There is always a bit of an empty spot in public discourse when Tony Tharp's blog disappears, as it did a week or so ago.
I don't read him because I agree with him, though I often do. I read him because he makes me think.
That's a good thing.
Today he says he has made his last comment on Oriental politics for awhile.
I hope that isn't true.
Nevertheless, there are bigger and perhaps more interesting fish to fry in North Carolina politics.
What is happening in this state is worthy of Tony's analytic talents.
What do you suppose he means by "worth plowing through?"
Monday, August 12, 2013
Wednesday, August 7, 2013
Town Of Oriental Board Meeting August 6, 2013
NCGS Section 160A-81.1:
"The council shall provide at least one period for public comment per month at a regular meeting of the council. The council may adopt reasonable rules governing the conduct of the public comment period, including, but not limited to, rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. The council is not required to provide a public comment period under this section if no regular meeting is held during the month. (2005‑170, s. 3.)
Sections: Previous 160A-75 160A-76 160A-77 160A-78 160A-79 160A-80 160A-81 160A-81.1 160A-82 160A-86 160A-87 160A-101 160A-102 160A-103 160A-104"
At the beginning of last night's Town Board meeting, Mayor Bill Sage announced that he wants to try scheduling public comment at the monthly agenda meeting, held the Thursday prior to the regular (monthly) meeting. He explained this would afford more time for such comments.
A reading of NCGS 160A-81.1, which establishes the statutory requirement for public comments, reveals some interesting things:
1. The public comment period must be during a regular meeting of the council. It isn't clear that the agenda workshop, at which no business is conducted, meets the statutory requirement. Of course, nothing prevents the council from providing more than the minimum requirements for public comment;
2. It is the council, not the mayor, who may adopt "reasonable rules" for the conduct of the public comment period. I don't remember the council ever doing this.
Board members may assume that setting the rules is part of the mayor's duties as presiding officer, but that seems not to be the case. Another of those pesky technicalities.
Probably easily fixed.
"The council shall provide at least one period for public comment per month at a regular meeting of the council. The council may adopt reasonable rules governing the conduct of the public comment period, including, but not limited to, rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. The council is not required to provide a public comment period under this section if no regular meeting is held during the month. (2005‑170, s. 3.)
Sections: Previous 160A-75 160A-76 160A-77 160A-78 160A-79 160A-80 160A-81 160A-81.1 160A-82 160A-86 160A-87 160A-101 160A-102 160A-103 160A-104"
At the beginning of last night's Town Board meeting, Mayor Bill Sage announced that he wants to try scheduling public comment at the monthly agenda meeting, held the Thursday prior to the regular (monthly) meeting. He explained this would afford more time for such comments.
A reading of NCGS 160A-81.1, which establishes the statutory requirement for public comments, reveals some interesting things:
1. The public comment period must be during a regular meeting of the council. It isn't clear that the agenda workshop, at which no business is conducted, meets the statutory requirement. Of course, nothing prevents the council from providing more than the minimum requirements for public comment;
2. It is the council, not the mayor, who may adopt "reasonable rules" for the conduct of the public comment period. I don't remember the council ever doing this.
Board members may assume that setting the rules is part of the mayor's duties as presiding officer, but that seems not to be the case. Another of those pesky technicalities.
Probably easily fixed.
Tuesday, August 6, 2013
July 3 2012: Minutes And Transcript Compared
A week or so ago, I posted a transcript of the Town's audio recording of the Board's deliberation on July 3 of 2012 concerning street closings: here.
The accepted standard for complete minutes of public meetings is that the minutes should record what was DONE, (that is, motions and resolutions made, seconded, votes recorded, etc.) rather than what was SAID. By that standard, the Town's minutes for July 3 are not acceptable. Compare the audio recording above with the published minutes on the Town's web site here.
The minutes change the order of events and misrepresent the wording of the motions voted on and adopted.
I must say, the only commissioner in recent years who has compared the minutes with the audio and insisted on accuracy was Jennifer Roe. These particular minutes, on a matter of great importance and significance to the Town, are NOT accurate.
As we start thinking about forthcoming municipal elections, we should remember to keep the handling of public records in mind.
The accepted standard for complete minutes of public meetings is that the minutes should record what was DONE, (that is, motions and resolutions made, seconded, votes recorded, etc.) rather than what was SAID. By that standard, the Town's minutes for July 3 are not acceptable. Compare the audio recording above with the published minutes on the Town's web site here.
The minutes change the order of events and misrepresent the wording of the motions voted on and adopted.
I must say, the only commissioner in recent years who has compared the minutes with the audio and insisted on accuracy was Jennifer Roe. These particular minutes, on a matter of great importance and significance to the Town, are NOT accurate.
As we start thinking about forthcoming municipal elections, we should remember to keep the handling of public records in mind.
Monday, August 5, 2013
What Experience Should A President Have?
Jonathan Bernstein posts an interesting entry on his "A Plain Blog On Politics" concerning the experience we should look for in a presidential candidate here.
The post was occasioned by a comment by economist Brad DeLong, who opined that we should elect former governors in preference to Senators and Congressmen.
I admit I have often had similar thoughts. And then I would think about our experience in the twentieth century with former governors in the presidency. By no means has our experience been uniformly good.
I thought the discussion following Bernstein's blog post was quite good. I particularly liked "Kylopod's" entry, summarizing the resumes of our early presidents. A mix of experience very rare today. Only recent exception might be George H. W. Bush.
Matt Jarvis calls attention to one 2008 contender for the Democratic Party nomination who had similar depth of experience as our early presidents and who did every job well: Bill Richardson. He would have made a superb president.
The post was occasioned by a comment by economist Brad DeLong, who opined that we should elect former governors in preference to Senators and Congressmen.
I admit I have often had similar thoughts. And then I would think about our experience in the twentieth century with former governors in the presidency. By no means has our experience been uniformly good.
I thought the discussion following Bernstein's blog post was quite good. I particularly liked "Kylopod's" entry, summarizing the resumes of our early presidents. A mix of experience very rare today. Only recent exception might be George H. W. Bush.
Matt Jarvis calls attention to one 2008 contender for the Democratic Party nomination who had similar depth of experience as our early presidents and who did every job well: Bill Richardson. He would have made a superb president.
Seventy Years Ago: John F. Kennedy And PT-109 In The Solomons
World War II PT-boats were fast, but little faster than Japanese Destroyers. Their armament was quite limited, and their torpedoes were no match for the Japanese Long Lance. But they were small, highly maneuverable and hard to shoot at.
It was the night of August 1, 1943 when PT-109 and Japanese destroyers were maneuvering at high speed at "darken ship" (no lights showing). By 0200 PT-109 had slowed to idling speed, using only its centerline engine in order to minimize its wake so as not to be spotted from the air.
Suddenly the crew became aware of Japanese destroyer Amagiri bearing down on them at high speed. They had only about ten seconds to light off the outboard engines (PT-109 was powered with three twelve-cylinder Packard gasoline engines). It wasn't enough.
Amagiri sliced PT-109 in two, causing it to burst into flames from its high octane AVGAS. The skipper, John Kennedy, managed to get the eleven surviving crew members to a small nearby island. Two crewmen perished in the collision.
Kennedy went for help. On August 5th, Kennedy found native Solomon Islanders, who were able to help. The full story is here.
It was the night of August 1, 1943 when PT-109 and Japanese destroyers were maneuvering at high speed at "darken ship" (no lights showing). By 0200 PT-109 had slowed to idling speed, using only its centerline engine in order to minimize its wake so as not to be spotted from the air.
Suddenly the crew became aware of Japanese destroyer Amagiri bearing down on them at high speed. They had only about ten seconds to light off the outboard engines (PT-109 was powered with three twelve-cylinder Packard gasoline engines). It wasn't enough.
Amagiri sliced PT-109 in two, causing it to burst into flames from its high octane AVGAS. The skipper, John Kennedy, managed to get the eleven surviving crew members to a small nearby island. Two crewmen perished in the collision.
Kennedy went for help. On August 5th, Kennedy found native Solomon Islanders, who were able to help. The full story is here.
Sunday, August 4, 2013
It's All About The Water - And Rights Of Way
Last year, when I was offering the Town's elected officials every suggestion I could muster on how to avoid legal missteps on South Avenue, I advised them to seek an opinion from the Attorney General.
I wasn't flying blind. I had a copy of an advisory opinion issued by the NC Justice Department in 1995 addressed to Oriental's Town Attorney. The opinion thoroughly explored right of way law across the nation as it concerned streets leading to navigable waters. I even called Town official's attention to the letter, which I knew was in Town files. That's where I got my copy.
When the mayor replied that the Town didn't want its hands tied, I wondered if they had actually consulted the document.
As it turns out, the Attorney General's advisory opinion is posted on the NC Department of Justice web site here. It totally refutes many of the claims made by the Town's attorneys at the court hearing of March 4, 2013.
Another opinion, that of the North Carolina Court of Appeals in the case of the Town of Oriental v. Henry, also in the Town's files, counters many points made on March 4 by Town's attorney. Here is that opinion, on the Court of Appeals web site.
A careful reading of these two opinions will reward anyone interested in legal issues associated with rights of way, especially those leading to navigable waters.
I wasn't flying blind. I had a copy of an advisory opinion issued by the NC Justice Department in 1995 addressed to Oriental's Town Attorney. The opinion thoroughly explored right of way law across the nation as it concerned streets leading to navigable waters. I even called Town official's attention to the letter, which I knew was in Town files. That's where I got my copy.
When the mayor replied that the Town didn't want its hands tied, I wondered if they had actually consulted the document.
As it turns out, the Attorney General's advisory opinion is posted on the NC Department of Justice web site here. It totally refutes many of the claims made by the Town's attorneys at the court hearing of March 4, 2013.
Another opinion, that of the North Carolina Court of Appeals in the case of the Town of Oriental v. Henry, also in the Town's files, counters many points made on March 4 by Town's attorney. Here is that opinion, on the Court of Appeals web site.
A careful reading of these two opinions will reward anyone interested in legal issues associated with rights of way, especially those leading to navigable waters.
Saturday, August 3, 2013
My Thoughts Of A Year Ago On South Avenue
In the interest of informing the public about the South Avenue case, I thought it would be useful to share a letter I sent to the mayor and Town Board last June 15, more than two seeks before the Board hearing on closing Avenue A and South Avenue. This was one of a series of similar communications to Town officials that I had sent starting January 28, 2012.
I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.
It didn't work. Here's the letter:
See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, (“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”);
Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);
The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.
This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.
One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.
To barter this town's most irreplaceable long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.
I had hoped by bringing legal precedents to the Board's attention that they would proceed with caution.
It didn't work. Here's the letter:
David R.
Cox
409
Academy Street
Oriental,
NC 28571
252-249-7219
June 15,
2012
The
Honorable William Sage
Mayor, Town
of Oriental
507 Church
Street
Oriental, NC
28571
Re: Proposal
to Vacate South Avenue and Avenue A and Agreement between the TOWN OF
ORIENTAL and G.CHRISTOPHER FULCHER et al
Dear Mr.
Mayor:
I oppose the
contract approved by the board of commissioners of the town of
Oriental on May 17 between the town and Mr. Chris Fulcher. I oppose
it not because of the resulting shape and size of the property
accruing to the town, though I think a better result could have been
negotiated.
I oppose it
because it violates a fundamental principle of right of way law: “the
governing body shall not sell or barter the streets and alleys which
it holds in trust for the benefit of the public.”
I have no specialized legal resources, but have easily located
authoritative legal references confirming that a town may not sell or
barter a public right of way:
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
"a City has no power to sell or barter the streets and alleys which it holds in trust for the benefit of the public and cannot vacate a street for the benefit of a purely private interest." - Roney Inv. Co. v. City of Miami Beach, 174 So. 2d 26, 29 (Fla. 1937),
See also AT&T v. Village of Arlington Heights, 620 N.E.2d 1040, (“Municipalities do not possess proprietary powers over the public streets [which are] ... held in trust for the use of the public.”);
Eugene McQuillin, Law of Municipal Corporations, (3d rev. ed. 1990) at § 30.40 (“[T]he estate of the city in its streets … is essentially public and not private property, and the city in holding it is considered the agent and trustee of the public and not a private owner for profit or emolument.” The power to maintain and regulate the use of the streets is a trust for the benefit of the general public, of which the city cannot divest itself…”);
The contract which the town board approved on May 17 by a 4-1 vote sets forth a barter transaction, and transforms the town into a proprietor rather than a trustee of public streets.
This is not an obscure principle or an arcane technicality. It is fundamental. "...Whatever rights the city may have over its streets, its powers are those of a trustee for the benefit of the public, liberally construed for its benefit, strictly construed to its detriment." McQuillen at 569.
One of the most powerful protections of the public interest in rights of way is precisely the prohibition against selling or bartering them. That removes any temptation for the governing body to divest itself of rights of way held in the public trust for short term fiscal benefit.
To barter this town's most irreplaceable long-term asset - public access to the public trust waters of our harbor - for real estate held in fee simple, will inevitably tempt future town boards to sell the resulting waterfront property to meet short term fiscal needs. Once sold, the public will never get it back. Ever.
To barter a
right of way, dedicated in perpetuity by Mr. R.P. Midyette for the
purpose of public access to the water, for a parcel of unrestricted
real estate which a future board of commissioners could sell without
even a public hearing does not protect the public interest.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Indeed, one of the present commissioners has expressed the view at a public meeting that the town SHOULD sell some of its rights of way. When someone suggested yesterday that there should be some restrictions on property acquired by the town in this proposed transaction, preferably a dedication to the public with restrictions that would preclude such a conversion to revenue by a future governing body, this same commissioner asked, "why would we want to tie our hands that way?"
Why? Because our rights of way are held in trust.
Town Boards may not always keep the town's future in mind. We need to help them do so.
There may have been a way to accept Mr. Fulcher's donation of property so that it was not a sale or barter and so the public's interests were protected by conditions of the gift. There may yet be a way.
The contract approved by the town board on May 17 isn't it.
Sincerely,
David R. Cox
CC: Mr.
Sherrill Styron, Commissioner
Mr. Warren
Johnson, Commissioner
Mr. Larry
Summers, Commissioner
Ms. Barbara
Venturi, Commissioner
Ms.
Michelle Bissette, Commissioner
Mr. Robert
J. Maxbauer, Town Manager
Friday, August 2, 2013
Do You Know Who Your Commissioner Is?
Recent arrivals to the Town of Oriental sometimes ask: "who is my commissioner?"
Good question. The short answer is: "you don't have one."
One of the consequences of the fact that we elect all of our Town Commissioners at large is that no commissioner represents any particular part of Town. You can't, for example, call Commissioner Jones and say, "there is a pothole on my street that needs repair" and be confident that Commissioner Jones will look into it because he represents your district.
Our system of government, in other words, is not inherently responsive to citizen concerns.
This situation has been exacerbated in recent years by the Town Board's refusal to engage in exchanges of information with citizens at public meetings. Not only does this show a lack of respect for the public, it frequently deprives the Town Board of insights and information it needs in order to do its job.
There is a better way.
North Carolina General Statutes allow towns to modify their charters by ordinance. Such ordinances must pick from a menu of choices, and may allow a referendum on each change made.
One of the choices is to elect commissioners from districts, or a mix of commissioners from districts and at large.
I recommend a mix of three commissioners elected from districts representing equal numbers of residents plus two elected at large.
That way, we would each know who our commissioner is.
Good question. The short answer is: "you don't have one."
One of the consequences of the fact that we elect all of our Town Commissioners at large is that no commissioner represents any particular part of Town. You can't, for example, call Commissioner Jones and say, "there is a pothole on my street that needs repair" and be confident that Commissioner Jones will look into it because he represents your district.
Our system of government, in other words, is not inherently responsive to citizen concerns.
This situation has been exacerbated in recent years by the Town Board's refusal to engage in exchanges of information with citizens at public meetings. Not only does this show a lack of respect for the public, it frequently deprives the Town Board of insights and information it needs in order to do its job.
There is a better way.
North Carolina General Statutes allow towns to modify their charters by ordinance. Such ordinances must pick from a menu of choices, and may allow a referendum on each change made.
One of the choices is to elect commissioners from districts, or a mix of commissioners from districts and at large.
I recommend a mix of three commissioners elected from districts representing equal numbers of residents plus two elected at large.
That way, we would each know who our commissioner is.
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