I would like to revisit my response last week to the sudden news that the Southern Shores Town Council had scheduled a special meeting Friday to amend its Rules of Procedure. Because of time restraints, my response was not as coherent, well-researched, and thoughtful as I strive to be, and I would like to rectify that today.
I frankly was stunned that our elected officials thought it advisable to have a person-to-person meeting during a public-health emergency that is not only townwide, but countywide, statewide, and nationwide, in order to conduct business that was neither urgent not critical. The virus that causes COVID-19 is highly contagious, and we do not know yet how the Outer Banks will fare.
I described the decision to conduct this business during these uncertain and stressful times as arrogant. I think now it may be better described as uninformed and poorly reasoned.
Ask yourself: What sense would it make for Town officials to be compelled to meet in order to cancel a meeting in a declared state of emergency? During a global viral pandemic, no less?
I regret that I may have unfairly maligned what may have been good intentions, however (in my view) misguided. I appreciate that the Town Council is navigating uncharted waters without any paddles, including one that an experienced town manager would provide.
What I would say to Mayor Tom Bennett and our four Town Council members is this: If it looks like a bad idea to hold a public meeting, regardless of what you believe the Rules say, it is a bad idea. Don’t do it. And if you have any doubt, seek the opinion of Town Attorney Ben Gallop or one of his firm colleagues.
I would be very surprised if Mr. Gallop was consulted in the Council’s decision to hold last Friday’s non-emergency special meeting. But if he was, I respectfully disagree with any conclusion that led the way to the meeting being held.
MEETING WAS NOT ESSENTIAL
On the morning of Thursday, March 18, I had an exchange of emails with Town Councilman Jim Conners, who contacted me about publishing information regarding supermarkets and pharmacies that are providing pickups and deliveries. I applaud Mr. Conners for this community service. Town Hall should follow his example.
During our exchange, I asked the Councilman why the Council had decided to go ahead with the March 24 budget workshop session, which had been noticed on the Town website. At the time I knew of no other local government bodies that were holding in-person public meetings during the 15 days in March that the President’s coronavirus task force had identified as the critical containment period for COVID-19.
Although Governor Roy Cooper has not imposed a stay-at-home order on North Carolina, infectious disease specialists nationwide have been advising people to shelter at home and only go out for essential items, such as groceries and prescription drugs.
The Chief Executive Officer of Vidant Health and the Dean of the Brody School of Medicine at East Carolina University warn in an editorial published yesterday on OBX Today that the pandemic is a “wave that is rolling across our country” and that “we can’t stop . . . from hitting us” in eastern North Carolina. (The editorial can be accessed at https://www.obxtoday.com/coronavirus/editorial-vidant-ecu-medicine-say-immediate-action-needed-to-protect-our-communities/.)
Why would the Town Council hold an ill-advised, nonessential meeting that, frankly, conveys a minimization of the threat posed by the public-health crisis we’re in?
In part, Mr. Conners replied: “Discussions are underway now on whether it’s more prudent to cancel the 3/24 meeting and defer all agenda items to the regularly scheduled April meeting. I think we should cancel it, but if they have it, I’d attend.” (Mr. Conners may have changed his mind about attending since last Thursday.)
Mr. Conners made no mention of the possibility of a special meeting. With his comments as background for me, I was all the more surprised that Mayor Bennett apparently signed an order later that same day to schedule the Friday meeting.
I did not see an online meeting notice when I checked the website at the close of business on the 18th. It was Thursday when I first saw it, and I had to make a snap decision as to how to treat it: Ignore it or wing it.
I winged it. I emailed The Beacon advisory board to solicit opinions, and Geri Sullivan graciously replied.
Background information about the meeting from Interim Town Manager Wes Haskett, Town Clerk Sheila Kane, and/or Mayor Bennett would have been extremely helpful, but the Town rarely prioritizes the dissemination of public information. It would still be helpful now, and I respectfully request it.
It would be a service to Town residents if one of the three just-named individuals would summarize the decisions that came out of the special meeting in several easy-to-read paragraphs. Residents should not be forced to watch a videotape. The Southern Shores Town website has too many links, as it is, and not enough staff-prepared news releases. Surely Mr. Haskett has a little extra time now.
I admit to viewing the meeting notice, which the so-called “meeting packet” posted later reproduced verbatim (what was the point of that?), with some suspicion. What possible urgency could there be in the three meeting agenda items, which were described as:
- Cancel the previously scheduled March 24, 2020 budget work session;
- Consideration of amendments to the Council’s Rules of Procedure allowing for cancellation or rescheduling (with appropriate notice) of meetings by the Mayor or any two Council Members during declared emergencies; and
- Consideration of adoption of a policy for managing meetings with electronic participation of Council Members.
The notice further stated under an item described as “Council Deliberation” that “Council may take action on matters within the purview of the Purpose of the Special Meeting.” Such as?
I have learned in covering meetings of the “new” Town Council since last December that deliberations among members are occurring behind-the-scenes in non-public settings, and decisions reached by them are being presented to the public at open meetings without the public learning much about their deliberations. This is not my idea of openness nor do I believe it is the proper means to reach consensus.
I have no doubt that a majority of the Town Council (five members) is not gathering together at any time or place to confer nor is it engaging in simultaneous communication by “conference telephone or other electronic means,” so as to violate the State open meeting laws and the Council’s own open meeting policy. But I do believe that the Council is violating both the State’s and its own policy (Section 2 of the Rules of Procedure) in not conducting “deliberations” openly.
Hence, I have grown suspicious.
MY TAKE: JUST DO IT
If someone had asked me if the Mayor or Town Council could cancel a previously scheduled meeting during a time of crisis without amending the Rules of Procedure, I would have said: Of course. Just do it!
Rules and laws are not meant to be obstacles to protecting public health, safety, and welfare—especially during a declared emergency.
I find authority for canceling and/or postponing Town meetings in the Rules of Procedure as they are currently written, but I do not believe it is necessary to resort or defer to the Rules.
State law gives North Carolina counties and cities within those counties independent legal authority to declare a state of emergency and to impose emergency restrictions and prohibitions within their respective jurisdictions. (See N.C. Gen. Statutes 166A-19.22(b)).
Indeed, in the editorial that Dr. Michael Waldrum, who is CEO of Vidant Health, and Dr. Mark Stacy, who is Dean of the Brody School of Medicine, submitted to OBX Today, they call on “local officials throughout eastern North Carolina and the state to take more decisive action in response to this crisis to include making the bold and right decision to ask North Carolinians to shelter in place.
“This means,” they say, “staying close to home as much as possible and only going out if absolutely necessary, such as buying groceries or picking up medications. This is the right thing to do to save lives and is the right thing for our long-term economic interests.”
After the Mayor declared a state of emergency in Southern Shores on March 16, the Town issued a list of restrictions and prohibitions pertinent to government operations, among them the closure of both Town Hall and the Police Department building to the public. This list could have been amended—without the holding of a special meeting—to include the cancellation or indefinite postponement of all Town Council meetings until further notice, or something similar.
Instead, the wording of the meetings provision in the March 16 restrictions on government operations is confusing, indecisive, and weak. It makes no mention of Town Council meetings, only “meetings of all appointed Town advisory boards, commissions and committees,” which it specifies will be “modified to reduce vulnerability of people and property.”
The notice does not address the form such “modification” may take, and the idea that modifications may be sufficient to combat the spread of the virus strikes me as incredibly simplistic and ill-conceived.
A revised list of restrictions, apparently drafted March 21, now includes the sentence: “The March 24, 2020 budget work session meeting has been cancelled.”
This could have been accomplished without the staging of the special meeting.
As for the Rules, I find authority for canceling a Town Council meeting in the sections about quorum—you cannot have a meeting without one—and about the office of Mayor. In the latter section, the Rules specify that “The Mayor shall have the power to . . . (e) Adjourn in an emergency.”
I believe this language could be broadly interpreted to give the Mayor authority to “adjourn” an upcoming meeting by canceling it. It’s not an unassailable interpretation, but it is a defensible one, especially in a public-health emergency like the one we are facing. And who would challenge the Town on such an argument?
Now that I have had time to read some of other nearby towns’ Rules of Procedure–they’re all based on the same original source–I can appreciate that those in Southern Shores need updating and revising, but that task did not need to happen last Friday.
I trust it was not legal advice that compelled the Mayor and Town Council to believe a meeting was imperative. Legal minds are usually more imaginative and less rigid than that.
DEVELOPING A POLICY ON ELECTRONIC MEETINGS
I also had some concern about the Town Council hastily drafting and adopting a policy for “managing meetings with electronic participation of Council Members” during a declared emergency, instead of more thoughtfully preparing a policy, with due diligence, during a time of normalcy.
I strongly believe that the public, especially those who have technological expertise, should contribute to any discussion about such a policy.
The current Rules of Procedure provide for an official meeting of the Council to occur by “conference telephone of other electronic means of a majority” of members. (Section 2(c).) “Other electronic means” is very broad.
As I reported 3/19/20, N.C. law already permits a public body to hold a meeting by “telephone or videoconferencing,” as long as it provides a location and a way for the public to listen to the meeting. (The public body may charge each member of the public a fee (maximum of $25) to defray the cost of providing a location and equipment.) See N.C. Gen. Stat. sec. 143-318.13(a).
This statute, which was enacted in 1979, clearly has limited application to our current emergency situation. Nonetheless, I believe it would be incorrect to view it as an obstacle to achieving the desired aim of conducting essential Town business publicly at this time. That would be an unreasonable and foolish conclusion.
Governor Roy Cooper has been suspending the operation of State law almost on a daily basis with the executive orders he has issued—starting with closing public schools K-12 statewide. The Governor is not going to abandon municipal governments during the spring fiscal-year budget season, nor is he going to disadvantage taxpayers. Economic recovery is going to be a key component of how the State emerges from this unprecedented public-health emergency.
I would encourage Mr. Haskett and Southern Shores Town Finance Officer Bonnie Swain to reach out to their counterparts in Duck, Kitty Hawk, Kill Devil Hills, and Nags Head to learn how they envision going forward with public town meetings. Duck and Nags Head are usually ahead of the curve. What are they thinking about doing?
Calls to our state legislative representatives would not hurt, either.
I also believe the Town should publish on the website the policy, if any, the three Town Council members who met last Friday adopted.
It was not my intention last week to make governance more difficult for our elected officials during this unusual and hazardous time. But I also view The Beacon’s role as that of a watchdog. Usually, however, I take more time to chew on things.
I conclude by saying that I question whether our elected officials and Town staff know how to be crisis managers. In a crisis, you need to let go of preconceived expectations and plans. You need to be able to think rationally and quickly and to adjust to changing circumstances in a short period of time. There is no business as usual.
In a crisis, you largely live in the moment, analyzing the evidence that you have before you. You do not make assumptions.
The “virus is moving much faster than we normally make decisions,” write Drs. Waldrum and Stacy, observing that “The data are clear: it has started to impact [eastern North Carolina] and the problem continues to grow.”
“We know the story and outcome if we do nothing more,” they say, “—we see it on the news and on social media every day. We know from history that bold and definitive actions can change the course for the better. . . .
“Community members must encourage the political bodies to be decisive, take action now and then support them. . . . We are confident we can flatten the curve. However, we must all stand up together, as one community, to get through this crisis.”
Ann G. Sjoerdsma, 3/23/20