Wednesday, July 28, 2010

Stop the Presses II

A couple of comments were posted taking issue with my previous post "Stop the Presses."

We need to be clear on a few points:

First, it would be good for all political parties and all candidates if there were no deceased voters or moved voters on the voter registration rolls. The reason is that parties and candidates rely on voter registration lists for candidate mailings, telephone calls to get out targeted voters, and other activities in support of political campaigns.

Second, almost every political jurisdiction in the United States has deceased voters and moved voters on its voter registration rolls. The only exception is North Dakota: they do not have voter registration.

Third, as I have explained before, maintaining voter registration rolls is a continuous process. It isn't easy, and there is no automatic system to keep rolls up to date, especially when changes involve other states.

List maintenance is a challenging, but basically tedious administrative process. There is no reason for drama.

In Pamlico County, we are fortunate to have a skilled and knowledgeable Director of Elections, Lisa Bennett, who has made continuous and effective improvements in election administration over the past three years.

Without drama.

No need to stop the presses.

Friday, July 23, 2010

The Secret Meeting

Here it is! The long-awaited audio recording of the "Secret Meeting" between County Board of Elections Chair David Cox and Board Member Ed Credle during recess of the March 23 2010 Board meeting!

This is the recording that cost Pamlico County taxpayers $1,400 when Board Member Judy Smith consulted the county attorney about:
1) whether or not a recording she made of the March 23, 2010 Board of Elections meeting was a “public record” which she was therefore obliged to turn over to the Board’s custodian of records; and

2) if so, whether nineteen seconds of audio captured by her recorder when she left it running during a recess of the meeting is also a public record.


Ms. Smith recorded the March 23, 2010 BOE meeting in her capacity as Secretary in order to aid her in preparing minutes. She then refused multiple requests to provide the Board’s custodian of records with the recording. She also subsequently refused to provide recordings she made of the Board’s April 5, April 13, and April 20 meetings.

At the Board’s April 27 meeting, Ms. Smith was again asked to provide the recording to the Board as a public record, and she stated she would not provide the recording unless and until I and Mr. Credle agreed to “explain” to her satisfaction several comments she had recorded during a recess when she was outside the room.

I did not believe Ms. Smith had the right to hold recordings of public meetings as hostage for any reason, so I made a written demand under North Carolina General Statutes 132-5 that she turn over the recording. Ms. Smith contacted the county attorney, who explained that a recording of a public meeting made by the Secretary of a body to assist in preparing meeting minutes is a “public record,” and not a “personal” recording. Ms. Smith finally turned over a copy of the recording to the Board’s custodian of records.

As for the recording made during the recess, contrary to assertions made elsewhere, the county attorney never "advised [that the] segment of the recording [made during the recess] is a public document and is a part of the meeting business." The attorney never even listened to the recording to evaluate its content and determine whether the recess conversation actually involved Board of Elections “business.” Instead, he simply took his client's (Ms. Smith’s) assertions as true (as attorneys generally do when writing opinion letters to client inquiries);
“You [Ms. Smith] believe that a portion of the tape recording during the recess includes discussions regard Board of Elections’ business…If any of these assumptions or facts are incorrect… my opinion may change accordingly…"
- Jimmie B. Hicks, Jr. letter of May 6, 2010

Now that Ms. Smith has turned over the recording, including the portion recorded during the recess, we can all listen and determine whether Mr. Credle or I broke any rules.

The Accusations

Mr. George Smith wrote a letter to the editor of the County Compass newspaper asserting that two portions of the recess discussion violated open records and/or open meetings laws:
1) a discussion between Mr. Cox and Mr. Credle about some complaints made by members of the public during the public comments portion of the meeting; and
2) comments about a number of potential voter registration challenges.

The Rules:

What are the rules about two Board members speaking to each other while the third member is not present?

As of May 28th, the rule was: "it is within the law for a board chairman or member to meet individually and privately with each other to discuss a public matter if no action is taken through these individual meetings." Don Wright, General Counsel, State Board of Elections.

Recently the State Board has promulgated a new rule: "Members of county boards of election should refrain from two-person conversations touching on subjects that may come before the board for a decision. Conversations that concern elections but do not touch on subjects that may come before the board for decisions are not in violation of the law and are permissible." - Robert P. Joyce, UNC School of Government July 8, 2010.

In explaining the new rule, Mr. Joyce also made clear that conversations between a Board member and BOE staff members are not covered under the Open Meetings Act.

The Substance - Where is the Violation?

The second question is whether any of the above rules were violated by anyone who was recorded by Ms. Smith during the recess.

First, we should listen to what was said:

(Note: for some reason unknown to me, you may have to hit the "play" button twice to start the player)

(my best attempt of a transcript appears below, at the end of this posting)

In the recording, Mr. Credle and I have a brief exchange about things said by several speakers during the public comment period concerning events that allegedly occurred during the election of 2008. The deadline to file a protest of the 2008 election was November 18, 2008, 16 months before the meeting and conversations about which Mr. Smith complained took place. There was no way the Board could have taken any action on the allegations and complaints made by the speakers, no matter how well-founded they might have been.

Next you will hear SBOE District Election Technician Rosemary Blizzard wondering why the Board spent so much time discussing a number of potential voter registration challenges, commenting that the challengers should simply submit their challenges for consideration and decision by the Board. Pamlico County Director of Elections Lisa Bennett also jokingly suggested that the Board simply vote to remove all challenged voters. I responded to these comments with noncommittal “yeah”s, indicating I heard and understood what the staff members were saying, but giving no substantive responses in order to protect my complete impartiality in the event the potential challenges were brought before the Board for a quasi-judicial hearing and decision.

How does a brief discussion between Board Members Mr. Credle and myself about allegations upon which the Board had no power to act violate any of these rules?

How do comments made by BOE staff members to a Board Member about any matter whatsoever violate any of these rules?

Now we can all listen and decide for ourselves whether anything in the recess recording is a public document or reveals a violation of the NC Open Meetings Act.


Ed Credle: Give me a hand. (laughter)

Ed Credle: Give up, give up a "Jesse Jackson." (as Mr. Cox gave a hand to help Mr. Credle stand up) There ya go. Thank you. (laughing)

Dave Cox: Alright.

Ed Credle: I need to straighten up a little (sighs)…

Dave Cox: Yeah

Ed Credle: Gee. Thank you.

Dave Cox: Well, heh-heh.

Ed Credle: I’m catchin’ it.

Dave Cox: Yeah?

Ed Credle: Yeah. Yep. [indiscernible]

Dave Cox: I hope you can see who they focused on uh you know, Mesic and who they were looking at real closely in Oriental?

Ed Credle: Ha, ha. Yeah. OK, well we can take care of that.

Dave Cox: Yeah.

Lisa Bennett (entering room): Mr. Credle, I think I caught you napping [laughter]

Ed Credle: Almost. Wow. Almost. [laughter continues]

Rosemary Blizzard: [indistinct] ten minutes [indistinct].

Ed Credle: You got it.

Lisa Bennett: It’s still on (referring to audio recorder)

Rosemary Blizzard: Why are we discussing? Just turn it in. Y’all do the voting.

Dave Cox: Yeah.

Rosemary Blizzard: If you vote “no” you vote “no.”

Dave Cox: Yeah. It’s OK.

Rosemary Blizzard: Majority rules.

Lisa Bennett: Just vote “yes” so I can take them off, OK? [snickers].

Dave Cox: Yeah.

Lisa Bennett: "[indiscernible/laughing] Just get rid of ‘em."

Tuesday, July 20, 2010

Stop the Presses!

Heedless of the roaring machinery and tons of newsprint racing by inches from his elbow, the intrepid night editor rushed along the catwalk, leapt to the fire pole on the upper deck, slid skillfully to the lower level, ran up to the pressman and shouted in his ear: Stop the presses!

The pressman sounded the siren and pressed a toggle switch. The massive machine slowed, the sound diminishing. A worker trundled a cart carrying newly cast cylinders impressed with the reverse image of the front page. The headline, a mirror image of the page itself, screamed out in 72-point type:

"Deceased People on Pamlico County Voter Registration Rolls!"

Oh, the drama!

Cigarette dangling from his lip, the night editor returned to his office, put on his jacket, jammed a battered fedora on his head and called it a night. He felt the rumbling of the building as the presses started up again. He turned out the light, a note of regret on his face. If only he could have written a more surprising headline: "No Deceased People On Pamlico Voter Rolls!" That would be something - the only county in the nation.

Maybe next century. He fled into the dark shadows of the city, a dim street lamp in the distance.

Monday, July 19, 2010

South Avenue - Closed Minutes September 4, 2007

I promised to continue the saga of South Avenue as revealed in the closed minutes. On September 4, 2007 Attorney Davis reviewed "all the facts" regarding the South Avenue Litigation with the Town Board and handed out copies of the original case filed by Lacy Henry.

After laying out a theory of the case based on the original town map of 1900, Attorney Davis explained "the other side might argue, 'show me where those streets were condemned or acquired' and we cannot."

Actually, we could have easily done so. But Attorney Davis had never researched the necessary facts in the five years since the town filed its suit. No research. No discovery. No requests for production of documents. No requests for admissions. No interrogatories.

The truth is, Ben Hollowell, when he was town attorney in 1995 and 1996, had already laid the foundation for the case. He submitted queries to the NC Attorney General and to David Lawrence of the Institute of Government, the state's expert on right-of-way law. David Lawrence outlined the winning case.

The case was simple. A plat of 34 lots and associated streets was made by the Oriental Bulkhead Improvement Company and filed. The assets of the company were bought at auction by Mr. Benjamin Wallace O'Neal in 1917, before any lots were sold. Mr. O'Neal sold one of the lots in December, 1917 by reference to the plat and to the south edge of South Avenue. He sold at least thirty more lots from the plat in February, 1918. The town opened the section of South Avenue between Wall Street and Avenue A in early 1918. Under NC law, the sale of a single lot completed the dedication to the town and the opening of any portion of any street on the plat accepted the dedication, making it irrevocable.

Attorney Davis didn't do the research and didn't have either the necessary facts or the necessary legal theory. The known facts didn't completely support his own legal theory, but he barged ahead anyway. No wonder he tried to talk the town into settling.

The September 4 minutes are too long to attach here, and I would have to provide explanatory notes that would at least double the length. I'd be happy to share the minutes and explanations with anyone who asks.

More to come.

Open Meetings Act and Boards of Elections

Last week the Pamlico County Board of Elections joined other Boards at a training session in New Bern. We (the Pamlico Board) were handed a paper by Bob Joyce of the UNC School of Government concerning the Open Meetings Act and County and Municipal Boards of Elections.

The problem is that in North Carolina, such boards consist of three members and a discussion between any two of them can under certain circumstances be construed as an "official meeting." The previous interpretation by the State Board had been that two members could have a conversation, so long as no agreements were concluded and no votes taken.

The newly-promulgated rule is more restrictive: "Members of county boards of elections should refrain from two-person conversations touching on subjects that may come before the board for a decision." Then the paper goes on to call for common sense. Right.

I have been quite aware of the problems created by the Open Meetings Act. The public is right to be suspicious of back room deals. On the other hand, agreements have to be negotiated. Public meetings aren't the best place for such negotiations. The North Carolina state legislature has exempted itself from most of the requirements of the Open Meetings Act. Otherwise, nothing would get done. Or, alternatively, only the staffs would be allowed to negotiate, cutting the elected or appointed members of the public body out of the loop as active participants.

For smaller bodies - say, the Oriental NC Town Board, with very limited staff resources, drafting ordinances under the constraints of the Open Meetings Act becomes a challenge.

My solution was to start this blog. My theory is, I don't care who knows what my position is on a public issue. I'll just put it out there in the open. Any member of the public who wants to know can just look. What could be more open than that? Should other Board members be among those who want to know what I think, they can look, too. No secrets.

Saturday, July 17, 2010

Climate Change Events

Those who think climate change is a hoax might want to check out Dr. Jeff Masters' blog on Weather Underground web site. Something unusual seems to be going on, affecting the entire globe.

Thursday, July 15, 2010

Eyes on the Prize: the Prequel

Watching Eyes on the Prize last night on PBS brought back memories.

A decade before the Selma march, I was a student at the University of Mississippi (Ole Miss), quietly going about my business while under surveillance by agents of the White Citizens Council and the Mississippi State Sovereignty Commission. It was an interesting time.

In 1956, I worked with a group of students on an underground newspaper called the Nigble Papers. I was essentially the publisher, which mostly meant finding a mimeograph machine somewhere that wasn't under lock and key. It was much like what was known in the Soviet Union as samizdat.

Our paper was later reprinted under the title Southern Reposure by a small group of Mississippi citizens: P.D. East, editor and publisher of The Petal Paper of Petal, Mississippi (near Hattiesburg); Hodding Carter, editor and publisher of The Delta Democrat-Times of my then home town of Greenville, Mississippi; Professor James Silver of Ole Miss (one of my history professors); and William Faulkner.

I recently came across a reference to the event in P.D. East's memoirs, The Magnolia Jungle, in a book of collected narratives by Marion Barnwell.

Our efforts didn't accomplish much in the short term, but I'd like to believe they helped in the long run.

Tuesday, July 13, 2010

Eyes on the Prize

An important program note: tomorrow night, Wednesday, July 14 at 9:00PM, UNC TV Channel 25 will show a special edition of American Experience, Eyes on the Prize: Mississippi: Is This America? 1963-1964/Bridge to Freedom 1965. If you have never seen this powerful documentary, make a special point of doing so. Even if you have seen it, take another look. You will probably notice something you didn't notice before.

At 8:00, the lead-in program is Terry Sanford & The New South. The contrast between North Carolina and Mississippi in 1962 could hardly be more stark.

Monday, July 12, 2010

Closed Session Minutes - South Avenue I

A while back, I reported that I now have copies of closed session minutes relating to South Avenue.

Here is the first one:

"Town of Oriental - Board of Commissioners Meeting
August 7, 2007

The Oriental Town Board of Commissioners met on Tuesday August 7, 2007 at 6:00 pm at the Oriental Town Hall. Present were Mayor Styron and Commissioners Bohmert, Herlands, Inger and Venturi.

CLOSED SESSION: Attorney Davis informed the Board that Mr. Henry may offer the Town 30 feet in fee simple, down the middle of the right-of-way of South Avenue. The Board requested the offer in writing and in detail.

MOTION: Commissioner Bohmert made a motion to go out of closed session. Second by Commissioner Inger. Vote 4-0."

Comment: The Board was right to ask for a written, detailed offer. None was ever received, nor was it credible to expect one. The Town had in its possession a copy of Mr. Henry's CAMA permit for an eight-slip marina, using Mr. Henry's own lot and the full sixty-foot width of the Town's right-of-way. One can only wonder if Attorney Davis ever looked at it.

More later.

Meeting Minutes

There seems to be a lot of confusion about what goes into minutes of official meetings of government bodies.

Early this year, when Oriental Town Commissioners reviewed draft minutes, newly-elected Commissioner Jennifer Roe made it quite clear: minutes record what was done, not what was said. This general rule applies no matter what the nature of the body. Otherwise approval of the minutes becomes a reiteration of every argument raised at the previous meeting and so on, ad infinitum.

As for public records, any correspondence concerning the business of a board becomes a public record, including audio and video recordings of public meetings. The custodian of all public records of the County Board of Elections is Lisa Bennett, the Director of Elections.

Since the meeting of the County Board of Elections held March 23, 2010, all minutes have included the following statement: "An audio recording was made of the proceedings. A copy has been provided as a public record to the Director of Elections, who will maintain it in accordance with the Records Retention and Disposition Schedule for County and Municipal Boards of Elections, dated October 7, 2002."

Any citizen who wants a copy of any of these records should contact Lisa Bennett at the County Board of Elections - 745-4821.

Saturday, July 10, 2010

First the Facts - Then the Solution

There was some discussion at last Tuesday's meeting of the Oriental Board of Commissioners about the alleged need for a surveyor to determine how much of Mr. Henry's fence at the end of South Avenue needs to come down. As one of the attendees (our son Benjamin) pointed out, the answer is "all of it."

The next day, he showed Mayor Sage the "railroad iron" depicted on Mr. Henry's own survey of the premises that shows clearly that the entire fence along Mr. Henry's lot is in the town right of way. The survey also shows the boundary between the South Avenue right of way and Mr. Henry's lot marked by an iron pipe. Shooting a simple transit line from that point would complete the boundary.

The other side, between the town's right of way and Chris Fulcher's property may be more complicated. Even there, the town should consult the very detailed survey completed in late 2007 at the urging of the Town Attorney, which was never used. That survey may clear up any uncertainty. It shows a pipe found at the very edge of the right of way, though it is not immediately visible at the moment.

Another proposal is that the town may need to work a deal with Mr. Henry to allow the pavement to continue encroaching on Mr. Henry's lot to allow truck access to Chris Fulcher's property south of the avenue.

I don't think so. I checked to see the tuning radius needed to accommodate 18-wheelers. They require an inside radius of 45 feet and an outside radius of 65 feet. Once the fence is out of the way, there is enough room in the originally platted intersection to allow a curve with those dimensions. Let's check it out before doing any deals.

Thursday, July 1, 2010

Croaker Fest - Oriental Welcomes Visitors

Tomorrow, July 2, 2010, sees the opening of the Croaker Fest, Pamlico County's midsummer celebration, hosted each year in Oriental. It is a community event, prepared and carried out by many civic-minded people, from parade organizers to garbologists.

Oriental residents and businesses welcome the flood of visitors.

Except for a few. Some take the opportunity to block off "their" section of the town's right of way to prevent visitors from parking on "their" grass. Some even install permanent barriers to prevent parking on public property next to their houses.

Apart from the fact that blocking the town right of way is a violation of the law, it is an offense to the kind of neighborly welcome the rest of us try to extend to visitors. Shame on you!