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Monday, October 31, 2011

Does the way the Hickory City Mayor votes meet North Carolina General Statutes? -- Silence DoGood

Recently in a discussion in comments section of this forum concerning Reverend Cliff Moone and Mayor Wright, a couple of true statements were made that I found troubling.  So I decided to take a look.  Here is what I’ve come up with.

The following section is taken directly from the Hickory City Ordinances as published by Municode:

“Sec. 3.81. - Powers and duties.
      (a)   The powers and duties of the mayor shall be such as are conferred upon him by this charter1, together with such as are conferred by the city council2 pursuant to this charter, and no other.
      (b)   The mayor shall preside at all meetings of the city council3 and shall have the right to vote upon all questions. He shall be recognized as the official head of the city by the courts for the purpose of serving civil processes, and by the public for all ceremonial purposes4. He shall have power to administer oaths.  
      (c)   Such functions are enumerated in this charter as are conferred upon the mayor by general law shall be exercised by the city manager [sic].”
The next reference was taken directly from the North Carolina General Statues and is provided herein as a reference and footnoted in the section above to provide validity to that part of the code.  The footnotes are of my inclusion and not part of the original text.
      § 160A-69.  Mayor to preside over council. 
    The mayor shall preside at all council meetings, but shall have the right to vote only when there are equal numbers of votes in the affirmative and in the negative. In a city where the mayor is elected by the council from among its membership, and the city charter makes no provision as to the right of the mayor to vote, he shall have the right to vote as a council member on all matters before the council, but shall have no right to break a tie vote in which he participated. (1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 3.)
Here’s the deal.  The Hickory City Code runs counter to Statutory law and as a political sub-division of the State of North Carolina, any ordinance to be valid and Constitutional, cannot violate North Carolina Law.  The Hickory City Code is invalid in my humble opinion in this section.  Take a look.  NCGS § 160A-69 provides that the Mayor, “…shall have the right to vote only when there are equal numbers of votes in the affirmative and in the negative.”  Now, in Section 3.81 of the Hickory City Charter, it gives the Mayor, “…right to vote upon all questions.”  Therein lies the problem.

NCGS § 160A-69 only gives the Mayor a vote when there is a tie vote among council members, or, “In a city where the mayor is elected by the council from among its membership, and the city charter makes no provision as to the right of the mayor to vote….”  In the City of Hickory, the Mayor is not elected by the other Members of the City Council, the Mayor is elected by popular vote by the residents of the City that are registered and eligible to vote.  While that last part of that sentence is applicable, the City charter does address and make provision for the Mayor to vote, both parts of that sentence have to be valid and applicable in order for the Mayor to be able to vote on each issue.  Otherwise, the Mayor is only eligible to vote in the case of a tie.  The hook is that conjunction word “and”.  If that word were “or”, then there wouldn’t be a problem.  However, that isn’t the case and both conditions of that portion of the statute, “…Mayor elected by other council members and the city charter makes no provision as to the right of the Mayor to vote…” must be met.  That means that every vote participated in by the Mayor in and for the City of Hickory is highly questionable as to validity.

Now, that isn’t saying that much in the grand scheme of things.  They all vote together anyway and it isn’t like his vote carried any weight or negated from the rest.  However, it is wrong, it is improper, and it is in violation of the law.  The City needs to change their Charter so that 3.81 is in compliance with the Statute.

My other hang-up is over the City Manager and the agenda.  After further contemplation however, it makes sense that the Manager would set the agenda, with the aid and input of the Mayor.  Having said that, it is the Mayor’s meeting to run and he may call the items calendared after the agenda is adopted by council or to amend the agenda and then adopt it pursuant to the rules used to run the meeting.  Since there is no State statute or City code that stipulates who shall have construct authority of the agenda, I’ll leave it alone with what I think.

Now what I see happening is, if the legal staff sees this as being a problem after enough people have talked about it, getting a text amendment to the statute bill introduced by one of our rubber stamp local legislators to have the wording changed so that the City doesn’t have to change their ordinance.  However, I see that as being a historically complex problem, given the way that most cities and towns are structured in this State.  But who knows.


harryhipps said...

I'm no lawyer but it should be looked at. the bigger issue is the meeting before the meeting where the agenda is set. Some of the issues they jump into and some they ignore is what is looney.

Silence DoGood said...

I suppose that I should have included that this isn’t the doing of the current council or mayor. But, once becoming aware of the matter, sit in collusion with it if they do nothing. And the entire premise behind the statute makes perfect sense. What if one of the council members were absent and there was a contentious vote? If the Mayor as is normal practice creates a tie by voting, who is available to break it? That same statute prohibits the Mayor from breaking a tie in a vote they took part in.

I think legal counsel has made the governing board aware of this problem. All legal staff can do is act as counselor and provide advice. It is up to those being advised to follow or reject it. I think that those in power decided to continue on, business as usual until someone caught what was being done. But it would seem to me that there are three options available at present. Do nothing. Council can motor right along and completely ignore this site and the advice it is my belief they have been given. The second option would involve the existence of a court case in North Carolina with at least one fact that has something in kind with the facts as they are presently. If that case exists, there will be reams of defense generated for the way and means Hickory conducts it’s voting on issues and changing it then will be by judicial decree if someone is willing to take on the City to force the issue, since the Attorney General will be loathe to do it. They know that as well. However, if that case does exist, I believe that the language of that statute would have been changed to reflect a judicial quandary with it, and as the reader can see, it has been on the book quite a while without amendment. The third choice is to amend the statute, saying, “hey, we were unaware and are acting to bring our covenants in line with state law. Lets move on.” I think that would be perfectly acceptable and proper, showing an ethically viable governing board.

Not withstanding, I think changing the City code to reflect the state statute would actually add more prestige to the office of the Mayor. Right now, the Mayor votes with a majority board and it stands to mean absolutely nothing. If, however, the board were more idealistic, the office of Mayor would become pivotal as the critical vote to enact or reject proposals and changes, as the state statute intended. I’ll add this as well. Who occupies that office is inconsequential, how that office is occupied is. That really goes for the entire board. What does that say about the person who does nothing, knowing it is improper and contrary to what they took an oath to do?