Wednesday, July 31, 2013

An Oklahoma City Surgical Hospital Leads In Cost Transparency: Who Knew?

Want to know how hospital costs compare for surgical procedures? You mostly can't find out.

Unless you have the surgery done in Oklahoma City.

Good for them!

Monday, July 29, 2013

Public Access To Water: Big Problem On Chesapeake

Chesapeake Bay: 11,684 miles of shoreline, equal to the distance of the entire West Coast, from Mexico to Canada. But only 2% of it provides public access to the water.

Good article in yesterday's Washington Post about the problem and efforts to correct it. Some describe the Chesapeake as a large gated community.

It's hard to correct a problem this size. Once public access points are in private hands, the public never gets them back.

That's why Oriental's citizens have fought so hard to keep public access points like South Avenue in public hands.

It's all about the water.

Sunday, July 28, 2013

Seventy Years Ago: Mussolini Falls

July 28, 1943: Franklin Delano Roosevelt delivers a fireside chat on the fall of Mussolini. And what a chat it was!

No American who heard FDR speak on that day could fail to note that we were all in this together, and we were winning!

Not many leaders have ever had the skill of FDR at putting events into perspective.

Read the whole, inspiring fireside chat here.

And celebrate with a cup of unrationed coffee.

Saturday, July 27, 2013

Voter ID Is Just The Beginning

We've seen this movie before. A couple of years ago, I called attention to the voter suppression effort in Texas.

Now Texas has to take a back seat to North Carolina.

This is all so familiar. Until the US Supreme Court ruled them unconstitutional in 1944, Texas, like other states of the former Confederacy, held whites-only primaries. In 1960, when I attempted to register in Mississippi while I was serving at sea in the Western Pacific, the Washington County registrar told me they had received my federal post card application form too late. I knew that was a lie. I was the ship's voting officer and I knew that voter registration in Mississippi was permanent. How could I be too late for permanent? I also knew what the real problem was. There was no block in the application to indicate race. What if the registrar had inadvertently registered a black man?

Return with us now to the thrilling days of yesteryear.

Changes To NC Election Law: Down To Forty-Nine Pages

I just printed off a copy of HB 589, as passed by the General Assembly. Here is the text.

It should be titled the Voter Obstruction and Suppression Act of 2013. The voter photo ID provision has received the most attention, but there are a lot more provisions that need scrutiny.

Within Pamlico County, there was concern about a provision doing away with the direct record (touch screen) voting equipment that we use and are very satisfied with. The bill had called for eliminating them for all elections after January 1, 2014. We had done a quick estimate and concluded the change to scanned paper ballots would cost the County about a quarter of a million dollars. Implementation of that change has now been delayed until 2018.

That's about the only moderately good news. Details later.


Thursday, July 25, 2013

Fifty-Seven Pages Of Changes To NC Election Law

The Senate Rules Committee today engrossed the fifth edition of House Bill 589, known as "VIVA Election Reform." Initial reports are that the bill makes drastic changes to election procedures. The current version of what had been a fourteen page bill has expanded to fifty-seven pages and can be read here.

I am tempted to plunge right in with my first impressions of the bill, which are not favorable. I'll have more to say after I have studied the bill more carefully.

Wednesday, July 24, 2013

Warren Johnson July 3, 2012: "What Have We Just Done?"

At the public hearing on closing Avenue A and South Avenue, held July 3, 2012, twenty local citizens spoke. Half were opposed to the land swap and half supported it. Among the speakers were three attorneys. All three opposed the swap for legal reasons.

When the public hearing was closed, the Town Board began discussing what action(s) to take. It was a confusing discussion. Afterwards, many attendees asked for clarification. It appeared that many of the commissioners were also confused.

A few days later, I obtained a copy of the Town's audio recording of the public hearing. It was not until I listened to the recording that I was able to follow what happened, even though I attended the hearing.

As a public service, I am providing a complete transcription of the discussion by the Town Board following the public hearing:


Transcription Board of Commissioners of Town of Oriental meeting
of July 3, 2012, deliberation by Board members after closing public
hearing: Source – Official digital audio recording made by Town of Oriental
[Time in Hours, Minutes and Seconds From Start of Audio Recording]

[...Public Hearing Closed] 1:11:21

Bill Sage (Sage): 1:11:40
There are basically two halves to get to what all the experts seem to agree is a
legal end. And that is closing these street rights of way and acquiring in fee
simple the yellow lot as you see it there.

One train of thought is that we proceed as we are proceeding tonight with closing
the street rights of way and then accepting the donation of the property shown
there in yellow.

The other train of thought is that we treat it as or we approach it as an exchange.
NC State law provides for and empowers a municipality to exchange a property
interest *or an interest in real estate, or personal property for that matter, for other
property. And there is a procedure set out basically in section 160A-271 for an
exchange of property interests.
[*Not exactly. Must be property belonging to the Town. Not “an interest.”]

And one of the options that the Board has is instead of choosing which of the two
paths to take to touch both bases and go through not only the street closing and
donation process which we we’ve taken another step towards tonight by having
this hearing, but also to go through the exchange process. And that of course
would entail a postponement of a decision on closing the streets for purposes of
gathering the necessary information and giving the necessary notices that the
statute requires under the exchange provisions. And so we can proceed with
consideration of closing the streets or we can defer a decision on closing the
streets so as to bring forward the necessary notices and information to comply
with section 160A-271.

Barbara Venturi (Venturi): Point of clarification; what additional information would we
be collecting and putting out?

Sage : 1:15:19
Under 160A-271, the town may by private negotiations enter into
an exchange of real or personal property *[Note: “belonging to the city”] if it is satisfied
that it receives full and fair consideration in exchange for its property. And it requires
that notice to be given by publication of the meeting at which the town board will
consider the exchange. And the notice must state the value of the properties.
[Note repeated misrepresentation of the statute.]

Larry Summers (Summers): [whispering to Venturi “I have a motion on this...”]

Summers: 1:15:36 I’d like to make a motion...
??:
“That’s enough to... receive it.”
[papers shuffling] [Summers submitted a written motion. No copy was
provided to the public in violation of NCGS 318.13(c).]

Sage: [Venturi recognized]

Venturi: 1:16:06
Indistinct... “model for openness”... indistinct...]
“If it is appropriate to follow two lines of action to ensure that all obstacle courses
have been dealt with, I move that we go forward on the full and fair consideration
including notice to the public, that would include appraisals as soon as appraisals
or evaluations of the properties and considerations...”

Sage: 1:16:53 “...Motion by Commissioner Venturi to pursue the exchange of property
provisions of section 160A-271 postponing a decision on the street closure until such
time as a public meeting is noticed to the public and published for consideration of the
exchange. Seconded by Commissioner Johnson, any discussion?” 

[Note: portion in italics is the motion on the floor as stated by the mayor.]

Summers: “I’d like to make a point of order to the attorney: Is what we are doing an
exchange of property or a closure of a right of way?”

Scott Davis: “I think it can fairly be viewed as an exchange.”

Venturi: 1:18:20 [Indistinct... “appraisals, comparison full and fair”... indistinct.]
“if it is considered a swap, we should at least value these things and provide the
ability to prepare these properties for the public.”

Warren Johnson (Johnson): “By doing so, will we not be covering all our bases?”

Scott Davis: 1:19:00 “That’s the theory. As Mr. Cox and others have pointed out*,
there are a number of ways to structure this transaction - I have spoken to no-one that has
come to the conclusion that we cannot achieve this result.
“The theorical [sic] differences are in how we get there.

[*Cox had previously suggested Town lacked authority for exchange and
suggested stand alone transactions with dedication to public or deed
restriction. Town response: “Don't tie our hands.”]

“There’s camp that likes an exchange agreement, there’s a camp that likes a pure
exchange, there’s a camp that likes a street closing and a donation separated.
“And we don’t have any case-law that tells us what the magic recipe is. *

[*Translation: “We can't find a case that says we can do this.”]

“So here, since we have folks who have alternate points of view, and there’s
nothing that precludes us from trying to accommodate those different points of views,
meaning there is no down side to doing it both ways, and there is potential up-side if one
way is determined to be superior...

“...[1:19:41] so to me it’s a rather easy path to go down, to take the more prudent
course to do it both ways, and hopefully, one of those two ways takes.”

Venturi: [Indistinct about fact that holding a hearing doesn’t mean the Board must vote]

Scott Davis: [no, you would do that later, and you’d take evidence and vote]

Summers:
“I am opposed to this thing, and I’ll tell you what, we’ve been working on
this thing for seven months [subdued “oooh”s from the audience] [... indistinct...I hear a
lot of legal opinions anyone here a lawyer?” ...]

Jim Privette [from audience:] “yes”

Summers: “Experience in municipal law?”

Privette: “Yes. Municipal attorney in North Carolina.”

Summers: 1:21:34 “The other thing is: appraising the property. I look at this piece of
property, we don’t own the property, we own an easement, as Bill Marlow said,
and I look at that, what can you do with an easement?
“You can’t sell an easement, you can’t eat an easement, you can only close an
easement, that’s the only thing that you can do.

[Note: Summers got that right!]

“What we’re looking at doing is closing streets, and then being offered in
exchange, if we close the streets, you will receive X as a donation to the, for the
good of the Town.
“I think that’s a wonderful thing, and I think it’s a wonderful piece of property for
it.

“Grace Evans brought up something that I think is really important here. One of
the reasons we have a problem now, with our anchorage, is because of the five
acres that was sent out there with Oriental Harbor Marina... We have killed the
goose that laid the golden egg for Oriental... That’s what we did and I absolutely
believe that.

“I would like to be able to go over and put my chair on that property on Saturday
night and watch the fireworks, but I guess if we do this, we can’t. I am a believer
in doing it, and if this motion fails, I will offer a motion to close the streets.”

Sherril Styron (Styron): “If it’s gonna take one more month to do it right, I don’t have a
problem with that, but Avenue A: I can see no reason for that not to be closed, whether
we are doing exchanging or do nothing else, Chris Fulcher owns the property on every
side of it.
“It goes nowhere, except dead-ends in his property... [words to the effect that
opponents envy Chris Fulcher]... no matter what we do, I think Avenue A should
be closed, and I’m prepared to do it tonight, unless the attorney feels like we need
to wait until next week.
“I’ve not heard nothing tonight that changes my mind on what we need to do. I
would love to proceed as quick as we can and close this out.
“But if Scott feels like we need to wait one more month I’ll go along with it.”

Sage: “Any further comment or questions? OK, Motion is postponing a decision and
complying with...”

Venturi: “Can we get an idea from the attorney...”

Scott Davis: “...You can bifurcate the street closing, if the board wants to. By separate
motion - you can determine tonight to close any portion that has been noticed, leaving the
remaining portion to be dealt with at some later date.”

Venturi: “I do agree with Sherill, I think Avenue A is nothing but a liability written all
over it. But we had a motion to move forward...”

Scott Davis: “And recognizing, I just wanna say this out loud;
“That if you determine later not to close the terminus of South Avenue, and you
close Avenue A tonight, It’s done. “And there’ll be nothing in exchange for that,
just purely a closing of Avenue A.”

Sage: “All in favor of the motion, say Aye.”

Johnson: “Aye”

Venturi: “Aye”

Styron: “What?”

Sage: 1:25:28 “All in favor of the motion for the Town to take the steps to comply with
section 260A-271, developing information on full and fair consideration. Say aye.”

Venturi + Michelle Bissette (Bissette): “Aye”

Sage: “Raise your hands to say aye... Motion carries, we will take the steps to comply
with the provisions of 160A-271.

Sage: “Motion to close Avenue A would be in order...*”
[*This move, following passage of motion to postpone confused both the audience and the Board.]
Summers: “I’ll do that one.

Summers: “I move that the Town of Oriental close the streets as indicated on this with the exception of the South Avenue terminus, on that motion that I handed out earlier, to close Avenue A and the other possible rights of way in the back portion of that property.”

Scott Davis: “Let’s edit that motion in the continuation of the discussion regarding the South Avenue terminus - is that part of your motion?
“You move to close Avenue A, it’d be nice in that motion to also continue the
deliberation in consideration - ”

Summers: “Let me restate the motion, if I may, Mr. Mayor.
“I’d like to move that the Town of Oriental close the following town streets, along
with any rights of way formerly indicated as being located in the area bounded by
the Western margin of the right of way of Wall Street on the East, the Neuse
River on the South, Smith and Raccoon Creeks on the West, and the Southern
margin of the right of way of South Avenue on the North - said street portions
being lawfully described as follows: Avenue A, and its got the other writing on
there, other possible rights of way, but to defer the closing of the South Avenue
terminus, to a specific date... the next full regular town meeting. The August
meeting.”

Sage: “Motion by Mr. Summers for this Board to close Avenue A and other possible
rights of way as described in the notice of intention in the area bounded on the West by Raccoon and Smith Creek, on the North by the South margin of South Avenue, on the East by the Western margin of Wall Street, and on the South by the Neuse River.
“Seconded by Commissioner Styron.”
“... and to continue consideration of the closure of the South Avenue terminus for
the August 2012 regularly scheduled Town Board meeting.

Scott Davis: “Another recommendation might be to further amend that motion to provide that you have found that closing the street is not land-locking property owners, and is not contrary to the public interest.*”
[*Another intervention by Town Attorney to include conclusions on matters not
discussed or deliberated on by Town Board.]

Sage: “Will you make an amendment?”

Summers: 1:29:29 “Yes, I will amend that... it is to the satisfaction of the Board after the hearing that closing the above-referenced streets are not contrary to the public interests, and that no individual owning property in the vicinity of the street or alley, or in the subdivision in which it is located, would thereby be deprived of a reasonable means of ingress and egress to their property.”

Sage: 1:29:43 Repeats Motion, asks for discussion;

Johnson: 1:30:25
“I can't imagine this transaction not happening next month. But
let's say it dies or goes away. What have we just done?

Styron: All we've done is close a street [or words to that effect].

Johnson: 1:30:25 Yes, but it's part of the transaction. If for some reason.[indistinct]

Sage: 1:31:20 Calls for vote. Announces motion passes, 4-1 (Johnson voting “nay.”
Noise in room, Sage gavels meeting.

Sage: 1:31:30 “Motion carries. An order will be entered closing the streets as described.”

Tuesday, July 23, 2013

South Avenue: What Has The Town Of Oriental Bought?

At meetings in June, Town Board members informed the public that the property offered by Mr. Fulcher in return for the Town closing certain public rights of way "now belong to us."

It's true. Even though the closings of Avenue A and South Avenue are under challenge in the courts, the Town has moved ahead with the deal. In late May, the transfer of property from one of Mr. Fulcher's Companies, Fulcher Point, LLC, was recorded at the Pamlico County Register of Deeds.

What did the Town get?

The deed itself is a "non- warranty deed." In other words, a quit claim deed. That means that whatever interest Mr. Fulcher may have in the property (if any) now belongs to the Town. No guarantees.

The property belongs to the municipal corporation, governed by the Board of Commissioners, in fee simple.

Can they sell it? Yes. All it takes is three votes on the Board and public notice.

Unlike Lou-Mac Park, there are no deed restrictions.

Is it dedicated to the public? No.

Can the Board dedicate it to the public? No. At the hearing of March 4 before Judge Alford, the Town's attorneys presented no case law supporting the contention that the Town can sell or trade a public right of way for something of value. But they made a very strong case, citing a case from the Town of Valdese in the 1980's, that future boards cannot be prevented from selling real property they own in fee simple. Nothing this Board does now can prevent any future Board from doing whatever they want with the land. There is no protection for the property as a public access point to the water, other than the will of the Board.

By the way, the Town Attorney told the Board at the public hearing on July 3, 2012 that there was no case law supporting what they were doing. "And we don't have any case law," he said, "that tells us what the magic recipe is." That should have set off alarm bells.

Is the property contaminated? Yes.

Fuel Tanks that subsequently spilled on Town's new property
(click photo to enlarge)
Some years ago, tanks containing 20,000 gallons of diesel fuel spilled its entire contents onto the property. There is no record that the contamination was ever cleaned up.


Are there other problems with the deal? Yes. Too numerous to mention.

Was the land swap lawful? The court case is going forward to the North Carolina Court of Appeals. They will have the final say.

Was the land swap wise? You decide.

More background here.