Rude Awakening

How would you like to be awakened by an airplane landing in your living room?

It happened in Herndon, Virginia. Fortunately, it was a small airplane and no one was killed.

Still and all, pretty unsettling.

Republicans Are Nuts

Maybe I should amend the title: Some Republicans are Nuts. Rick Santorum, for example.

Today's headline:

Senate rejects treaty to protect disabled around the world

 The article: here.

As far as I can tell (it's just a guess), Santorum is afraid some black helicopter is going to swoop in from UN headquarters and take his tin foil hat away.

Jon Kyl seems to oppose it on the theory that some of the signatories are bad people and won't comply, even though they have signed. 

It is embarrassing to the country and should be embarrassing to the Republican Party that 38 senators voted against an international version of Senator Bob Dole's signature accomplishment, the ADA.

 Update: A Washington Post op-ed explains why the 38 Republicans who voted against the international treaty to protect the disabled were not only wrong (nuts), but also cowardly. They tried to hide their votes not only from constituents but also from Senator Dole, to whom many had promised support. They knew it was nuts, but were afraid to oppose the crazies. Does that make then "chicken nuts?"

More Thoughts On Trayvon Martin

Here's a thought-provoking op-ed from the New York Times tying the Trayvon Martin killing to the rapid growth of gated communities and the fear that feeds them.

The author, Rich Benjamin, suggests taking a broader view than just race toward "stand your ground" laws. "Those reducing this tragedy to racism," he observes,  "miss a more accurate and painful picture. Why is a child dead? The rise of “secure,” gated communities, private cops, private roads, private parks, private schools, private playgrounds — private, private, private —exacerbates biased treatment against the young, the colored and the presumably poor."

But it is clearly about fear - unreasoning, irrational fear, fed by clever marketing.

Earlier, I referred to "stand your ground" as a lynch law. Some seem to think of lynching as a racist phenomenon. I don't. Out West, there were many lynchings of alleged robbers, horse thieves, rapists and other miscreants who were white.

Henry Fonda's "The Ox-Bow Incident" is only one of many western movies depicting the theme.

What is common about lynchings, whomever the victims, is that private citizens take the law into their own hands. More to the point, lynchings demonstrate a contempt for the rule of law itself. "Stand your ground" laws are founded on contempt for professional law enforcement.

American Exceptionalism?

Were the police on the campus of the University of California, Davis, exceptionally annoyed? Perhaps they were exceptionally incompetent.

One of the mysteries of the Occupy movement is how, from coast to coast, authorities have acted with disproportionate force to a petty annoyance. A justified petty annoyance, at that, but it hardly matters.

Just more evidence of how little wisdom informs the world's governance.

Town Of Oriental Charter, 1899

This morning at the Bean before I arrived, an incumbent commissioner loudly disputed with another patron my contention that hiring policemen is the manager's job. The commissioner insists that the 1899 charter provision in Section 3 that the town's officers include a constable, "who shall be elected by the commissioners" authorizes the board of commissioners rather than the town manager to hire the town's police force.

It does not.

Am I certain? Yes, I am. The record is clear, and I can cite chapter and verse.

Earlier today I shared the information with Town Hall:

Special Meeting on Police

From:	David Cox
To:	bob maxbauer ; billsage@townoforiental.com; Warren Johnson ; jenniferroe@townoforiental.com; barbara venturi ; Candy Bohmert

---

"To Town Officials:
I was pleased to learn that the board will meet Friday to address the question of a suitable police force for Oriental. I may not be able to attend much of the meeting that day, because of a prior commitment in Bayboro. Therefore, I want to provide the board of commissioners and the manager with some information I believe pertinent to the hiring procedure.

"As I have pointed out previously, we have a council-manager form of government, established by ordinance amending the charter of 1899, which ordinance was adopted in 1997. North Carolina General Statutes spell out the duties of a town manager in section 160A-148 as follows:
"§ 160A‑148. Powers and duties of manager.

"The manager shall be the chief administrator of the city. He shall be responsible to the council for administering all municipal affairs placed in his charge by them, and shall have the following powers and duties:

"(1) He shall appoint and suspend or remove all city officers and employees not elected by the people, and whose appointment or removal is not otherwise provided for by law, except the city attorney, in accordance with such general personnel rules, regulations, policies, or ordinances as the council may adopt.

"(2) He shall direct and supervise the administration of all departments, offices, and agencies of the city, subject to the general direction and control of the council, except as otherwise provided by law.

"(3) He shall attend all meetings of the council and recommend any measures that he deems expedient.

"(4) He shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council are faithfully executed within the city.

"(5) He shall prepare and submit the annual budget and capital program to the council.

"(6) He shall annually submit to the council and make available to the public a complete report on the finances and administrative activities of the city as of the end of the fiscal year.

"(7) He shall make any other reports that the council may require concerning the operations of city departments, offices, and agencies subject to his direction and control.

"(8) He shall perform any other duties that may be required or authorized by the council. (1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 22.)"

"I am told that certain commissioners believe 160A-148(1) does not apply to the hiring of a policeman because Section 3 of the town's charter of 1899 reads as follows:
"Section 3. That the officers of the town shall be a mayor, three commissioners, a constable, who shall be elected by the commissioners, and such other officers as the commissioners may deem necessary and proper, as provided by said chapter sixty-two of The Code [The Code of North Carolina, Enacted March 2, 1883]; Provided that no person shall be a mayor, commissioner or other officer of said town unless he be a qualified voter therein." This, some argue, meets the "whose appointment or removal is not otherwise provided for by law," provision of 160A-148(1). Not exactly.

"There is a problem with citing Section 3 of the charter as authority of any kind: a referendum held November 4, 1993 - the same referendum that changed the membership of the board to five commissioners - repealed both Section 3 and Section 7 of the Charter. The relevant wording of the Act to set a referendum (Chapter 878, Senate Bill 968, Session 1991) reads as follows:

"Sec 3. (a) Sections 3 and 7 of Chapter 184, Private Laws of 1899 are repealed.
(b) The Town of Oriental is governed by a mayor and a board of commissioners of five members. The mayor shall preside at all board of commissioners meetings, but shall have the right to vote only when there are equal numbers of votes in the affirmative and in the negative."

"I bring this to your attention, because I think it is important to comply with the law. In this case, I also believe the Charter as amended provides a sound basis for good management of the town. It allows the board to focus on policy and general oversight and the manager to focus on administering the town. A further benefit is that it provides clear lines of responsibility. No town employee reports to or is supervised in any way by any commissioner or by the mayor.

"I have intentionally not taken a position on particular candidates for the police position(s) because I don't know what the board's policy will be (e.g. how many police, whether they must live in town or nearby, etc.), and I haven't read the resumes of any candidates, don't know the status of any background investigations, their health status or other issues that a hiring authority needs to take into account. It's the manager's job to conduct proper hiring procedures as spelled out in the town's personnel manual.

"I have, however, long supported the concept of at least one full time and one part time policeman.

"I urge you to direct the town manager to begin the search.

"David Cox
Oriental"


This dispute has gone on too long.

Oriental Police Issue

Prior to May 21, 2009, Oriental had a two-person police force. On that day, officer Careway resigned "for personal reasons," leaving the town with a one-man force.

The board of commissioners decided, largely for financial reasons, to "try out" a one-man force for awhile. After about six months, I argued that the trial had failed, leaving us with the worst of all possible outcomes. On October 13, 2009, following a series of break-ins and other crimes, I asked for a special meeting to discuss the police situation. The minutes of that session are here. (For those who are paying attention - yes, I did second an improperly worded motion to go into closed session. I hadn't figured out the rule then.)

More than two years have passed since officer Careway resigned. Now our sole remaining police officer has retired, and no effective effort has been undertaken to replace him, much less carry out the hiring effort we voted on in October, 2009.

The Board of Commissioners owes the town a decision. We need a policy - publicly discussed in open session. What kind of police force do we want? How many officers? Do we want our policemen to live in town? Do we want them to live within X miles or Y minutes of the town? What qualifications do we seek - what certifications, what level of physical condition ? Do we simply close our police department and rely on the Sheriff? If so, do we negotiate an interlocal agreement so the Sheriff and his deputies are empowered to enforce Oriental Town Ordinances? These are policy matters for the board to decide.

To be sure, the board can go into closed session under NCGS 143-318.11(5) to establish or instruct the town manager concerning the amount of compensation and other material terms of an employment contract or proposed employment contract.

The actual search, once the board instructs the town manager as to policy, is the manager's job. Once hired, under NCGS, the senior police officer (whatever we call him) reports to the town manager, who is the responsible official.

The Wicked Witch is Dead

The television scene of a wildly enthusiastic crowd dancing and waving flags in Lafayette Square last night across from the White House reminded me of nothing so much as the dance of the Munchkins in the Wizard of Oz when Dorothy's house fell on the wicked witch. The enthusiasm was understandable, but at the same time, there is something unseemly about it.

So I was relieved to learn that the military force that killed Osama bin Laden and retrieved his body treated his remains with respect. That is in keeping with an older military tradition.

An example of this older tradition occurred during the Battle of Santiago during the Spanish American War. The Spanish fleet, which had been bottled up by the US Navy, attempted a break out. They had not gone far when the battleship USS New York engaged the ships in a withering fire from her big guns. Spanish ships burned and sank, to the cheers of New York's sailors.

"Don't cheer boys, the poor devils are dying" New York's skipper, Captain John W. Philip, a Civil War veteran, chided his seamen.

Ninety years later, in July 1988, USS Vincennes, an Aegis cruiser, shot down Iranian Air flight 655, killing 290 passengers and crew. The aircraft was in Iranian airspace in an international civilian air corridor. A television crew on board to film the ship in action recorded the crew on the ship's bridge cheering the shoot-down. I'm sure those crew members later regretted their cheers.

War is a solemn business, not like a football game. Save the cheering for later.

At this writing, it appears our Seals successfully limited collateral damage to civilians. We should be very thankful for that.

Radiation is Scary - But It's All Around Us

Like most folks, I've been watching the TV reports of the disaster in Japan. I'm in awe of the courage and persistence of the nuclear plant workers. They didn't give up, despite the hazards, and they seem to be gaining the upper hand. And the populace hasn't panicked.

What about those face masks so many Japanese are wearing? They won't do any good against gamma rays, but they can be very effective against alpha particles. You don't want alpha particles to get inside your body.

Does all this mean we must abandon nuclear power?

No.

How hazardous is nuclear power?

Today's Dot Earth blog on the New York Times site addresses the issue of "Dread to Risk." The article is worth reading. The most interesting link is to a chart comparing radiation dosage in various circumstances. It shows, for example, that eating a single banana exposes one to more radiation than living for a year in the vicinity of a nuclear generation plant. Living near a coal powered generation plant exposes you to three times as much radiation as living near a nuclear plant. Take a look at the table.

The risk is low. But clearly not zero in case of a major disaster such as an earthquake and tsunami.

The present disaster in Japan is a result of the 40-year old design, which requires a very complex cooling system with backups.

What this suggests is that we should investigate other types of nuclear reactors. The most dangerous kind of reactor is the graphite moderated reactor of the Chernobyl variety. Next most dangerous are the boiling water reactors like Three Mile Island and like those used in Japan. A better reactor type is the pressure water reactors like many of our newer reactors.

All of these reactors require intact and functional cooling systems to insure safety.

China is moving ahead with an ambitious plan to mass produce an inherently safe reactor design, known as a pebble bed reactor. There are other candidate designs that will not overheat and explode if cooling fails.

It is past time to invest in safer designs.

One thing to remember: there is no risk-free way of producing and using the large amounts of energy needed for modern civilization.

Each year, about 2500 Americans die in residential fires. Many of these happen in winter and result from use of kerosene heaters.

Let's put our hazards in perspective.

Japanese Serenity

It has been 45 years since I lived in Japan.

Much has changed, but much remains the same.

Forty-five years ago, it was not clear that Japanese would accept nuclear power.

What was clear even then was the ability of Japanese society to pull together.

American newspapers write of panic in Japan. As I watch the coverage, I see no signs of panic. Everyone is going about their business with purpose, and the purpose is to help each other.

It reminds me of Reinhold Neibuhr's Serenity Prayer:

God grant me the serenity
to accept the things I cannot change;
courage to change the things I can;
and wisdom to know the difference.

Second Amendment: What Was It Really About?

"When the legend becomes fact, print the legend." (The Man Who Shot Liberty Valance).

The legend is that the Second Amendment to the United States Constitution granted individuals the right to own firearms. In fact: that wasn't the issue at all; the right was a collective one, not an individual one, and it is best understood as the "Anti Redcoat Amendment," though no one called it that. It is worth remembering that the Constitution was drafted a mere dozen years after British Army regulars marched on Lexington and Concord to take custody of or destroy the powder, cannon and other military supplies of the well-organized and trained New England militia.

For the past weeks, the nation has been enthralled by the dramatic events in Tucson - the attempted assassination of Congresswoman Giffords, the killing of bystanders, including a federal judge and a nine-year old girl, and the question of what to do to prevent future incidents.

The almost universal observation by commentators is that we can't regulate guns because of the Second Amendment. Politicians compete to express the strongest support for "our Second Amendment rights."

In two recent 5-4 Supreme Court decisions, the Court determined that the Second Amendment right to "keep and bear arms" is a personal right.

So what was the "original intent" of the Second Amendment?

A good place to look might be the North Carolina ratification resolution. A North Carolina convention met from July 21st to August 4th 1788 and adjourned without either ratifying or rejecting the proposed Constitution. After ten other states ratified, the convention reconvened November 21st, 1789 and ratified. The convention appended to the resolution of ratification twenty declarations of rights and twenty-six proposed amendments. Several paragraphs of the declaration of rights as well as proposed amendments addressed issues later incorporated in the Second Amendment. These paragraphs make the original intent perfectly clear:

"DECLARATION OF RIGHTS....

"17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

[This passage, drafted by delegates opposed to the draft Constitution, makes it perfectly clear that the passage on bearing arms reflects opposition to and suspicion of a standing army.]

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

[This curious declaration makes it clear that "bearing arms" is something soldiers do. Otherwise, why call attention to those "religiously scrupulous" of bearing arms and make provision for such persons to pay for others to "bear arms" in their stead?]

"AMENDMENTS

"IX. That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.

[Another clear indication of opposition to standing armies in time of peace, unless the need was so obvious that it was supported by a super majority of both houses of Congress.]

X. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

[Another provision intended to limit the ability to form standing armies except in wartime.]

"XI. That each state, respectively, shall have the power to provide for organizing, arming and disciplining its own militia whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion: And when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.

[Intended to limit federal power over state militias.]

"XII. That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses. "

[Now we get to the point of all the provisions concerning the bearing of arms: give "the people" the right and powers to rebel against a repressive federal power. Presumably a rebellion supported by at least a third of of the members of both houses of Congress would thereby become legitimate.]

It is very instructive to read the North Carolina debates over ratification of the Constitution.

The most vehement opponent of ratification was Delegate Lenoir. He voiced his darkest suspicions that the proposed government might become oppressive, emphasizing opposition to a standing army in time of peace and postulating the need for a militia to defend the people against a repressive government.

Federalists countered, arguing in favor of a standing army, asserting "We must [either] trust our friends or trust our enemies."

Delegate Lenoir:

"A constitution ought to be understood by every one. The most humble and trifling characters in the country have a right to know what foundation they stand upon. I confess I do not see the end of the powers here proposed, nor the reasons for granting them. The principal end of a constitution is to set forth what must be given up for the community at large, and to secure those rights which ought never to be infringed. The proposed plan secures no right; or, if it does, it is in so vague and undeterminate a manner, that we do not understand it.

"My constituents instructed me to oppose the adoption of this Constitution. The principal reasons are as follow: The right of representation is not fairly and explicitly preserved to the people, it being easy to evade that privilege as provided in this system, and the terms of election being too long. If our General Assembly be corrupt, at the end of the year we can make new men of them by sending others in their stead. It is not so here. If there be any reason to think that human nature is corrupt, and that there is a disposition in men to aspire to power, they may embrace an opportunity, during their long continuance in office, by means of their powers, to take away the rights of the people. The senators are chosen for six years, and two thirds of them, with the President, have most extensive powers. They may enter into a dangerous combination. And they may be continually reëlected. The President may be as good a man as any in existence, but he is but a man. He may be corrupt. He has an opportunity of forming plans dangerous to the community at large.

"I shall not enter into the minutiæ of this system, but I conceive, whatever may have, been the intention of its framers, that it leads to a most dangerous aristocracy. It appears to me that, instead of securing the sovereignty of the states, it is calculated to melt them down into one solid empire. If the citizens of this state like a consolidated government, I hope they will have virtue enough to secure their rights.

"I am sorry to make use of the expression, but it appears to me to be a scheme to reduce this government to an aristocracy. It guaranties a republican form of government to the states; when all these powers are in Congress, it will only be a form. It will be past recovery, when Congress has the power of the purse and the sword. The power of the sword is in explicit terms given to it.

"The power of direct taxation gives the purse. They may prohibit the trial by jury, which is a most sacred and valuable right. There is nothing contained in this Constitution to bar them from it. The federal courts have also appellate cognizance of law and fact; the sole cause of which is to deprive the people of that trial, which it is optional in them to grant or not. We find no provision against infringement on the rights of conscience. Ecclesiastical courts may be established which will be destructive to our citizens. They may make any establishment they think proper. They have also an exclusive legislation in their ten miles square, to which may be added their power over the militia, who may be carried thither and kept there for life. Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury. We are told there is no cause to fear. When we consider the great powers of Congress, there is great cause of alarm. They can disarm the militia. If they were armed, they would be a resource against great oppressions. The laws of a great empire are difficult to be executed. If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence."

Ratification Temporarily Blocked

Delegate Lenoir and his fellow Anti Federalists succeeded in blocking ratification by North Carolina in 1788. By 1789, however, ten other states had ratified. North Carolina reconvened the Constitutional Convention for a short session and passed the following resolution:

"IN CONVENTION

Whereas The General Convention which met in Philadelphia in Pursuance of a recommendation of Congress, did recommend to the Citizens of the United States a Constitution or form of Government in the following words Vizt.

Resolved, that this Convention in behalf of the freemen, citizens and inhabitants of the State of North Carolina, do adopt and ratify the said Constitution and form of Government. Done in Convention this 21 day of November 1789.

SAM JOHNSTON, President of the Convention

J HUNT Secretaries

JAMES TAYLOR"

End "Complaint-Based System"

If I were asked what qualities or views I would seek in a new Town manager, at the top of my list would be the abandonment of the "complaint-based system" concept.

Our Town manager, the Chief of Police, the Mayor, and other elected and appointed officials keep reciting the mantra that we have a complaint based system of enforcing the Town's ordinances. If this is true, we should abandon the system.

Otherwise, we set neighbor against neighbor.

We saw the consequences of "complaint-based system" last Thursday. The Board of Commissioners seemed unable to resolve a neighborhood dispute, even after spending $1500 that was not budgeted.

If there arise in the course of Town affairs disputes between neighbors, the proper place to resolve such disputes is the courthouse in Bayboro. The Board of Commissioners is not a court and cannot rule in favor of one or the other disputant. What the Town Board is supposed to do, is make the rules (ordinances) that apply to everyone and rely on the Town manager and subordinate departments for enforcement.

Requiring a complaint to initiate enforcement results in inherently inconsistent, arbitrary and unfair enforcement.

If the Town is not going to enforce an ordinance, the Board shouldn't pass it. If an unenforceable or unenforced ordinance remains on the books, it should be repealed. (I tried to do that last year with the chicken ordinance, without success).

Then the Police Chief, the Town Manager, etc. could simply enforce the ordinance anywhere in town against any resident, owner or business, without requiring a citizen complaint.

All too often, when a citizen complaint initiates action, another citizen makes a counter complaint and the Town Board members choose up sides, perhaps based on personal animosities or likes and dislikes, rather than enforcement of existing ordinances or judging what new ordinances or amendments are best for the Town.

That's no way to run a government.

The Sheriff

There was great relief in Oriental when we learned that the County Sheriff's Department had arrested the alleged perpetrators of a number of recent break-ins and thefts in and around Oriental. That's good news.

Less good is the thought that it was the Sheriff's Office, headquartered in Bayboro, that broke the case instead of our own one-man police department. There are a number of possible conclusions that could be drawn:
1. Our police chief is ineffective;
2. A one-man police department isn't adequate to the task;
3. Oriental should expand its police department;
4. Oriental should close its police department and rely on the County Sheriff for law enforcement.

I have thought about our options and conclude that ours is the worst of all possible arrangements. We would be better off if we hired additional police officers, acquired additional police vehicles (bicycle? motorcycle?), and provided a suitable office from which the force could work. The downside is that it would be more expensive.

Alternatively, we would arguably be better off if we closed our one-man police department and turned enforcement over to the Sheriff. That approach also has a downside: the limited number of deputies available to the Sheriff to cover a large and sparsely populated county. Furthermore, in the absence of a specific inter local agreement, the Sheriff is unlikely to enforce Oriental's municipal ordinances.

In either event, The Town of Oriental should consider inter local agreements to establish procedures for exchanging information between town and county officials, including police reports. I believe we should also establish clear procedures wherein our citizens would summon help by calling 911, whatever the emergency. It would be up to our own police force to keep the dispatcher informed at all times of our officers' whereabouts, duty status, and how they can be reached. Citizens shouldn't have to hunt down the person on duty.

Public Safety

At the 13 October special meeting of the Town Board (called by me and Candy Bohmert), the Board of Commissioners directed the Town Manager to initiate the hire of two part time deputy policemen and to begin efforts to establish a neighborhood watch program for Oriental.

It was clear from the public comments at the meeting that most attendees shared my view that we have tried a one-man police force and it doesn't work. I asked for the special meeting because I thought the matter too urgent to wait for the next regular meeting. I hope we will be ready to move on the first part-time hire by October 23.

The Board recognized that part time hires will be only a temporary solution and that we should consider at least one full-time hire as a possible longer-term measure. The procedure to hire another full time policemen can be expected to take at least ten to twelve weeks. We expect the newly elected board to take this up in December.

Oriental Police Department

Last spring, Oriental's police deputy unexpectedly resigned. The town commissioners decided to try a one-person police department. That trial has not worked out as well as the commissioners had hoped. Providing police protection for Oriental appears too big a job for one man.

Sheriff Sawyer has been extremely helpful in providing back up to our only policeman, but response time is a problem because Sheriff's Deputies have much further to travel than our local policeman. In recent weeks the County Sheriff has responded more frequently to incidents in Oriental than has our own Chief. Last Wednesday morning, thieves stripped an SUV parked at the corner of Oriental's two main streets. The County Sheriff responded to that incident, as well.

I believe we urgently need to recruit a well-qualified part-time policeman as an interim measure, and review our long range options, which may include a full-time deputy. The Town Board will have a special meeting at 5:00 October 13 to address some of these issues.

We should put public safety first.