There were more than a few curious utterances during last night's Town Board meeting.
One of the most curious was Mayor Sage's explanation to Oriental resident Ron Stevens concerning the delay in removing the fence in the town's right of way at the end of South Avenue. The mayor said that Mr. Henry wants the town to remove the paving on his property at the corner of South Avenue and Avenue A and that Mr. Henry wants to remove certain pieces of the former marine railway from the town's property.
Both claims of Mr. Henry lack merit.
The reason the town has pavement on the corner of Mr. Henry's lot is that the fence Mr. Henry placed in the town's right of way otherwise blocks access by commercial vehicles to Chris Fulcher's property. Has the town consulted either Mr. Fulcher or Mr. Fulcher's attorney about this request?
As for any pieces of equipment remaining on the town's property, Mr. Henry should have removed them in 1992, when his lease to that portion of the town's right of way expired.
This is spelled out in the lease, a copy of which was mailed to Mr. Marvin Jennings, Town Manager of Oriental* by Mr. Henry's attorney, Neil B. Whitford, on September 8, 1982. Mr. Whitford's letter and the accompanying lease are included as Exhibit J to PLAINTIFF TOWN OF ORIENTAL'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT filed by the Town Attorney, Michael Scott Davis*, December 28th, 2007.
After some whereas's, a therefore and a description of the bounds of the property, the lease goes on to say:
"The terms and conditions of the said lease are as follows:
1. Term of the lease shall commence on July 1, 1977 and shall terminate on June 30, 1992.
2. Lessee [Mr. Henry] will pay to lessor [Town of Oriental] a monthly rental in the sum of Thirty Dollars ($30.00) per month, payable on the first day of the month in advance.
3. All improvements and additions to the property made at the expense of the Lessee and any and all improvements and additions not removed by said Lessee upon expiration or termination of this lease will revert to Lessor."
In plain English, Mr. Henry should have removed his stuff on or about June 30, 1992 when the lease expired. It is now the property of the Town of Oriental.
* Some of my readers advise that I am entirely too subtle. They missed the point of the first highlighted text that the Town of Oriental had a Council-Manager form of government in place as early as 1982 and probably before that.
The second point on which I was apparently too subtle was the fact that the lease in question came from a document prepared by the Town Attorney, Scott Davis, who seems not to have remembered it in connection with his current discussions with Mr. Henry's attorney.
A third point I simply omitted from my post, but on reflection the public has a right to know. I recently raised the fence issue and Mr. Henry's deadline with Mr. Cahoon, who had (correctly in my view) taken the position that Mr. Henry must first remove the fence and then we might talk about the pavement on the corner of Mr. Henry's lot.
Judging from the mayor's explanation Tuesday night to Mr. Stevens, he (the mayor) must have overruled the Town Manager. The word "feckless" seems to apply. You can look it up.
As I understand it, Mr. Henry has been given a deadline and has missed it. The town should remove the fence forthwith and send Mr. Henry the bill.
Wednesday, June 2, 2010
Town Board Meeting June 1, 2010
The word that comes immediately to mind about Tuesday night's interminable meeting of Oriental's town board is: "deplorable." Then, too, "bizarre" works.
To get a sense of the proceedings, it might help to re-read the court room scene of Alice in Wonderland.
Except unlike Alice, no one woke up at the end.
By all means, read the more detailed account on Town Dock.
To get a sense of the proceedings, it might help to re-read the court room scene of Alice in Wonderland.
Except unlike Alice, no one woke up at the end.
By all means, read the more detailed account on Town Dock.
Sunday, May 30, 2010
Decoration Day
Tomorrow, May 31, 2010, the last Monday in May, is Decoration Day.
You may know it as Memorial Day.
Wikipedia explains: "Memorial Day is a United States federal holiday observed on the last Monday of May (May 31 in 2010). Formerly known as Decoration Day, it commemorates U.S. men and women who died while in the military service.[1] First enacted to honor Union soldiers of the American Civil War (it is celebrated near the day of reunification after the Civil War), it was expanded after World War I."
Many Americans will spend tomorrow shopping. And that's fine.
But please take a little time out to attend one of the Memorial Day observances, such as the one at the Bayboro Court House at 11:00.
And don't forget to vote. Next Thursday One Stop voting starts at the Board of Elections office at Bayboro for the second primary. The May 4th primary won't be completely over until after the second primary on June 22.
Never forget: courageous American patriots died so you would have the right to vote. Honor them by going to the polls.
You may know it as Memorial Day.
Wikipedia explains: "Memorial Day is a United States federal holiday observed on the last Monday of May (May 31 in 2010). Formerly known as Decoration Day, it commemorates U.S. men and women who died while in the military service.[1] First enacted to honor Union soldiers of the American Civil War (it is celebrated near the day of reunification after the Civil War), it was expanded after World War I."
Many Americans will spend tomorrow shopping. And that's fine.
But please take a little time out to attend one of the Memorial Day observances, such as the one at the Bayboro Court House at 11:00.
And don't forget to vote. Next Thursday One Stop voting starts at the Board of Elections office at Bayboro for the second primary. The May 4th primary won't be completely over until after the second primary on June 22.
Never forget: courageous American patriots died so you would have the right to vote. Honor them by going to the polls.
Friday, May 28, 2010
Closed Meeting Minutes
Yesterday evening at Oriental Town Board's monthly agenda workshop, the Board finally addressed closed meeting minutes. Commissioner Johnson moved to open a long list of closed session minutes, including the minutes I had requested. The vote was unanimous.
That's a good move. I hope it becomes more routine.
That's a good move. I hope it becomes more routine.
Wednesday, May 26, 2010
Bay River Again
Yesterday's report in Pamlico Today was good news about Bay River. The state has held off the moratorium on new hookups until June 7, hoping proposed repairs prove successful.
The news doesn't, however, resolve a longstanding issue that needs to be addressed. There is no agreement between the Town of Oriental and Bay River Metropolitan Sewer District obliging BRMSD to provide sewer treatment for new residences or businesses in Oriental, even though the town's Growth Management Ordinance seems to require sewer hookups for new construction and clearly requires it for subdivisions.
At the time Oriental sold its sewage treatment plant to BMRSD, no one thought to protect the Town's interests with a formal agreement. The problem with handshake agreements, though, is that they are only good while the handshakers are still around. Even then, they may not have thought to cover every likely contingency.
We are all mortal. We owe it to our progeny to protect their interests with formal agreements. An interlocal agreement between the Town and Bay River seems in order.
The news doesn't, however, resolve a longstanding issue that needs to be addressed. There is no agreement between the Town of Oriental and Bay River Metropolitan Sewer District obliging BRMSD to provide sewer treatment for new residences or businesses in Oriental, even though the town's Growth Management Ordinance seems to require sewer hookups for new construction and clearly requires it for subdivisions.
At the time Oriental sold its sewage treatment plant to BMRSD, no one thought to protect the Town's interests with a formal agreement. The problem with handshake agreements, though, is that they are only good while the handshakers are still around. Even then, they may not have thought to cover every likely contingency.
We are all mortal. We owe it to our progeny to protect their interests with formal agreements. An interlocal agreement between the Town and Bay River seems in order.
Tuesday, May 25, 2010
Legal Fees
According to today's Pamlico News, the Town of Oriental has so far paid $21,000 in legal fees for a study by an employment attorney of "personnel problems" at Town Hall. It sounds like there is no end in sight.
From Maureen Donald's article, one could deduce that the Town Board has spent $21,000 in order to avoid paying a $25,000 severance package. Few attorneys would recommend that course of action. Is there something else they are trying to protect?
If the object of the attorney's effort was to uncover the truth or obtain evidence, the Board could have done that at little or no expense by exercising their power of investigation:
"§ 160A‑80. Power of investigation; subpoena power.
From Maureen Donald's article, one could deduce that the Town Board has spent $21,000 in order to avoid paying a $25,000 severance package. Few attorneys would recommend that course of action. Is there something else they are trying to protect?
If the object of the attorney's effort was to uncover the truth or obtain evidence, the Board could have done that at little or no expense by exercising their power of investigation:
"§ 160A‑80. Power of investigation; subpoena power.
(a) The council shall have power to investigate the affairs of the city, and for that purpose may subpoena witnesses, administer oaths, and compel the production of evidence.
(b) If a person fails or refuses to obey a subpoena issued pursuant to this section, the council may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties. No testimony of any witness before the council pursuant to a subpoena issued in exercise of the power conferred by this section may be used against him on the trial of any civil or criminal action other than a prosecution for false swearing committed on the examination. If any person, while under oath at an investigation by the council, willfully swears falsely, he is guilty of a Class 1 misdemeanor."
The only downside is that allegations would have to be made and responded to in the light of day rather than in the shadows.
Secrecy can be expensive.
Saturday, May 22, 2010
Negotiating with Bay River
The Town of Oriental provides Bay River Metropolitan Sewer District with billing services. We include the sewer bill with our monthly water bill. The town collects the sewer payments and forwards the money to Bay River.
Interestingly enough, there appears to have never been a contract with Bay River to provide this service since the expiration of a non-renewable contract about 1995.
In 2008 the Town increased the monthly per customer fee that we charged Bay River for the service.
Bay River didn't like that. I wasn't pleased either, since a back of the envelope calculation indicated we still weren't charging enough to cover all our costs. How much are we losing? I think the figure is about two bits per water customer per month.
Almost a year ago, Bay River proposed that we sign a contract agreeing, among other provisions, to freeze our fee for five years.
Now there's a really bad idea.
Randy Cahoon, Bill Sage and I drafted proposed changes to the Bay River draft and the Town retained Ben Hollowell to represent us in the negotiations.
We still have no agreement. Bay River has rejected every one of the Town's proposals.
Someone needs to explain why the Town wants to continue negotiating for the privilege of losing money to Bay River.
Interestingly enough, there appears to have never been a contract with Bay River to provide this service since the expiration of a non-renewable contract about 1995.
In 2008 the Town increased the monthly per customer fee that we charged Bay River for the service.
Bay River didn't like that. I wasn't pleased either, since a back of the envelope calculation indicated we still weren't charging enough to cover all our costs. How much are we losing? I think the figure is about two bits per water customer per month.
Almost a year ago, Bay River proposed that we sign a contract agreeing, among other provisions, to freeze our fee for five years.
Now there's a really bad idea.
Randy Cahoon, Bill Sage and I drafted proposed changes to the Bay River draft and the Town retained Ben Hollowell to represent us in the negotiations.
We still have no agreement. Bay River has rejected every one of the Town's proposals.
Someone needs to explain why the Town wants to continue negotiating for the privilege of losing money to Bay River.
Friday, May 21, 2010
Why all the Secrecy?
Last Friday I submitted a request in writing for copies of closed session minutes pertaining to lawyer client discussions on South Avenue.
Today I was told that on advice of counsel, the Town Manager (who is the custodian of the town's public records) could not release them because the Town Board has not finally agreed to their release.
Why the foot dragging? Is someone afraid to let the minutes see the light of day?
Last December, in its final meeting, the previous board agreed that the South Avenue closed session minutes would be released when the case was finally over. Judge Crow signed the final order last February 5th, after Mr. Henry exhausted all his rights of appeal. A case can't be any more "over" than that.
North Carolina General Statutes are quite clear about closed session minutes:
"NCGS 143-318.10:
(e) Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions held pursuant to G.S. 143‑318.11. Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings. When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. Such minutes and accounts shall be public records within the meaning of the Public Records Law, G.S. 132‑1 et seq.; provided, however, that minutes or an account of a closed session conducted in compliance with G.S. 143‑318.11 may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session."
Note:this provision assigns the Town Board no role in the release of closed session minutes.
On the other hand:
"§ 132‑1.1. Confidential communications by legal counsel to public board or agency; ...
(a) Confidential Communications. – Public records, as defined in G.S. 132‑1, shall not include written communications (and copies thereof) to any public board, council, commission or other governmental body of the State or of any county, municipality or other political subdivision or unit of government, made within the scope of the attorney‑client relationship by any attorney‑at‑law serving any such governmental body, concerning any claim against or on behalf of the governmental body or the governmental entity for which such body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected. Such written communication and copies thereof shall not be open to public inspection, examination or copying unless specifically made public by the governmental body receiving such written communications; provided, however, that such written communications and copies thereof shall become public records as defined in G.S. 132‑1 three years from the date such communication was received by such public board, council, commission or other governmental body."
So the rules are different for written communications than for minutes. Maybe our attorney has conflated two entirely different rules.
The public has the right to see the minutes I requested.
Today I was told that on advice of counsel, the Town Manager (who is the custodian of the town's public records) could not release them because the Town Board has not finally agreed to their release.
Why the foot dragging? Is someone afraid to let the minutes see the light of day?
Last December, in its final meeting, the previous board agreed that the South Avenue closed session minutes would be released when the case was finally over. Judge Crow signed the final order last February 5th, after Mr. Henry exhausted all his rights of appeal. A case can't be any more "over" than that.
North Carolina General Statutes are quite clear about closed session minutes:
"NCGS 143-318.10:
(e) Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions held pursuant to G.S. 143‑318.11. Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings. When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. Such minutes and accounts shall be public records within the meaning of the Public Records Law, G.S. 132‑1 et seq.; provided, however, that minutes or an account of a closed session conducted in compliance with G.S. 143‑318.11 may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session."
Note:this provision assigns the Town Board no role in the release of closed session minutes.
On the other hand:
"§ 132‑1.1. Confidential communications by legal counsel to public board or agency; ...
(a) Confidential Communications. – Public records, as defined in G.S. 132‑1, shall not include written communications (and copies thereof) to any public board, council, commission or other governmental body of the State or of any county, municipality or other political subdivision or unit of government, made within the scope of the attorney‑client relationship by any attorney‑at‑law serving any such governmental body, concerning any claim against or on behalf of the governmental body or the governmental entity for which such body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected. Such written communication and copies thereof shall not be open to public inspection, examination or copying unless specifically made public by the governmental body receiving such written communications; provided, however, that such written communications and copies thereof shall become public records as defined in G.S. 132‑1 three years from the date such communication was received by such public board, council, commission or other governmental body."
So the rules are different for written communications than for minutes. Maybe our attorney has conflated two entirely different rules.
The public has the right to see the minutes I requested.
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