Todd Paris, Staff Writer and Salisbury Attorney
♦ Good Evening City Council,
According to Councilman Hardin, you are in the process of investigating him. The way in which you have done it, has failed to follow proper procedure and has violated state law.
First, Councilman Hardin is not a city employee. The grievance procedure outlined on pages 39-40 of the employee handbook does not apply to him. In fact, NCGS 128-21(10), which defines employees for purposes of the Local Government Retirement Systems, excludes “such employees who hold office by popular election as are not required to devote a major portion of their time to the duties of their office.” The City Manager cannot use his personnel authority to investigate Councilman Hardin in this manner. Doing so is an invalid investigation.
Second, this board has not passed a motion in open session to investigate Councilman Hardin or to authorize the expenditure of public funds for such an investigation. Now I know City Manager Bailey is not a wreckless man and would not investigate a sitting council member, one of his bosses, without the other council members giving approval. NCGS 143-318.9 states that actions of an elected body shall be conducted openly and any actions taken by an elected board in violation of said statute may be declared null and void under section section 318.16A. The fact that an action has been taken to investigate Councilman Hardin without it being done in an open meeting is a violation of state law.
In addition, NCGS 159-28 states that no obligation may be incurred unless the budget ordinance includes an appropriation authorizing the obligation. No where in the city budget is there a line item authorizing the expenditure of funds to investigate a sitting elected official. The fact that funds have been expended for such an unauthorized purpose is a violation of state law. Specifically under section a(2) of the statute it states an expenditure in violation of the statute is invalid.
You should have taken a public vote on it and you should have passed a budget amendment authorizing the expenditure of funds to investigate a sitting board member, but you didn’t. I assume you didn’t because if it was placed openly on the agenda then this council chambers would be packed full with Kenny Hardin supporters taking their three minutes under public comment to give you a piece of their mind, which you’ve proven to be sensitive to over the last several months.
Because you didn’t do this correctly, you now have an invalid investigation paid for with invalid money and have violated state law twice. And it gets worse.
Another section of state law, NCGS 160A-86 requires that you adopt an ethics policy and that it specifically address “the need to obey all applicable laws regarding official action as a board member” and “the need to conduct affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings.” So by violating state law twice, you’ve violated your own ethics policy.
It seems Councilman Hardin now has solid grounds for an ethics complaint against you.
Employee handbook: http://www.salisburync.gov/Departments/HumanResources/Documents/HANDBOOK.pdf
Local Gov Budget Fiscal Control Act – expenditures: http://www.ncleg.net/gascripts/statutes/statutelookup.pl?statute=159-28