Rental Property Shenanigans at 510 Dallas St.

UPDATE: An interesting development, apparently Mr. Ryder was arrested on or about June 8, 2017 for six counts of larceny by employee (a felony) according to the Mecklenburg Co. Sheriff’s website. He has a June 29, 2017 court date for these charges.


The good news for a blog primarily focused on local government in Huntersville, town hall never stops providing me material to write about. The bad news for a blog primarily focused on local government in Huntersville that currently nets this writer $0 per word, town hall never stops providing me material to write about.

I referenced receiving some records related to rental property owned by the town in a post a few weeks ago about the Huntersville Legal Dept. According to the town’s response to my request, the town is currently earning rental income on eight (8) residential parcels (the town collects rent on non-residential properties as well). Rents paid range from $400-$650 per month. Seven of the eight residential parcels are situated along the Hwy 115 corridor and are related to the planned Main Street upgrades. But one parcel, 510 Dallas St., stood out since it was off of Hwy 21 and clearly not related to the Main Street project.

The purchase of 510 Dallas St. was approved by the prior town board 5-1 (Commissioner Phillips opposed) at their Sept. 21, 2015 meeting and the purchase contract was executed by the town in Nov. 2015 for $330,000 as part of the planning for the US 21/Gilead Rd. project. The existing structures at the parcel are set to be demolished at some unknown point in the future to make way for a redesigned interchange with US 21. You can review the project plans here. The US 21/Gilead Rd. project has now been turned over to NCDOT and is tentatively planned to start concurrently with the I-77/Gilead Rd. interchange project. There is no firm start date for construction of either project at this time since NCDOT is still engaged in utility relocation and obtaining right of ways – including still needing to negotiate the acquisition of property directly across the street from 510 Dallas St.

Some issues don’t require much in the way of explanation and this is one of them. I’ll allow the reader to draw their own conclusions based on the following information.

  • 510 Dallas St. is approx. 3,472 sq. ft. with a large detached garage on almost a full acre of land
  • The current rental contract for 510 Dallas St. was signed and approved by former town manager Greg Ferguson sometime in Dec. 2016; this rental contract did not require town board approval
  • The current term of the rental agreement is Dec. 1, 2016 through Nov. 30, 2017
  • The US 21/Gilead Rd. project will not begin construction by Nov. 30, 2017
  • The current tenant is listed on the rental agreement as C. Lane Ryder, Jr.
  • The current rental amount per the agreement is $600/month
  • According to Zillow, the current “Rent Zestimate” for this property is $2,198/month
  • The town did not publicly advertise the property for rent prior to renting it to Mr. Ryder
  • As of yesterday, June 15, Mr. Ryder has failed to pay rent to the town for the months of Dec. 2016 and Feb. 2017
  • Failure to pay rental payments when due constitutes default under the terms of the rental agreement
  • Mr. Ryder is currently in a relationship with a member of town staff

Just another example of the mismanagement of taxpayer dollars that lead to the departure of the former town manager and a new town board being elected in November 2015.

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

 

Some final thoughts on CMS’s decision to hire Charles Jeter

My piece raising questions about CMS’s hiring of Charles Jeter was posted on the morning of January 17. The thorough piece written by Ann Doss Helms in the Charlotte Observer in response to my piece was posted at the Observer’s website at 3:45pm on January 19 (it came out in print in the Sunday edition on January 22). I finally received a response from CMS to the final two questions about the number of applicants and number of applicants interviewed at 5:54pm on January 19 – two hours after Ann’s piece was posted online at the Observer. CMS’s response echoed the numbers cited in Ann’s piece: four total applicants and three total applicants interviewed before the position was filled.

So why did it take the involvement of a Charlotte Observer reporter for CMS to provide me this information? How many other requests for records or information from residents/voters/parents go unanswered because the person making the request isn’t a reporter for the Observer?

The Observer piece only raised additional questions in my mind. First, CMS General Counsel George Battle III, who is paid at least $190,000 according to the most recent salary figures online, stated in the Observer, “Jeter’s predecessor didn’t register.” This seems contrary to filings at the NC Secretary of State’s Office showing Jonathan Sink registered as the local government liaison for CMS in January 2013.

If Mr. Jeter’s predecessor didn’t register, then why is his registration form at the Secretary of State’s Office? [See registration form below.]

Sink registration

Of note, page 2 of Mr. Sink’s registration form only lists one out of a possible thirty-one categories on which he intends to lobby – #9 Education. In comparison, Mr. Jeter’s registration form, signed on January 17, lists a staggering SIXTEEN categories on which he intends to lobby as the local government liaison for CMS – including #9 Education, but also including such categories as #22 Law Enforcement/Courts/Judges/Crimes/Prison, #26 Natural Resources/Forest Products/Fisheries/Mining Products, and #29 Transportation/Highways/Streets/Roads.

Why would the local government liaison for CMS ever need to lobby the general assembly about mining and mining products?? [See registration form below.]

Jeter registration

Second, Mr. Battle was quoted in the Observer denying responsibility for the refusal to release the applicant and interviewee numbers to me. If Mr. Battle was not responsible for making the determination on whether or not to provide the requested information to me, then who in the CMS Legal department did make this decision? Based on the email responses from my contact at CMS it seemed obvious CMS Legal was being consulted throughout this process. My initial request was sent on December 13 and the initial response from CMS was received on January 3 stating, “… awaiting a response from CMS Legal on whether [applicant and interviewee figures] can be released.” On January 6, CMS responded again stating, “… CMS Legal has determined that no records exist of this information.” The final email came from CMS Chief Communications Officer Kathryn Block but only referenced “CMS” in general, not CMS Legal, stating, “CMS has considered items four and five…”

If Mr. Battle didn’t make the decision to deny me the requested information, does that mean the CMS Communications Department is making determinations on what records/information is or is not disclosable under the law without consulting with CMS Legal?

Finally, I still want someone to explain to me how a local government liaison produces $91,000 worth of value to the taxpayers. Don’t worry, I’m not holding my breath…

On CMS’s decision to hire Charles Jeter

[Jan. 19, 2017 update – Thanks to Ann Doss Helms at the Charlotte Observer for writing a follow-up story today on this issue. You can read it here.]

Why did the Charlotte Observer need almost 650 words in their article on December 5, 2016 just to announce former elected official Charles Jeter (R) as the new government liaison for Charlotte-Mecklenburg Schools? It’s almost as if someone involved with CMS felt they really needed to justify to the taxpayers why this hire was worth at least $91,000 of their tax dollars a year. But, even after reading all those words in the online edition of the Observer I was still left with unanswered questions about CMS’s hiring of Mr. Jeter.

  • Why would a former politician who resigned unexpectedly at the end of July citing the need to devote time to his young family then apply for a job less than three months later that will likely require him to travel back and forth to Raleigh on a regular basis? And in case you didn’t follow the District 92 House race too closely – the seat flipped from (R) to (D) in November after Mr. Jeter’s unexpected resignation.
  • Why would CMS hire a former elected official when he would be prohibited from even doing his job until 6 months after he left office pursuant to the “cooling off” period for lobbyists in North Carolina? [See NCGS 120C-304(b).] This one was easily answered by the NC Ethics Commission after I started reviewing this issue. The 6 month “cooling off” period is not applicable to Mr. Jeter because he was actually hired as a local government liaison, not a lobbyist, and local government liaisons are only subject to Article 5 of the lobbying law according to this 2011 formal advisory opinion from the Ethics Commission. What’s the actual difference between a lobbyist and a local government liaison? Good question.
  • Even though he’s only a local government liaison, not a lobbyist, he still has to register as a liaison with the Secretary of State’s Office just like his predecessor. [See NCGS 120C-502(a).] Why then has Mr. Jeter still not registered as a liaison with the Secretary of State’s Office as of the morning of January 17, 2017? You can search for yourself here.
  • If he “got out of his trucking company” as the article stated, why is Mr. Jeter still listed as the President of this trucking company according to the Secretary of State’s website?
  • There are nine board members on the CMS Board of Education – why was only one, Rhonda Lennon from District 1 (which covers Huntersville, Cornelius and Davidson), cited in the article as mentioning the job opportunity to a friend? When did Ms. Lennon mention this job opportunity to Mr. Jeter and how many other friends did she mention the job opportunity to? Surely other board members mentioned this great job opportunity to their friends as well, right?
  • Since Mr. Jeter said he went through a “lengthy selection process” in the Observer article, and since surely other board members mentioned this great opportunity to qualified friends, how many other qualified applicants did Mr. Jeter beat out for this $91,000 a year taxpayer funded job?

I decided to send a records request to CMS on Dec. 13, 2016 to help answer some of these questions. My requests are below along with CMS’s responses in italics.

1) The date the job was first publicly posted and all forms in which the public job posting occurred, e.g., online, newspaper, etc.; [Received January 3 – The position was posted on the CMS job board 10/7/16 – 10/14/16.]

2) The job description or any description of job duties listed; [Received January 4 – see below.]

3) The anticipated or expected salary range listed; [Received January 3 – As advertised in the job posting, the salary range is $71,572.00-$91,187.00.]

4) The number of total applicants applying for this position before it was filled; [Received January 3 – #4 and #5 are requests for information rather than records (I’m awaiting a response from CMS Legal on whether these items can be released)]

5) The total number of applicants interviewed for this position before it was filled; and

6) The date and manner in which an offer of employment was extended to Charles Jeter. [Received January 3 – Date and manner in which an offer of employment was extended is personnel information that isn’t open to public record.]

CMS_Job Description

After the initial responses from CMS we learned the job was only posted for one week and only at CMS’s job board. We also learned Mr. Jeter was hired at or very near the maximum salary since, according to the Observer article, his new job will pay him $91,000 a year. What we didn’t learn was how many other people applied and/or were interviewed for this job during the “lengthy selection process” described by Mr. Jeter or how long after the job posting was he actually offered the job.

On January 6 CMS finally responded to requests 4 & 5 by stating – CMS Legal has determined that no records exist of this information. I asked for clarification – Does this mean the answer to numbers 4 & 5 is zero (0) applicants? Or, does this response mean that no records exist of any applicants applying or interviewing, but that the number is not zero (0)? On January 9 CMS responded to my request for clarification – The response to points 4 and 5 is: there is no record(s) that exist pertaining to the applicant number or number of candidates interviewed.

Still not being satisfied since I originally requested records or information, I revised my request and asked another way – 4) How many total applicants applied for this position before it was filled; and 5) How many total applicants were interviewed for this position before it was filled. CMS responded the same day on January 9 – Thank you for your follow-up inquiry. The items requested in 4 & 5 do not fall in the category of personnel information that is defined in the personnel privacy statutes as public information. Additionally, we have a concern that disclosing such information runs the risk of someone being able to identify the applicants and that would be a disclosure in violation of the personnel privacy laws.

Now we were getting somewhere. So someone at CMS had determined requests 4 & 5 didn’t have to be answered because of personnel privacy laws. But what specific laws were they relying on? Again on January 9 I asked for additional information – Please have CMS Legal specify any and all statutes in support of their refusal to provide the requested information. The next day, January 10, CMS responded – NCGS 132-6.2(e) states that a public agency is not required to respond to records requests by “creating or compiling a record that does not exist.”

I still wasn’t satisfied with CMS’s response to what I thought was a simple question so on January 10 I requested a time to discuss over the phone. After not receiving a response I left a voicemail with my point of contact at CMS requesting the same. On January 11 the Chief Communications Officer at CMS, Kathryn Block, emailed the following response in part – CMS has considered items four and five and determined that disclosing such information runs the risk of someone being able to identify the applicants. This would represent a violation of personnel privacy laws. CMS takes the privacy of its employees and applicants very seriously. Therefore, we are unable to fulfill this portion of your request.

To recap: CMS initially declined responding to 4 & 5 because no records existed. No wait, they said, it’s because responding would violate personnel privacy laws. On second thought, they said, it’s definitely because no records exist and we don’t have to create records that don’t exist.  Seriously though, we can’t disclose the requested information because it would violate personnel privacy laws.

Which is it CMS, no records exist or disclosing the number of applicants and/or interviewees would violate personnel privacy laws?

I decided to consult with Jonathan Jones, Director of the NC Open Government Coalition, who helpfully explained the limitations of a records request. He stated, “[CMS] is only legally obligated to provide records and not information. That’s why it ends up being a potentially valid response to your requests. It’s not a valid response if a record does exist that would answer your request for information and they would rather withhold it for personnel reasons. You can’t argue both because  either the record exists or it doesn’t.”

Essentially, CMS responded to my questions about the number of applicants and interviewees with a “No Comment.” Fair enough. But, based on the job only being posted for one week at the CMS job board and based on CMS’s conflicting responses and absurd conclusion that revealing the number of applicants would somehow result in someone being able to determine the identity of an applicant, it’s also fair for me to infer there was only one applicant and one interviewee – Charles Jeter.

Another example of your tax dollars hard at work in Mecklenburg County.

Eric

 

Records requesting (in NC) made simple

The column below originally appeared in the August 18, 2016 edition of the Herald Weekly. My offer still stands to provide a records request template to interested individuals – just send me an email. I currently have two pending records requests – one with Huntersville regarding Police Dept. insurance revenues and one with Charlotte-Mecklenburg Schools regarding the “Government Relations Professional” (aka lobbyist) position recently filled by Charles Jeter. I’ll be sure to post any relevant information obtained here at the site.

Eric


Have you ever been unable to find an answer to a question you had about your local government? Have you ever wondered what official town business your elected officials were discussing via email? Have you ever wondered how much in travel, lodging and meal expenses your elected officials were charging when attending out of state conferences? I used to have similar questions that kept me up at night until I discovered Chapter 132 of the North Carolina General Statutes on Public Records. Now I can send off a records request in no time at all! By the end of this piece hopefully you too will be able to quickly and easily request the answers to these and many more questions from your local government.

A public record in NC is defined in NCGS §132-1(a) as all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of NC government or its subdivisions. §132-1(b) goes on to outline the position that public records are property of the people so the people should be able to obtain copies of their public records and public information free or at minimal cost unless otherwise provided by law.

The default position outlined in §132-1(b) means that if any public agency denies your request for records they have to specify an applicable exemption – simply denying or ignoring a request is insufficient. For example, if your local police department declines your request for incident reports related to crime statistics cited by them in a report to the local town board ostensibly because they are protecting victims of crime, you can respond by citing to the exemptions outlined in §132-1.4(c) which specifies information that must be provided.

Drafting a records request in NC does not require you to hire a lawyer or have any special expertise. The law is designed to provide everyone easy access to government records in a timely manner. A request can be made orally or in writing and there is no specific format a written request has to take, i.e., it can be a simple email or even a handwritten note. You do not have to disclose the purpose or motive for your request pursuant to §132-6(b). And you do not have to appear in person to obtain records if those records exist in an electronic medium pursuant to §132-6.2(a). Most records can easily be scanned and emailed these days, although some historical documents may necessitate an in-person inspection. §132-9 even provides legal remedies for anyone denied access to public records.

Chapter 132 is worth reading in full and can easily be found with a quick internet search or at the NC General Assembly website. Two other great online resources for anyone wanting more information on records requests or government transparency are the UNC School of Government and the Sunshine Center of the NC Open Government Coalition. The Coates’ Canons blog at the UNC School of Government is a great place to start any local government related research and their staff are always willing to answer questions via email or phone.

Open record laws help to keep all levels of government accountable. But it takes an engaged citizenry to take advantage of these laws. If you have ever wanted to submit a records request but didn’t know how, I will gladly provide any interested reader a records request template upon request. Most of my requests are directed towards Huntersville (and have all been timely responded to thanks in part to Town Clerk Janet Pierson), but the same laws apply in Davidson and Cornelius as well. Sometimes you will be surprised what information a simple records request can uncover, but you’ll never know until you ask.