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NCGS 128

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Mitchell County Commissioners
Minutes, Regular Session
February 5, 2007

NORTH CAROLINA
MITCHELL COUNTY

The Mitchell County Board of Commissioners met in regular session on February 5, 2007 at 6:00 p.m. in the Courtroom, Mitchell County Courthouse, Bakersville, NC. Those present for the meeting were Phil Byrd, Chairman; Lisa Sparks, Vice-Chairman; Mike Hensley, Member; Patrick Phillips, Member; Jim Saylor, Member; Phil Castro, Interim County Manager and Kathy Young, Clerk to the Board. Also present were Hal Harrison, County Attorney; Donny Wisor, Reporter with the Mitchell News-Journal; Steve Murphy, Reporter with WKYK/WTOE Radio Station.

  1. CALL TO ORDER – Chairman Byrd called the meeting to order at 6:00 p.m.

  2. INVOCATION – Ralph Hise, Jr. gave the invocation.

  3. SHERIFF’S COMMENTS - Sheriff Fox thanked the Board for allowing him to address some important issues. The first issue he wanted to address was the reason his department was here. Sheriff Fox stated that several months ago, both the Board of Commissioners and Ryan Whitson had asked that he have some deputies present at the Commissioners meetings and that he had done that. He said that he had several citizens that have asked that his department attend the meetings. A couple of weeks ago a gentleman has stated that he would like to have someone out in the parking lot to keep a check on the vehicles, that he had a problem with some damage that might have been done at one of the meetings. I have someone in the parking lot. Sheriff Fox stated that he wanted everyone to know that he is trying his the best to do his job. - He informed the Board and the audience that his deputies and he were sworn to uphold the laws of this state. NCGS §143-318.17 entitled Disruption of Public Meeting is one such law. He explained that if that law is broken in our presence, we have no other recourse but to enforce it. I do not want to have to enforce this, but if it happens I have no recourse. No matter who the Chairman is, if he asks me be here, I am going to be here. If the County Manager asks me to be here, I am going to be here and do my job. I certainly do not want people to be ill over that. I hope that we can have a good meeting tonight in a good orderly fashion; I really do not want to have to enforce the law.

  4. ADDITIONS OR CHANGES TO THE AGENDA - None

  5. ADOPTION OF AGENDA – Commissioner Sparks moved to adopt the agenda. Commissioner Phillips seconded the motion and it carried unanimously.

  6. CHAIRMAN’S COMMENTS – Chairman Byrd stated that he wanted the meetings to proceed in an orderly fashion, that the meetings were not a football or basketball game, there is no reason to have cheering or booing or any of that. He stated this was not the place for it and if he has to ask somebody to leave. The first time he will call you to order. The second time they will be directed to leave. If you do not leave immediately, then you will be in violation of the law. It does not make any difference if it is my Mom or anybody else there will be no difference.

  7. APPROVAL OF MINUTES – Commissioner Saylor moved to approve the Minutes for November 6, 2006, December 4, 2006 and January 8, 2006. Commissioner Hensley seconded the motion and it carried unanimously.

    Commissioner Saylor suggested that Minutes go back to being verbatim.

  8. ITEMS FOR DISCUSSION

    1. Public Comment Rules – Commissioner Sparks moved to adopt the Proposed Rules for Public Comment Period (a copy is hereby attached and becomes a part of the minutes). Commissioner Phillips seconded the motion and it carried 3 to 2. Commissioners Saylor and Hensley opposed the motion.

      Discussion was held concerning the time for public comment period. Commissioner Hensley moved to have a 5 to 10 minute comment period after a motion has been made and debated, but prior to the vote. Commissioner Saylor seconded the motion. The motion failed to pass by a vote of 2 to 3. Commissioners Sparks, Phillips and Byrd opposed the motion.

      Commissioner Sparks moved to move the public comment period in the middle of the meeting as long as the agenda is adjusted. The motion carried 3 to 2. Commissioners Hensley and Saylor opposed the motion.

    2. Toe River Health District Fee Schedule – Discussion was held concerning the Toe River Health District Fee Schedule. Commissioner Sparks moved to adopt the Toe River Health District Fee Schedule (a copy is hereby attached and becomes a part of the minutes). Commissioner Phillips seconded the motion and it carried 3 to 2. Commissioners Hensley and Saylor opposed the motion.

    3. Discussion of N.C.G.S. §128 – Commissioner Saylor stated that he was only concerned with a small section of this statute and that was §128-1.1(b) which reads any person who holds an elective office in State or local government is hereby authorized by the General Assembly, pursuant to Article VI, Sec. 9 of the North Carolina Constitution to hold concurrently one other appointive office, place of trust or profit, in either State or local government. He stated that we as the Board hold more than one other position, would be in violation of this statute.

      County Attorney Hise informed the Board that N.C.G.S. §153 A gives the right to be appointed to serve on any other boards and committees and is considered a part of the duties as a county commissioner.

      Chairman Byrd stated that this was an extremely broad General Statute and this was something he had been looking to see how to address for sometime and this item would allow him to address how we as public officers get along; how we work together and this is not a closed session item. He stated he had consulted with the Institute of Government concerning this discussion taking place in a closed session. The IOG informed Chairman Byrd that it could not be done in closed session.

      Commissioner Saylor stated that the reason he was concerned with this statute was because he is on 6 different boards and he personally did not want to be in violation of this statute.

      Chairman Byrd – I have something I want to address here. One is we have had a lot of tension on this Board since December and it continues to escalate. For my part, this is not something I want to discuss in the open. I have tried to discuss this in private. To try to relieve some of this tension, I want to clear up some personal rumors. I keep hearing through the community that I have several lawsuits against me. I can vouch that I have none except for one that we have brought against us as commissioners. I may have 12 tomorrow morning. Secondly, is the Village of Penland. I hear a lot of rumors concerning my connection with them. I want to see the Village of Penland do well. I think it is good for our economy. I want to see them grow. I want it to be a positive thing for our community. Also, I have not been able to support them at this time because of the eminent domain rights with the sanitary district if it was passed now. If they do put it where they do not have any eminent domain rights, then I might be able to support them. I want to see it done right. From what I am understanding I am wanting property taxes to go up to force everybody to have to sell their houses, because I am in Real Estate. Property taxes going up is the worst thing in the world for people in the real estate business. That is a complete lie. The purpose of this is to lessen the tension on this Board. Commissioner Saylor your property is still not listed correctly and I wanted to make it publicly known that everything has not been corrected. You do not list any business property tax.

      Commissioner Saylor asked what business personal property tax was.

      Chairman Byrd gave the examples of shelves, coolers, etc.

      Commissioner Saylor your RV Park is not listed is it? It is one acre. Commissioner Saylor asked when did I tell you that?

      Chairman Byrd stated when we met on August the 3rd, I believe and I told you it should be listed and you said it wasn’t. Then somehow your property went to horticulture and I don’t know for sure but it may be back as agriculture. In October it was changed again to where you are paying the same amount as you were before. I don’t know this for 100%; I didn’t get a chance to look at it.

      Commissioner Saylor according to Darlene when I got the tax notice in the mail that said discovery, I got it on Friday, and I went Monday morning to Darlene’s office and asked what it was. She pulled my card, she said right here it is, it is a tax office mistake. That he had billed on agriculture, but I had it listed as horticulture. Horticulture land is valued higher than agriculture. I found out what it was and I called my wife. She wrote a check and I brought it to Darlene. This happened on a night when we were meeting and I asked Darlene to explain to the Board what had happened.

      Chairman Byrd but you never changed it to a RV Park? Commissioner Saylor - that will not come up until the next reval.

      Chairman Byrd, it is supposed to be listed as a RV Park if it is a RV Park, Commissioner Saylor. That is the thing that was talked about privately.

      Commissioner Saylor- Darlene said that was taken care of. Chairman Byrd – Did you say that if it was changed to an RV Park that you would sue the County all the way to Raleigh? Commissioner Saylor – No. I never made any such statement.

      Chairman Byrd – you and I spoke and yes I did tell you that it needed to be changed. This is an issue that you refuse to deal with.

      Commissioner Saylor – it had never been brought up until you brought it up that I know of.

      Chairman Byrd – actually you brought it up in the meeting on June 6th under public comments. The minutes are signed. I think with your federal taxes that needs to be looked into to see if the RV Park is listed as an apple orchard also. I know you furnish apples and cider free of charge to your campers. Do you take the value of what that is off before you tell the federal government what your fees are or do the taxpayers pay for that? Do you deduct that amount?

      Commissioner Saylor – I don’t know what it is.

      Chairman Byrd – Call to order. Applying for federal tax dollars you are supposed to deduct whatever you do have on the forms that you turn it. I was just wondering if that was done. Yes, it is legal, if all the documentation is right. What I have an issue with and makes it very hard for me to work with you is that you sign up for all these and get the federal tax dollars, but fuss about $10 per county employee that the taxpayers are paying for and make a big deal out of it. You qualify for federal disaster, but what about all the 320 people that just lost their job at Ethan Allen. That was a disaster for them. I am sure they would like to call up and have twenty some thousand dollars for this year, $69,000 for the last five years or the small business that have closed. I just don’t think that is just the way it should be. That has been my real issue with working with this. There has been so much said in the communities, I stand behind everything I have said; my positions. I am requesting that an inquiry be done on the tax issue. We do not have an assessor, but I will make sure through this Board that this will not happen on my watch. It will be corrected to whatever is right amount and the right thing to do. Those are willful and openly, I believe actions that you have done for your own personal gain. Those are grounds for removal from office.

      Commissioner Hensley asked Chairman Byrd if he had anything you want to say to me?

      Chairman Byrd state that No, Sir, he did not. I don’t think I have ever had any real problem with you.

      Commissioner Hensley stated the Chairman Byrd voted with us about 90%. Every vote that I put in with the last commissioners was for the good of the county. We have reduced taxes. We have given the schools the largest amount of money that they have ever received from the County Commissioners. Everything I did was for the taxpayers. I serve these people, I don’t serve myself. They voted me in. They are my boss as far as I am concerned. We try to be a servant not to dictate to them what should be done and what shouldn’t.

      Chairman Byrd agreed with that.

      Commissioner Hensley stated that if he voted no and you all vote the way you want to, he was voting the way he thought the taxpayers wanted him to vote and he would never change that and that he never waiver from that.

    4. Special Section 544 (b) Warranty for Application to the Rural and Small Urban Program – Commissioner Hensley moved to approve the Special Section 544(b) Warranty for Application to the Rural and Small Urban Program (a copy is hereby attached and becomes a part of the minutes). Commissioner Saylor seconded the motion and it carried unanimously.

    5. Federal (FTA) and State (NCDOT) Certifications and Assurances for Community Transportation Programs FY 2007-2008 – Commissioner Hensley moved to approve the Federal and State Certifications and Assurances for Community Transportation Programs FY 2007-2008 (a copy is hereby attached and becomes a part of the minutes). Commissioner Sparks seconded the motion and it carried unanimously.

    6. Mutual Aid Agreement for Emergency Medical Services – Commissioner Hensley moved to approve the Mutual Aid Agreement for Emergency Medical Services (a copy is hereby attached and becomes a part of the minutes). Commissioner Sparks seconded the motion and it carried unanimously.

    7. USDA Loan – Commissioner Hensley moved to uphold the vote of the last Board of Commissioners to cancel the USDA loan. Commissioner Phillips seconded the motion and it carried 3 to 2. Commissioners Sparks and Byrd opposed the motion.

    8. Time of Meeting – By consensus the Board agreed to leave the time of the meetings at 6:00 p.m.

    9. Noise Ordinance – Discussion was held on the drafting of a noise ordinance. There was no motion to explore a noise ordinance.

  9. PUBLIC HEARINGS/MEETINGS

    1. Date for Special Meeting – By consensus the Board will meet in Special Session on February 20, 2007 at 6:00 p.m. at the Administration Building.

  10. RESOLUTIONS/PROCLAMATIONS/ORDINANCES - None

  11. REPORTS/PRESENTATIONS

    1. CAP Program – DSS Director Deyton and Paula Holtsclaw provided the Board with an update on the CAP program. DSS Director Deyton requested permission to hire 3 part-time employees as full-time employees. Commissioner Sparks moved to allow DSS Director Deyton to hire the 3 part-time employees as full-time employees. Commissioner Phillips seconded the motion and it carried unanimously.

    2. Tax Collector – Tax Collector Garland gave the following report to the Board.

      2006 Total Percentage Collected 85%

      Total Collected for 2006 $4,956,850.00

      Balance left to be Collected $ 874,771.19

  12. APPOINTMENTS

    1. Workforce Development Board – Commissioner Hensley moved to appoint Steve English and Laura Way to the Workforce Development Board. Commissioner Phillips seconded the motion and it carried unanimously.

    2. Senior Tar Heel Legislature – Commissioner Hensley moved to appoint Mary Tichenor as the delegate to the Senior Tar Heel Legislature and Clarence Tichenor as the alternate to the Senior Tar Heel Legislature. Commissioner Sparks seconded the motion and it carried unanimously.

    3. Mitchell County Library Board and AMY Regional Library Board – Commissioner Sparks moved appoint Cherie Norwak to the Mitchell County Library Board and to the AMY Regional Library Board. Commissioner Phillips seconded the motion and it carried unanimously.

    4. Toe River Health District Board – By consensus the Board approved Dr. Marvin Walker to the Toe River Health District Board.

  13. RELEASES/REFUNDS - None

    1. Releases/Refunds for Board Approval

    2. Releases/Refunds for County Manager Approval

  14. COUNTY MANAGER’S REPORT - None

  15. BOARD COMMENTS - None

  16. CLOSED SESSION – Commissioner Sparks moved to go into Closed Session in accordance with N.C.G.S. 143-318.11(a)(3) and (6) which reads as follows: (3) To consult with an attorney employed or retained by the public body in order to preserve the attorney‑client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded. (6) To consider the qualifications, competence, performance, character, fitness, conditions or appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting. Commissioner Hensley seconded the motion and it carried unanimously.

    Closed Session was held from 8:10 p.m. until 8:30 p.m.

    No action was taken from the Closed Session.

  17. CITIZEN & AUDIENCE COMMENTS – Dr. Carroll asked the Board to move ahead with a subdivision ordinance and to treat each other with the respect that they expect from the public.

    Brenda Willis spoke against Chairman’s Byrd trashing Commissioner Saylor.

    Mignon Durham invited the Board to meeting on Tuesday at 7:00 p.m.

  18. ADJOURNMENT – Commissioner Saylor moved to adjourn the meeting.  Commissioner Sparks seconded the motion and it carried unanimously.

    The meeting adjourned at 8:40 p.m.

MITCHELL COUNTY BOARD OF COMMISSIONERS

Phil Byrd, Chairman

Lisa Sparks, Vice-Chairman

Mike Hensley, Member

Patrick Phillips, Member

Jim Saylor, Member

ATTEST:

Kathy Young, Clerk to the Board