Monday, September 10, 2012

Water Referendum

"Public bodies .. exist solely to conduct the people's business .. Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions .. Such minutes and accounts shall be public records .. [However, ] minutes .. of a closed session .. may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session. "

NC law mandates that accurate minutes be kept of closed sessions. "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."

Once a matter discussed in closed session is resolved, such as a lawsuit or settlement, the records of any proceeding of a public body must be disclosed to the owners of those proceedings: the public. Therefore, after the special election in November, publication of the minutes of the closed session on referendum language would no longer frustrate the purpose of the closed session and can be made public.

Council took up the matter of a water system referendum on August 14th. They deliberated, sought legal counsel and offered up variations on the wording. They settled on language for the referendum at that time and took a vote.

Why is this matter being revisited on August 30th?

Why did city attorney feel that he needed to further advise city council on referendum language that had already been approved by a unanimous vote more than two weeks ago? And why in closed session?

Clearly a change in the language was being contemplated.

Who suggested changing the referendum language?

How did they want the referendum to be differently worded?

What triggered consideration of a change in the language?

The law states, "A motion based on [attorney/client privilege] shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.

What was the lawsuit connected with reconsideration of the language of the water referendum?

David Lawrence of the UNC School of Government states in his book 'County and Municipal Government in North Carolina,' that "the public body [city council] may give instructions to the attorney about handling or settling claims, litigation or other proceedings."

The referendum does not involve any claims, litigation or any other legal or court proceedings. And the advice was being given BY the attorney TO city council, not the other way around. It was Bob Oast who started the reconvened meeting by recommending that council go directly into closed session without discussion to hear his advice on the agenda item. Upon ending the closed session, council unanimously chose to take no further action on reconsideration of the language of the water system referendum.

Bob Oast states, "The outcome of the vote on the sale or lease of the water system would only affect the City’s ability to sell or lease the system. It would not affect the City’s ability to seek compensation if the transfer occurs in other ways."

This tells me that the purpose of the closed session was to discuss the issue of compensation. It also tells me that the city fully acknowledges that a transfer of the system will occur in other ways and that the referendum is being conducted solely as a political survey, which is not the intended function of the referendum process. The intended function is to effect the law. Council member Manheimer is on record stating that she favors the referendum because it will gauge the mood of the public.
"At our worksession we introduced the idea, or collectively, I introduced the idea of conducting a referendum in the next election, which would be the November election, regarding the potential sale or transfer of our water system. And let me just explain where this is coming from. The legislative study committee that concluded its work this last year stated that if the City of Asheville was in active negotiation regarding its water system that the city would avoid legislation that would effectively change the status of the water system by either creating an independent authority or transferring it to MSD. So, as you've already heard, the city, in compliance with that legislative study committee report, has put together a group to begin talking to MSD and we haven't done that yet but we've framed up a situation so that talk to MSD and then just in general just explore all of our options and try to understand what the possibilities are. We have stated though as a body that we're not in favor of any legislation transferring our water system. There is a statute, 160A-321, that was enacted by the legislature in the 2011 session which became effective January 1, 2012, which specifically says that if a city is considering the sale or lease of its water system it may conduct a referendum of its citizens to gauge whether or not there is approval of such a sale or lease. Since in any negotiation on the part of the city, again, looking at a scenario where the city is avoiding any legislation mandating a change, any negotiation that the city would enter into would contemplate a sale or lease. There may be other options too but sale or lease are the obvious two options. Since any negotiation might, would, contemplate those options we felt that it was very appropriate, under the statute, to conduct such a referendum since that information is absolutely necessary for the city council to know before it takes any independent action with regard to its water system. So, let me be very clear, we're not sitting up here saying we're ready to take action and sell or lease the water system. That is not the case. However, since we are required to enter into voluntary negotiations, and those negotiations ultimately would look at the sale or lease of the system, we feel it is necessary to use the statute to hold a referendum to understand the sentiment of the citizenry of Asheville on this issue. -Mannheimer, City Council Meeting, 8/14/2012, (time mark: 01:56:37)
The Legislative Research Commission’s Metropolitan Sewerage/Water System Committee did not recommend that Asheville sell or lease a public enterprise that they do not own. This is the recommendation:

"The Committee recommends that the 2013 Session of the North Carolina General Assembly consolidate the Public Utility Water System with the Metropolitan Sewerage District of Buncombe County. Should the interested governments craft their own solution for consolidation, which achieves all the objectives of the Committee, before the 2013 North Carolina General Assembly convenes, due consideration would be given to the local plan. Action will not be taken if the parties are engaged in good-faith negotiations on this matter."

Additionally, since the city has already taken $100M out of the water system for their general fund, it's unclear at this time whether or not Asheville will actually owe money after the merger.