Police group threatens legal action against Asheville City Council on recent policy changes

WRITTEN DISSENT: The N.C. Police Benevolent Association's communication to Asheville City Council asks for members to rescind their recent motions on consent search and traffic stop policy. "We certainly prefer the opportunity to resolve these matters with you rather than exploring other measures available to us," the letter reads. Image from letter by N.C. Police Benevolent Association

The words City Council adopted on May 22 could land the five members who supported them in hot water, according to lawyers from the N.C. Police Benevolent Association. Language in the city’s charter suggests that the consequences could be serious, possibly even including loss of office if convicted of giving an order to a city employee other than the city manager.

The words in question came from Council member Keith Young as part of three motions he introduced at Council’s most recent meeting. Following presentations by Ian A. Mance, staff attorney with the Southern Coalition for Social Justice, and Chief Tammy Hooper of the Asheville Police Department, on racial disparities in traffic stops, Young proposed language directing Interim City Manager Cathy Ball to implement new APD policies for consent searches and regulatory stops.

In a letter to Mayor Esther Manheimer and City Council dated May 25, NCPBA Executive Director John C. Midgette claimed that Young’s motions were illegal. “Councilmember Young’s directives in an open Council meeting to the Asheville city manager and police chief may also have violated policy, procedure and law,” he wrote.

Brandon McGaha, staff representative for the NCPBA, clarified the exact concern of his group’s legal team. “You can order the city manager to address this problem, but you can’t order the city manager to give an employee a direct order,” he said. “That’s illegal, and that’s against their charter.”

Under this interpretation, Young’s motions would be in violation of Section 23 of Asheville’s city charter. The relevant language reads as follows: “[N]either the Council nor any member thereof shall give an order to any city employee in the administrative service of the city, other than the city manager, relating to any matter in the line of his employment.”

Regarding the consequences of such action, the charter continues, “Any violations of the provisions of this section by a member of the Council shall be a misdemeanor, conviction of which shall immediately forfeit the office of the member so convicted.” Young, along with Manheimer and Council members Brian Haynes, Sheneika Smith and Julie Mayfield, voted for each of the motions.

“If they don’t reverse their actions, we’re going to do what we have to legally and any other method to take care of that,” McGaha said. He declined to give a direct answer as to whether the NCPBA would consider legal action even if Council rescinded the motions.

Young did not respond to requests for comment by phone and email, while Manheimer disputed the police group’s reading of the motions. The mayor said that their intent was directed at Ball, who would have to figure out “how to cross the finish line” of actually making changes. “I think [Young] understands too that we have to tell the city manager, that we can’t tell the Police Department,” she explained.

“She’s going to have to work with the Police Department so that it’s a policy adopted by them and used internally,” Manheimer said. “In other words, she can’t just implement policy. She can write it down, she can put it in place, but it’s not actually going to work unless the Police Department [works with her].”

However, the charter also contains language suggesting that Ball may have the power to unilaterally decide police approaches. In Section 27, the document reads, “The manager… may himself assume and perform the powers and duties of director of one or more departments or offices and/or perform himself or delegate another any one or more functions or duties assigned to a department or office.”

A representative for the APD could not immediately be reached for comment.

Council member Vijay Kapoor, who voted against all three of the motions and sharply criticized their passage at the end of the meeting, said he’s planning to introduce resolutions at Council’s next meeting on Tuesday, June 19, to revoke the action and call for a public discussion of the process. “What we did on Tuesday was essentially improper,” he added.

“[The motions] definitely hit on the gray areas of the dynamic of a council that’s only allowed to operate on a policy level,” Manheimer said. “Operationally, there’s room for interpretation for how that should work.”

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About Daniel Walton
Daniel Walton is the Green Scene editor and city government beat reporter for Mountain Xpress. His work has previously appeared in Capital at Play, Edible Asheville, and the Citizen-Times, among other area publications. Follow me @DanielWWalton

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16 thoughts on “Police group threatens legal action against Asheville City Council on recent policy changes

  1. boatrocker

    Mothers and fathers:
    It is no longer a ‘black thing’.

    Have the conversation with your children ASAP.
    Not the birds and the bees- that’s for them to discover for you using the Internet
    as a babysitter.

    The conversation about why children should never trust cops.
    Cuz they shoot first and beg protection from cop unions later and always emerge
    scot free when your 15 yr old wields a phone.
    Or a cigarette, or a sandwich, or they appear in public.
    Or show up to school and cops run like biatches from
    active shooters.

      • boatrocker

        Not sure if that is sarcasm or not,
        but damned straight I am informed.

        My daily intake of info contains 0%
        InfoWars or FOX and Friends (PRAVDA).
        I kinda like editors, fact checkers and a free press.

        And books.

        • WagonWheel

          Your comments don’t reflect your knowledge claims…
          Could you submit any evidence (sources) so concerned citizens
          can stay informed??

  2. Buncy

    “Any violations of the provisions of this section by a member of the Council shall be a misdemeanor, conviction of which shall immediately forfeit the office of the member so convicted.”

    I’m wondering if this provision has ever been used against a council member. I’d be shocked if it has.
    Still, the city is burdened with a city manager form of government according to its charter. In effect the city manager takes suggestions from council, and if not the city manager gets fired. And lots of those have gotten their walking papers. So no one should underestimate the powers of council or overestimate the powers of the city manager.

    Police Malevolent Association, anyone? I really don’t enjoy bashing cops as a group. I like to focus on the bad ones, but as a group they have earned bundles of criticism these days. And when they do horrible things to people, the judges too often grant them immunity. History has shown they do an atrocious job of policing themselves, APD included.

    You want your police department to be a magnet for sadists and sociopaths? Then let the status quo prevail. I can assure you from long observation and experience there are a number of cops at APD who like Hickman are ticking time bombs, and who need to be permanently discharged.

    So I’m thankful to Council for their votes on Keith Young’s motions. If there is a question that the resolutions were out of order, that can be rectified. Let’s not get all nervous and jittery here.

  3. Maggie

    So this is how the PBA chooses to apply their influence- by causing further division and acrimony rather than endorsing training and recruitment reforms or condeming the use of excessive force by any of their members. It’s disgraceful and it’s also confirmation that reform is going to have to come from outside police organizations. When the city council next meets I recommend that they amend the city charter and reform the strong manager provision (which has been a disaster for Asheville under the autocratic regime of Gary Jackson). Our true decision makers need to be the ones we can vote in or out of office.

    • Lulz

      LOL the ones being voted in are the disasters. And don’t fool yourself. These buffoons want a manager around to pass the buck to. It’s why they enact study after study after study with years of wasting money. They want a seat at the table but without the responsibility or accountability that goes with it. You haven’t noticed that for a town that claims to be left, its downtown is corporate, its infrastructure is a disaster, and its economy is built on gluttony?

      • boatrocker

        (tapping the index finger)
        As usual, cite thy sources?
        Silence follows.
        Lolzylolylulz, whatever that means.

        Fox and Friends/Infowars – nope. Fake News.
        PRAVDA.

  4. cecil bothwell

    Couple of points.
    Council cannot amend the City Charter, it takes an act of the General Assembly.
    Anyone who thinks that Gary Jackson’s tenure was a disaster has not been paying attention. I wouldn’t contend that there were no mistakes, but the City has been amazingly successful during his term in office. Triple A bond ratings from multiple agencies, stepping up repair and maintenance on infrastructure, greatly reduced energy consumption, greatly reduced per capita landfill dumping, gaining substantial federal dollars for projects (most particularly the RADTIP), and streamlining of government departments. As one example, if you wanted to get a building permit for a garage or remodeling, before Jackson’s reorganization you needed to visit four or five buildings to get different approvals and sometimes got different information. Now you go to one place, and if you’re unfamiliar with procedures you are assigned a single person to guide you through the steps. That took a lot of cooperation from other employees, but it was Jackson’s initiative that made it happen.

    • Lulz

      LOL RADRIP and the huge cost overruns speaks for itself. Say you should venture down there and see what’s in store for that disaster.

    • According to GS 160A-101, Council can amend the charter in a number of specific ways without General Assembly approval. In fact, you voted for the last ordinance to do so during your time on Council: City of Asheville Ordinance No. 4603, adopted by the Council on July 25, 2017, amended Section 6 of the charter to provide for six single-member electoral districts governing the nomination and election of Asheville City Council members. The referendum that followed did not approve that ordinance, but Council did pass it unanimously.

      These changes include switching the form of government from Council-manager to mayor-Council, which theoretically could give Council direct authority over department heads, including Chief Hooper. See https://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_160A/GS_160A-101.pdf.

      • Buncy

        Thanks for your well-written article, but I wouldn’t be so sure about all these municipal legalities regarding city charter modifications. It can get complicated and the writers at UNC’s School of Government have provided us this FAQ to help understand that Asheville’s charter is still under the control of the General Assembly, regardless of Council’s vote to modify the charter:

        https://www.sog.unc.edu/resources/faq-collections/modifying-citys-charter-summary-questions-and-answers

        As in:

        “Furthermore, nothing in the charter change statute bars the General Assembly from reversing an amendment made by a city council or a city’s voters; the charter remains a legislative act and as such is always amenable to legislative change.”

  5. Enlightened Enigma

    There is a sub population among blacks who are consciously hostile to the society around them and its values. Those interested in this should further read ‘Black Rednecks and White Liberals’ by the esteemed black conservative Dr. Thomas Sowell, one of the most brilliant men in America.

  6. jason

    Let the police do their jobs and harass whoever they see fit. If you are not doing anything wrong, they aren’t going to bother you.

    • boatrocker

      Yesssssss, just as scores of unarmed dead people of color and motorists will tell you.
      Cops (giggles) are your (chuckling) friends (bursting out in laughter).

      Wanna buy a bridge?

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