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Originally published: 2013-05-02 19:20:59
Last modified: 2013-05-02 23:04:52

News analysis: Town vs. county dispute incites openness issues

The Boone Town Council met in closed session for the fifth time Wednesday to discuss the county's threatened lawsuit, part of an ongoing saga that has raised concerns for many residents about the transparency and openness of local elected officials.

According to the town, the council called five closed session meetings to receive legal advice about the threat of a lawsuit from the county after the council enacted multi-family housing changes some commissioners said threatened the old Watauga High School sale.

The council also proposed that representatives from the two governmental bodies meet in a private mediation to settle the matter -- which the N.C. Court of Appeals has held to be legal -- but county commission Chairman Nathan Miller refused to meet in private.

Council members in turn criticized Miller for unilaterally negotiating a sales tax distribution change with other towns that would cost Boone an estimated $2 million in lost revenue but result in a net gain for the county.

Preserving the attorney-client privilege to consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration or administrative procedure is a legal reason for holding a closed session under North Carolina open meetings laws.

But council members say they also discussed the effects of a change in sales tax distribution on the town and drafted a public statement during these closed meetings, which N.C. Press Association attorney Amanda Martin indicates could have violated the open meetings law.

"An attorney could meet in closed session to give his opinions or answer questions about threatened litigation, but they cannot simply convert the whole conversation to a closed session just because the lawyer is there," Martin said. "They need to get their legal advice and then conduct the discussion in open session."

At its April 16 regular monthly meeting, the council went into closed session at the start of the meeting to receive legal advice about a threatened lawsuit from the county, during which time the council was informed about the county's change in sales tax distribution. The council returned to open session two hours later, and the mayor read a four-page statement responding to the county's decision and its implications for town services.

Councilman Rennie Brantz confirmed that parts of the statement were drafted during the closed session.

"I think we have every right to do that," Brantz said. "Scholars don't make up their presentation on the podium. If it's going to the public, it needs to be something that everybody agrees on."

Martin said she didn't believe discussing or drafting a public statement was a matter for legal advice.
Brantz said he disagreed with Martin's opinion that attorney-client privilege does not shield from disclosure discussion amongst the council.

"To muzzle discussion I think would be a mistake," he said.
"I think the council has used closed sessions appropriately," he added. "I do think that a number of these things are better handled in a private setting."

Town attorney Sam Furgiuele did not respond to questions about his view of attorney-client privilege, but at least one council member said he has not felt completely comfortable with the council's use of closed meetings to discuss the matter.

"I think that these meetings need to be strictly about legal advice," said council member Allan Scherlen. " ... I don't want to say we haven't been discussing legal things, but there are ways to discuss things from a legal perspective, and maybe it's time we start moving away from that."

Scherlen, who was the only council member to vote against the housing ordinance change, raised concerns that other council members didn't want any one individual speaking out about the matter.

"I feel like now it's time to get away from that ... because we're not one voice," Scherlen said. "If everyone's speaking in one voice, then something is wrong. Something is very wrong."

Scherlen said he felt the town council stood by a "flawed piece of legislation just out of principle" and said the way the situation unfolded left him worried about future conflicts.

"I'm very frustrated," he said. "I'm frustrated with my own town council, actually. I think we could have handled it so much different, and we didn't."

Councilman Andy Ball said the council's closed-door discussions have related strictly to the threat of a lawsuit in compliance with the open meetings law.

"The conversations all start and end with that, and including the ifs and what-ifs of what would happen and that kind of thing," said Ball. "We're discussing our moves in relation to whether or not there is a lawsuit coming."

Ball pointed to Miller's actions in negotiating the sales tax change, which commissioners acknowledged was a direct reaction to the town's housing ordinance.

"Every single move (Miller) made on behalf of his illegally coordinated 'commission majority' happened behind closed doors, and every move the town has made in response has been in full public view in a letter to residents and in statements from the mayor," Ball said.

When Miller gets serious about partnering with the town to foster development at the old WHS site, Ball said, "I will be ready and eager to partner with them in good faith."

Miller, the chairman of the commissioners, stressed that all of his actions -- from negotiating the sales tax change with the towns to communicating about how his fellow Republican commissioners planned to vote -- were legal.

The N.C. open meetings law defines an official meeting as one in which a majority of board members are present to conduct public business.

"Every meeting I had was less than a quorum and was therefore legal," he said. "Now, they may not like the outcome of the meetings, and that's why they're screaming I'm unethical and I acted illegally."

Miller said he feels he is under no obligation to tell other commissioners about any individual phone call or meeting he may have about any topic.

"There is work that has to be done behind the scenes to lay the foundation for the stuff in the public," he said. " ... It's the way we negotiate everything that we do in county government. Every contract that the county enters into, from inmate care to parks and recreation to DSS grants and stuff, you have to put that stuff together before you put it in front of the board."

Vice Chairman David Blust added that he has never met behind closed doors with just the fellow Republican commissioners on this topic.

"Everything I've done's been above board," Blust said.

Commissioner Perry Yates, who also voted for the sales tax change, said he believed the commissioners made decisions openly and honestly.

"I feel as a whole we did," Yates said. " ... I know that I was transparent about it. I know that I was ethical about it."


On Thursday, the Watauga Democrat requested public records from Watauga County and town of Boone officials, including emails and minutes of open and closed meetings related to the town's enactment of new multi-family housing standards, the county's pending sale of the old Watauga High School property to Templeton Properties, the county's threat of a lawsuit against the town and the county's change to local sales tax distribution.

CORRECTION: An earlier version of this article misspelled council member Allan Scherlen's name. The story has been corrected.