Legal Counsel to Haywood County Board of Directors
Recently, I’ve observed a process play out in the Haywood County Board of Commissioners where the Haywood County Board of Commissioners relies in part on the advice from the counsel they hire to provide them legal advice. The advice provided by the County Attorney should be questioned.
Leon “Chip” M. Killian, III is reported to have served as the county attorney for Haywood County since 1971.(1) That’s a very distinguished length of service and I’m sure in those 42 years, he could tell lots of stories and point to plenty of benefit provided to the county.
But in the recent issue regarding a question of someone potentially appointed in error to too many public bodies, Mr. Killian gave questionable advice to the Board of Commissioners. Being presented with additional information, Mr. Killian maintains his original position which now seems inappropriate to continue to support. It is now appropriate to question his role in county government – especially as he seems to be skirting a line of an ethical boundary of truth or perhaps tainting his advice with an element of politics.
Mr. Killian took action to determine if someone was erroneously APPOINTED to a public body. The question came down to determining whether or not the Haywood County Fairgrounds Board was to be considered a “public body”. Here are the facts on that issue:
The law states this:
Any person who holds an appointive office, place of trust or profit 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, or an elective office in either State or local government. (2)
This exact circumstance is described by a large law firm:
The term "public body" includes not only the governing board of a public entity, but also all committees and subcommittees of that governing board as well. In addition, every entity created or controlled by a public body also is covered by the Open Meetings Law. Thus, even a supporting foundation that is a nonprofit corporation, but whose directors are appointed by a public body's governing board, is usually a covered public body. (3)
The Fairgrounds By-Laws says this:
The Fairgrounds Board is a public body and all meetings shall adhere to the North Carolina Open Meetings Law as set forth l Article 33C, Chapter 143 of the general Statutes of North Carolina. (4)
The NC School of Government says this:
I also think that the county fairgrounds board members likely would be considered to hold a public office. The law on what constitutes a public office primarily also comes from individual cases, but based on the holdings in some of those cases …I think there is a good chance that a court would find the fairground board members' responsibilities to be consistent with those of a public office.
Assuming that the appointment to the fairgrounds board is a public office, the person would hold three appointive offices. This would violate the constitution and the statute, both of which limit appointive offices to two. (5)
In light of all these facts and opinions on the matter, Mr. Killian surmised, “he had researched the issue, conferred with experts at the UNC-Chapel Hill School of Government and concluded the fairgrounds board, as a 501-c-3 nonprofit organization, did not meet the statutory definition of a public body.”(6) As the above facts and opinions conclude: Mr. Killian’s conclusion is WRONG.
When presented with an opportunity to explain his reasoning, Killian said the matter surfaced because of an “apparent lack of understanding about the issue.” (7) The question that Mr. King asked was, was the APPOINTMENT of an individual in error? If there was any "apparent lack of understanding", it was the question that was to be answered.
Mr. Killian has provided the Haywood County Board of Commissioners erroneous advice, he has had ample time and multiple promptings to correct or clarify his position or provide supporting evidence. The next course of action is to present a public challenge and ask the Board of Commissioners to formally address the issue.
Three important facts to note:
- The Mountaineer (specifically Ms. Vicki Hyatt) did in fact reach out to the NC School of Government. The response received from the NC School of Government required some deductive reasoning to form a conclusion – The Mountaineer seems to have formed an erroneous conclusion.
- Ira Dove reached out to the NC School of Government. The response he received also was erroneous -- likely because the question he presented was lacking sufficient detail to form a valid opinion.
- The NC School of Government did correct its advice when presented with an appropriate level of “more detail” by Mr. Denny King. It is unclear if this correction was sent by the NC School of Government to Mr. Dove, The Mountaineer, or County Attorney, Chip Killian.
Is this an example of ugly politics? Did the Haywood Country Board of Directors show appropriate respect and service to citizens that presented a concern? Did the County Attorney double-down on an erroneous opinion or did he inject an element of politics into the matter?
Opinions and discussion on this matter is welcomed below.
(5) Private e-mail. Public Records Law: Frayda S. Bluestein, David M. Lawrence Distinguished Professor of Public Law and Government, Associate Dean for Faculty Development, School of Government, The University of North Carolina at Chapel Hill