Dismissal of open space committee might have been unlawful

PHOTO: Bill Bencini takes his seat on the dais as newly elected mayor of High Point, after retiring from the Guilford County Commission, in December 2014.

by Jordan Green

The legality of how the former chairman of the Guilford County Commission dissolved the open space committee is called into question.

Bill Bencini, the former chairman of the Guilford County Commission, may have acted beyond his legal authority when he dissolved the open space committee through individualized letters to members in late 2014 informing them that their services were no longer needed.

“If the committee has been created by a vote of the board of county commissioners, then only the board can dissolve the committee,” said Norma Houston, a faculty member at the UNC School of Government in Chapel Hill. “If the board has delegated authority to the chairman to create the committee, then the chairman has the authority to unilaterally dissolve the committee. The general rule of thumb is that the entity that creates the committee has the authority to dissolve the committee.”

In his letter dismissing members of the open space committee, dated Nov. 12, 2014, Bencini wrote: “As the acquisition of property has now been completed, the county will not reappoint the subcommittee for the new year and your appointment will be completed on Dec. 1, 2014. Please know that the open space committee has helped place the county in a great position to maintain the properties moving forward. On behalf of the county and its residents, we thank you for your time, commitment and dedication throughout the years as the duties and responsibilities of the open space sub-committee have drawn to a close.”

Bencini, now the mayor of High Point, could not be reached for this story.

At least one county commissioner has said she remembered a formal vote on the matter, but a review of county commission minutes by Triad City Beat in the 12 months preceding Bencini’s letter uncovered no record of an official action. County Attorney Mark Payne said he recalls that the members of the county commission were notified that the letter was going to go out.

Payne said Bencini, among others, asked him if he had the legal authority to dissolve the open space committee without a formal vote of the county commission, and that he responded in the affirmative.

“Yes, it was authorized,” he said.

The position of county officials that Bencini did not need a formal vote of the county commission to dissolve the open space committee is based at least in part on the view that open space was not an official committee of the county.

“The open space committee is a bit of a misnomer,” Payne said. “They’re not a committee created by the county commission and created by statute. They didn’t have any legal status beyond being a subcommittee that was created to provide advice to the parks and recreation commission, which is an advisory board to the county.”

County Manager Marty Lawing offered a similar read.

“There’s some debate about whether that was really an official committee,” he said.

The establishment of the open space committee is memorialized in the minutes of the county commission’s July 20, 2000 meeting. The minutes record that the county commission accepted a document called the Guilford Open Space Report and approved its recommendations on a 10-1 vote. The motion was made by then commissioner Jeff Thigpen, who is now the county’s register of deeds.

The 2000 report is not incorporated into the minutes, but the recommendations, as approved by the county commission, clearly establish an open space program and a committee responsible for its oversight.

Recommendation No. 4 specifically holds “that a citizen advisory board, serving under, and as a subcommittee of the parks and recreation commission, provide leadership and oversight of the program.”

Comments by Norma Houston at the UNC School of Government back up members of the open space committee, who contend that they were an official committee of county government from start to finish.

“Based on what you’re telling me, then I would consider that an action by the board to create a committee,” she said. An expert in local government law, Houston served as chief of staff and chief counsel for former state Senate president pro tem Marc Basnight. Local governments routinely consult with the school of government about the legality of various decisions.

Lawing, who took the job of county manager in 2013, indicated he was unfamiliar with the county commission’s 2000 vote to establish the open space committee.

“To have a subcommittee of a committee that has oversight over a program seems kind of odd,” he said, “but if that’s what it said, then that’s what it said.”

Based on her limited knowledge of the matter, Houston said she could not comment on whether the county commission authorized Bencini to take action on its behalf. But any such delegation of authority would also need to be done through a formal vote, she said.

“Simply polling a majority of the board has no legal effect other than giving the chairman a sense of the board,” Houston said. “For the board of commissioners to take a lawful action it has to be done sitting in a properly called meeting, whether it is a regular meeting or a specially called meeting.”

Lawing said he is not aware of any official action by the county commission to delegate authority to Bencini to dissolve the open space committee.

Beyond establishing an open space committee, the 2000 report records that the county commission approved a recommendation to “establish an active, focused, long-term open space preservation and acquisition program.” Also approved by the county commission was a recommendation that the program be supported by the equivalent of one full-time staffer.

As recorded in minutes that were temporarily lost but are now available for review at the Old County Courthouse, the open space committee met regularly from 2001 through 2014. A county employee acted as recording secretary until the county withdrew staff in mid-2014. The minutes bear the county’s official seal.

The open space committee adopted bylaws on Feb. 27, 2001, the first meeting officially recorded in its minutes. The bylaws laid out the number of voting members, while reserving one position for a member of the parks and recreation commission. The bylaws also outlined the appointment process: “Application shall be made through the secretary, who is a member of the county staff. The committee shall make recommendations to the county parks and recreation commission. Members are subject to their approval.”

The bylaws continue: “Appointments from the parks and recreation commission are effective upon approval and a new member may serve immediately.”

Jack Jezorek, a former member of the open space committee, noted that the county commission’s 2000 action emphasized not only acquisition but also preservation of open space lands.

“By dissolving the committee, does that end the program?” he asked. Answering his own question he said that from a legal standpoint, the open space program appears to still be in place. But as a practical matter, the phrase “open space” has been excised from the county website, with the phrase “passive parks” substituted to describe a handful of the properties acquired over the years through the program.

Among the recommendations approved by the commission was establishing a minimum goal of protecting 100 acres of parks and open space per 1,000 residents by 2030. By that yardstick, the committee’s life was cut short halfway to the finish line.

The parks and recreation commission meets at 6 p.m. today in the Blue Room in the Old County Courthouse. The agenda includes a presentation on the Rich Fork Preserve, one of the properties acquired under the open space program, but David Craft, a member of the parks and recreation commission, said the item would be removed. A number of former members of the open space committee, Jezorek included, have said they plan to attend.

“My belief is that Guilford County needs an open space program,” Jezorek said. “That doesn’t say anything about an open space committee. All the urban counties in North Carolina have ongoing open space acquisition programs, with Mecklenburg and Wake obviously leading the way. Guilford County is pushing a half-million people, and the land is going fast.”