Council amends intake contract
by Anna Oakes
The council approved the modifications as part of the consent agenda - a slate of action items passed without discussion at the Nov. 19 meeting. The council discussed the W.K. Dickson contract in an August 2013 closed session, but did not deliberate on the changes in open session, according to meeting minutes.
The facility - a town project since 2005 - is planned to draw 4 million gallons of water per day from an intake near Todd, with the water to be transported to Boone via a transmission line along Brownwood Road and U.S. 421.
The modifications authorized additional services to be performed by W.K. Dickson, including property rights surveys; additional engineering services required for a Federal Emergency Management Agency flood map revision; resubmitting a required certification application to the state Division of Water Resources; redesigning the water transmission line along U.S. 421 to meet N.C. Department of Transportation requirements; and preparing conceptual designs of alternate road alignments for an access road at the intake.
The town council approved an additional payment of $89,250 to W.K. Dickson for the increase in services.
The agenda and minutes for the August Boone Town Council meeting indicated the council met in closed session to discuss "legal advice and instructions to the town attorney regarding terms of contract - to consult with the town attorney in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged, to instruct town staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating the price and other material terms of a contract involving the employment of W.K. Dickson engineering company."
And in September, the council's closed session agenda included a discussion about the price and terms of a contract for acquisition of easements "and the amount of compensation and other material terms of an employment contract related to the proposed raw water intake," again citing attorney-client privilege. The agenda did not name the person or organization receiving the contract, but Councilman Allan Scherlen said it was not a town employee.
According to a N.C. Attorney General's Office and N.C. Press Association publication on open government, the "employment and discharge of independent contractors" is among the subjects that cannot be considered in a closed session. The North Carolina open meetings law in the past contained a specific provision permitting closed session discussions of independent contracts, but that provision was removed as part of amendments in 1994.
"Public bodies may not discuss independent contractors in the same way they discuss employees," said Amanda Martin, attorney for the N.C. Press Association. "It would be a violation to have a closed session discussion related to an independent contractor."
Town attorney Sam Furgiuele said that both of the agenda items "involved legal advice and obtaining instructions regarding resolutions of claims."
"The attorney-client privilege explicitly extends to claims," Furgiuele said. When asked why discussions of contract terms and prices were not discussed in open session and separately from any legal issues involving claims, he said, "I believe the matters which were conducted in closed session were appropriate for that forum."
In September, members of the town's Water Use Committee raised concerns about the lack of information provided by the town on the $25 million water intake project. Town staff members indicated they were wary of attempts to further obstruct or challenge the project.
Although the project received the support of 73 percent of Boone voters in 2008, it has faced opposition from some who say the project endangers the water quality and flow of the New River and that the town would control too much of the region's limited water resources. The project has also faced a number of bureaucratic hurdles.
Ashe County officials last year and this year expressed opposition to any portion of an access road or transmission line for the intake crossing into Ashe County, as a previous map had depicted. When asked if the town had selected a new access road alignment, Town Manager Greg Young said, "We have investigated access alternatives from early on in the project, and we're still continuing to do so."