Aldermen's vote to buy $3.5 million worth of property draws legal criticism

The New Bern Board of Aldermen voted in a closed session this month to buy $3.5 million worth of property to move some offices to the James City area. Lawyers for the N.C. Press Association say the vote was illegal.

The vote came during a closed session on Aug. 12, but was not followed by a similar vote during open session, according to a draft copy of the minutes of that meeting provided to the Sun Journal on Tuesday. Dana Outlaw, the only alderman to vote against the property purchase, said no vote was taken in open session that night to buy the land.

"There's nothing that concerns people any more than the esoteric things people aren't privy to," Outlaw said Tuesday. "People want openness; they want things to be readily available."

The aldermen did vote last week to unseal the minutes of that closed session, which was attended by City Attorney Scott Davis, City Manager Bill Hartman, Mayor Tom Bayliss, some city staff members and all the aldermen except Julius Parham.

North Carolina law allows public bodies to go into closed, or executive, sessions for several reasons. Closed sessions may be held to discuss personnel matters, economic incentives, legal issues or land acquisition.

But unsealing the minutes of a closed meeting is not sufficient when it comes to complying with North Carolina law, said Amanda Martin, an attorney with the N.C. Press Association.

"The law does not permit them to take the actual vote in closed session," Martin said Tuesday. "I think it is a violation."

According to the draft minutes, the aldermen went into the hour-long session to discuss buying three parcels of land and buildings on Kale Road in the James City area. The purchase price for the 20 acres and at least one building is $3.5 million. The city's "electric department and distribution, warehouse, water and sewer department and their administration offices would all be relocated to this building," according to the minutes.

Hartman said the buy would be made in two phases, and City Finance Director Mary Muraglia said the affected departments each have some money in their budgets that will go toward buying the property. Public Works Director Danny Meadows said the purchase would allow future expansion of the departments.

"The governing board discussed several pros and cons of purchasing the property, with Mayor Bayliss asking if there is a time issue," the minutes say. "City Manager Hartman stated there is and (the city) would like to let the owners know by tomorrow."

The vote came next.

Alderman Robert Raynor "made a motion to purchase the property" and Alderman Barbara Lee seconded it. On a roll-call vote, the motion passed, with Outlaw opposing.

The Board of Aldermen came out of closed session at 9:24 p.m., made a motion to unseal the minutes and adjourned a minute later.

That unsealing could "minimize, but not negate" the closed-session vote, attorneys for the Press Association said.

"They can instruct their negotiating agent. ... But they are not supposed to take that kind of (buying) action in a closed session," said Mike Tadych, also an attorney for the association.

"It's actually voidable," Tadych said.

He said state law provides that a person can challenge the city's action within 45 days of "knowledge of the violation."

But he said the city could simply redo the vote and that action would essentially stop any legal challenge.

"So what you have is a provision with no teeth," Tadych said.

Outlaw said he voted against the purchase not because of the closed session, but because it would put city offices too far away from the center of the city.

"We're asking the county to keep their offices in New Bern," Outlaw said, referring to a long-range plan that could put county offices in rural Clarks.

"We spent the money to hire a consultant to tell the county why their stuff needs to stay in New Bern, so to put our own offices in James City doesn't spark me as setting a good example," Outlaw said. "We could have put them in Five Points. We could have put them in a place that needs help."

Outlaw said that city leaders discussed the James City property "way back" and that the last related vote in an open session was to initiate an "investigation of the purchase - a fact-finding mission."

"I'm kind of curious why we didn't vote in open session this time," he said. "We might have already approved the purchase in an earlier work session. Scott's reviewing it."

Davis, the city attorney, did not return calls seeking clarification about the vote.