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Confusion over meeting law leads to conflict at City Council meeting

SALISBURY — When the issue of Fire Station No. 3 came up at Tuesday’s City Council meeting, Councilman David Post immediately recused himself from the vote.

Post lives near the proposed site for the new station. At a previous meeting during which the new fire station was discussed, he said he believes the relocation of the station to his neighborhood will significantly affect the value of his home — expressing his opinion as any other resident would during the public-comment period.

But on Tuesday, the council asked Post to leave the room during the deliberations.

“Why?” he asked.

“Because if you’re not going to speak as a council member, you can’t speak as a citizen,” Mayor Karen Alexander said. “You’re the same thing. You’re one person.”

The exchange started a debate among Post, Alexander and Mayor Pro-Tem Maggie Blackwell about what Post should be allowed to do in this unusual situation.

Post ended up staying in the chamber and listening in silence. But even after consulting City Attorney Rivers Lawther, the council never made clear why Post had been allowed to speak at the previous meeting and not at Tuedsay’s meeting.

Norma Houston of the University of North Carolina School of Government said the legal ramifications of elected officials’ conflicts of interest during public meetings is complicated.

“In my opinion, he was required to be recused from voting,” Houston said. “He had a direct, readily identifiable conflict of interest.”

But once an elected official recuses himself from voting, Houston said, the law is unclear.

“Must he leave? Legally, it’s not required. Conflict-of-interest law does not speak at all to what the member must do once excused,” she said.

Houston said that in some municipalities, officials have personal preferences for how to handle such a situation. She said some choose to leave the council’s dais and sit in the audience, like Post did, while others choose to leave the room entirely.

“It’s entirely a function of local preference,” she said. “So he is not required to leave and (the council) cannot force him to leave.”

On whether Post would be allowed to speak as a resident after recusing himself, Houston said elected officials do not lose their First Amendment rights when they’re elected to office.

“But they do need to be mindful if they have a conflict of interest and otherwise could not participate as a board member,” she said. “If they wish to literally wait in the audience, they need to make clear that they’re speaking as a citizen and not an elected official.”

Houston said the distinction between not hindering an elected official’s First Amendment rights and not allowing him to abuse his power is “a fine line.”

“I think the important thing would be the overall context — not only what he says but how he says it,” she said. “It’s difficult for citizens to view their public official objectively, so I think elected officials must be very careful in public comment.”

Post was not able to speak during Tuesday’s meeting because there was no public hearing for the agenda item about which he had a conflict of interest and he did not recuse himself in time for the general public-comment period.

But Houston said that had he been able to speak, the fact that he was going to speak from the audience during a public-comment period and not while sitting among other council members behind the dais would have helped him avoid the legal gray area.

The Fire Station No. 3 rezoning was approved in a 3-1 vote, with Alexander, Blackwell and Councilman Brian Miller voting in favor.

Councilman Kenny Hardin voted against it.

Contact reporter Jessica Coates at 704-797-4222.

 

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