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

Protectionism 101: HB 279 and the regulation of Fantasy Sports

[TL;DR warning – this is a long one.]

I usually stick to writing about local issues at this site since I feel I can have the most impact in and around Huntervsille, but occasionally the General Assembly will motivate me to write about something outside of the confines of Mecklenburg County. Last week, Mecklenburg County Commissioner Matthew Ridenhour alerted me to just such an occasion when he commented about HB 279, or the “Fantasy Sports Contest Act,” on his facebook page. I, for one, am glad the majority party in Raleigh is finally taking action to protect all North Carolina residents from the scourge of unregulated fantasy sports. Because if there was a single overarching reason voters returned Republicans to the majority in Raleigh last November, it was definitely to grow the size of state government by enacting more paternalistic regulations.

Becki Gray wrote a column at Carolina Journal last week asking a very reasonable question, “As hundreds of bills are filed in the General Assembly, I ask: What problem are lawmakers trying to solve?” I asked myself the same question about HB 279 – what problems are the sponsors of this bill trying to solve? The answer wasn’t readily apparent so I decided to email the fourteen sponsors of the bill and ask them what problems they were trying to solve and why NC needed to regulate fantasy sports? I haven’t participated in fantasy sports in a few years, and I have never participated in the growing phenomenon known as daily fantasy sports, so maybe I just wasn’t aware of the problems that needed solving by state government.

Rep. Jason Saine (R), a primary sponsor of HB 279, promptly responded to my email (and cc’ed the bills other primary sponsors) with an outline of their justification for the legislation. He wrote in part, “It is important to note that without a legal definition and parameters, other states have seen confusion regarding fantasy sports.” As evidence of this confusion he linked to an April 2016 news story about an opinion by the office of the Attorney General in Tennessee that fantasy sports contests constituted illegal gambling under TN law. TN became the third state to regulate fantasy sports when the governor signed a bill into law later that same month.

The current version of HB 279 is five pages long. If the primary concern of the bill sponsors is that an NC court could rule fantasy sports to be gambling, it seems like the concise language contained within the proposed section 78E-9 of the bill would be sufficient by itself to address this concern. Section 78E-9 states fantasy contests are not to be considered gambling under NC law. Problem solved, right?

I haven’t seen much written yet in the mainstream press about this bill since it was filed other than a short piece in the N&O last week, but I have read two opinion pieces. Both writers, Nic Haag in the Lincoln Herald and Keith Larson in the Charlotte Observer, raised excellent objections to HB 279, many echoing my own objections to this bill. HB 279, as currently written, is nothing more than another manifestation of protectionism that unnecessarily imposes arbitrary restrictions on competition.

Another concern I have (a concern also expressed by Commissioner Ridenhour in his facebook post) that neither of the other opinion pieces referenced is the overreach potential of this bill.  If the intent of the bill sponsors is only to offer consumer protections to fantasy players and not to regulate small fantasy leagues amongst friends/family/co-workers involving small sums of money (or even no money), why not clear up that ambiguity in the bill? The bill states no fantasy contest shall be offered in this State unless the operator has been registered with the [Secretary of State]. A “fantasy contest” is an online fantasy or simulated game or contest… and an “operator” is a person or entity that offers fantasy contests to members of the public.

There does not appear to be any language in the bill clearly setting forth the intent for it to only apply to fantasy sports companies operating a web based platform as opposed to fantasy leagues amongst friends who happen to use an existing web based platform like Fantasy Draft, Yahoo, etc. Without clear language setting forth the intent of this bill to exempt small leagues involving friends/family/co-workers, I could easily see the Secretary of State’s office or another state agency attempting to require registration and the registration fee for a group of friends/family/coworkers based on the ambiguous definitions of fantasy contest and operator – and I could easily see a court upholding such an attempt unless changes are made to the existing bill language.

Consider this hypothetical. You and your friends have run a fantasy league every football season for years, you charge a $25 buy-in, and use Yahoo’s online fantasy platform. This season two of your friends can’t participate and you want to replace them to keep the same number of participants in your league so you send out a quick social media post on your social media profile open to the public for anyone interested in joining your league to contact you. Are you now an “operator” offering a “fantasy contest” to members of the public requiring you to register with the Secretary of State?

I also received a response from Rep. John Bradford (R) to my question about what problems the sponsors of the bill are attempting to resolve. Rep. Bradford wrote in part, “The key concern for states, like NC, have been whether daily fantasy sports operators are collecting money from the general public, because that is the conduct where there is risk of harm… These operators create jobs and revenue in NC.” I have yet to be provided with evidence from any of the bill sponsors of any actual harm suffered by a fantasy sports participant in NC.

Regarding the “jobs and revenue” justification for this bill, maybe someone can point me to the bills filed by Rep. Bradford (or any other bill sponsor) seeking to legalize drugs and prostitution on the same basis.

Why not allow the fantasy sports companies to police themselves and let the market sort out what consumer protections may or may not be needed? This unregulated market seems to have worked out pretty well so far in NC. Fantasy sports have been around in some form or another in NC for at least 15 years – and that’s being conservative. The bill sponsors may argue daily fantasy sports are different, but HB 279 as written makes no distinction between season long and daily fantasy contests. The fact that the bill sponsors can’t come up with a single instance of a fantasy sports operator defrauding or otherwise causing financial harm to an NC resident over the past 15 years should tell you all you need to know about this bill.

To further bolster their support for this bill, both Reps. Saine and Bradford have pointed out that the industry supports oversight and regulations like HB 279. As I pointed out to Rep. Saine, I don’t think that helps their argument. It only reinforces the perception that this proposed legislation is nothing but protectionism being pushed by current market participants to erect barriers to entry for future competitors.

Rep. Saine attached the two letters below in his email as evidence of industry support (he also posted them on his twitter feed) and Rep. Bradford wrote the following in a facebook comment on March 9, “NC companies operating in this space specifically asked for legislation to clearly separate fantasy sports from gambling activities.”

FantasyDraft Support
FSTA NC Support

 

So, which “NC companies” are Rep. Bradford referring to? He doesn’t specify so I am going to assume at least one of them is the company that wrote a letter in support to Rep. Saine, Fantasy Draft, LLC. Who is Fantasy Draft, LLC? In the timeless words of local radio personality Tremaine “QCB” Sloan, I had never heard of them.

Fantasy Draft, LLC (“Fantasy Draft”) lists a Cornelius, NC address on their letterhead. They have a corporate logo on the top of the building at that address as well as roadside signage and they are listed on the company directory on the first floor of the building. They’ve been featured in stories at the Charlotte Observer and Cornelius Today. A quick perusal of the “Press Box” page of their website shows Charlotte, NC on all of their bylines. A story from November 13, 2014 on their site announcing their launch states that Fantasy Draft is based outside of Charlotte, NC. The story goes on to state, “The investment group behind FantasyDraft is led by Charlotte-based entrepreneur and business owner Robert Stevanovski and includes senior individuals at The Jordan Company, a private investment firm, with more than $8 billion in committed capital among others. Stevanovski owns several businesses that have generated over $3 billion dollars in revenue over the last five years.” Mr. Stevanovski is one of the co-founders of ACN, LLC based in Concord.

Interestingly, when you run a property search of the Cornelius address listed by Fantasy Draft it shows the owner as West Catawba Ave, LLC. The managing member of this company according to filings at the Secretary of State is Pasicor, LLC. The manager of Pasicor, LLC is Robert Stevanovski according to filings at the Secretary of State. One of the other tenants in the building with Fantasy Draft is Xoom Solar. Xoom Solar is a subsidiary of ACN, LLC.

Based on the above, it would seem obvious Fantasy Draft is an NC company. But, over at the Secretary of State’s website, I was unable to locate Fantasy Draft when I performed a corporate name search (you can perform the search here). Just searching the word “fantasy” in the corporate name search brings up approximately 140 results, 26 of which appeared to be related to fantasy sports in some manner, but no Fantasy Draft. I also attempted a search based on company officials and was still unable to locate Fantasy Draft. I then did a search online in the Mecklenburg County Register of Deeds assumed names database (you can perform the search here) just in case they were operating as a d/b/a or an assumed name and still found no results.

After searching online it appears Fantasy Draft is incorporated in Delaware and has filed as a foreign limited liability company in Mississippi (where fantasy sports legislation has already been signed into law) with its principal office in Cornelius, NC. The question for the bill sponsors is whether a physical presence and employees in NC is alone enough to consider Fantasy Draft an NC company. There is nothing wrong with incorporating in Delaware and filing to do business in other states, however, it does not make Fantasy Draft an NC company in my opinion. Whether Fantasy Draft is a foreign corporation transacting business in this state without a certificate of authority pursuant to NCGS §55-15-01 is another question entirely.

To be clear, I reject the premise that the state should be involved with regulation of fantasy sports. But, because of the number of bill sponsors (14) and because it’s a bi-partisan bill, I recognize HB 279 has a good chance of passing the House and heading to the Senate. Let’s hope before it does some other members of the House or members of the Senate can scale this bill back and limit it to simply preventing fraud and abuse and maximizing competition.

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.

Why can’t I buy beer before noon on Sunday?

This column originally appeared in the September 17, 2015 edition of the Herald Weekly. I decided to re-post this piece after the FB dialogue this weekend with Sen. Jeff Tarte and others and after reading the recent opinion piece in the Observer by Yaël Ossowski. Mr. Ossowski touches on a number of alcohol related laws in need of revising, including Sunday alcohol sales. But he also references the popular “Craft Freedom” movement attempting to revise the current distribution scheme for brewers in the state. I’m glad state legislators (and even the Observer editorial staff) are finally coming around to changing this decades old rigged system, but you have to ask what took so long (or you can just be a cynic and assume campaign contributions from a certain special interest group kept the rigged system in place for so long…). Apparently brewers just needed a catchy social media campaign to get the attention of legislators since basic arguments against protectionism failed to be persuasive.

Hopefully my #SundayEquality campaign will eventually have the same success in the legislature as the Craft Freedom campaign seems to be having.

Eric


Huntersville residents and all North Carolinians of legal drinking age should be allowed the choice to purchase alcohol anywhere it is sold before noon on Sunday. (For the purpose of this column, I’m referring to beer and wine only.)

The current reason this choice is not allowed is due to N.C. General Statute 18B-1004(c) which states, “It shall be unlawful to sell or consume alcoholic beverages on any licensed premises from the time at which sale or consumption must cease on Sunday morning until 12:00 Noon on that day.”

This is an antiquated law that needs to be repealed.

 Why did the legislature select the arbitrary hour of noon on Sunday to allow for the sale and purchase of alcohol to resume? Why not 11 a.m.? Or why not leave it at 1 p.m. like it was until 1993, when the legislature changed the time to noon [SL 1993-243]?

Why restrict alcohol purchases before noon on Sundays only instead of enacting the same time restriction every day of the week?

Why only ban the sale or consumption of alcohol before noon, but not the wholesale delivery of alcohol before noon as outlined in the exception granted to wholesalers in 18B-1004(e)?

These would be questions a reasonable person would ask if they had never heard of “blue laws” or our state’s limit on Sunday alcohol sales. I emailed every legislator in the General Assembly and the Governor and requested any rational reason for continuing to enforce N.C.G.S. 18B-1004(c); I received very few responses.

Sen. Jeff Tarte’s response was representative of the few responses I did receive – why change the status quo?

“I have no problem with the current situation because the vast majority of citizens have expressed no issue with the current law,” he wrote. “Nothing more and nothing less.”

Understood, but I would argue the lack of citizens explicitly requesting the law be changed is not evidence of their continued support of the status quo.

It’s not my intent to delve into the implied religious basis of this and other so-called “blue laws” here, but maybe a reader can point to the place in the Bible where it prohibits the sale of alcohol before noon Eastern Standard Time on Sunday? And what about Friday and Saturday? These days are considered to be Sabbath or significant by two of the largest religious groups in the world.

If the General Assembly won’t extend the statewide ban on the sale of alcohol before noon on Sunday for the entire week, surely they should respect the traditions of two of the largest religious groups in the world and also ban the sale of alcohol before noon on Friday and Saturday, right?

I recently spoke with representatives of the growing craft-beer scene in Huntersville and Cornelius for their opinions on this issue. Ray Steimel, co-owner of Primal Brewery, said the law doesn’t affect his business much because most of his customers don’t arrive until around 2 p.m. on Sundays.

But he did express frustration with the law as a consumer, as did Matt Glidden, owner of Ass Clown Brewery in Cornelius, citing Sundays on Lake Norman as an example. Glidden said he would love to at least have the option to open and sell alcohol before noon on Sundays for special events, but since this option isn’t available, he stated the law is, “out of sight, out of mind.”

Primal is currently open on Sundays, while Ass Clown is not. Glidden doesn’t think craft beer businesses would be greatly affected by a change in the law, but he does feel the coming craft distillery boom is going to be greatly hampered by both the noon prohibition and also the current monopoly on spirituous liquor sales in N.C. enforced by the ABC Commission.

The Sunday alcohol sales time was last changed more than 20 years ago. It’s past time for another change. I welcome readers to provide their own rational reasons for maintaining the status quo if they disagree.

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