STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS
COUNTY OF HENDERSON OCTOBER 6, 2003
The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.m. in the Commissioners' Conference Room of the Henderson County Office Building.
Those present were: Chairman Grady Hawkins, Vice-Chairman Larry Young, Commissioner Bill Moyer, Commissioner Charlie Messer, Commissioner Shannon Baldwin, County Manager David E. Nicholson, County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.
Also present were: Planning Director Karen C. Smith, Budget and Management Director Selena Coffey, Paralegal Connie Rayfield, Assessor Stan Duncan, Public Information Officer Chris S. Coulson, Finance Director J. Carey McLelland, County Engineer Gary Tweed and Assistant County Attorney Russell Burrell. Deputy Clerk to the Board Amy Brantley was present through nominations.
CALL TO ORDER/WELCOME
Chairman Hawkins called the meeting to order and welcomed all in attendance.
PLEDGE OF ALLEGIANCE
Commissioner Baldwin led the Pledge of Allegiance to the American Flag.
David Nicholson gave the invocation.
DISCUSSION/ADJUSTMENT OF AGENDA
Chairman Hawkins asked that item “A” under staff reports be deleted – “Mills River Incorporation”. Interim Mayor Snyder stated that the Town of Mills River wished to do some additional revisions and will bring that back at a later date. Chairman Hawkins asked that it be added to the mid-month meeting.
Chairman Hawkins asked to add one item under “F – Update on Pending Issues” – as # 2 – Howard Gap Road Contaminated Wells.
Chairman Hawkins made the motion to accept the agenda as revised. All voted in favor and the motion carried.
Chairman Hawkins made the motion to accept the consent agenda as presented. All voted in favor and the motion carried. The consent agenda consisted of the following:
Draft minutes were presented for the Board’s review and approval of the following meetings:
September 2, 2003, regular meeting
September 16, 2003, special called meeting
September 17, 2003, regular meeting
Tax Collector’s Report
Terry F. Lyda, Henderson County Tax Collector, had provided the Tax Collector’s Report dated October 2 for the Board’s information.
Order Establishing Operating Hours for Henderson County Register of Deeds Office
Nedra W. Moles, Register of Deeds of Henderson County, requested a change in the hours of operation of the office of the Register of Deeds, from the current 8:30 a.m. to 5 p.m., to 9:00 a.m. to 5:00 p.m. This change would not change the working hours of the Register of Deeds or her employees but would change the hours the office is open to the public.
Ms. Moles noted that the volume of work has greatly increased, such that she and her employees need undisturbed work time in which to complete their required tasks, and the requested step would provide the undisturbed time and allow a greater total volume of work to be completed without increasing the level of staff.
N.C.G.S. 161-8 states that “the Board of county commissioners may fix by order, to be entered on their records, what days of each week, and at what hours of each day, the register of deeds shall attend at his office in person or by deputy, and he shall give his attendance accordingly.”
Mr. Nicholson recommended approval of the request.
Register of Deeds – Request to use Restricted Funds for Automation Enhancements/Technology Upgrades
The Register of Deeds requested approval to use the Register of Deeds Restricted General Fund Balance for Automation Enhancements to purchase a computer server for $6,821 that will be used solely by the Register of Deeds Office. This technology purchase is in addition to the $76,059 hardware upgrade and new imaging system approved by the Board in July 2003 using these restricted funds.
The General Assembly enacted legislation that required counties to place 10 percent of certain revenues generated by the Register of Deeds Office into a fund to pay for future information technology upgrades and automation enhancements beginning in January 2002. This fund, which is a portion of the County’s Restricted General Fund Balance has in excess of $53,000 currently. Only the Board of Commissioners may authorize the use and release of these restricted funds.
Staff provided a prepared budget amendment for the request.
The Register of Deeds Office, working closely with the Information Technology Department, is continuing the process of implementing new technology in their department. Mr. Nicholson informed the Board it would be appropriate for the Board to consider adopting the prepared budget amendment to appropriate $6,821 from the Register of Deeds Restricted General Fund Balance for this technology purchase.
Financial Report – August 2003
Cash Balance Report – August 2003
These reports were presented for information and consent approval.
Non-departmental expense includes annually property/liability and worker’s compensation insurance premiums paid to the NCACC Risk Management Pools. This expense will be allocated out to all departments prior to fiscal year end.
The Revaluation Reserve Fund is reporting a temporary year-to-date deficit primarily due to $13,000 in travel, professional service and vehicle lease expense incurred in the first month of the new fiscal year.
The deficit reported in the CDBG-Scattered Site Housing is temporary due to a timing difference in the expenditure of funds and the subsequent requisition of funds to reimburse these expenditures.
The Human Services Building Project deficit is due to architectural fees and demolition/abatement work performed at the former Carolina Apparel Building. It is anticipated that these costs will be recouped from financing proceeds for the project.
Henderson County Public Schools Financial Report – August 2003
This report was presented for information only.
Board of Elections’ Request
The Henderson County Board of Elections requested that the Board of Commissioners increase the salary grade of their Director from Grade 73 to Grade 76. According to State law, the Election Board must submit their request to the Commissioners. A copy of their request was presented as well as two salary studies.
Request for Improvement Guarantee for Ridge Field Subdivision
B. Gregg Arvey submitted an application for a subdivision improvement guarantee for a proposed minor subdivision he is developing known as Ridge Field. Ridge Field will be located off Ridge Road and will contain nine residential lots and one well lot. The Subdivision Administrator granted conditional approval of the Preliminary Plan for the development on October 1, 2003. The improvement guarantee is proposed to cover the grading and construction of gravel roads and the installation of public water lines and drainage improvements within Ridge Field.
Pursuant to Section 170-38 of the Henderson County Code, a developer may, in lieu of completing all of the required improvements prior to Final Plat approval, post a performance guarantee to secure the County’s interest in seeing that satisfactory construction of incomplete improvements occurs. One type of permitted guarantee is a surety performance bond. The developer intends to post with the County a performance bond in the amount of $41,093.75 that includes the cost of the remaining improvements ($32,875.00) as well as the required 25% contingency ($8,218.75). The proposed completion date for the improvements is October 1, 2004.
A draft Performance Guarantee Agreement was presented for the Board’s review and consideration. If the application is approved, the developer must submit a performance bond in accordance with the terms of the Agreement. Once the County receives a bond in the proper form, the (Assistant) County Attorney must certify the Agreement as to form prior to its execution by the Chairman and the developer.
Mr. Nicholson recommended approval of the application for an improvement guarantee for Ridge Field Subdivision subject to the developer submitting a surety performance bond with the County in accordance with the terms of the draft Performance Guarantee Agreement.
Request for Improvement Guarantee for Peaceful View Estates
Jeffrey L. Harvey has submitted an application for an improvement guarantee for a proposed subdivision he is developing known as Peaceful View Estates. Peaceful View Estates will be located off Stepp Mill Road and will contain 15 lots. The Planning Board granted conditional approval of the combined Master Plan and Development Plan for the project on July 15, 2003. The improvement guarantee is proposed to cover remaining road improvements consisting of the installation of asphalt paving on all roads and culs-de-sac in the development.
Pursuant to Section 170-38 of the Henderson County Code, a developer may, in lieu of completing all of the required improvements prior to Final Plat approval, post a performance guarantee to secure the County’s interest in seeing that satisfactory construction of incomplete improvements occurs. One type of permitted guarantee is the deposit of cash or certified funds. The developer intends to deposit with the County such funds in the amount of $25,000.00, which includes the cost of the remaining contingency ($5,000.00). The proposed completion date for the improvements is December 31, 2003.
A draft Performance Guarantee Agreement was presented for the Board’s review and consideration. If the application is approved, the developer must deposit with Henderson County cash or certified funds in accordance with the terms of the Agreement. Once such funds are received by the County, the (Assistant) County Attorney must certify the Agreement as to form prior to its execution by the Chairman and the developer.
Mr. Nicholson recommended the Board approve the application for an improvement guarantee for Peaceful View Estates subdivision, subject to the developer depositing cash or certified funds with the County in accordance with the terms of the draft Performance Guarantee Agreement.
Update on County Comprehensive Plan and Other Major Planning Initiatives
Staff had provided an issue update which summarized the tasks related to the CCP and the other major planning initiatives that occurred over the past month. The update also included anticipated actions for the coming month. No action was necessary.
Proclamation – 2003 Toy Run
The Board had approved similar proclamations in the past applauding those who participate in this charitable event. They were requested to proclaim Saturday, November 22 as Henderson County Benefit Toy Run Parade Day.
Notification of Vacancies
The Board was notified of the following vacancies which will appear for nominations on the next agenda:
1. Nursing/Adult Care Home Community Advisory Committee – 2 vac.
Chairman Hawkins reminded the Board of the following vacancies and opened the floor to nominations:
1. Community Child Protection Team – 6 vac.
Chairman Hawkins stated that four individuals have indicated a willingness to serve another term and he placed those four names in nomination: Mary Murray, Savie Underhill, Margo Nagel, and Betty Roark. There were no additional nominations at this time. Chairman Hawkins made the motion to accept the four nominees by acclamation. All voted in favor and the motion carried.
2. Downtown Hendersonville, Inc. – 2 vac.
Chairman Hawkins nominated Larry Winson to serve another term. There were no other nominations at this time. Chairman Hawkins made the motion to accept Mr. Winson by acclamation. All voted in favor and the motion carried.
3. Juvenile Crime Prevention Council – 4 vac.
There were no nominations at this time so this item was rolled to the next meeting.
4. Nursing/Adult Care Home Community Advisory Committee – 2 vac.
There were no nominations at this time so this item was rolled to the next meeting.
5. Senior Volunteer Services Advisory Council – 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
6. SmartStart – 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
Transportation Advisory Committee Charter
With the incorporation of the Town of Mills River, the Charter for the TAC needed to be updated. Mr. Nicholson had presented a draft of a revised Charter for the Board’s consideration. The new Charter provides suggested membership for five municipalities instead of four.
The Board of Commissioners had recently appointed Jack Summey as a member of the TAC. He lives in the Town of Mills River and the Town of Mills River wishes Mr. Summey to serve as their representative.
Mr. Nicholson requested that the Board take the following action:
1. Approve the prepared revised Charter
2. Confirm the appointment of Jack Summey as the Town of Mills River’s
Following discussion, Chairman Hawkins made the motion to approve the revised Charter as presented and confirmation of Jack Summey as a representative for the Town of Mills River. All voted in favor and the motion carried.
MILLS RIVER INCORPORATION – this item had been pulled from the agenda, to be placed on the mid-month agenda.
COUNTY COMPLEX PROPOSAL
Chairman Hawkins had requested that staff determine the feasibility of utilizing the CAT Building site for a County Complex that would include the Commissioners’ Office, Administration and the departments that would be housed in the new Land Development Building. This Complex would be similar to the proposal that the Board considered in 2000 for the site. The 2000 plan would have required a large addition to the existing facility.
The Board just received a feasibility study presented by Calloway, Johnson, Moore and West at the last meeting which only included DSS and Public Health on that site. There were several options for expansion of the 80,000 square foot facility being considered.
Mr. Nicholson had prepared the Request for Qualifications for a County Complex Building and distributed that for the Board’s review. He also distributed a revised Estimated Costs sheet dated October 6. Quick adjustments considered the people who could be accommodated in a 120,000 square foot building. This would enable the county to place buildings on the market for sale: the current Health Department at Brooklyn Ave. and Spartanburg Hwy., the current Land Development Building on Allen Street and the Nuckolls Building at Main and Second Ave. We could give up two leased buildings: the McAllister Building at King Street and Second Avenue that houses part of the Sheriff’s Department and the current Board of Elections Building on Grove Street. After selling these buildings, the preliminary budget shows that we would be roughly $221,533 short on the debt service necessary to accomplish this task.
Chairman Hawkins felt that now would be a good time to move in this direction and take care of this priority need.
Mr. Nicholson reminded the Board that the 2000 Harley-Ellis Study included growth space for ten years. We already have the programming done for DSS and the Public Health Department but would have to work on the programming for Administration, Governing Body, Land Development, and the Board of Elections.
David Nicholson spoke briefly about the Request for Qualifications for choosing the Architectural Firm. The Firm must be chosen, based entirely on qualifications, not costs.
Following much discussion Commissioner Young made the motion to authorize the County Manager to proceed with this proposal. A vote was taken and the motion passed four to one with Commissioner Moyer voting nay.
Questions were raised about a timeline for the project. Mr. Nicholson stated that the time indicated was 22 months to complete the project.
TAX APPEAL POLICY
Stan Duncan, County Assessor, proposed a new policy and Resolutions that deal with the handling of appeals of property listing and valuation to the North Carolina Property Tax Commission (“PTC”). He stated that when he came on board he noticed a lack of procedures and protocols and plans to bring some others to the Board in the near future.
He stated that the appeal policy was crafted with an eye toward being fair and open with the appellant/property owner, while still protecting the County’s position should the appeal require PTC or judicial resolution. It requires a meeting to review the dispute with the appellant/property owner, and an in-depth review of the property verifying the County’s position with regard to listing or valuation. The policy also includes a second meeting, made in an attempt to settle the matter short of PTC resolution. Finally, in appeals with large discrepancies between the assessed value and the value contended by the appellant/property owner, the facts of the case will be brought to the attention of the Board of Commissioners. Staff believes that the overwhelming majority of all valuation appeals will be determined locally as a result of this policy.
The County Manager recommended that the Board approve the Resolution and attached Policy as presented.
Chairman Hawkins made the motion to approve the Resolution and attachment as presented. All voted in favor and the motion carried.
INFORMAL PUBLIC COMMENTS
1. Edward Johnson – Mr. Johnson moved to a subdivision in Henderson County in 1998. The subdivision had an association and by-laws. He asked why there was no accountability by the State or County for the Association. He spoke about the amount of monies collected with no accountability of where the monies have been spent or where monies are currently, stating there should be a sum of money in the association for road repairs but there is not. He stated that the by-laws are not enforced. Some members pay more than others. He stated that if he were to not pay his association fees this year, they could come to the county and place a lien on his property for $10.00. He referenced the N.C. Planned Community Act.
Angela Beeker stated that the county does not regulate what must be in subdivision covenants or by-laws, that is a private matter. She didn’t think that the Planned Community Act placed any burden on the county to regulate this but stated she would check that out to see if the county has any responsibility in that area.
2. Christy Spangler – Ms. Spangler is a child services coordinator at the Healing Place. She case manages all of Henderson County’s child sexual abuse and felony child abuse cases. She addressed the Board as a child advocate. She requested funding for CMEs (Child Medical Evaluations) and CFEs (Child Forensic Evaluations). They routinely have 3 – 9 cases per year that are non DSS cases and therefore are not covered by insurance or medicare. She requested the Board establish funding for 3 – 5 cases a year and touched briefly on the fees for these exams. She stated that the county had funded some of these evaluations in the past. She volunteered to assist in updating the old information.
Mr. Nicholson informed Ms. Spangler and the Board that there is a line item in the budget for these cases but no one has requested any of the funding for several years. It was a Board adopted policy to fund these. He told Ms. Spangler to get with our Finance Director to learn how to request funding for these cases.
UNINSURED CLAIMS POLICY
Angela Beeker, on behalf of the legal department, requested that the Board adopt a prepared resolution regarding uninsured claims.
Occasionally employees of the County are sued as a result of their acting within the scope of their employment. If the claim falls under the County’s liability policy through the North Carolina Association of County Commissioner’s Liability Pool, this is not a problem, as the Pool generally insures this, and covers (with the exception of a deductible) the cost of defending the claim (primarily attorneys fees). Very rarely, it occurs that employees are sued for acts which, while still arising within the scope of their employment, are not covered by the County’s liability policy. The primary example would be claims which arose prior to the July 1, 1986 effective date of the County’s coverage by the Pool.
The prepared resolution provides that the County would cover the cost of defending employees against claims which would otherwise be covered by the terms of the County’s liability policy but for the date upon which the claim arose. The Resolution also expressly states that such claims must arise from actions within the scope of the employee’s employment, and must not be for intentionally or willfully tortuous acts. It also provides that the County would indemnify its employees against all such awards (whether by court action or by settlement) arising from such claims, so long as the County controls the litigation to the same extent that the Liability Pool would if the Pool provided coverage.
The County is not liable in North Carolina courts for uninsured claims, under the doctrine of sovereign immunity. However, this doctrine does not cover the County’s employees from liability for allegedly negligent acts. It is the intent of this Resolution to restate what has been prior policy in these matters. The County Attorney’s research into this issue showed that a general policy is a better way to handle these matters than on an ad hoc basis.
The County Manager recommended Board approval of the Resolution.
Following much discussion, Mr. Burrell asked for no action at this time, stating they were just introducing the concept to the Board at this time. The Board was asked to consider this idea and decide at a later time if they wished to adopt such a Resolution.
Ms. Beeker reminded the Board that as they think about this to remember that it covers everyone, even the Board of Commissioners. Staff will also provide more information on this item.
AMENDMENT TO PERSONNEL RESOLUTION
Mr. Nicholson informed the Board that he was recently contacted by a department head requesting that he authorize an employee, who was about to go on sick leave, to also be paid for annual leave at the same time. He informed the department head that there was no authorization within the Personnel Resolution that would allow him to approve the request. Evidently, the department head contacted Commissioner Messer. Commissioner Messer asked David to draft a change in the Personnel Resolution to allow an employee to request to be paid for Annual Leave while on sick leave.
Due to confidentiality issues and HIPAA regulations, no specifics were discussed on this employee’s request. However, basically our employee will be having surgery and has significant balances in their leave bank to cover their salary while on leave that qualifies as an occurrence within the Family and Medical Leave Act (FMLA). However, the employee’s spouse will also miss work and the employee wishes to cash out some of his/her Annual Leave to cover the spouse’s lost wages.
Mr. Nicholson had prepared a draft amendment to the Personnel Resolution that would allow for this change.
Mr. Nicholson stated that there are many pros and cons to this request. Annual leave is a right under the law and is booked annually as a liability and must be “paid out” if an employee leaves the County. In some departments when an employee takes annual leave, we must pay another staff person overtime to cover their shift, so why not allow an employee to cash in their leave. However, how can we budget for this request? A change in policy covers all departments no matter what size their budget. A larger department may have the resources to cover this extra salary, while others may not.
Mr. Nicholson stated he could understand and appreciate this employee’s request; however, he cannot support this change. He stated he could argue both sides of this issue.
Much discussion followed. It was the consensus of the Board to approve this revision but to include in the revision that the employee must qualify under the Family Medical Leave Act (FMLA). It was the consensus of the Board to approve this through this fiscal year and get a report from the County Manager during budget time as to how it is affecting the budget. The Board approved the idea but Ms. Beeker will work with Ms. Prichard to draft the revision. This will be placed back on the agenda, under consent, for the next meeting.
UPDATE ON PENDING ISSUES
Chairman Hawkins reminded the Board that he and Commissioner Moyer had been working with the LGCCA group to get a final proposal for the Water and Sewer Advisory Council. A copy of the draft had been submitted for the Board’s review. Following some discussion, Commissioner Young made the motion that the Board approve the document and authorize the Chairman to take it back to the LGCCA. All voted in favor and the motion carried.
Contaminated Wells – Brookside Camp and Howard Gap neighborhood.
Chairman Hawkins mentioned the contaminated wells/water in this neighborhood and the need those families have for some relief. A county is limited in running city water to neighborhoods, that is a function of the City of Hendersonville. Chris Carter, City Manager, stated that the City is willing to help out and furnish the water. The City of Hendersonville is concerned about the funding and had suggested that the State of North Carolina help fund this with their UST funds. The Board supported the idea for the Chairman to draft a letter to Representative Justus to request some State funding from the UST fund (emergency fund) for this. Chairman Hawkins stated that the citizens in that part of the county are in need of water just as much as the folks who recently got hit by Hurricane Isabel.
Chairman Hawkins called a 5 minute technical recess.
Chairman Hawkins made the motion to set Nov. 3 at 7:00 p.m. for a public hearing on the Mission/St. Joseph’s request for an ambulance franchise. All voted in favor and the motion carried.
Chairman Hawkins stated that Monday, October 27 would be the Joint School Facilities Meeting at 1:00 p.m. in the Commissioner’s Meeting Room.
John Boyd had called this morning with an invitation for the Commissioners to attend the Leadership Henderson Luncheon this Thursday at the Elk’s Club to meet and greet the class members and have lunch with them. Three of the Commissioners indicated they would attend: Chairman Hawkins, Commissioner Moyer, and Commissioner Baldwin.
There was discussion of dates for the Fall Retreat/Strategic Planning. Selena Coffey proposed that the Board have a pre-retreat on Monday, November 3 at 5:30 p.m. as part of the regular agenda. This would be a kick-off for the retreat. She proposed that the Board have their retreat two consecutive Fridays in November – November 7 and November 14, both days from 8:30 a.m. to 4:30 p.m. The location had not been finalized at this time. Steve Allen will be the facilitator for the retreat. Prior to the Pre-Retreat meeting on November 3, the facilitator will meet with the County Manager and his Management Team to gather background information regarding County services, policies, etc.
Chairman Hawkins reminded the Board of the Annual Volunteer Appreciation Banquet for tomorrow evening at The Chariot to honor our volunteers on our numerous Boards and Committees.
CANE CREEK WATER & SEWER DISTRICT
Chairman Hawkins made the motion for the Board to adjourn as the Board of Commissioners and convene as the Cane Creek Water & Sewer District Board. All voted in favor and the motion carried.
Chairman Hawkins made the motion for the Board to adjourn as Cane Creek Water & Sewer District and reconvene as Henderson County Board of Commissioners. All voted in favor and the motion carried.
Chairman Hawkins made the motion for the Board to go into closed session as allowed pursuant to NCGS 143-318.11 for the following reasons:
1.(a)(3) 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, which privilege is hereby
acknowledged. To consult with an attorney employed or retained by the public body in order
to consider and give instructions to the attorney with respect to a claim or the following
Edward Audia Gilliam, By and Through His Guardian Ad Litem, Leah Broker, v.
Henderson County Hospital Corporation d/b/a Margaret R. Pardee Memorial
Hospital, Donald A. Thomas, M.D., Hendersonville Pediatrics, P.A., Herbert E.
Dennison, M.D., John M. Ross, M.D., Hendersonville OB-GYN Associates, P.A.,
Henderson County, Henderson County Emergency Medical Service, a Division of
Henderson County, Carl Bradburn, individually and in his official capacity with
Henderson County and/or Henderson County Emergency Medical Service and
James Beddingfield, individually and in his official capacity with Henderson
County and/or Henderson County Emergency Medical Service
2.(a)(4) To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body.
All voted in favor and the motion carried.
There being no further business to come before the Board, Chairman Hawkins made the motion to adjourn
the meeting at 8:50 p.m. All voted in favor and the motion carried.
Elizabeth W. Corn, Clerk to the Board Grady Hawkins, Chairman