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- published 3/27 (Larry) - unpublished ?

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News Town attorney addresses town meeting issue

Mayor seeking legal ways to get input from the public.

At last week's Franklin Board of Aldermen meeting, elected officials seemed to be at odds concerning a variety of issues, notably the use of liaisons at East Franklin School and monthly “town hall” style meetings.

Mayor Bob Scott had attempted to establish two liaisons, one for East Franklin Elementary and another for people seeking information about recreation in the area, but the school appointment issue stole the show.

Scott's attempt to place Alderman Barbara McRae as the link between the school that sits inside the city limits in an attempt to build goodwill between the school and the town board was brought into question by Alderman Billy Mashburn.

“As far as the school system, I don't think we have any power or any authority there so we don't need to go there,” said Mashburn. “There's nothing that we can really do there. We can send the police there to enforce the traffic laws, but we can't do anything else. We don't have any authority. What is the liaison going to do?”

Scott pointed to the idea of establishing good public relations with the school and potential appointee McRae echoed the sentiment.

“I could talk to them about ideas that may be helpful such as awards that the town could give to a class or a promising student. Just to show that we're concerned about them or maybe they could come here and do a presentation. Because it's our school, we could just show that we're interested,” she said.

Scott brought the issue to a vote of whether a liaison would be appointed and it was defeated by a vote of 4-2, with McRae and member Patti Abel voting to allow the appointment.

‘Town Hall meetings’ in question

In the months leading up to November's mayoral election, Scott promised voters that he would allow the public to voice their concerns to the town at monthly meetings, but as he attempted to set a definite date and time, Town Attorney John Henning Jr. interjected his concerns of violating the public meeting law, pushing any possible action on the issue to be postponed until a later date.

The open meetings law (General Statute 143-318.9-143.318.18) that Henning referenced covers “any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of the University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, advisory function.” It requires that official meetings of public bodies take place either 1) according to an adopted schedule of regular meetings, 2) upon 48 hours public notice (this is a “special meeting,” sometimes referred to as a “called meeting”), or 3) without notice, for a very limited list of emergencies.

“What is an 'official meeting'? It is defined as 'a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body,'” said Henning on Monday. “However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of evading this Article (the Statute).”

Henning Jr. described a hypothetical situation that involved one of the proposed town hall meetings. The meeting announced with the expressed intention being that the mayor wants to have a public forum to hear citizens' concerns, but the meeting is not announced as a special meeting of the Board of Aldermen. Four of the aldermen attend the meeting. Several citizens complain about “Joe, the Developer” and his upcoming application to build a 60-unit apartment complex in their neighborhood.

The town board only listens to the concerns without taking any action or making any comments on the matter.

The described situation violates the open meetings law. According to Henning, it is clearly an "official meeting" as defined, a "public body" present, and it is not for "a social meeting or other informal" purpose.

“I do not believe it can be [a social meeting] after having been called specifically to hear concerns from citizens, which is certainly town business,” he said.

The fact that the aldermen and mayor merely listen does not remedy the violation because "participating in deliberations" is a covered activity, and even passively collecting information is "deliberating."

“There is no such thing as an 'informal gathering to hear citizens' concerns about the Town.' The bottom line is that the public is entitled to be present when its elected board is even merely gathering the information that it will use to make its decisions,” he said.

He also goes on to point out the fact that “Joe, the Developer's” rights have probably been violated since he is entitled to a fair and impartial quasi-judicial hearing on his special use application to build the apartment complex.

At the monthly meeting, Scott discussed the possibility of having the meetings with only one or two aldermen present, which probably doesn't lead to any violations since they don't compromise the “public body” of the Town's Board of Aldermen, but by way of accident, a violation could occur if a majority of aldermen were to be present.

“As I told the board last week, I know that Mayor Scott has the best intentions here, and is not setting out to violate the open meetings law or any other law,” said Henning Jr. “It is just that, as the hypothetical situation demonstrates, violations could easily result from such meetings if we are not extremely careful.”

After hearing the complexities of the issue Scott says that he is still hoping to find a way to hold meetings with the citizens of Franklin.

“This issue has gotten more complex than I could have realized,” said Scott. “I still want to hold the Town Hall meetings but I do not want it to become an issue that would hinder the town or my working with the board. If I cannot do the Town Hall meetings then I will certainly be available to talk one on one or with small groups at any time convenient for those wanting to talk. I want to listen. I value residents and business owners taking part in their government through expressing of their views and ideas. I am especially open to new ideas. New ideas turn into progress.”





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published: 10/18/2013
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