A town board member’s advocacy for an illegal seafood market may have violated the state’s open meetings laws, based on emails obtained from the town of Chadbourn.
It’s the second time Avala Nealy has appeared to violate the law regarding emailed communications with other board members.
Nealy was criticized earlier this year for the same potential violation while pressuring the previous town manager to fire the police chief. Nealy, Councilman Danny Clewis and Mayor Pro Tem Tony Jordan were demanding unfettered access to the police department, as well as questioning whether the town’s animal control officer was acting as a police officer without being certified. Town Attorney Mike Stevens abruptly walked out of a called meeting and resigned, in part over board members allegedly pressuring then-Town Manager John Bauer to fire Police Chief Ken Elliot without cause.
Nealy, Jordan and Clewis have since voted to increase the cost of benefits for town employees, defund shotspotter and Flock traffic cameras, and cut funding to the police department. The new benefits program would have increased deductibles and out of pocket expenses to as much as $9,000 a year for some employees.
Town Manager David Wise offered an alternative that increased employee payments and used surplus funds from an unfilled position, but Nealy, Jordan and Clewis voted for the more expensive package. The three recently refused to vote on an alternative motion to retain the town’s original benefit plan, with employees paying a slightly higher cost. Since refusing to cast a vote counts as a yea, the motion passed.
The latest controversy erupted when Nealy emailed Wise on July 13 regarding a fish market in a residential area.
Nealy included all members of the town council and staff in the July 13 email. Undre state law, that can be considered an illegal private meeting. She questioned why a code enforcement officer had visited the business at 113 Enterprise Street, and why law enforcement accompanied code enforcement.
Nealy was contacted by the owner of Yahyah Seafood, Antonia Jackson, after Jackson was told she was out of compliance with town ordinances. Jackson reportedly became belligerent toward town officials during a previous visit, so a police escort was requested for the second visit.
Chadbourn Police Chief Ken Elliot said the code enforcement officer was accompanied by a police officer because of previous contacts with the owner of the business. The officer assigned to the escort was still under the supervision of a field training officer (FTO) per town policy and state law.
The business is located in the Residential Main Street Transition district, where commercial operations are prohibited. A July 9 letter to the property owner, Betty Pearl White, instructed her to close the business, Yahyah Seafood LLC. Yahyah Seafood has since been contacted by the state Dept. of Agriculture about non-compliance.
“Retail seafood operations are included in the N.C. Dept. of Agriculture and Consumer Services Inspection program. At this time we do not have a seafood operation listed in our database at this address.
“No license is required but food operations such as yours need to be operating in compliance with (state law.)” The letter also notes that in addition to being free of pests, the business must be “complying with town ordinance requirements.”
Nealy’s first email included all town council members and staff, except for the town attorney, Sharon Lin. The attorney was added later in the conversation. No other town council members or staff replied to the email.
“I recently had a visit from a concerned resident regarding an interaction with a code enforcement officer and two members of the Chadbourn Police Department,” Nealy’s first email of July 13 said.
“Could you please refresh my memory regarding the external code enforcement position? I was under the impression that the position was eliminated during the budget process and that those responsibilities were reassigned to you…
“Additionally, under what circumstances does the Chadbourn Police Department become involved in code enforcement matters?”
Wise responded that while most code enforcement duties were passed on to him, the budget item for “professional services” allows the use of a code enforcement officer.
He also warned that since the email included other board members, it could constitute an unpublicized meeting, a violation of state law under N.C. Gen. Statute 135-318.10. Section D of the law states that “ ‘Official meeting’ means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.”
Nealy replied that her email was a “single email thread,” not a meeting.
“…this is not a meeting,” her reply said. “This communication, in its entirety, follows the Town’s established policy and procedure requiring that communications be directed to the Town Manager rather than to department heads.
“Additionally, when a question is directed to the Town Manager for clarification, it has been the standard practice to include the Mayor, Council, and the Town Attorney for transparency and to ensure everyone receives the same information at the same time. Simply including recipients on an email does not, by itself, constitute a meeting.”
Town Attorney Sharon Lin then replied that a Court of Appeals case on Open Meetings Law did not specify how long of a delay between emails and responses prevents communications from being classified as a meeting.
“While the Court in that instance concluded that a delay of several hours between emails did not meet the ‘simultaneous communication element required to trigger the open meetings law,” she wrote, “I would still advise that we keep emails about this topic to a minimum, and if necessary, we can hold a closed session meeting on this matter for the councilmembers to consult with the town attorney in order to preserve the attorney-client privilege.” She also suggested a closed session to discuss the issue.
The council is expected to further discuss the code enforcement violation at its August meeting.
