City opts not to change water referendum language

On Tuesday, Aug. 28, Asheville City Council continued their regular meeting until today, Aug. 30, to consider a possible change in the wording of the November water referendum. However, after a closed session briefing from legal staff, Council opted to leave the referendum the way it is.

At the start of the Thursday session, Council reconvened and went straight into closed session for an update from City Attorney Bob Oast. After a half-hour, they emerged (sans Council member Cecil Bothwell, who was absent).

“After hearing advice from our legal counsel, is there a desire to make a motion to change anything or just proceed?” Mayor Terry Bellamy said. Council member Chris Pelly said he was in favor of proceeding, and none of the other Council members objected.

At regularly scheduled meetings, Council generally allows public comment on new or unfinished business. But in this case, Bellamy claimed that because there wasn’t a motion or any changes made, public comment wasn’t necessary, and she adjourned after it was clear the text of the referendum will stay the same.

“When there’s a motion on the table, I allow people to make a comment on that motion,” Bellamy told Xpress. “There was never a motion on the table.”

Oast said that the meeting was continued to deal with the item because any changes to the language have to be made before the conclusion of the Democratic National Convention, as ballots are finalized shortly after. He noted that he had checked the wording of the referendum with the state board of elections.

Asheville is the first municipality to hold a referendum on the sale or lease of its water system since a law allowing such a vote went into effect at the beginning of this year. The referendum will read: “Shall the City of Asheville undertake the sale or lease of its water treatment system and water distribution system.”

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32 thoughts on “City opts not to change water referendum language

  1. Council took up the matter of a water system referendum on August 14th. They deliberated, sought legal counsel and offered up variations on the wording. They settled on language for the referendum at that time and took a vote.

    Why is this matter being revisited on August 30th?

    Why did city attorney feel that he needed to further advise city council on referendum language that had already been approved by a unanimous vote more than two weeks ago? And why in closed session?

    Clearly a change in the language was being contemplated.

    Who suggested changing the referendum language?

    How did they want the referendum to be differently worded?

    What triggered consideration of a change in the language?

    It would seem that any casual observer would sense something amiss in all of this. I’d like to find out now rather than wait until after the election when the details of the closed session can be made public.
    ………………….

  2. Meiling Dai

    Any referendum submitted to the Buncombe County Board of Elections is referred to the legal team of the State Board of Elections to determine if the wording conforms to state statute. Apparently, the city was advised not to change the wording. In any case, if city voters vote YES on the sale or lease of the water system on November 6th, their decision will be non-binding. If city voters vote in the negative, the referendum will be “binding”. But this will not halt the state-recommended merger of the water system with MSD of Buncombe County, except that the city will not be eligible for compensation due to the referendum.

  3. I don’t object to the wording of the referendum. It might as well say, “bababooie, bababooie” for all I care. It’s completely irrelevant to a General Assembly mandate to merge the water system into a regional authority.
    ………………….

    • bsummers

      Because if there’s one thing that Conservatives/Libertarians/Randians believe in, it’s the immutable power of the State over local decision-making.

  4. Dionysis

    Barry Summers writes:

    “Because if there’s one thing that Conservatives/Libertarians/Randians believe in, it’s the immutable power of the State over local decision-making.”

    Tim Peck replies:

    “An ad hominem argument occurs when one attacks the person making an argument rather than the argument itself…”

    Showing Mr. Peck either does not understand that a comment on Libertarianism is not a comment about him. Although he wishes it was as it would give an excuse to divert from the uncomfortable point Barry makes.

  5. Meiling Dai

    In response to one commenter’s denial that a “no” vote on the sale or lease referendum means the city cannot be compensated when a merger of the water system with the MSD of Buncombe County occurs, I beg to differ. I am told that during a recent City Council meeting, council members were advised that a “no” vote would mean no compensation in the event of a merger. Despite that, they voted unanimously to approve the referendum. And for that, I commend them because they are giving city voters the opportunity to have a “voice” on this issue, rather than ignore them.

  6. Michael Muller

    Thinking out loud here…

    Sounds to me like maybe Council wanted to change the wording of the referendum when they came to realize that Moffitt actually supports putting it on the ballot…and because the language they all voted to support last week not only has no teeth but is entirely irrelevant:

    “Shall the City of Asheville undertake the sale or lease of its water treatment system and water distribution system…”

    Because the water system isn’t going to be sold or leased. The water system, (which the City of Asheville doesn’t really own in the first place) is being consolidated with another government entity.

    And maybe when they thought they could pull a fast one and change the language, Bob Oast put the smack down on them because changing the language is statutorily prohibited.

    Maybe that’s why they all looked so grumpy when they came out of closed session.

    All just speculation on my part, of course.

    MM

  7. FLASH

    Recommended language change:

    “Shall the City of Asheville undertake the sale or lease of . . . Oh, geez, never mind. We lost the ability to forcibly annex high-value property that’s really nearby. We lost the ability to use water to lure fresh new taxpayers into the city. And now some annexations are even being repealed. We’re screwed. Go home. Crack open some local brew.”

  8. City council asserted attorney/client privilege as the reason for a closed session. Who’s the client?

    One of the permited reasons to go into closed session is, “To consult with an attorney employed or retained by the public body in order to preserve the attorney?client privilege between the attorney and the public body” http://snipr.com/24pupuc

    The attorney is legal counsel employed by the city, City Attorney Bob Oast. The client is the public body, the City of Asheville.

    However, the law also states, “A motion based on [attorney/client privilege] shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.

    What was the lawsuit connected with reconsideration of the language of the water referendum?

    David Lawrence of the UNC School of Government states in his book County and Municipal Government in North Carolina, that “the public body [city council] may give instructions to the attorney about handling or settling claims, litigation or other proceedings.” http://sogpubs.unc.edu/cmg/cmg08.pdf

    The referendum does not involve any claims, litigation or any other legal or court proceedings. And the advice was being given BY the attorney TO city council, not the other way around. It was Bob Oast who started the reconvened meeting by recommending that council go directly into closed session without discussion to hear his advice on the agenda item. Upon ending the closed session, council unanimously chose to take no further action on reconsideration of the language of the water system referendum.

    NC law mandates that accurate minutes be kept of closed sessions. “When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired.”

    Furthermore, once the reason for the closed session has been resolved, those minutes must be entered in the public records for inspection: “Minutes … of a closed session … may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.”

    If the closed session is a legitimate one, which I question, then the deliberation held therein must be made public after the election.

  9. bsummers

    I can’t wait to see what the “more intelligent readers” have to say. I’m just a “stupid progressive”.

  10. Meiling Dai

    Actually, when this merger between the water system managed by the city of Ashevile and
    the MSD of Buncombe County takes place, the
    city will receive NO compensation. This,
    according to one of the managers of MSD
    because ratepayers paid for the system.
    If Asheville were to receive compensation,
    then the ratepayers would be paying for it
    twice. Not going to happen.

  11. Meiling Dai

    The main reason the city of Asheville wants to retain management of the water system is so that they can voluntarily annex “at will” if they can get a sympathetic legislature to “overturn” the Sullivan Acts. If they can get that done, they can tell Biltmore Lake, “if you don’t agree to be VOLUNTARILY annexed, we will raise your water rates skyhigh. In Asheville, insiders and outsiders pay the same water rates per the Sullivan Acts. Differential water rates are applied by other cities in N.C. to “voluntarily” annex. Forcible annexation by Asheville has been dealt a setback by SL2012-11, the new state law that allows North Carolineans to vote on annexation as long as they are registered voters. This law also applies to people living in ETJ areas.

  12. bsummers

    “The main reason the city of Asheville wants to retain management of the water system is so that they can voluntarily annex “at will””

    That’s certainly the fear/victim card that Tim Moffitt has been dealing to anyone who questions why the need for this unprecedented, radical abuse of State power on a municipality. Without the “oh, they’re gonna quadruple your rates” (yes, the Study Report actually suggests that: “quadruple increases in their water rates”), there would likely be little support among conservative County residents for this crazy seizure of City assets by Raleigh.

  13. “the city will receive NO compensation”

    And since the city has already taken $100M out of the water system for their general fund, it’s unclear at this time whether or not Asheville will actually owe money after the merger.
    …………………….

  14. sharpleycladd

    Mr Peck and Ms Dai are struggling mightily, but I’d just say that anybody who’d mutter threats when people talk about voting doesn’t belong in America.

  15. Meiling Dai

    I was born and raised in this country and have every right to express my opinion on the water controversy. My comments are based on fact, not fiction. Your utterance that I or Mr. Peck do not belong in this country because we are expressing our thoughts on this issue is unAmerican in itself. Maybe if you read our comments carefully, you might learn something.

  16. bsummers

    “My comments are based on fact, not fiction.”

    Not always. Sorry, but one thing I’ve learned from reading your comments carefully is that you & Mr. Peck repeatedly say things that are, how’s the polite way to put this… filled with inaccuracies. That’s not an attack, and I believe it’s a fair comment to point that out. In the midst of a debate on a controversial and complicated topic, those few who repeatedly spread incorrect ‘facts’ into the mix, are also the same people arguing that City residents shouldn’t be allowed to vote on that topic at all

    Everyone is free to express an opinion, but I think we can be forgiven if we are increasingly skeptical of your factual assertions.

  17. bsummers

    For example, Ms. Dai – I posted the link to the video of the City Council meeting where the compensation issue you brought up was discussed. Have you watched it, and do you now acknowledge that your previously-stated information was wrong? I ask because I want to know if a dialog based on verifiable information is possible, or are we just going to hurl our own private set of facts out into the void, accomplishing nothing?

  18. Meiling Dai

    I am not a dispenser of fiction, as one commenter accuses me of. Sometimes, truth hurts and the only way some people can hit back is to attack the veracity of others. It is true I was misinformed that the issue of compensation was discussed in a City Council meeting. But you also were misinformed as to the correct percentages of Inside 65% and Outside water 35% customers. The Operations Manager of the Asheville water system quoted different figures and I think he is in a better position to know – Inside 63%; Outside 37%. Does that mean you are a writer of fiction; of course not. I personally spoke with one of the MSD Managers who told me that the city of Asheville will not be compensated for the part of the water system they own (Buncombe County owns part) BECAUSE water customers have already paid for the system. Compensating Asheville means customers would be paying for the system twice. Apparently, MSD’s main priority is what is best for ratepayers.

  19. bsummers

    I was off by a couple of percentage points. You were off by 20 – 25%. Sure, I guess for the sake of lubricating the discussion, we can agree to pretend that’s the same thing.

    Speaking of fiction, when Margaret Williams got the exact numbers from the AWD and cleared up this “most of the water system customers live outside the City” nonsense, your cohort Mr. Peck refused to acknowledge it, and instead came back with this as rebuttal:

    “1. 50% of Henderson County will be served by the merged water system.”

    He still hasn’t explained this curious statement. You can see how one might doubt the veracity of certain commenters.

  20. Margaret Williams

    How about everyone refrain from insults, however thinly veiled? That violates the spirit of our comment policy.

  21. WitchDoctor

    Does the Asheville City Council have the authority to hold a regional referendum? It seems that this beef should be directed towards TIM MOFFIT. He, unlike the Asheville City Council, could introduce a bill that would make that possible.

    I think people would be less likely to attack you personally if you didn’t make such ridiculously absurd assertions.

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