Vote could be taken during special meeting set for Thursday, Jan. 12
Expert opinions on the emergency meeting held by Tryon Town Council Tuesday, Jan. 3 call into question the validity of Tryon Town Manager Justin Hembree’s termination.
Although town council never said they did not take a vote, when asked for the vote, which according to state statutes has to be done in open session, town attorney Bailey Nager responded, “I’m going to recommend to commissioners at their meeting on Thursday that they take a vote.”
Council will hold a special meeting this Thursday, Jan. 12 at 10 a.m. at the fire department, with the agenda including a N.C. Rural Center grant, a closed session to discuss a personnel issue and the appointment of an interim finance officer.
Tryon Mayor Alan Peoples and councilmen Roy Miller and George Baker held a closed session emergency meeting Jan. 3 and later disclosed that Hembree’s employment had been terminated. The town was able to hold an emergency meeting per state and town statutes without notifying the public because the Bulletin had not formally requested to be notified of emergency meetings.
According to N.C. state statute 143 318.12, “(3) For an emergency meeting, the public body shall cause notice of the meeting to be given to each local newspaper, local wire service, local radio station and local television station that has filed a written request, which includes the newspaper’s, wire service’s, or station’s telephone number, for emergency notice with the clerk or secretary of the public body or with some other person designated by the public body. This notice shall be given either by e mail, by telephone, or by the same method used to notify the members of the public body and shall be given immediately after notice has been given to those members. This notice shall be given at the expense of the party notified. Only business connected with the emergency may be considered at a meeting to which notice is given pursuant to this paragraph.”
The Bulletin is currently drafting formal requests to be notified of emergency meetings in the future. That request will be sent to all local governments.
The Bulletin has learned, meanwhile, that actions related to the termination of a manager must be considered in an open meeting, according to state statute.
N.C. General Statute 143 318.11 states, “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.”
The reason for the closed session emergency meeting is still not known and Tryon officials cannot disclose any personnel issues per state law. Tryon officials did tell the Bulletin last week that Hembree did not do anything that would put the town in jeopardy, saying the town wanted to go in a new direction in terms of its manager.
The state statute says, “For purposes of this section, an ‘emergency meeting’ is one called because of generally unexpected circumstances that require immediate consideration by the public body.”
The N.C. Institute of Government’s Professor of Public Law and Government at the University of North Carolina at Chapel Hill Frayda S. Bluestein said her advice on emergency meetings is that the issue to be discussed at such a meeting must be something that can’t wait 48 hours.
“My advice is generally that it must be something that can’t wait 48 hours, since that’s the notice requirement for a special meeting,” Bluestein said. “If it could wait that long, they should give notice of a special meeting rather than handling it as an emergency.
“There is no immediate consequence if the notice is not provided, or if the meeting was not appropriately held, but it could be challenged under the statute and one remedy available would be a court order invalidating any action that was taken.”
The town violated its own code of procedures by not giving written notice regarding the meeting and not having the members who were not in attendance sign a waiver stating they would not be attending.
Tryon’s code of ordinances states, “Emergency meetings of the town board may be called only because of generally unexpected circumstances that require immediate consideration by the board. Only business connected with the emergency may be considered at an emergency meeting. One of the following two procedures must be followed to call an emergency meeting of the board.
“(1) The mayor, the mayor pro tempore, or any two members of the board may at any time call an emergency board meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each board member or left at his or her usual dwelling place at least six hours before the meeting.
“(2) An emergency meeting may be held at any time when the mayor and all members of the board are present and consent thereto, or when those not present have signed a written waiver of notice, but only in either case if the board complies with the notice provisions of the next paragraph.
“Notice of an emergency meeting under (1) or (2) shall be given to each local newspaper, local wire service, local radio station and local television station that has filed a written emergency meeting notice request, which includes the newspaper’s, wire service’s, or station’s telephone number, with the town clerk. This notice shall be given either by telephone or by the same method used to notify the mayor and the board members and shall be given at the expense of the party notified.”
When asked for copies of the written notice and/or copies of the written waivers from councilmen Doug Arbogast and Wim Woody, who did not attend the meeting, town attorney Bailey Nager said none existed.
If council had taken a vote in open session last Tuesday, it would have been legal, according to Bluestein and Amanda Martin, a N.C. media law attorney with Stevens Martin Vaughn & Tadych of Raleigh.
Although the mayor can vote only in the event of a tie, his presence constituted a quorum and two positive votes from Miller and Baker would have been a majority. In North Carolina, if a board member abstains from voting and does not have a conflict of interest concerning the issue, the vote counts as a “yes” vote.
“The general statutes define quorum of a city or town board as ‘a majority of the actual membership of the council plus the mayor, excluding vacant seats,’” said Martin. “So, even though the mayor only votes to break a tie, his presence is sufficient to establish a quorum for the meeting. Once a quorum was established, the vote of two members would be sufficient to pass a motion to terminate the town manager.”
Hembree had been manager of Tryon for approximately three years. He began as interim manager and was later appointed permanent town manager in 2009. Per Hembree’s contract, which was scheduled for review during Tryon’s regular meeting next Tuesday, Jan. 17, Hembree received a five-month severance package.