 5pm. You can view the agenda or download the full agenda packet here. You can watch a live stream of tonight’s meeting at the town’s Ustream page here. I can’t cover every agenda item so I always encourage residents to review these agendas and discuss any items of interest with the mayor or a board member because even a single motivated resident can make a difference on how the votes turn out on some of these items.

Tonight’s agenda is light, but I did want to comment on one item.

Other Business:

– Item B. Consider approving  first amendment to the Carolina Rapids agreement. Carolina Rapids (formerly known as the North Meck Soccer Club) is based out of Cornelius and offers youth and adult soccer leagues to Huntersville and non-Huntersville residents. Carolina Rapids is in the 9th year of a ten year contract with the town for field usage at Barry Park – the current contract ends in August 2018. Barry Park is the large park/soccer fields on the west side of Huntersville beside Barnette Elementary. The proposed amendment to be voted on tonight would extend Carolina Rapids’ use of Barry Park for another ten years until August 2028.

I had three questions upon review of this agenda item: why is the board set to vote on an amendment to a contract sixteen months before it ends; is it really prudent to enter into a long term contract with a single business given the continual growth of youth sports leagues in this area; and has the town requested or received bids for field usage from any other soccer leagues besides Carolina Rapids?

The Parks and Rec committee voted 7-1 to approve the recommendation to amend the existing agreement during its June 15, 2016 meeting. There was no discussion of other bids in the minutes from this meeting. I’d welcome any feedback from any PRC members from that time regarding why they chose to vote to approve this amendment and whether any discussion of other bids took place.

I criticized the prior town board for rushing through the renewal of the management contract for HFFA before an election when that contract didn’t end for approximately another 8 months. Maybe a member of the current board can explain why they shouldn’t be subjected to the same criticism if they vote tonight to approve a renewal/amendment of the Carolina Rapids contract sixteen months before it ends.

This town board recently did the right thing by asking for bids on the management contract of the HFFA. Why wouldn’t the same logic apply when deciding whether to sign a long term agreement for “management” of the soccer fields at Barry Park? Youth sports is big business, to be sure at least one other area soccer league would be interested in submitting a bid for long term usage of the valuable asset managed by Huntersville Parks and Rec.

Eric

Huntersville PD and traffic checkpoints

The Huntersville Police Department (“HPD”) conducted a general traffic roadside safety check on Tuesday, Feb. 28, 2017 from 10-11am on Verhoeff Drive near Seay Drive. I was made aware of this checkpoint after I spoke with a resident who was stopped while driving their two kids to swim at HFFA and had their car searched by HPD. I don’t normally travel through that part of town mid-morning during the week so I was curious why HPD would decide to set up a checkpoint on Verhoeff Dr. for just one hour during the middle of a workday – almost as if it was just a spontaneous decision. Was this checkpoint reasonable and is this really the best use of HPD resources?

North Carolina law is pretty clear on checkpoints (see NCGS § 20-16.3A) so I sent a request on March 12 to the town and HPD for more information. I requested HPD provide records or information related to: HPD’s written checkpoint policy; number of officers and the duration of the checkpoint; any report resulting from the checkpoint including any citations or tickets; the most recent time a checkpoint was conducted at this location prior to Feb. 28; and the primary programmatic purpose of the checkpoint. Huntersville Police Chief Cleveland Spruill promptly responded to my request on March 13 and provided the information below.

HPD Checkpoint Reply

From Chief Spruill’s response, we learned that HPD is in compliance with NC law by having a written checkpoint policy as well as a written authorization form outlining the checkpoint plan that must be completed prior to conducting a checkpoint. According to the resident I spoke with who was stopped, HPD also complied with NC law by having a least one vehicle at the checkpoint with its blue lights in operation; however, the resident thought they were approaching a crash site because there were no other indications a checkpoint was ahead. We also learned only three citations were issued during the hour-long checkpoint – although I don’t yet know if all three citations were issued to the same driver. [Interestingly, these citations did not appear in the police blotter in the Herald Weekly for the week of Feb. 28, nor do these citations appear in a search of HPD’s RAIDS online program.] I am still waiting on a response to the subsequent request I sent to HPD on March 15 for copies of any incident reports related to the three citations issued. And I am also still waiting for a response to my questions about why “other” was selected under the planning checklist for how the Communications Center was notified and when was the most recent date/time HPD conducted a checkpoint at this location.

Even though it appears HPD complied with the basic requirements of NCGS §20-16.3A on Feb. 28, an NC court reviewing this checkpoint would still have to determine the reasonableness of the checkpoint. Shea Denning at the UNC School of Government wrote a blog post in 2015 summarizing a recent NC case dealing with the reasonableness of checkpoints. (If you’re really interested in NC checkpoint law, Jeff Welty’s more thorough checkpoint paper can be read here.) Many people would argue it’s never reasonable for law enforcement to stop law abiding citizens without a warrant and without any reasonable suspicion, but the U.S. Supreme Court has ruled otherwise. HPD would likely argue the checkpoint was reasonable because it resulted in three citations being issued and did not significantly impact traffic. I would like to know whether elected officials in Huntersville think issuing three citations (two of which were for minor moving violations) is sufficient justification for violating the liberty of the individuals who were stopped and questioned without a warrant and without reasonable suspicion and were not issued citations?

The resident I spoke with who was stopped provided some additional details about their experience. After being asked to provide their license (but not their registration), the HPD officer at their driver’s side window noticed two young children in the back seat and asked for consent to check the car seats. The resident hesitantly gave consent and then before they realized what was happening two different officers opened both the passenger and driver’s side rear doors and began inspecting the car seats and shoulder/lap restraints startling the two young children who had no idea what was taking place or who these strange adults were. The resident was eventually allowed to leave the checkpoint after being detained for a few minutes, but only after being chided by one officer and advised that the resident should attend one of HPD’s upcoming car seat safety checking stations – even though both children were properly restrained. [HPD has been conducting these car seat safety checks for the last year or so in partnership with the Huntersville Fire Department, Inc. and Safe Kids CharMeck.] Is this really the kind of interaction HPD wants to have with law abiding residents just trying to go about their already busy day?

An aside – if asked for consent by law enforcement to search your vehicle or residence, you can and should ALWAYS decline consent for any search. Unfortunately, the vast majority of people (even criminals who knowingly have contraband in their car or residence) still give consent to search for many different reasons, but you do have the right to just say no.

When most people read about checkpoints in the paper they’re reading about late-night checkpoints resulting in arrests for DUI and drug offenses, not mid-morning checkpoints on a minor thoroughfare in Huntersville. Then again, if HPD considers this type of mid-morning checkpoint stopping law abiding residents going about their busy day to not only be reasonable, but an efficient use of resources, maybe we should all get used to the idea of being stopped for general traffic roadside safety checks during the middle of our busy workdays in Huntersville.

Eric

Did Swain just imply Aneralla accepted a bribe over HFFA?

During the public comments portion of last night’s well attended Huntersville town board meeting, former mayor Jill Swain strongly implied bribery was a motivation for current mayor John Aneralla to place the HFFA management contract discussion on the agenda. It is a felony in NC [NCGS 14-217] for any person holding office to receive anything of value, including campaign contributions, for performing any official act.

You can listen to her comments for yourself here beginning at approx. the 25:35 mark. Mrs. Swain read from the minutes of the Oct. 19, 2015 town board meeting – which took place less than a month before the election that Swain lost to Aneralla – wherein Mr. Aneralla, commenting on the HFFA contract renewal discussion that night, stated in part, “I believe there’s a citizen here that would like to bid for that contract.”

Mrs. Swain then commented that what Mr. Aneralla did not say was that the citizen in question who followed him in public comments at that meeting was a donor to his own campaign, Mr. Brian Sheehan. [Sheehan contributed $1,000 to the Aneralla campaign in August 2015.] She went on to state that she was curious about the reason this board is potentially interested in breaking a five year contract that would unnecessarily cost our taxpayers. She concluded by encouraging citizens to watch and see if Mr. Sheehan is first in line to bid on that contract.

If Mrs. Swain’s comments were not intended to imply the current mayor accepted a bribe in order to have the board vote on whether to bid out the HFFA management contract I would think she would want to publicly clarify her comments.

Mrs. Swain’s concern for the well being of the taxpayers is welcome, but I have to ask where that same concern was when the board she presided over decided against putting this $183,564 annual contract out for bid in October 2015? [see the contract in question below] As I stated in my own public comments last night, only in government could it be seen as a good thing to NOT consider bidding out a contract in 15 years.

HSW 2015

I reached out to Mr. Sheehan for a comment and asked if he contributed to the Aneralla campaign in order to ensure Aneralla would allow the HFFA management contract be put out for bid? Mr. Sheehan replied, “Absolutely not. I’ve known him for 15 years, have given to his other campaigns for office over the years. I haven’t spoken with, emailed with or otherwise been in contact with John in about a year. I never asked him to put this issue on the agenda. Glad he did and think it is the right thing to do, but I haven’t spoken with him in a year.”

Mrs. Swain closed her campaign account earlier this year according to Meck Board of Election filings. But, you have to wonder whether we just witnessed the opening salvo of the 2017 mayoral campaign after her comments last night.

Huntersville Board agenda – Feb. 20, 2017

There is a town board meeting tonight at 6:30pm – the pre-meeting starts at 5pm. You can view the agenda or download the full agenda packet here. You can watch a live stream of tonight’s meeting at the town’s Ustream page here. I can’t cover every agenda item so I always encourage residents to review these agendas and discuss any items of interest with the mayor or a board member because even a single motivated resident can make a difference on how the votes turn out on some of these items.

Other Business:

– Item D: The board will consider whether to authorize up to $100,000 for yet another transportation study, this time focusing on northwest Huntersville and the proposed extensions of Birkdale Commons Pkwy, Hugh Torance Pkwy, and Ervin Cook Rd. The good news is that CRTPO has agreed to provide up to $50,000 in reimbursement at the conclusion of the study – of course, the reimbursement would still come from taxpayer dollars so I’m not sure how that makes it any better. My question, has this corridor never been studied before? If it has, why is another study needed? [Update: passed 5-1]

– Item F: The board will consider appointments to the recently formed Ordinance Advisory Board. Three members with expiring terms are seeking to be re-appointed, but there are 14 other applications listed so there’s clearly a high interest level among Huntersville residents to get involved with this advisory board. [Update: all three current members were re-appointed – Hines, Henson, and Walsh]

Consent Agenda:

– Item C: The board is being asked to appropriate $2,340.99 to the Huntersville police department’s insurance account. Why you may be asking? Likely because of a motor vehicle accident involving a police vehicle, but that would just be an educated guess since the town consistently declines to specify the basis for this frequent consent agenda item. And who is responsible for repairing police vehicles that have been damaged in an accident? [Update: after Commissioner Boone removed this item from Consent, Chief Spruill advised this was related to an MVA during a high-speed chase on I-77. He also advised there were only two facilities in the area capable of performing all necessary repairs to police vehicles and that the police vehicles are repaired at the least expensive of these two options – the Toyota Collision Center at Toyota of North Charlotte.]

– Item G: If approved, a public hearing will be called for March 20 to consider corporate welfare an economic development incentive grant to new Huntersville business Oerlikon Metro. According to the Charlotte Observer article on this job announcement, the expansion is possible because of a $1 million incentive grant from the One North Carolina Fund. According to the OneNC site, corporate welfare awards are allocated to local governments as part of a negotiated challenge grant. By statute, OneNC requires that a local government provide an incentive to match the OneNC funding. The required local match depends on the tier designation of the county – in a Tier 3 county the local government must provide no less than a dollar for dollar match of the OneNC grant, although the matching funds can take various forms including cash, in-kind services, or donations of land. Mecklenburg County is designated a Tier 3 county by the Commerce Department. Of note, the local government may establish ALL OR PART of its match by securing PRIVATE COMMITMENTS of assistance to the project. How much, if any, of the local match will Huntersville work to obtain from private commitments?

Since Huntersville is in a Tier 3 county, this would seem to me to indicate the town will be on the hook for at least a million dollars of matching funds to ensure the Oerlikon Metro expansion. Strangely enough, Commissioner Bales neglected to include this information during her comments about the Oerlikon announcement at the February 6 board meeting. My question on this topic remains the same, how were any jobs ever created before the existence of the OneNC Fund and our current corporate welfare incentive system?

Oh, and of course the board will be going into closed session at the pre-meeting tonight to discuss the Oerlikon incentive even though it’s already public knowledge how much the state is providing because residents can’t be trusted to know how our elected officials intend to negotiate with our money. Fortunately the town is well aware that closed session minutes are public record so I’ll be sure to post an account of the minutes once I receive them.

Eric

Is Huntersville denying access to public records?

That’s the question after the town recently attempted to deny me access to the minutes from the closed session town board held on January 9. I was finally provided a copy of the redacted minutes on February 7, but only because I’m familiar with open meeting and public records laws and because I don’t mind being persistent. Is it possible other less persistent Huntersville residents have been denied access to records or information in the past?

For the record, none of the criticism below is directed towards the town clerk who has always promptly facilitated my many requests for records and information.

The Huntersville town board held a special meeting on January 9 for the purpose of accepting the resignation of former town manager Greg Ferguson. This special meeting was not live streamed. During this special meeting the town board went into closed session to discuss a personnel matter – the resignation of the town manager. NCGS 143-318.11 sets forth the situations when a public body is permitted to go into closed session.

According to the Lake Norman Citizen, the only media outlet in attendance at the special meeting, the closed session lasted over two hours. Given the lengthy time period of the closed session, I was interested in determining whether anything was discussed among the board that was unrelated to the specific personnel issue for which the closed session was called. I sent a request to the town on January 18 for a copy of the closed session minutes once they had been approved. I was informed the same day the closed session minutes cover personnel related matters and cannot be released and that I could speak with the town attorney [Bob Blythe] for an explanation – no exceptions were cited, just an outright denial. Mr. Blythe is a part-time employee of the town and his current base salary is $110,577.36.

I responded to the town’s denial by citing NCGS 143-318.10(e) and that I would discuss the legality of withholding the closed session minutes with the town attorney once they had been approved by the town board. NCGS 143-318.10(e) states in part: Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions… such minutes and accounts shall be public records… however, minutes or an account of a closed session… may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.

Six days later on January 24 I was informed that upon advice from the town’s employment attorney the town was precluded from releasing the requested minutes because NCGS 160A-168 takes precedence over NCGS 143-318.10(e). My immediate thoughts after receiving that email: 1) who is the town’s employment attorney and why did the town have to consult outside counsel to address such a basic open meetings issue; and 2) NCGS 160A-168 only deals with privacy of employee personnel records and does not provide for any outright ban on disclosure of closed session minutes dealing with a personnel matter.

I was later advised the town uses an attorney in the Raleigh office of Jackson Lewis P.C. at an hourly billable rate of $275 for shareholders, $225 for associate attorneys and $120 for paralegals. Are there no employment attorneys the town could contract with in Mecklenburg County, possibly at a lower hourly billing rate? The good news – the town only pays Jackson Lewis on an as needed basis and does not pay them an annual retainer unlike Smith Rodgers, PLLC, the law firm used by Huntersville Police Department at a minimum annual cost to taxpayers of $18,070.

I responded the same day on January 24 by requesting the town forward my email and the 2015 NC Court of Appeals case Times News Publishing Co. v. Alamance-Burlington Bd. of Ed. to the town’s employment attorney and that I would be available to discuss with either Mr. Blythe or the town’s employment attorney at their convenience. I never received a call from either attorney. The Times News case dealt with a very similar situation and is still good law in NC. I’d encourage anyone interested in open meeting and public records law in NC to read for yourself – it’s only twelve pages and can easily be understood by a non-lawyer.

I re-sent my request on February 7 for a general account of the January 9 closed session and received a redacted copy of the minutes later the same day. [See below.] But this apparently warranted further review by the town’s employment attorney to assist with the redaction. Again, why was outside counsel needed to comply with this request pursuant to straightforward NC statutory and case law and how much did this request end up costing the taxpayers of Huntersville? If I was immediately provided with the redacted minutes upon request on February 7, why did the town promptly deny my identical request sent on January 18? How do we know other citizens haven’t been wrongly denied records or information by the town in the past based on similar grounds?

Maybe instead of using taxpayer dollars to employ outside counsel to help with responding to basic records requests from residents, those taxpayer dollars would be better spent on requiring select town employees to attend an open meetings/public records training or CLE.

Eric

2017-01-09 Hville closed mins

 

Taxpayers still keeping HFFA afloat

This column originally appeared in the Jan. 21, 2016 edition of the Herald Weekly. You can find my second HFFA column here. The column below is relevant once again because HSW (formally known as Health Works, Inc.), the management company in charge of the HFFA, is requesting $25,000 in bonus money per their contract with the town. The agenda for the upcoming board meeting on Tuesday night has the bonus money budget amendment request listed as Item K. under Other Business.

Interestingly, HSW is still using weighted metrics as outlined in their 2011 contract, not the weighted metrics outlined in their 2015 contract (attached below).  So upon further review it appears HSW is using the 2011 metrics because the 2015 contract was not effective until July 1, 2016. I assumed incorrectly the 2015 contract was effective immediately upon execution in October 2015, hence why it was rushed through by the prior board, but that’s clearly not the case.

Let’s hope this current board takes a more inquisitive approach to the self-serving metrics review document submitted by HSW in support of their bonus request than did the board in 2015.

Eric


The Huntersville Family Fitness & Aquatics facility located on Verhoeff Drive is partially funded by taxpayers. This may be common knowledge to longtime Huntersville residents, but many newer residents are likely unaware that tax dollars are used to support HFFA. You definitely wouldn’t know it based on the HFFA website, except for the small Huntersville town logo on the home page.

For those Huntersville residents who were living here in the late ’90s when the HFFA was originally proposed and voted on, don’t worry; this column will not rehash the contentious debate over whether funding a gym is a proper function of town government – mainly because it isn’t. But, since taxpayers are still funding this facility after more than a decade in existence, it is reasonable to question whether their tax dollars are being spent properly.

HFFA proponents like to point out that it has gone from an entity that was in need of funds from the General Fund to operate, to operating solely on hotel/motel/prepared food taxes. Politicians like these “good” taxes because it means avoiding taxing residents directly to fund their favored projects (unless you’re a Huntersville resident who chooses to patronize a Huntersville restaurant). While it’s true that general fund money is not currently used to keep the doors open at HFFA, it is used for any bonus paid to the management company, like the $50,000 approved in 2015. But this misses the larger point: What are the opportunity costs of using limited taxpayer funds to run a gym?

A few more facts most Huntersville residents without a passing familiarity on submitting records requests may not be aware of. The HFFA is managed by a company named Health & Sports Works. This company has managed the HFFA almost exclusively except for a short period immediately after it opened. The initial management contract in 2002 between Huntersville and HSW provided for a management fee of $30,000 for the first year, $40,000 for the second year, and a fee of $50,000 during each subsequent year.

The renegotiated contract in 2006 saw management fees significantly increased to $153,750 annually, along with a potential bonus payment of up to $50,000. In 2011, Huntersville renegotiated with HSW and agreed to an annual management fee of $158,362.50 (a strangely specific amount…) with the potential of a $50,000 bonus. Finally, two weeks before the recent election and eight months before the contract was set to expire on June 30, 2016, the prior town board voted 4-2 to approve a renegotiated contract with HSW at $183,564 annually. [See most recent 2015 HSW contract below]

HSW 2015

Going from $30,000 annually to $183,564 annually in little more than a decade sounds like a massive cost increase, but surely it’s because this is the market rate for managing a facility like HFFA, right? A reasonable question, but not one that was answered prior to the vote on Oct. 19, 2015, approving the renegotiated management contract, which was not even made available for public inspection at the town’s website until the morning of the vote.

The town manager made the decision not to put out the management contract for competitive bid, a decision that was fully supported by town board members Melinda Bales, Jeff Neely, Ron Julian and Sarah McAulay. State law does not mandate this type of contract be put out for competitive bid, but decision makers have no basis for comparison and are not ensuring tax dollars be spent in the most efficient manner possible without a bidding process. When the town can find time to request bids on landscape contracts costing between $46,000 and $65,000 annually (which was scheduled to be voted on at Tuesday night’s town board meeting), it is beyond implausible the HFFA management contract shouldn’t have been put out for bid.

The current HFFA management contract requires the town to pay a fee equal to six months of management fees if terminated prior to July 1, 2019. This gives the current town board at least three years to request a competitive bid be prepared to determine if HSW is indeed the only qualified company to manage the HFFA. Let’s hope that’s enough time.

On limited government and the HFFA

This column was supposed to have appeared in the Feb. 18, 2016 print edition of the Herald Weekly. It never appeared in print, however, it did end up online and can still be found at the Herald’s website. The Herald editor informed me she had received some questions about my initial HFFA column in January 2016 so I provided all source documentation and never heard anything further until she informed me after I submitted the second column on HFFA below that she was going to have to put the column on hold. I subsequently learned HFFA had decided to pull their advertising dollars from the Herald – to this day they continue their ad boycott of the Herald, but do continue to advertise in the other local weekly paper.

It’s usually frowned up for entities funded by taxpayer dollars – like the HFFA – to engage in viewpoint discrimination. Apparently the First Amendment isn’t high on the list of concerns of the Huntersville Town Board since the HFFA is still being funded by tax dollars.

Eric


Frederic Bastiat famously defined government as the great fiction through which everybody endeavors to live at the expense of everybody else. By this he simply meant that it is within our nature to seek the greatest amount of pleasure while expending the least amount of effort. Man can satisfy his endless wants and desires in one of two ways: by ceaseless labor and the application of his faculties to natural resources; or by seizing and consuming the products of the labors of other. This fatal tendency of man, to satisfy wants and desires with the least possible effort, is the origin of plunder, which is why Bastiat explains legislators should ensure the law maintains justice by protecting property and punishing plunder.

You’re probably asking, what does any of this have to do with the Huntersville Family Fitness and Aquatics center? The HFFA is just one example in Huntersville of the law being perverted by allowing taxpayer funding (i.e., the products of the labors of others) to be used to support, in my opinion, an improper function of town government. Many readers will disagree with this position and the idea of any limits on town government other than what a majority of the Town Board can agree to.

But, it is budget season in Huntersville and the proper function of town government is something that needs to be debated by our elected leaders when deciding how to allocate the scarce revenues available for the large number of potential beneficiaries. If less money went to HFFA, more money could be allocated for Rural Hill for example. Reasonable people can disagree over whether Rural Hill should receive any taxpayer funding, but based on current statutes they (along with Latta Planation, the Hugh Torance House & Store, Visit Lake Norman, etc.) are eligible to receive funding from the same pool of money used to fund HFFA. [See pg. 106 for funding levels here.]

Ideas and elections matter, even on a local level. The current Town Board was elected, in part, because voters disagreed with the prior board’s overall philosophy on governing, which could be summarized by a motto similar to the Panther’s this season – “Keep Spending.” While the makeup of the Town Board has changed, the same special interests remain and are intent on maintaining the status quo.

HFFA proponents will be heard to proclaim, but how will the citizens of Huntersville stay healthy if taxpayer dollars aren’t used to keep the HFFA open? And what about all of the “economic development” Huntersville benefits from by the HFFA hosting events?

To which I would respond, how do the citizens of Huntersville keep from starving without the town using taxpayer dollars to operate a grocery store? How did any Huntersville resident do sit-ups, push-ups, pull-ups, run or swim before the HFFA was built?

If we are to accept the premise that the HFFA should continue to be subsidized by taxpayer funding because it is the centerpiece for health in Huntersville and the surrounding communities and because of the alleged economic benefits, should it follow that all other sources of competition be eliminated to maximize these health and economic benefits? Should the Town Board close all other gyms and pools to increase membership at HFFA? When the non-taxpayer subsidized Fitness Center at Birkdale was forced to close due to financial reasons, many former members joined the HFFA. Think of the increased revenues at HFFA if all the gyms in Huntersville were closed and their members all joined the HFFA!

There remains approximately $1,022,940 [See pg. 68 of the audit here.] to be paid on the mortgage for the HFFA through the year 2020 before taxpayer dollars will no longer be necessary for debt service. The question for current Town Board members is what happens after 2020? Will taxpayer funding continue to be used for the current facility, or will HFFA finally be expected to become profitable?

These and other questions will persist as long as the law is used to take property from one person and give it to another and any attempts to censor such questions should be discouraged.