8/9/18: THE SOUTHERN SHORES TOWN COUNCIL VOTES, 3-1, TO CENSURE COUNCILMAN GARY MCDONALD; We Are Troubled by Behind-the-Scenes Maneuvering, Exclusion of Council Member, and Revival of Motion Defeated in July

 

In a reversal of action taken at its July 10 meeting, the Southern Shores Town Council voted, 3-1, at Tuesday night’s meeting to censure Councilman Gary McDonald for remarks he made to Councilman Chris Nason during a heated debate last month about a proposed zoning text amendment. The Town Council majority voted for the censure after Mayor Tom Bennett first gave Mr. McDonald several opportunities to apologize to Mr. Nason, which Mr. McDonald declined to do.

According to a lengthy resolution that they approved, Mayor Bennett, Mr. Nason, and Councilman Jim Conners censured Mr. McDonald for his “improper behavior” as a Council member. Town Manager Peter Rascoe confirmed that he had prepared the resolution at the Mayor’s request. The document sets forth in detail why the three Council members thought it was necessary to invoke an “official expression of pronounced condemnation and disapproval” of Mr. McDonald.

It became clear during early remarks Tuesday that the Mayor and Councilmen Nason and Conners had conferred with each other, legal counsel, and Mr. Rascoe, about the censure before the meeting, deliberately excluding Councilman Newberry from their discussions and raising the question of whether they had violated the North Carolina’s open-meetings law. (I discuss the open-meeting question below.)

In my opinion, Mayor Bennett, who bears ultimate responsibility for the censure, has no excuse for intentionally excluding Councilman Newberry from the behind-the-scenes maneuverings, and the other two Council members showed a lack of good conscience in going along. I don’t believe Mr. McDonald should have been blindsided, either, but not conferring with him can be justified.

The Mayor has dealt a major blow to public trust.

Of that point, I am certain. Otherwise, I have struggled with how to report upon what occurred. I decided not to write a blog yesterday because I wanted to give myself time to process events, to think, and to consult with the Beacon editorial board, only a few of whom actually attended the meeting.

I am not a detached observer. I know and empathize with both Mr. Nason and Mr. McDonald and have been vocal about my opinions, including in public comments on Tuesday. (In fact, I am quoted in a meeting-excerpt transcript attached to the resolution, calling out from the audience, for which I apologize. I should show more restraint.)

Not only was I shocked that Mayor Bennett and Councilmen Nason and Conners felt compelled to take such an extreme and divisive action—a “do-over,” essentially, of the failed motion in July—but their action has left me with despair over our Town’s well-being and its leadership.

How does this censure possibly serve the Town of Southern Shores?

In the month since Mr. McDonald asked Mr. Nason, a local architect, during an argument about proposed changes in lot-coverage computation, “How much money do you need to make?”, neither mediation nor reconciliation occurred. Instead, it would appear that anger and hurt feelings festered and escalated. Having been a mediator in legal disputes, I know how important an apology is to an aggrieved party, but I also know that an apology cannot be coerced from someone. Demanding an apology from someone in a public forum, at the risk of censure, is likely to make a person more intransigent, not contrite.

I wish that the Mayor had consulted a counselor/mediator, rather than the Town attorney, in deciding how to move forward with what the resolution calls Mr. McDonald’s “breach of decorum.” Instead, the resolution inflates Mr. McDonald’s remarks, exaggerating their significance and, in my opinion, distorting their meaning—at least, the meaning that many of us who attended the July meeting inferred—although Mr. Nason is certainly entitled to his feelings.

The censure resolution does not end the conflicts among the Town Council members. It only inflames them.

There also now are the added questions of what effect, if any, the defeated July motion to censure had or should have had—who’s minding the rules?— and the propriety of the activities engaged in by the three elected officials who invoked censure.

SURPRISE ATTACK

The censure motion was not on the Aug. 7 meeting agenda posted on the Town website, so the public had no notice. It was a surprise “attack,” if you will. Mayor Bennett opened the business portion of the meeting by announcing that he was going to move to amend the agenda to add the censure item, unless Mr. McDonald apologized to Mr. Nason for his comments. After Mr. McDonald declined to apologize, the Town Council voted, 3-2, to amend the agenda, with Mr. Newberry and Mr. McDonald dissenting.

The open-meetings law, which is codified at N.C. General Statutes sec. 143-318.10, provides that when a majority of a governing board’s members meet or gather to discuss public business, the public must be given notice and access to the meeting or informal gathering. The meeting need not take place in person. Any simultaneous communication by electronic means or by telephone by a majority of the board constitutes an official meeting that must be open.

The three Council members, who constitute a majority and a quorum, denied that simultaneous conferencing occurred. I am nonetheless troubled by the fact that they clearly conspired together, in secret, to pull off what Beacon editorial board member Geri Sullivan called in public comments a “coup.”

Even if the three Council members did not technically violate law, they certainly violated its spirit. The open-meeting laws, also known as sunshine laws, are designed to foster public trust and confidence in government and to ensure transparency in local government decision-making. In my opinion, their secretive behavior rises to the level of an “appearance of impropriety,” which a Council member is ethically bound to avoid.

Every Southern Shores Town Council member must acknowledge in writing a Town Code of Ethics that governs them. Here is a copy of Mr. McDonald’s acknowledgment: https://www.southernshores-nc.gov/wp-content/uploads/2014/12/McDonald.pdf. The Code of Ethics does not address “improper” conduct, per se. It speaks about avoiding impropriety.  A lack of civility or rudeness is not what is customarily meant by impropriety, which is more on the order of wrongfulness, dishonesty, or an ethical breach. A “breach of decorum” generally does not rise to the level of impropriety.

Robert Hobbs Jr., a partner in the local law firm of Hornthal, Riley, Ellis & Maland, substituted for Town Attorney Ben Gallop at Tuesday’s meeting. He read into the record another N.C. statute, 160A-75, pertaining to voting by municipal government officials and when an official should be excused. This statute served as the basis for a motion by Councilman Conners to excuse Councilman McDonald from voting on the censure motion because it was a matter “involving the consideration of . . . [his] official conduct.”

Seconded by Mr. Nason, the motion to excuse Mr. McDonald passed, 3-2, with Councilmen Newberry and McDonald dissenting.

Frankly, I don’t understand why Councilman McDonald’s excusal was subject to motion and vote. The statute clearly states that a municipal board member “shall” be excused when matters of a certain nature, which constitute a conflict of interest for the member, are being voted upon. It seems to me that Mr. Hobbs (or the Mayor) should have excused Mr. McDonald without a motion.

I believe the same is true of the motion to censure Mr. McDonald that was made and defeated, 3-2, at the July 10 meeting. Mr. Gallop should have excused Mr. McDonald from voting. If he had, the vote presumably would have been 2-2, with the Mayor and Councilman Newberry voting not to censure, and Councilmen Conners and Nason voting for censure. Mr. Bennett showed good judgment then.

If the vote had been 2-2, would the motion have been defeated? What is the rule? There are no rules of procedure for Town Council meetings in the Town Code. Do Robert’s Rules of Order apply? If so, then the motion failed. Is it proper to ignore the July vote because the Town Attorney erred and to allow a “do-over”? It certainly doesn’t seem right to me.

MEANING OF THE WORDS

I also believe that Mr. McDonald’s remarks to Mr. Nason on July 10, albeit rude and inappropriate, have been distorted and overblown. If I were he, I would have apologized for speaking thoughtlessly and rashly. In my opinion, however, his words did not constitute an accusation that Mr. Nason was promoting the changes in lot-coverage calculation in order to directly benefit financially.

At the July meeting, Mr. McDonald was clearly frustrated by the fact that the lot-coverage ZTA, which had been defeated in September 2017, was again before the Town Council, in a slightly modified form, as the result of a motion by Mr. Nason, which the Mayor and Mr. Conners supported. After listening to Mr. Nason explain, at length, why the ZTA should be adopted, Mr. McDonald said, according to the transcript:

“[A] majority of our community is against this. I don’t know why it came back up . . . well, I . . . [turning toward and addressing Councilman Nason directly] How much money do you need to make?”

My interpretation of this remark was not that Mr. McDonald was accusing Mr. Nason of acting in furtherance of his own direct financial interests, but rather that, as an architect who works with Southern Shores builders, he would benefit, as all professionals involved in the construction industry would, if the ZTA passed. Many property owners, including myself, believe the proposed lot-coverage changes would allow larger houses to be built and would stimulate remodeling projects. (The Beacon has extensively covered ZTA 18-03. The Planning Board will take it up again at its Aug. 20 meeting.)

After refusing to retract what he said or to apologize, Mr. McDonald then said: “The truth sometimes hurts.”

I honestly don’t know what that means. What truth? That as an architect, Mr. Nason stands to gain from more construction work in Southern Shores? That’s how I interpreted what Mr. McDonald said, in the heat of a passionate argument.

Somehow these two statements became, in the language of the censure motion, “unsubstantiated statements.” Of what, exactly? Mr. McDonald never accused Mr. Nason of dishonesty or any other unethical behavior. And yet, the resolution states:

“NOW THEREFORE BE IT RESOLVED, based on Councilman McDonald’s unsubstantiated statements made publicly and personally to Councilman Nason, and his refusal to publicly retract them and publicly apologize to Councilman Nason and the citizens of the Town of Southern Shores, the Southern Shores Town Council does hereby CENSURE Councilman McDonald for his improper and unsubstantiated statements made to Councilman Nason, thereby constituting improper behavior as a member of the Town Council.” (Made personally? How are alleged personal comments relevant?)

It seems to me that Mr. McDonald is being censured for what Mayor Bennett, Mr. Nason, and Mr. Conners believe he was insinuating.

CONTENTIOUSNESS

Before the censure vote was taken, Councilman Newberry asked Mr. Hobbs what censure is, legally, and what constitutes misconduct. The lawyer replied that there is “no precise definition” of censure and characterized it as a “statement of displeasure,” of disapproval. It has no legal effect, but, in my opinion, it does have a shaming effect. In this case, it also may have a chilling effect on what Town Council members say to each other—to the detriment of the public’s interest.

In explaining his about-face on the censure motion, Mayor Bennett characterized Mr. McDonald’s comments as having “jeopardized” Mr. Nason’s livelihood, which was something he could not permit. Stressing that an apology could have ended the matter, he said he approached Mr. Nason and asked him: “What do you want to do, Chris?”

After Tuesday’s meeting, I spoke at length with Mr. Nason, who was visibly upset. He told me about how distressing the past month has been for him with the media coverage about Mr. McDonald’s remarks and the inquiries he has received. As I said before, I empathize with him. I’ve been in the fish bowl, too, and it’s no fun. You don’t want press; you just want your privacy.

Nonetheless, I think Mr. Nason, Mayor Bennett, and Mr. Conners came up with a poor solution that has set a poor precedent.

On the one hand, Councilman Conners argued Tuesday that the three were not “ganging up” on Mr. McDonald—although they clearly kept Mr. Newberry, who often sides with Mr. McDonald on Council matters, out of their confidences.

“We’re ganging up on that kind of [improper] behavior,” he said. On a lack of civility.

On the other hand, Mr. McDonald argued, “I didn’t know I didn’t have the right to free speech,” and pointed out that “Transparency is still an issue” in Southern Shores.

After a rift like this one, where does the Town Council go from here?

I’ll be back soon with news about potholes, recycling cans, the draft fire services contract, and other routine Town business. In the meantime, I welcome your comments.

Ann G. Sjoerdsma, 8/9/18