When brand new Chairman of the Guilford County Board of Commissioners Alan Branson cast his vote at a Thursday, Dec. 7 meeting to delay implementation of a new electronic public notice system, his fellow Republican commissioners were so stunned that they stopped the meeting in its tracks and asked Branson repeatedly if he was sure he’d understood the motion correctly.
Once it was clear that Branson knew exactly what his vote meant, some fellow Republicans were visibly irritated with the man they had elected chairman just moments earlier.
For months, Guilford County staff – in the clerk’s office, the attorneys office and the Information Services Department – had been working on the project, and, the day after the vote, Commissioner Jeff Phillips – the chairman before Branson took over the job that night – called the vote to put off the project “ridiculous and inconsiderate.” Phillips had quite a bit more to say as well about the way Branson’s vote caused the high-profile project to come to a screeching halt.
The commotion came when Branson’s vote, along with those of four Democratic commissioners, delayed the implementation of a pilot program the North Carolina General Assembly approved earlier this year. That legislation gave Guilford County the ability to change the way the public is notified when that notification is required by law.
The new legislation will – if the Guilford County Board of Commissioners eventually chooses to do so – allow the county to advertise legally required announcements electronically on the county’s website at no out-of-pocket cost – rather than continue to pay the sky-high ad rates now charged by paid circulation newspapers in Guilford County.
The proposed change is, of course, being vehemently opposed by the paid circulation general interest newspapers that have benefited for almost a century from their longstanding monopoly on government notices.
In addition to saving the county in advertising costs, the change is expected to generate a great deal of revenue for Guilford County government from municipalities, private attorneys and others who must give public notice for things like foreclosures, deaths, public hearings and divorces.
Guilford County is the only county in North Carolina that has an opportunity to be part of the state’s new “e-notice” pilot program. However, the move requires approval by the Guilford County Board of Commissioners and Branson’s vote to delay – which broke ranks with his four fellow Republicans on the board – put off a vote on the program’s implementation until the Board of Commissioners’ first meeting of 2018 on Thursday, Jan. 19.
At the Dec. 7 meeting, Democratic Commissioner Carolyn Coleman made the motion to delay a decision on the matter after Guilford County Attorney Mark Payne informed the board it was likely the affected newspaper publishers would file a lawsuit if the program went into effect. Coleman said a delay would give the two parties time to sit down and perhaps work out a compromise, thus avoiding a lawsuit.
When the 5-to-4 vote total was revealed on the big screen in the board’s second floor meeting room of the Old Guilford County Court House in downtown Greensboro, it left some Republicans aghast and some Democrats surprised.
A delighted Coleman suddenly expressed a sudden affinity for the new Republican chairman.
She chirped, “It’s a good start.”
In the confusion after Branson’s vote, Payne, as county attorney, was asked to confirm the outcome. He said the vote the board had just taken was, in fact, a 5-to-4 approval of the motion.
“The motion was to delay the public hearing,” Payne explained.
Phillips wanted to see the votes displayed again: “Beg your pardon,” he said. “Can we see the vote?”
When the votes were put back up on the screen, all eyes turned toward Branson, and Republican commissioners asked if he understood the motion.
“I understood how I voted,” Branson said finally.
Phillips said, “I’m just making sure.”
“I’m good,” Branson replied.
“We’ll talk about that later,” a clearly exasperated Phillips said.
After the meeting, Branson explained why he voted to delay the implementation. He said that, the day before, he’d been made aware of the possibility of the lawsuit and the board hadn’t yet had time to discuss it. He said he had questions about the best way to proceed, and he added that this was only a vote to postpone the decision.
“I’m not against it,” Branson said of Guilford County taking part in the new public notice pilot program that would lead to savings as well as a new county revenue stream.
He said notice of the potential legal action had only arrived the day before.
“I didn’t receive the email until late yesterday afternoon,” he said on Dec. 7. “I haven’t heard from anybody today.”
Commissioner Justin Conrad, who had just been voted vice chairman and is now next in line to lead the board should anything happen to Branson, leaned over to Branson and joked, “You need to start voting better because I don’t want to be chairman too fast.”
The day after the vote, Conrad said of Branson, “He had his reasons for voting the way he did and I respect that.”
It was clear, however, that Conrad wasn’t pleased about the delay.
Phillips, who started off the meeting that night as chairman of the board, was also troubled by Branson’s decision.
“Of course, I’m very frustrated about how it all went down, to say the least,” Phillips wrote in an email the day after the vote. “I worked hard for weeks to get our staff engaged in the programming process. Our board had a work session on the issue where details were discussed and staff suggestions were made for January implementation. It’s not like there have been any new revelations since then.”
The Guilford County commissioners discussed the move at length at a Tuesday, Nov. 14 work session and, at that time, a majority of the board seemed prepared to move forward with the program.
Phillips added that the issue is relatively straightforward, unlike the questions the board faced in a rock quarry mining permit request the commissioners heard and rejected recently.
“It’s not like this is rock quarry hydrologist caliber stuff,” Phillips said. “You either agree that it’s a good thing for our citizens or you don’t. Now, all that effort gets put on ice to supposedly appease a group who, if we’re being honest, won’t be satisfied unless we kill the entire concept.”
Democratic Commissioner Skip Alston made a similar point after the Dec. 7 meeting. He said he thought a compromise was unlikely. He said the commissioners had to expect – and even know – that a lawsuit was coming, because the affected newspapers have been so vocal about their opposition ever since the idea was proposed. Area newspapers that benefit from their current monopoly on public notice business have said that this change in the law will hurt their bottom line and, in some cases, put them out of business entirely.
Phillips said the 5-to-4 vote at the Dec. 7 meeting means that the commissioners unnecessarily delayed, for at least six weeks, hearing from citizens and voting on the matter.
“That’s politics at its worst,” Phillips wrote. “That’s exactly the stuff people are sick of about government. Too much time wasted on making common sense, business-smart, decisions that benefit the majority of our citizens. There was no good reason under the sun for postponing the public hearing. Several people had taken the time out of their busy schedules to be there to speak to their interests and concerns, and now they have to come back and go through the whole thing again. That’s ridiculous and inconsiderate!”
Alston said this week that he didn’t see the vote to delay as any big deal.
“It’s six of one, a half-dozen of the other,” he said.
Alston said the program, if approved, is going to take months to implement anyway, so voting on the matter in January rather than December won’t change much.
At the Dec. 7 meeting, Payne told the board that he had met with two attorneys who represent the newspapers and who wanted to make their case to the county.
“Staff has not made any recommendation to delay or not – it’s entirely up to you,” Payne told the board at the meeting.
Branson said it was his understanding, based on the email from Payne, that approving the program that night might mean a lawsuit.
Payne told the board, “Yes, I’m sure that the clients are considering legal action if the ordinance is passed in such a way that they’re unhappy with it. But they didn’t ask me to pass that information along.”
Republican Commissioner Hank Henning said the commissioners should go on and hold the hearing that night.
“We have the public here,” Henning said.
Henning also reiterated a point that Payne had made before the vote: If the motion got a majority vote of the board to approve – but not a unanimous one that night – it would have to be brought back to the board for a second vote before final approval. The second time around the motion would only need a simple majority to pass – but that, Henning said, meant the new program clearly wouldn’t go into effect at the Dec. 7 meeting, even if the commissioners went ahead and voted. The vote clearly wasn’t going to be unanimous.
“There’s going to be further conversations about this,” Henning pointed out.
Henning also said he didn’t see a compromise coming in this case.
Payne said if no middle ground could be found then the publishers may seek legal action.
The county attorney added that he expected a lawsuit would be focused on the state, though the county might also be named.
“They would be challenging the statute, not the ordinance – I think they would have to include the state and/or the General Assembly and likely include Guilford County in the action. But, yes, it would be an action against the state because I think the only way for them to implore the state, if their concerns aren’t addressed, is to challenge the statute – and we didn’t pass the statute, the General Assembly did.”
Coleman said that, given the possibility of a lawsuit, it made sense to talk with the opponents first.
“It seems to me if we could work it out without going through this process, that’s the best way to do it,” Coleman said. “We’ve done this with land [rezonings] and other areas we were concerned about.”
“If we do nothing tonight, we would have nothing to overturn,” she added. “So that’s why I think it’s probably the best way for us to proceed.”
Most of the commissioners, including Branson, agreed with her.
The Rhino Times requested a copy of an email Payne sent to the commissioners regarding his discussions with the publishers’ attorneys. Payne stated in an email that the email he sent commissioners was, in his view, protected by attorney-client privilege.
“The email was discussed but I do not believe the discussion was sufficient to constitute a waiver of the privilege,” Payne wrote. “I can discuss the content of the email to the extent it was discussed last night. Commissioner Coleman noted that an email was sent and in it I informed the Board of Commissioners of a request made by the attorneys for the local subscription newspapers to delay the public hearing on this matter. I also confirmed that the stated reasons for seeking the delay was to discuss their concerns about legislation. I noted that they said it would be better to have this discussion before any lawsuit was filed, if, in fact, any lawsuit were to be filed. [Bold and underscore are Payne’s]”
Other counties across the state are watching Guilford County’s progress in this matter with great interest, because some, like Rockingham County, already want in on the act. In October, the Rockingham County Board of Commissioners passed a resolution asking the state to also grant their county the right to post e-notifications in place of buying newspaper ads. That county could be added on to the same local legislation that gives Guilford County that ability.
Advocates behind the change believe that, as soon as other counties in the state see Guilford County cutting costs and making money with the pilot program from advertising from the state, cities, towns, attorneys, banks and others, more counties will want the same right to electronically post legally required notices.
Guilford County spends about $300,000 each year in advertising, and just over $70,000 of that is for required legal advertisements.
Until about three years ago, Guilford County was spending nearly $100,000 to advertise delinquent tax notices; however, the county greatly reduced that cost when it put out that advertising for competitive bids, removed them from the News & Record and began putting them in the Jamestown News. The fact that the Jamestown News reaches less than half of a percent of the county’s population – but still fulfills the county’s legal obligation to advertise – points to the absurdity of the current law.
Phillips said this week that Guilford County’s e-notice program will be addressed right after the first of the year.
“I can only promise that we’ll get something decided soon enough, one way or another,” he stated.
