Emotions flared at the Buncombe County Board of Commissioner’s Oct. 21 meeting during a discussion about the extra hours the Register of Deeds office stayed open on Oct. 10 in anticipation of Judge Max Cogburn Jr.’s ruling against the ban on same-sex marriage in North Carolina. The office stayed open until 7 p.m., two hours past its traditional closing time, and Buncombe became one of several N.C. counties where the state’s first same-sex marriages occurred.
At issue was North Carolina open-meetings law and whether the right process had been followed. County Attorney Robert Deutsch told commissioners that each county sets its Register of Deeds office hours individually; commissioners do not do this for any other department or office.
That didn’t set well with at least one meeting attendee who questioned the Oct. 10 extension that Register of Deeds Drew Reisinger called for that day. Reisinger, a Democrat, has advocated publicly for same-sex marriage since being elected in 2012 (he was appointed by county democrats to finish Otto Debruhl’s term in 2011).
“The register of deeds has once again determined he can open and close that office at any time he deems appropriate,” said Eddie Harwood from Barnardsville, referencing both the Oct. 10 extension and an closure of the office during February due to inclement weather. “This is outright arrogant, and an abuse of power, and speaks to his inability to perform his job. Once again, this board did not come into an open session to approve the change in hours. The office illegally stayed open even though this [was] not an emergency.”
The technicality of the law on the issue is tricky, Deutsch explained. Commissioners must hold an open meeting for changes in hours and other decisions, provided certain parameters are met. According to Deutsch and the other commissioners, on Oct. 10, at about 3 p.m, Reisinger sent an email simultaneously to all commissioners.
“As it’s been explained to me,” said Deutsch, “the intention of this email was to poll the commissioners to see what their opinion was.”
The N.C. General Statues defines “all official meetings of public bodies open to the public” as meetings, assemblies, 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.”
What this means, said Deutsch, is that it comes down to the question of “reply vs. reply all,” which, he said, was “the bane of a lawyer’s existence.”
(As Deutsch later clarified to Xpress, a single email or phone call to one commissioner at a time is considered a poll of or private communication with the commissioners. A mass communication to all commissioners simultaneously, with responses from the majority of members to all the other members simultaneously, is considered an official meeting, which would have to be open to the public.)
Reisinger did send a mass email communication to all commissioners simultaneously, and three commissioners did reply simultaneously — that is, using the “reply all” function to speak to everyone at once. This did not constitute a “majority of the members,” which would be four or more, and thus the action was not a public meeting, Deutsch concluded.
The county attorney acknowledged that the “traditional procedure for polling the commissioners was not followed.” Traditionally, the third party would contact either the county clerk or the county manager. “But,” he continued. “I think you can approve it retroactively, and I don’t think there was any violation [of open meeting law].”
This did nothing to reassure Commissioner Mike Fryar. “Myself and Mr. Reisinger had a conversation, and his words to me were, ‘What if at a quarter till five, [Judge] Cogburn comes down with a ruling that [same-sex couples] can get married?’ I said, at a quarter till five, if they come down with a ruling, you get ahold of [County Manager] Wanda Greene, and she can get ahold of the seven commissioners. At 3:18, [Reisinger] fired [the email] off to all the commissioners. There were people outside, and people deserve things. But they’re not special. …
“Mr. Reisinger stepped up and did something I asked him not to do,” Fryar continued. “The simple fact is, we’re supposed to have rules. But we keep stepping overboard.”
Commissioner Holly Jones countered, “I think Mr. Reisinger went above and beyond. One person does not direct another elected official. The disgrace I see is the frivolous use of taxpayer money for a political witch-hunt, and it’s just sad. Mr. Reisinger polled the entire board. I’m sorry your feelings were hurt, Mike, because he didn’t do what you wanted him to do. But to go on a political witch-hunt, I think it’s wrong. Wrong, wrong, wrong. We’ve heard the legal determination. I really would like for us to turn the corner and for everybody’s hearts to melt a little bit. There’s no sense in everybody getting so upset about this.”
But a verbal sparring match between Fryar and Jones ensued, with decibel levels rising until David Gantt, chair of the board of commissioners, intervened: “My understanding was that there was a crowd that wanted a county service not available to them. I think we’d [extend hours] for any citizens or group there en masse. I hope we would, because that what we said we would when we took an oath.”
But Commissioner Joe Belcher echoed Fryar’s insistence that there were rules to be followed, and asked Reisinger to explain his thought process on Oct. 10.
“That evening there was a lot of information coming down,” Reisinger replied. “We were hoping for a decision earlier in the day so we didn’t have to extend hours, … and there was a lobby full of people who were waiting for service in my office. And we do have a policy where if anyone’s standing in line, we serve them. It was a historical situation that demanded our full attention. Around 3 [p.m.] or so I called County Manager Wanda Greene, and asked for her opinion on how to proceed, and her opinion was — in my memory of it — I asked her if I could reach out to the commissioners to get their opinion on it. She said that, if my memory is correct, we could proceed.”
“Did you know there was a polling required?” Gantt asked.
“[Greene] was the one who told me that we needed to get permission from the commissioners,” said Reisinger.
“There were several conversations over three or four days,” Greene said in response to Fryar’s request for her recollections. “And [Reisinger] did tell me they expected the ruling, and I told him we did have to poll the board. I asked him to send me an email, and that’s the way it proceeded.”
“It’s our fault [Reisinger] was in that situation,” said Jones. “Because we didn’t know the rules.”
“Why didn’t we know the rules?” said Fryar.
“I think now we know,” said Gantt. “And I think we’re ready to move on.”
The motion to retroactively extend the hours passed 4-2, Belcher and Fryar opposing. (Commissioner Brownie Newman was absent.)
IN OTHER BUSINESS
Commissioners approved three rezoning requests, two for Keith Roberts, whose property was mis-zoned when authority over the town of Weaverville’s extraterritorial jurisdiction was transferred to Buncombe County. All requests passed unanimously.
Commissioners also approved funding for the Rural Operating Assistance Program, which is responsible for, among other things, the area transportation service Mountain Mobility. The program had a 14 percent drop in state funding compared to last year, worth about 10,000 rides.
In addition, commissioners also voted unanimously to approve a $10.3 million bond for the YMCA of Buncombe County from a political body in Wisconsin State. The money will not affect county debt or taxpayers, the commissioners just needed to approve the money according to Wisconsin state statutes.
Commissioner Belcher presented a proclamation to Tammy Shook of Buncombe County Health and Human Services, declaring November as Adoption Awareness Month.