A recent decision by the Pinehurst Village Council to count the vote of an absent member as being in the affirmative at a May meeting has touched off a debate over the interpretation of state law.
According to emails provided by state Rep. Jamie Boles, the General Assembly’s legislative analysis division and the UNC School of Government are both questioning the Pinehurst Village Council’s action to count the vote.
But the village’s attorney, Mike Newman, told the council Tuesday that, based on his interpretation of state law, it acted correctly.
Boles said he asked the General Assembly’s legislative analysis division for clarification on his own accord earlier this month.
“I thought that did not sound right,” Boles said Thursday about the council counting the absent council member as a “yes” vote.
The council voted at its May 23 meeting not to excuse Clark Campbell’s absence — even though it has no policy or even a precedent for doing that. Mayor Nancy Fiorillo explained that the advice she received from Village Manager Jeff Sanborn was that if a member’s absence was not excused by the council “your vote is in the affirmative.” Sanborn said he came to that from researching information from the Institute of Government in the UNC School of Government.
Campbell, himself an attorney, has asserted that the state law applies only when a member of an elected board is physically present and is not excused by a majority of the other members for limited reasons allowed under the law.
Erika Churchill, a legislative analyst with the General Assembly, said in an email to Boles earlier this month that her office also contacted the UNC School of Government, which was unaware of the specific situation with the Village Council.
“They agree that there is no requirement to be excused from attendance nor is there any authority for a board to do that,” she wrote in the email to Boles. “The voting statute assumes a person is present and doesn’t vote and hasn’t been excused from the meeting or from the vote.
“The (School of Government) faculty went on to further state that the village should consider correcting the minutes from the meeting and remove that vote (not to excuse Campbell) from the outcome.”
The Pilot was unable to reach an official with the School of Government who was familiar with this particular issue.
Churchill pointed out in an earlier email to Boles that “in the end, please remember that it is the judicial system that interprets the laws, based on the facts and circumstances before the court.”
Newman maintains that the Pinehurst council acted correctly.
“There are going to be, inevitably, varying opinions here,” he said. “I have my opinion based on the stuff I have looked at and the case law I have read on how the Court of Appeals has interpreted this. The School of Government has an opinion. … All of these opinions, including mine, are nothing more than arguments. A court would have to determine what exactly the General Assembly meant by the language they used.”
Fiorillo said during the meeting Tuesday that Campbell had informed the village the afternoon of the May 23 meeting that he would not attend and gave no reason.
“There was a zoning vote,” she said in reference to a rezoning request by Community Presbyterian Church. “How do we handle that? Jeff did some research. As strange as it seems, the research showed that … if we voted not to excuse him, then the vote was in the affirmative. We did what we thought was the right thing at the time.”
Newman told the council that part of the problem is that the particular general statute on voting by elected bodies is unclear.
“We are here today discussing this because of poor draftsmanship by the General Assembly,” he said. “It is as simple as that.”
Newman said state law “places a premium on requiring” elected officials to vote on issues that come before them. He said the law allows a limited number of reasons to excuse a member to vote, such as having a direct financial interest in the matter or a conflict of interest.
He said there is also a “catchall phrase” that says “failure by a member who is physically present or has withdrawn without being excused by a majority of the remaining members present shall be record as an affirmative vote.”
Newman said the law does not define what “withdrawn” means in terms of whether the person is actually present and then leaves without being excused or does not show up at all for the meeting.
“The absence has to be excused by the majority of council,” he said.
Newman said he was aware of the emails Boles provided.
“I don’t know if that is consistent with … this statute,” he said. “I understand the argument. My opinion is the fix to this is to have the council going forward to adopt a clear policy to determine what are excused and unexcused absences. The General Assembly says it has to be excused or unexcused. Any absence that is unexcused is deemed an affirmative vote. That is what I believe a court would most likely do.”
Newman argued that the council is “empowered” to make an internal policy to determine what is an excused absence and an unexcused absences.
But Campbell was vehement that the member has to be physically present. He said this was never about the church rezoning vote on May 23 — which he indicated he favored.
“I think that is terrible policy,” Campbell responded. “We know there is going to be an exact opposite argument to what Mike presented. To vote and not be here defies logic. That is not how you govern. You don’t govern by absentee vote. … I don’t agree with Mike’s argument. It is a poorly written statute.”
He also questioned why the issue was even brought up at the May 23 meeting because a quorum was present and his vote was not needed. The other four council members approved the church’s rezoning request.
“I just don’t know why we went down this road,” he said. “We’ve had plenty of votes in the last four years I have been on council …with members absent and did not ever consider that person voting positive for something.”
Fiorillo responded that the member had always given an excuse.
“We always considered it an excused absence,” she said. “Somebody didn’t just say ‘I won’t be there tonight,’ period, which is what you did. Can you agree we need to develop a clear policy?”
Campbell replied that the state law needs to be changed to make it clear a member has to be physically present to vote. He said he plans to push for that change in the law.
“We can’t do anything about that tonight,”Fiorillo said. “When you don’t have case law, you have to go by your attorney’s interpretation.”
Campbell responded, “You don’t have to go by what your attorney’s interpretation is. You listen to his interpretation. Otherwise he may as well run the town.”
Fiorillo said that in legal matters “we listen to Mike.”
“I don’t want argue this with you Clark,” she said. “If we did something we shouldn’t have done, that wasn’t intentional.”
Fiorillo asked if the other council members agreed on developing a policy based on current state law as Newman recommended. She then said to Campbell that “if you get the law changed we’ll change our policy.”
Campbell interjected that since council member John Bouldry was absent Tuesday, his vote should be recorded in the affirmative since the council did not vote to excuse him.
Fiorillo responded that there was no formal motion before the board that required a vote.
“You don’t see the silliness in voting and not being present?” Campbell asked Fiorillo. “It has to do with commonsense.”
“We did what we thought was right,” she responded. “I agree it didn’t make much sense to me. But that is what we researched and that is what we found.”