Ignoring the advice of their attorney, the Moore County Board of Commissioners had a wide-ranging closed session discussion on Tuesday, February 7 concerning whether, how, and at what price to sell 1.3 acres of county property as the site for a new Bojangles’ restaurant in Carthage.
The discussion appears to constitute a clear violation of NC Open Meeting Law. Closed sessions on the matter held on October 18, 2011 and May 15, 2012 may have also run afoul of the statutes. The range of topics discussed in the February 7 Closed Session also appears to stand in contrast to statements later made to the press by members of the Board concerning the nature of the Bojangles’ Closed Sessions.
A detailed summary of the February 7 session, prepared by Clerk to the Board Laura Williams from an audio tape recording of the Closed Session, reveals that the Commissioners debated not merely the technical aspects of how to sell the property, but also:
• The appropriate price for the 1.3 acres, part of a grassy space that lies between a Hardee’s Restaurant and the Veteran’s Memorial in the former Carriage Oaks Shopping Center;
• Whether to counter an offer put forward by Bojangles’;
• Whether the county should retain the property; and whether to wait until a study of county space needs was complete before making any decision about the property;
• What impact the sale and restaurant location would have on the nearby Veteran’s Memorial, and whether the Veteran’s Memorial would need to be moved to another location.
The Bojangles’ Offer
What can be learned about the substance of the proposed transaction from the released minutes is that a broker representing Bojangles’ approached County Manager Cary McSwain in October of 2011 with an offer to purchase 1.3 acres adjacent to Hardee’s for $280,000, on which the County would pay a ten percent broker’s fee.
The Board appears to have reflected that offer, and later proposed a price of $500,000, with the buyer paying the broker’s fee. The County Manager presented that offer to the broker, and Bojangles’ responded with an offer of $330,000 and agreed to pay closing costs and the broker’s fee. That is where the matter sat on May 1, according to a confidential memo prepared by McSwain and released to The Times under a public records request.
Board ignored County Attorney’s warnings
Attorney Mike Tadych of Stevens Martin Vaughn & Tadych, PLLC, a Raleigh firm that specializes in Open Meetings and Public Records issues, after reviewing the minutes of each of the Closed Sessions, told The Times via email that elements of the conversation in each of the Closed Sessions properly belonged in open session.
Noting that it would have been proper for the Board to enter Closed Session to obtain advice from the County Attorney on the procedures that should be followed, Tadych said the discussion in each case strayed far from those bounds, over the objections of County Attorney Misty Randall Leland.
“It’s sort of shocking that it appears that the County Attorney regularly and properly advised the Commission that the bulk of their discussions about the potential sale of property should not be held in closed session,” Tadych wrote, “and she was repeatedly ignored or disregarded as the discussions continued.”
The Closed Sessions
According to the official minutes of the October 17 Closed Session, part of a set of three released by a vote of the Board on Tuesday, June 5, the purpose stated for entering this closed session was the negotiation of real property acquisition, under NC General Statue 143-318.11(a) (5). While the statutes do allow a closed session for the “acquisition” of real property, they do not provide for a closed session for the sale or “disposition” of county property.
Local Government Authority David Lawrence, of the NC School of Government, in his book Open Meetings Law state flatly that “There is no authorization for discussing property disposition in closed session.”
When the potential for a sale of the property to Bojangles’ was made public in the Board’s Tuesday, May 15 meeting, Commissioner Tim Lea said the Board had discussed the matter in Closed Session, and later told The Times it had been discussed in three Closed Sessions.
Commissioner Nick Picerno told The Times after the May 15 meeting that the Closed Session discussions focused on consultations with the County Attorney on the process, rather than the terms, of the offer and thus were within the bounds of Open Meeting law.
Interviewed on the same matter by John Lentz of the Southern Pines Pilot, Chairman Larry Caddell was reported by that newspaper to have said, “We discussed it with the county attorney, and she told us to talk about it in open session, and that’s what we did. As I’ve said many times before, I never go against the county attorney’s advice.”
Yet, according to the Closed Session minutes just released, the Board of Commissioners in October 2011 discussed an initial offer from Bojangles’, including price, location, the need for a survey, impact on future space needs of the Department of Social Services (which is located in the adjacent former shopping center), and whether the County should ask Bojangles’ to purchase property near the Health Department and swap that for the parcel near the Veteran’s Memorial.
All five of the Commissioners appear to have been active participants in the Closed Session discussions.
According to the detailed summary of the February 7 Closed Session, that meeting opened with County Attorney Misty Leland distributing a breakdown of three different procedures available to the Commissioners for the sale of the property. When the discussion immediately moved to the question of whether to sell rather than how to sell, Leland “said this was not supposed to be discussed in closed session.”
According to the Clerk’s notes, “No one acknowledged her statement.” And the conversation on price and negotiating strategy continues from that point across two pages of single-spaced text.
The third Closed Session on the matter, on May 15, again began as a discussion of process options and how the staff should proceed, but quickly turned to the question of what constituted a fair price, whether a space allocation study needed to be completed before the offer was considered, the value of other property in the vicinity, what the County could do with the money if it sold the property, whether Commissioner Melton should be designated as the Board’s negotiator in the transaction while keeping those negotiations private, and, finally, whether the Board had already spent far too much time discussing the matter in Closed Session and should bring it into the open.
It was in fact brought into the open in the May 15 Commissioners meeting and attracted significant public input during the June 5 meeting, with a number of veterans asking the Board not to sell the property, because of the impact a retail business would have on the atmosphere surrounding the Veteran’s Memorial.
The Times has requested the release of the audio tapes of the Closed Sessions, now that the minutes of those sessions have been unsealed. The Board routinely makes audio recordings of its open meetings available on the County website, and will soon provide video, as well.
