If you’re going to carry on a secret affair, why not do it in the privacy of a hotel room? That’s exactly what happened on April 26, when the Asheville City Council and the Buncombe County Board of Commissioners huddled with attorneys and a mediator at the Renaissance Asheville Hotel in an attempt to renegotiate the embattled Water Agreement before it expires on June 30.
Despite the complex document’s enormous impact on area residents — and some dramatic legal maneuvers — both the public and the media were excluded from the proceedings. City Attorney Bob Oast had previously cited “attorney/client privilege” in explaining why the mediation process could be held in private without violating the state’s open-meetings law (see “Behind Closed Doors,” April 27 Xpress).
But after nearly 16 hours of talks — and in spite of being shielded from public scrutiny — the two local governments could not resolve their differences. At a late-night press conference, a visibly fatigued and crestfallen Nathan Ramsey, chairman of the Buncombe County Board of Commissioners, announced: “If we were going to reach an agreement, it would have been tonight. We blew it.” And in an interview the next day, Ramsey told Xpress: “We’re both to blame. It takes two folks to dance.”
Stop the presses
The meeting began at 8 a.m., and except for a 90-minute break while City Council held its scheduled formal meeting across the street at City Hall, the negotiations continued more or less uninterrupted until past midnight. In a logistical move rife with symbolism, the two governing bodies sequestered themselves in separate conference rooms at opposite ends of the hotel’s second floor. The county commissioners hunkered down in the Eagle Room, while City Council took refuge in the Cherokee Room. The actual negotiations were conducted by one representative apiece from the city and the county, their respective teams of attorneys (including staffers and outside counsel), and mediator John Stephens of the North Carolina Institute of Government, working in a neutral room at the midpoint of the hallway. And in an ironic twist that wasn’t lost on the journalists who stood vigil outside those closed doors, the hotel had chosen to name the latter chamber after the birthplace of the Free Speech Movement, calling it the Berkeley Room.
Shortly after noon, Asheville attorney James Gary Rowe, representing the Asheville Citizen-Times, arrived at the hotel and hand-delivered a letter to City Attorney Oast and County Attorney Joe Connolly. The letter said, “I do not see any statutory basis for conducting such mediation, discussions or whatever you wish to call it in a closed session.” The Citizen-Times, the letter continued, “does not want to interfere with the orderly process of coming to some resolution between the city and the county on this very important issue. However, we feel strongly that this entire issue has far-reaching implications for the citizens of both jurisdictions and it is imperative that all discussions that will impact those citizens be brought forward in a public forum.”
The letter’s conclusion was unambiguous: “In light of that overriding public interest, we would demand that any negotiations being undertaken in this mediation setting be immediately suspended.”
Rowe told Xpress that both the city and county attorneys had read the letter, told him they disagreed, and refused to halt the proceedings. At 5:10 p.m., Rowe filed a complaint against the city and the county in Buncombe County Superior Court, asking a judge to declare the closed-door session in violation of the open-meetings law and issue a temporary restraining order. By that time, WLOS-TV had teamed up with the Citizen-Times and was listed as co-plaintiff.
Rowe later informed the reporters in the hall that Judge Dennis Winner, who would be handling the case, had scheduled a hearing for 10:30 the next morning. And though that would most likely be too late to stop the meeting, Rowe noted that if the judge found in favor of the plaintiffs, he could then rule that any agreement made during the closed session would be null and void.
But that point became moot when both sets of elected officials gathered in the Berkeley Room shortly after midnight and announced that after nearly 16 hours of deliberations, no agreement had been reached.
Buncombe County Commissioner David Gantt broke the news, declaring, “We have reached an impasse.” There were two sticking points, he said: the county’s refusal to accept higher rates for water customers living outside of Asheville, and the city’s desire for what Gantt called “at-will annexation ability [in exchange] for water service within one mile of the city limits.” The discussions, he noted, had been wide-ranging, with many proposals and innovative offers presented. “The city apparently was not willing to reach an agreement without some rate differential. And we were not willing to accept a differential rate,” concluded Gantt. Ramsey then stepped forward, noting, “The city has not charged one for 75 years, and we should not open that window now.”
Then it was the city’s turn. Mayor Charles Worley stood at the head of the assembled Council members, many of whom appeared grim, with arms crossed and lips pursed. “We’re standing behind our mayor,” Council member Holly Jones proclaimed.
Worley said: “We’ve been here for 15 hours and responded to all the key issues and offered concessions. But on the core issues, there has not been one bit of movement on the part of the county. We think this is about fairness. … Our citizens deserve to be treated fairly. We’re willing to negotiate, but all we asked for was a level playing field.”
Worley also referred to the recent move by the local legislative delegation in Raleigh to intervene by introducing two new versions of the Sullivan Act (the 1933 legislation that has loomed large in the ongoing water dispute ever since). “We’re sorry the delegation decided to step in, but we’d like to thank Rep. Susan Fisher for her willingness to be open-minded,” said Worley. Fisher had earlier circulated an e-mail saying her support of the proposed legislation was in doubt. She was the only member of the delegation to waver (see sidebar).
Worley and Ramsey both noted that the city and county would be holding a joint meeting in the coming weeks to continue the negotiations. That meeting, said Ramsey, would be open to the public. Asked if the court action had influenced the decision to hold open negotiations, Ramsey said bluntly, “No.”
The next morning, Judge Winner met with the attorneys for the city, county and the media outlets. Within 20 minutes, the attorneys had exited the judge’s chambers, and Rowe announced that Winner had declined to issue a restraining order. Explaining the judge’s reasoning, Rowe said, “He denied it because the hearing is concluded.”
But Rowe added that Judge Winner had agreed to schedule a May 2 hearing to consider whether the law was violated.
In the days that followed the failed mediation, each side scrambled to pin the blame on the other, offering conflicting versions of what had transpired behind closed doors. The county struck first, issuing a press release revealing that the commissioners had offered to take over operation of the Asheville Civic Center from the city. That would “relieve the city of $4 million of projected Civic Center costs,” according to the press release.
It also noted that the county “began the negotiations by asking the City Council how much it would cost to have them enter into an agreement for an independent water authority. The city’s response was that no amount of money would be sufficient.”
The next day, the city fired back with a press conference in which Mayor Worley repeated his that there “was no compromise or any hint of a compromise from the county on any of our key issues. This was the principal reason the mediation failed.” A city press release, meanwhile, disputed many of the points made in the county’s salvo. The release also stated that the city had “offered substantive concessions” during the negotiations, such as creating a “quasi-independent board” (consisting of four elected officials from the city and three from the county) that would govern the Water Authority.
The city also offered to negotiate a limit on the size of the rate differential, provided that the county agree to continue certain non-water-related payments to the city that are included in the Water Agreement.
And as the two sides scramble to control how the tale will be told, members of the public are left scratching their heads as they try to discern fact from fiction. Because only the disputants know what went on behind those closed doors.