Water Boarding

I understand why some officials may view undergoing an audit as a form of torture. Being criticized in public can be, at the very least, uncomfortable. But a thorough audit can be a valuable asset for developing better policies and procedures.

I am critical of some past audits. I have tried to make sure my criticism is based on facts, not on personalities. I don't intend to point a finger of blame. There certainly is shared responsibility between the Town Board and past and present Town Managers.

The point of an audit is not to find blame, but to uncover problems and suggest better ways. Before we ever heard of Pittard, Perry and Crone, the Town Board learned of the Tourism Board's practice of "rolling over" unspent allocation of funds from one budget year to the next and adding that amount to the following year's budget. That is a budget no-no. Long before we had a new auditor, the last board revealed that the administrative fee charged by the general fund to the water fund hadn't been recalculated in eight years. The bottom line is that the general fund had subsidized the water fund to the tune of about $150,000 over that eight year period. That doesn't even take into account the fact (discussed by the previous board in open session) that we weren't allowing for depreciation. We discussed the problem created by not handling the town's occupancy tax as a restricted fund and accounting for it "off books."

I think it would be irresponsible to criticize without offering some constructive suggestions. My main recommendation is to establish (or reestablish) a functioning water board. Ten of the twenty-three control and material deficiencies identified by the auditor are directly connected with administration of our water plant and associated billings and collections (including Bay River).

The town has convened a water board in the past. However, I am unable to find an ordinance establishing the board, spelling out its membership, terms of office and duties. We need such an ordinance.

The water board could advise the Town Board on policy issues, including procedures addressing each of the ten items from the audit. The board could address the question of where about a fourth of our water goes. It could also play an essential role interacting with the Rural Water Center when they come in February to assist us with our rate structure.

This is urgent.

Audit Analysis

In response to popular demand, I decided to go ahead and post my analysis of the Town of Oriental's preliminary audit for FY 2008. This is decidedly unofficial and represents only my own views. These views are subject to refinement.

ORIENTAL 2008 AUDIT COMMENTS

Control Deficiencies (pp 45-46)

1. Expenditures made by the general fund (FY 2007) exceeded authorized appropriations by $1,089 (tourism board) and $692 (environmental). Comment: This comment reflects three separate problem areas: (a) The excess tourism expenditure resulted from the tourism board taking unexpended budget from FY 2006 and "rolling it over" into 2007 without budgeting it. This has been going on for years and violates budgeting 101. Each FY must be budgeted separately; (b) The $692 was a result of late unanticipated billing from contractor installing effluent system. That contract was a can of worms. The error also reflected advice from our previous auditor that we don’t have to do line-by-line balancing of the budget, but only department by department. Under NC state rules, that is incorrect.

2. Petty cash: no adequate accountability and proper record keeping. Comment: the town did not even keep a petty cash ledger. This problem existed for many years. The ledger should have been maintained in our accounting system software. The problem no longer exists because the former petty cash system has been replaced by the use of town credit cards.

3. Invoices paid not defaced. Comment: we weren’t using a “Paid” stamp. Easily correctible.

4. Personnel files do not include the current year approved wages. Comment: should be easily correctible. Being addressed.

5. No schedule of accrued vacation hours by employee maintained. Comment: this function was available in our accounting software, but wasn’t being used.

6. Financial records need to be filed systematically. Comment: filing system is being revised.

7. Powell bill report for June 30, 2009 does not balance. Expenses understated by $3001.10. Comment: This error in the July 15 report was corrected in an August 26 amendment to the report.

8. Budget amendments made only at year end. Should be monitored continuously and amended as needed. Comment: I agree.

9. Town is billing approximately 63% of gallons pumped from wells monthly. Comment: In general, 12 – 15% waste is about normal. What we have is unlikely to be a billing problem. Water is leaking somewhere. Or it is being used through unrecorded and unread meters. This sounds like a problem with the physical plant, and it needs to be investigated. Good task for a reconstituted water board.

10. Late fees for water and sewer service not charged consistently. Comment: we have no late fees. What we do have is reconnect fees when water is disconnected due to non-payment or at customer request. It may be that some reconnect fees were forgiven due to disconnect being in error or other reason. In any event, reasons for forgiving reconnect fee should be recorded and approved. A water board should recommend policy to the Town Board.

11. Water deposits, sewer deposits and prepaid bills all recorded in same account. Comment: this seems to be a longstanding procedure. Practice needs to be reviewed by the water board.

12. The general fund charges the water fund $4,000 per month for administrative services. No documentation of how this is computed. Comment: I raised this issue during this year’s budget cycle. Turned out the amount was last calculated in 2001 and not recalculated for eight years, even though we had hired additional personnel, the water testing and other system requirements had grown, and much more public works time was spent on the water system than in 2001. There were other omissions, such as failure to estimate gasoline expense for meter reading. I calculated the general fund had subsidized the water fund about $150,000 between 2001 and 2008 and the annual charge should now be $82,000 instead of $48,000. We took steps in this budget cycle toward correcting this. Not mentioned in the list of control deficiencies, but another shortcoming in financial management of the water system is the failure to provide for system depreciation. Bottom line is that we are still losing money on water. The water board needs to review this before the Rural Water Association comes in February 2010 to assist in reviewing our rate structure.

Material Deficiencies (pp 46-47)

1. Segregation of duties is an on-going issue. Comment: I agree with auditor’s comment “this weakness is impractical to correct at this time due to a small staff.”

2. Bank reconciliations are performed by employees who are not independent of the recording duties and are not reviewed or approved by a second party. Comment: our only realistic possibility of meeting this requirement is to enlist the services of a member of the town board for reconciliation. I thought we were doing that.

3. Upon examining the collections drawer it was noted there was approximately $7,000 on hand with some checks 14 days old. Comment: the auditor fails to mention there was no lock on the drawer. Delaying deposits of cash and checks costs money (loss of interest) as well as presenting a security problem. There may have been a misunderstanding on the part of some office personnel that daily deposits would cost the town additional money. Our new manager discovered that was not so. Daily deposits are now being made. We should also take a look at our office safe. There should be a safe suitable for depositing money.

4. The town does not have a purchase order system in place. Comment: I will put this as politely as I can. For years, the town has submitted an annual report to the Local Government Commission claiming to have a purchase order system in place. It never did. Now it does.

5. No listing of journal entries for the year with supporting documentation. No approval process before journal entries made in the accounting software (Peachtree). Comment: a longstanding procedural shortcoming, now being corrected.

6. Town does not maintain a fixed asset ledger. Comment: Office personnel insist there is such a ledger. None has been found.

7. No computer security controls in place. Comment: About six months ago, the town manager recommended a system replacing our existing aged computers with new ones and incorporating a network server. This proposal would have addressed the security issue as well. No action was taken, except to replace the computer used for water billing when it died last month. This project should be pursued.

8. No approval process for utility adjustments. Comment: Most adjustments are made by Bay River. They are the approval authority. It may be that we should formalize approval of each request to Bay River. Adjustments to water bills sometimes result from misread meters. Policy for making and approving adjustments should be based on water board recommendations.

9. Water extensions not monitored effectively. Comment: this may not be accurate. On the other hand, it might be that this and other water system issues should be addressed by our Water Board. We have had a Water Board in the past, but we seem to have no ordinance establishing it, setting terms of reference for its duties, etc. The last time the board is recorded to have met is more than two years ago.

10. There is no reconciliation process for water payments collected. Comment: This may not be accurate. This could be another topic for review by the water committee.

11. There is no contract in place with Bay River. Comment: The town has been negotiating with Bay River to correct this omission for several months. As a separate issue not addressed by the auditor, the town needs to negotiate a number of additional inter local agreements or memoranda of understanding with the county, including the Sheriff’s Department and Animal Control.

Bottom Line:
The list of deficiencies is nothing to lose sleep over. The most important of them (except for the cash drawer) had already been identified and were being addressed by the Town Board before the audit began. Most importantly, I think, is the apparent need to reestablish an effective Water Board.

Audit III

The most heated exchange at last Tuesday's Town Board meeting concerned the draft audit report. It was noted that this year's report identifies 12 control deficiencies and 11 material deficiencies, whereas the previous auditor did not note a single deficiency. Has the town all of a sudden taken a nose dive in its procedures? Probably not. I believe our previous audits for the past several years were inadequate.

What do I know about audits? I was government contracts officer for two government contracting firms and Chief Financial Officer of a private equity firm with a government guarantee by the Overseas Private Investment Corporation. I have represented my firms at audits by the Defense Contract Audit Agency. Been there. Done that.

In early 2008 in open session I questioned the statement in the 2007 audit report that the auditor's review "...would not necessarily identify all deficiencies in internal control that might be significant deficiencies or material weaknesses." The report went on to say that "...providing an opinion on compliance [with laws, regulations, contracts and grant agreements] was not an objective of our audit, and accordingly we do not express an opinion." I was told by one of the returning commissioners that "this isn't that kind of audit. If we want that kind of audit, we have to pay more." Well, this time we got "that kind of audit" and it cost less.

The previous audit was a whitewash. I am told that the previous auditor sat down with the then town manager and went over some "problem areas." I don't know what they were, because the list was never put on the public record or presented to the board. It should be the prerogative of the board to determine whether shortcomings in compliance require corrective action, not the unilateral determination by the town manager.

It's a good idea to look at any audit or other evaluation with a critical eye. I hope the new board will do that. Not every deficiency is worth correcting, especially in a town this size. But there is no excuse for not making every reasonable attempt to comply with state requirements. In many cases, correcting the auditor's findings is easy to do. In other cases, I believe the auditor is either incorrect or his statement misstates the real problem.

If anyone out there would find it useful, I would be glad to post my item-by-item analysis of the audit report.

The worst mistake would be to simply dismiss the findings of the auditor. This was a good audit. I think future audits by the same firm are likely to become even better, as the auditors achieve greater familiarity with the town's strengths and weaknesses.

December Meeting of Commissioners

Last night (Dec. 1, 2009), the outgoing commission cleaned up some remaining loose ends, County Commissioner Paul Delamar III swore in newly-elected commissioners, and the new commissioners began their own term.

There were four loose ends: outgoing commissioners approved November minutes of regular and special sessions; commissioners formally opened some previously closed minutes and agreed to the eventual release of minutes relating to South Avenue litigation; amended the town's fee schedule to include a parade permit fee of $10 (to cover the cost of insurance rider for the event); and the commissioners granted formal authority to the mayor to exercise day to day supervision of the town manager. Commissioner Styron asked why the board was opening closed minutes, which the town had never done in the past. I explained that the County Commissioners had begun the practice and I thought it appropriate for more open government. Mayor Sage observed that it removes some of the mystery surrounding government actions. The town's attorney explained that many of his clients do this and expressed the view that it should be done every six months or so.

After the new board assumed office, the most interesting exchange took place when Commissioner Warren Johnson drew attention to the audit report, recently received by the town in draft form. Commissioner Johnson found some of the findings disturbing. This will undoubtedly be addressed in more detail at the January meeting when the auditor will formally present the report to the board.

Leadership and Management

There seems to be some confusion about what the Town Board of Commissioners actually does. The Board is, under NC General Statutes, the "governing body." That doesn't mean that the commissioners as a body or any one of the commissioners as an individual has any administrative role in the day to day operation of Town Hall.

The Board of Commissioners is a legislative body. It makes the rules - passes ordinances, approves the budget, makes policy; but has no operational function. The Board has hiring and firing authority over the Town Manager, but no direct authority. Its only authority is that of oversight.

That sometimes leaves the Town Manager in an awkward position. Does he have five bosses? What if one commissioner says one thing and another commissioner says the opposite?

The Mayor also lacks administrative authority, at least by statute. He has only the authority to chair meetings of the Board of Commissioners. So how does the Town Manager know what to do if a problem arises between Board meetings?

Experienced managers often navigate this maze by establishing informal arrangements. Sometimes that works. Another possibility is to establish a formal arrangement. The Board of Commissioners, for example, has the authority to designate the Mayor as the person the Manager should consult for guidance on day to day matters. The Board would always retain the authority to override the Mayor, but such an arrangement might alleviate some confusion.

What the Board doesn't do is enforce ordinances. That is the responsibility of the Town Manager, through his heads of department.

Every leader or manager has his or her own style of leadership. In more than fifty years managing various size organization, both military and civilian, I have come to some conclusions as to what works best:

1. Positive reinforcement works better than negative reinforcement;
2. Leaders get better results when they seek cooperation and ideas rather than demanding compliance by ordering it, except in extreme cases;
3. Leaders can delegate authority but never responsibility - when a ship runs aground, the Captain is responsible even if he is asleep in his cabin;
4. Effective leaders delegate as many tasks as possible, exercising oversight by intervening only to keep things from going wrong - that's known as "control by negation";
5. Subordinates also need to understand that they are not and cannot be responsible to the degree that the "boss" is.

Transition

Oriental Town Government is in a state of transition. Tomorrow evening the outgoing and ingoing commissioners will gather to establish the agenda for Tuesday's meeting of the Town Board. At that meeting the outgoing board opens and approves minutes (including opening formerly closed minutes). Following that, the retiring commissioners withdraw and the newly elected board will be sworn in.

As of that event, I will no longer be a commissioner, so my blog has to have a new name. The new blog is named for our boat: http://svhirondelle.blogspot.com. I plan to post my first blog entry that evening. Once I figure out the system, I'll try to link the two blogs so those who wish to do so can continue to post comments on either site.

I may have lost an election, but I haven't lost interest.

Audit

Last year the town's audit report was submitted to the state several months late. The North Carolina Local Government Commission was not amused.

Our new town manager made sure this year's report was completed on time. A major factor in on-time performance was the selection of a new auditing firm, Pittard, Perry & Crone, Inc. That firm has provided the commissioners with its preliminary report.

In the report, our auditor identified twelve significant control deficiencies - that is, deficiencies in internal controls that adversely affect the town's ability to make sure our accounts are accurate. The audit also finds eleven material weaknesses - that is, significant deficiencies that might allow undetected material misstatements of the town's financial position.

How long have these problems existed? In most cases, for years. Why didn't our previous auditor find them? They didn't look. They even told us they didn't look. The audit, Seiler Zachman and Associates explained, was "... not for the purpose of expressing an opinion on the effectiveness of the Town's internal control over financial reporting.... and would not necessarily identify all deficiencies in internal control that might be significant deficiencies or material weaknesses." Why we accepted such an audit is beyond me. My only excuse for the 2007 audit is that it arrived so late it was no help anyhow in dealing with the next budget cycle. In the course of working on the current budget, this commission uncovered a number of the problems noted by our new auditor.

Randy Cahoon is already busy correcting most of these longstanding deficiencies.

Overcriminalization

Now there's a mouthful. We're going to hear more about it at the federal level: "Right and Left Join to Take On U.S. Over Criminal Justice," today's New York Times headline announces. The article goes on to claim that a rare coalition of conservatives, libertarians and liberals are going to take the issue to the U.S. Supreme Court.

There are, according to the article, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent. How did we get that way?

At least since the Nixon administration, Republicans have claimed to be "tough on crime" and Democrats have been afraid to promote being sensible on crime. Now we find we bought into an expensive and ineffective approach. At long last, maybe we can do something about it.

Here in Oriental, we also have a problem with overcriminalization. Our ordinances are full of misdemeanors (criminal acts that must be prosecuted), with fines of up to $500 per occurrence. I am happy to report that, during my time on the Town Board, we removed one misdemeanor: violation of the noise ordinance section regulating outdoor amplified music. I did that.

Knock, Knock

No, this isn't a joke. Earlier this evening, I heard an insistent and unfamiliar knock. When I opened the door, I was met by a Sheriff's deputy who handed me a yellow document. It was a summons in the case of Tony Tharp and PamlicoToday.com versus the Town of Oriental, William R. Sage, et al. I am one of the et al, along with the town manager and the other members of the outgoing Town Board.

I can't say I was surprised. I have been reading about the suit on Mr. Tharp's new website, PamlicoToday. According to that site, "Tharp is representing himself in the lawsuit against the town. Oriental attorney Scott Davis is likely to get the job of defending the town. Without the suit even being filed, Davis already has billed the town about $300 for telephone consults on PamlicoToday.Com's pending lawsuit."

I wonder how he came to that conclusion.

Being sued, even in an official capacity, is no fun. I would readily decline the honor, if the opportunity arose.

I welcome the reappearance of Mr. Tharp as an active journalist focusing on Pamlico County events. He has in the past covered matters that needed covering, when no one else would. I leave it to the judge to rule on the merits of the case put forth by Mr. Tharp and his client (Mr. Tharp).

The Sheriff

There was great relief in Oriental when we learned that the County Sheriff's Department had arrested the alleged perpetrators of a number of recent break-ins and thefts in and around Oriental. That's good news.

Less good is the thought that it was the Sheriff's Office, headquartered in Bayboro, that broke the case instead of our own one-man police department. There are a number of possible conclusions that could be drawn:
1. Our police chief is ineffective;
2. A one-man police department isn't adequate to the task;
3. Oriental should expand its police department;
4. Oriental should close its police department and rely on the County Sheriff for law enforcement.

I have thought about our options and conclude that ours is the worst of all possible arrangements. We would be better off if we hired additional police officers, acquired additional police vehicles (bicycle? motorcycle?), and provided a suitable office from which the force could work. The downside is that it would be more expensive.

Alternatively, we would arguably be better off if we closed our one-man police department and turned enforcement over to the Sheriff. That approach also has a downside: the limited number of deputies available to the Sheriff to cover a large and sparsely populated county. Furthermore, in the absence of a specific inter local agreement, the Sheriff is unlikely to enforce Oriental's municipal ordinances.

In either event, The Town of Oriental should consider inter local agreements to establish procedures for exchanging information between town and county officials, including police reports. I believe we should also establish clear procedures wherein our citizens would summon help by calling 911, whatever the emergency. It would be up to our own police force to keep the dispatcher informed at all times of our officers' whereabouts, duty status, and how they can be reached. Citizens shouldn't have to hunt down the person on duty.

Philosophical Reflections

My favorite contemporary American philosopher is Yogi Berra, who famously observed: "It's difficult to make predictions, especially about the future." He also advised: "when you come to a fork in the road, take it." Good advice.

I believe Yogi also adheres to another American thinker, Popeye, who makes no apologies. "I yam what I yam," he says.

Benjamin Disraeli (not an American) once advised, "never complain, never explain." The same quote is often attributed to Henry Ford. In "She Wore a Yellow Ribbon," John Wayne advises a junior officer, "never apologize. It's a sign of weakness."

Possibly the most important influence on the way I do things comes from my early experience as a licensed umpire. The first thing you learn at umpiring class is: whatever you do, call 'em like you see 'em. Don't let yourself be influenced by the prominence of the player or whether you like him or not. Above all, call each play on its own terms. Don't ever try to make up for a possibly bad call by changing your call on the next play. And keep a copy of the rule book in your hip pocket. No matter how well you know the rules, it never hurts to look it up.

The reason for rules is for fairness. By the time I was six years old, I had learned that without rules and someone to enforce them, the bullies rule the playground.

Armistice Day

I don't care what anyone says - today is Armistice Day. The day World War I - "the war to end wars," came to a desultory end in an Armistice among exhausted combatants. We need to remember that war and it manifold failures and consequences. We need to remember it every time our leaders embrace war as a solution to disputes.

The Last Hurrah (Almost)

Last night the Oriental Board of Commissioners that was elected in 2007 held its last regular session. We will meet at least one more time - November 30, to set the agenda for the new board's first meeting on December 1.

We addressed or at least discussed a number of items about which we have previously failed to reach agreement. The most significant of these:

A. Minutes of closed sessions. North Carolina General Statutes allow and in some cases require discussions to be held in closed session. The law also requires minutes to be kept. They must be made public when no longer necessary to be closed. Office personnel have found references to 33 closed sessions, going back to 2004. No one remembers any of the minutes ever having been opened. Of the 33 closed sessions, the minutes book does not contain three of them. Of the remaining thirty, signed copies have not been found for a dozen of the closed sessions. This is important, because the signed copy becomes the official record of the version of minutes adopted by the board. Plainly we need better controls.

I believe the majority, including all but two paragraphs of minutes concerning the Town's court cases should be opened to the public. We will debate this at the agenda meeting Nov. 30.

B. The Town Manager clarified the costs of hiring additional peace officers. The board agreed to continue pursuing the hire of two part-time officers. The delay in hiring one has resulted from delay in getting final approval from the state government agency he works for. The manager is optimistic this won't take much longer. Commissioner Kellam has developed a set of criteria for the other hire. We will advertise for that position. This was also a topic of discussion during the public comment period.

C. The board voted to clarify no-parking areas in front of the Treasure Company, without reducing the number of legal spaces.

D. The board voted to reduce handicap parking in front of the Baptist Church to one space.

E. The new computer for water billing arrives next week - expense to be charged to the water fund.

F. Of five items of old business I had proposed be addressed, the board only acted on one: reducing the speed limit on the portion of Midyette Street between North and Broad to 15 miles per hour.

These may seem like mundane matters, but they are the kind of things that require careful attention by the board.

Thoughts of a Lame Duck

The voters have spoken. That's what democracy is about.

Yesterday I listened to General Casey speaking at a service at Fort Hood in honor of the thirteen killed last Thursday on the base. He quoted from Isaiah 6:8: "Whom shall I send, and who will go for us? Then said I, Here am I, send me."

I know no passage of scripture that more clearly and succinctly portrays the ethic of service. I have had the honor over the years of knowing many who answered the call to serve their country, their state, their community, without thought of profit or pecuniary benefit. The best of them claimed no special virtue, sought no accolades, no glory. They just did what needed to be done. I tried to follow their example.

Thoughts on Election Day

It's two o'clock in the afternoon. I set up a tent this morning outside Oriental's polling place at the fire station and have talked to many of the voters who have streamed in to the polls.

Oriental's residents care about their town, and they vote. I am proud to be one of them.

We won't know until this evening, after the polls close at 7:30, how the election came out: who among the nine candidates for town commissioner will be chosen by the voters to sit on the five-member Town Board.

However the election turns out this time, I want to thank the voters for allowing me to serve on the board. It has been a pleasure and an honor.

I also want to say I have enjoyed serving with each of the present commissioners. They are all talented, dedicated and conscientious. What a fine bunch! I am proud to have been counted in their number.

Thank you again.

David

Keeping Property Clean

Last Tuesday (Oct 27), the planning board heard complaints from citizens concerning the problem of construction debris. Our Code of General Ordinances, Chapter G - Health and Disease Protection, Article I, Section 8 - Debris from New Construction, provides that "All refuse, lumber and debris remaining both as a result of the repair of any buildings, or of the erection and completion of any new buildings, shall be removed by the property owner within ten (10) days from the completion of the aforesaid work."

The problem is, some of the "aforesaid work" is accomplished over a protracted period of time. If the work crew doesn't keep the site clean it may become not only unsightly but also a health hazard. This circumstance presently exists at a number of sites in town.

At the next Town Board meeting, I intend to introduce an amendment to our general ordinances requiring accumulated refuse, lumber and debris to be removed within ten days of creation and accumulation of the debris.

Economic Development

Economic development isn't the same as business development, though many officials conflate the two.

How to tell the difference? Business development tries to increase market share - in other words, to get a bigger slice of the pie. Economic development seeks to bake a bigger pie.

How can Oriental and Pamlico County bake a bigger pie? About half a dozen ideas come to mind. I'd be happy to share them with anyone who asks.

Campaign Heating Up

Oriental's campaign for political office is heating up.

At least six of my campaign signs have disappeared. This follows an earlier incident when one of my signs was removed from its place along Church street and later found at the entrance to Town Hall. Two anonymous calls complained that my sign was on town property. Of course, I didn't put it there. My signs are only at places where the owner requests them.

The most recent disappearance occurred this morning (Oct 23). The sign was on the property when the owner went to bed at 2:00 a.m. and had disappeared by the time he got up at 7:00.

It isn't unusual in hotly contested campaigns for signs to be stolen. Usually this is done by supporters of other candidates concerned that their candidate may not be doing well. An alternative explanation is that the thieves merely wanted a souvenir. If they had just asked, I would have been glad to provide a souvenir sign after the election.

Another possibility is that the signs are stolen by thieves concerned at my efforts to enlarge the town's police force.

Wrapping Things Up

The current Town Board has one more scheduled session before the new board is sworn in. The present board has a number of issues previously discussed that I will propose be addressed at this final meeting. Here is a partial list:

1. Act on an earlier proposal for the town to assume maintenance responsibility for the portion of North Street within town limits. This will allow us to take traffic control measures such as moving the center line stripe, establishing parking and no parking zones, and stop signs as the Town Board determines, rather than having to convince DOT. The street is in good repair, it would increase our Powell Bill funds from the state, and should generally enhance our flexibility;

2. Petition DOT for the town to take over responsibility for that portion of White Farm road that is bordered on each side by Oriental. The town should have included that section of White Farm Road in its annexation of adjacent property. This would give us control over speed limits, signage, etc. and allow us to eliminate what many residents of the area see as a hazardous situation;

3. Replace the temporary rumble strips at the north end of Midyette Street with permanent rumble strips of asphalt. Our Public Works Department knows how to make such strips. Some nearby residents report the strips seem to be doing some good. The temporary strips can be relocated to Ragan Road, where residents report cars ignore the present speed limit;

4. Reduce the Speed Limit on Midyette Street to 15 or 20 miles an hour. Residents at both ends of the street report to me that trucks pulling boats to the launch ramp at 25 mph (or greater) create a hazardous situation. In one recent incident with a bicycle, witnesses believe the truck was not exceeding the posted speed limit, but the trailer still jacknifed. I hope we can act on this;

5. At the last Town Board meeting, we discussed the possibility of removing the existing limit on location of chickens kept for personal use. I plan to introduce a motion to do that;

6. We will be required in early December to submit a report on our CAMA land use plan. This board needs to lay the foundation for that report, especially if we propose any changes.

Closed Sessions

Most meetings of the Town Board are required to be held in public. North Carolina General Statutes recognize a handful of circumstances (lawyer-client privilege, negotiating a real estate deal, etc.) where meetings may be held in closed session, and some (personnel matters) that must be held in closed session. In all cases, before going into closed session, the board must declare the reason. Minutes must be kept of closed sessions and the minutes must be opened when the matter is no longer necessary to remain closed.

I have asked that at least the closed session minutes of the past two years be reviewed, and that we take action at the next meeting of the Town Board to open all possible minutes. I would like to go as far back as possible, into the records of previous boards as well, to correct this oversight.

I have found that we were not always careful to confine our closed session discussion to the reason declared. We need to be more careful in the future. As a practical matter, I think no harm was done, though we should be somewhat embarrassed. Still, we need to make most of the minutes public, except for discussions of personnel and a few other matters, which must remain closed.

We need to be scrupulous about complying with the open meetings act.

Chickens

Oriental's animal control ordinance allows its citizens to keep chickens for their own use - as long as they are kept at least 300 feet from the nearest dwelling. It is pretty clear this is a backdoor way of prohibiting chickens.

We had an inconclusive discussion on chickens at the last Town Board meeting. At the next meeting, I hope we agree to remove the 300 foot restriction.

I like being around chickens. Having grown up on farms, I have fond memories of feeding chickens, gathering eggs and less fond memories of keeping chicken coops clean. There is a national movement underway to promote urban chickens, part of an even larger effort to promote local food growing. I see no reason Oriental shouldn't be a part of this effort.

A Good Audit

I'm not a trained accountant, but I once served as Chief Financial Officer of a private equity fund and as government contracts officer of two different companies. I have been through audits before, and was beginning to lose confidence in the vigor of the town's recent audits.

Last summer, when I learned we would be able to hire a new auditor to review the town's accounts and procedures for the fiscal year that just ended, I called for a special board meeting to change auditors. We don't yet have the written results, but preliminary indications are that our new auditor is doing a fine job. He has already uncovered a number of areas where the town's procedures did not meet the requirements of NC general statutes, and other areas where he has suggested improvements.

A good audit is not one that takes a cursory look at the books and declares "you have no serious deficiencies." Rather it is one that takes a thorough, probing look and makes concrete suggestions. We are undergoing a good audit. I look forward to the written report.

Public Safety

At the 13 October special meeting of the Town Board (called by me and Candy Bohmert), the Board of Commissioners directed the Town Manager to initiate the hire of two part time deputy policemen and to begin efforts to establish a neighborhood watch program for Oriental.

It was clear from the public comments at the meeting that most attendees shared my view that we have tried a one-man police force and it doesn't work. I asked for the special meeting because I thought the matter too urgent to wait for the next regular meeting. I hope we will be ready to move on the first part-time hire by October 23.

The Board recognized that part time hires will be only a temporary solution and that we should consider at least one full-time hire as a possible longer-term measure. The procedure to hire another full time policemen can be expected to take at least ten to twelve weeks. We expect the newly elected board to take this up in December.

Oriental Long Range Plan

On October 6, the Board of Commissioners approved the Long Range Plan developed over the past three years by the Long Range Planning Committee. By this action, the plan was turned over to Oriental's Planning Board to be incorporated in the Comprehensive Plan for Oriental, now being drafted.

As a member of that committee, I am proud that its work proceeded with particular thoroughness and care. Key contributions were made by Ben Hollowell, the Chair, who brought his broad familiarity with Oriental's history; Barbara Venturi, who brought her expertise in database design; and Dee Sage, who prodded, organized, drafted, and kept the whole project on track. Among the other members, important contributions were made by Teri Reid, Christy Foster, and Jennifer Roe.

The text is on the town's web site at:

http://www.townoforiental.com/index.asp?Type=B_BASIC&SEC={C3BC4B43-0B27-4656-9A9A-46D5E9C0DEFB}

Pamlico County Comprehensive Transportation Plan

At the October Town Board meeting, the board approved a resolution adopting the Pamlico County Comprehensive Transportation Plan (CTP) for Oriental. This plan, which was prepared by NCDOT with cooperation of the Down East Rural Transportation Organization (DERPO), establishes transportation requirements looking ahead thirty years.

The plan is on line at:
http://www.townoforiental.com/index.asp?Type=B_PR&SEC={4B6C2CFF-3843-41DE-829A-DB9FF719B4DF}&DE={18C9014F-9283-4C2D-9EFF-02AF4E6FBB8B}

For the past two years, I represented Oriental on the Pamlico County Steering Committee for the CTP. The plan includes a requirement for a bicycle path from Dolphin Point to Oriental Village, a requirement for sidewalks along highway 55 beyond town limits, and a requirement for a public transportation routes. We had asked for all of these.

We successfully opposed inclusion of four lanes from Bayboro to Oriental and a proposed bridge from Cherry Point to Minnesott.

Next step: approval by county commissioners at their November meeting.

After county commissioners adopt the CTP, Oriental needs to develop its own CTP, building on the 1988 thoroughfare plan and work done to date on the Duck Pond Plan and the Whittaker Creek Greenway Project for a bicycle and pedestrian path connecting Dolphin Point with Oriental Village.

Oriental Police Department

Last spring, Oriental's police deputy unexpectedly resigned. The town commissioners decided to try a one-person police department. That trial has not worked out as well as the commissioners had hoped. Providing police protection for Oriental appears too big a job for one man.

Sheriff Sawyer has been extremely helpful in providing back up to our only policeman, but response time is a problem because Sheriff's Deputies have much further to travel than our local policeman. In recent weeks the County Sheriff has responded more frequently to incidents in Oriental than has our own Chief. Last Wednesday morning, thieves stripped an SUV parked at the corner of Oriental's two main streets. The County Sheriff responded to that incident, as well.

I believe we urgently need to recruit a well-qualified part-time policeman as an interim measure, and review our long range options, which may include a full-time deputy. The Town Board will have a special meeting at 5:00 October 13 to address some of these issues.

We should put public safety first.

SOUTH AVENUE

The first fight I took up after being elected Town Commissioner was to defend the town's ownership of the South Avenue right of way all the way to the Harbor. I had no quarrel with the other board members or the previous board - all of them thought the right of way belonged to the town. But the town attorney seemed to believe we had a losing case. I didn't. I had read David Lawrence's book on NC right of way law and believed we had a winning case. Our attorney proceeded to lose the case at the hearing on the motion for summary judgment. The issue became whether to hire a professional litigator and pursue an appeal. I pressed for that, and the other board members supported the decision to hire Mr. Stevenson Weeks to handle the appeal. He won a unanimous decision by the NC Court of Appeals, as reported below. Now we await a decision by the NC Supreme Court whether they will review the case. The Court of Appeals decision appears to apply to all of the town's street ends.

September 21, 2009 Update

On the 7th of July, 2009, the North Carolina Court of Appeals reversed the decision of the Pamlico County Superior Court in the case of TOWN OF ORIENTAL , plaintiff v. LACY HENRY and wife, JUDY B. HENRY, Defendants. "The Town contends," the Court said, "the trial court erred in granting summary judgment in favor of the Henrys and in not granting summary judgment in favor of the town. We agree." The court concluded its unanimous opinion as follows: "Accordingly, as there were no genuine issues of material fact as to whether the Town was the owner of the South Avenue terminus, the Town was entitled to judgment as a matter of law. We hold that the trial court erred in granting summary judgment in favor of the Henrys and in failing to grant summary judgment in favor of the Town. We thus reverse and remand this matter to the Pamlico County Superior Court with instructions to enter an order consistent with this opinion."

The Henrys petitioned the Court of Appeals for a rehearing, as was their right. The Court of Appeals denied the petition, whereupon the Henrys petitioned the North Carolina Supreme Court to grant a discretionary review of the Court of Appeals decision. That is where the matter stands.

In May, 2008, PamlicoInk published an interview with Mr. Lacy Henry. In response, I wrote the following letter to the editor of The Pamlico News:

May 21, 2008

Dear Editor:

In a recent interview, Mr. Lacy Henry seems puzzled that the Town of Oriental is suing over his claim to own the portion of South Avenue that he leased from the town for many years. “I am not sure what is driving the town’s actions,” he says.

There is no mystery here. The Board of Commissioners has a duty to protect the town’s assets. South Avenue has been a public right of way for at least ninety years and arguably for a hundred and ten. It extends all the way to Raccoon Creek. We would be remiss if we didn’t defend the town’s right of way. It provides public access to public waters.

Mr. Henry has a lot to say about this. Not all of it is accurate. At a hearing last New Year’s Eve in Bayboro, he told Judge Crow that he and his father before him paid taxes on the terminus of South Avenue since the early 1950’s. Public records show that is not the case. They have never paid taxes on the disputed parcel.

In the interview, Mr. Henry recalls with nostalgia his family’s operation of a marine railway at the site. Speaking of the railway’s remaining track and winch, he says “if you move it, you will never get it back.” He also emphasizes that he holds a CAMA permit for an eight slip marina at the site, combining the town’s South Avenue street end with the adjacent waterfront lot that he owns. He doesn’t mention that the CAMA permit allows him to dump four feet of fill and build a bulkhead and piers right where the old tracks and winch are located. It isn’t clear how this preserves the marine railway.

From the town’s viewpoint, we know that if we lose control over the end of South Avenue, we will never get it back. Future generations will never be able to use South Avenue for access to public waters if Mr. Henry prevails. Whether Mr. Henry’s planned marina is a good idea or whether it ever comes to pass is beside the point. Mr. Henry’s “successors and assigns” would be able to do whatever they want with the land whether or not it was a benefit to the citizens of Oriental.

If the street end remains in the town’s hands, we can build another town dock, serving as a powerful draw to the 14,000 boats per year passing up and down the ICW only two miles away. This would bring customers for all of the town’s businesses and a lot of goodwill for future business. Cruisers attracted by free docking spend money and come back. If Mr. Henry wants to preserve a piece of the town’s past and attract visitors, he can certainly find a way to pool resources and work together with the town.

The struggle between the town and Mr. Henry isn’t about the past – it’s about the future.

David Cox

Oriental Town Commissioner

Animal Control

One of the first issues the present town board addressed in 2008 was the question of animal control. Many residents want a leash law. Many others were attracted to Oriental precisely because we don't have one. The board was in complete agreement that we don't want vicious or threatening dogs at large. There was great disagreement on issues of exact rules and enforcement. Those who wanted a leash law were not happy with the modification we made in 2008. Earlier this year, Commissioner Kellam proposed a draft ordinance that I thought was a big improvement over the existing one, but still raised questions. I voted against referring the issue to a committee of citizens, but agreed to go over the proposed language with Commissioner Kellam. The following is a letter I sent to a resident on the subject.

September 20, 2009

Dear Resident:

I want to let you know where I stand on the animal control ordinance.

Local newspapers, including the Pamlico News, were in error when they reported I voted against the draft animal control ordinance.

The only vote taken was whether to refer the draft to a committee of citizens, equally divided between proponents and opponents of a leash law. I oppose that procedure just as I opposed the stakeholder's committee three years ago and as I opposed a noise ordinance committee. That would be a cop-out. The town commissioners were elected to take on such tough issues.

I also think that creating an ad-hoc committee on the fly (that is, in the course of a meeting without advance thought) is prone to all manner of misunderstandings as to terms of reference, the task, the expected time frame, etc.

As for Kathy Kellam's draft, I think it is a considerable improvement in many respects over our present ordinance. Still, there are significant issues raised by the draft, many of which she pointed out during the meeting. I have questions about some of the policy issues that I would like to resolve. In the end, whether I support the draft or some modification of it, will depend on answers to several practical questions.

I think there is support for more effective animal control measures. Whether this requires clarification of our existing ordinance, better enforcement of its provisions, more public involvement in timely reporting and complaints, or a combination of the above, I don't know. whether the provisions in Kathy's draft are enforceable concerning keeping cats under restraint, whether "voice command" is a viable concept even with dogs, are reasonable questions in my mind.

I don't agree with the County Compass headline that the draft is "dead on arrival." I certainly didn't vote against any specific changes, just against referring it to a committee. Especially after the fuss over a noise ordinance committee, I want to make it clear I don't support such an approach.

What I do support is for the Town Board to conduct public hearings or even formal investigations into proposed ordinances. While looking through NC General Statutes recently on another issue, I came across the provision empowering town boards to conduct investigations,even to the point of issuing subpoenas to witnesses. I think this is an excellent way to receive input from the public and from experts.

Another suggestion I have heard is to hold an "advisory referendum" during the forthcoming election. That suggestion came from a lifetime northerner. I don't like referenda, because the ones I have seen invariably oversimplify the issue. A question, for example: "Do you favor a leash law for Oriental" or even "do you favor enhanced animal control measures for Oriental" wouldn't tell us much. Details matter.

I have had a number of discussions with the town manager concerning our existing ordinance. When we passed it, none of the commissioners wanted to allow dangerous, vicious or threatening dogs to remain at large. Such animals are clearly covered by state law, and the county animal control officer has jurisdiction to respond to complaints. Our ordinance also addresses nuisance animals. I think we need to clarify the nuisance category. More importantly, we have few town resources for animal control. If we wish to rely on the county for support in that area, we need to conclude an interlocal agreement or memorandum of understanding spelling out the details of procedure. I have had a preliminary discussion with the County Manager about this, and he seems receptive to the idea, though a bit concerned about whether the county has sufficient resources.

I have agreed to sit down with Kathy Kellam to address specific issues and concerns and how best to address them.

David Cox

Oriental Water Fund

An Oriental resident recently expressed concerns about the Town Commissioners' increase of the basic water rate by one dollar per month.

While it is true that any increase in fees, no matter how small, adds to the burden of citizens at a time of economic stress, a number of factors make this measure necessary:

1. Oriental has been losing money on water due to higher prices for treatment chemicals, more stringent testing requirements and salary increases over the past eight years;
2. Oriental's Water Fund is an enterprise fund - required by state law to be self-supporting;
3. The Water Fund reimburses the general fund (general tax revenue) for administrative costs - principally salaries of town staff for time spent managing the water system;
4. The administrative cost was last calculated in 2001 - since that time costs have escalated;
5. For the past eight years,the General Fund has charged $48,000 per year, despite the fact that actual costs have increased to nearly $82,000 since 2001;
6. Since 2001, the gap between actual cost and the reimbursed cost totals nearly $150,000;
7. The commissioners were reluctant to burden ratepayers this year by increasing water rates to cover the entire cost, because of the poor state of the economy;
8. For the coming fiscal year, commissioners increased reimbursement from the water fund to the general fund from $48,000 to $72,000, still about $10,000 short of actual costs;
9. The plan is to recover the entire cost in next year's budget.

The bottom line is that Oriental's taxpayers have been subsidizing the water system for the past eight years. We have to stop this practice.

David Cox

Noise Ordinance

One of the most controversial issues of the past two years was the noise ordinance. I fought for a change to our existing ordinance, to establish a reasonable, objective, measurable standard. Before the board made the changes, any noise that "annoys, disturbs..." or affects the peace of persons within the limits of the town was a violation. The ordinance also provided that any violation would be a misdemeanor (criminal violation) with a fine of up to $500 per occurrence. I introduced the amendment finally adopted, which set a measurable standard attempting to balance the interests of residents to enjoy the use of their homes with that of performance venues. It also changed the penalty to a civil fine except in egregious cases of willful violation. I strongly believe that any ordinance should establish a clear, objective standard so that a person or business can know whether it is in violation and take steps to avoid breaking the rule without the heavy hand of the law. I am pleased we were able to do that. Below is a letter I sent to Pamlico News during the controversy.

NOISE AND OTHER DISTURBANCES

by David Cox

(Published in Pamlico News, December 31, 2008, p. 4)

The surprising thing about letters printed in Pamlico News concerning Oriental’s noise ordinance, as well as e-mails received at Town Hall from as far away as Raleigh, is that most writers believe we want to abolish outdoor amplified music. That isn’t true.

Many of the letters describe the problem as a private dispute between the Tiki Bar and two local residents. This also isn’t true. More than a dozen residents have complained to either the Chief of Police or to one or more town commissioners that the enjoyment of their homes has been disturbed by loud musical performances at five different venues. Some of the complainants live nearly half a mile from the performance sites. No complaining resident ever requested prohibiting outdoor music. They do want to know why the music has to be so loud, why it has to be so frequent and why it has to last so late. None of the music supporters has provided answers to these questions.

How loud is the music? Last August 2 one of our commissioners measured the dB level on Hodges in front of The Bean, 150 feet from a band at the Tiki Bar. The level was 83 dB. From that, one can calculate the sound level at the bandstand as 120 to 130 dB. That’s between the sound level of a jackhammer and that of a machine gun. The National Institute for Occupational Safety and Health (NIOSH) recommends limiting exposure to noise of 120 dB to nine seconds, and to 130 dB to less than one second. So not only does such a sound level annoy the neighbors, it may be dangerous to the hearing of patrons.

Using a simple physical rule for sound (the inverse square rule), one can calculate that a sound level of 83 dB on Hodges street in front of The Bean would diminish to about 71 – 73 dB at the back deck of South Water Street residences. For comparison, that’s louder than a vacuum cleaner, clacking typewriter or piano playing in your house. But you can’t turn it off. Many people would find that annoying if they are trying to sleep in the next room, read a book, converse with a dinner guest or listen to their own choice of music – in other words, to enjoy the use of their home.

A problem with our current noise ordinance is that we set no measurable, objective standard. It is a violation of our ordinance to make any noise which, “because of its volume level, duration and character annoys, disturbs, injures or endangers the comfort, health, peace, or safety of reasonable persons of ordinary sensibilities within the limits of the Town.” This makes it hard for business owners, musical performers, nearby residents or the Chief of Police to know when enforcement action is necessary.

Another problem is that the ordinance provides no standards for issuing noise permits. It establishes no limits on times, sound level, number or frequency of events. It provides no criteria for approval or disapproval of a requested permit.

Recognizing our ordinance may require improvement, since January 2008, the Town Board has examined possible options. We have researched and reviewed ordinances in other communities, including Chapel Hill, Carolina Beach, Myrtle Beach, Charlotte, and elsewhere. None of these ordinances is a perfect fit, because none has zoning patterns quite like ours. But they provide a good starting point. A typical standard in other communities is a sound level of 65 dB measured at least 100 feet from the point of origin, and beyond the edge of the emitting property. For a measurement on Hodges Street for a performance at the Tiki Bar, that corresponds to about 105 dB on the bandstand. That is about the same sound level as a low jet flyover or a snowmobile; louder than a helicopter, but not as loud as a chain saw.

A thought for Oriental residents to bear in mind is that our Growth Management Ordinance allows night clubs and bars anywhere in our two mixed use districts. Imagine a Tiki Bar or similar venue at Sea Harbor, both sides of Whittaker Creek, Neuse River Suites, the harbor district, any lot along Broad Street or lower Midyette Street. We make rules not only for what exists at present, but also for what might exist in the future.

A hopeful sign for resolving the issue is that, of twenty-nine letter writers supporting outdoor music, fifteen offered positive, helpful suggestions. Thirteen suggested various time limits and eight suggested regulating the sound level. Both approaches enjoy some support within the Town Board. As we review this controversy, the Town Board welcomes public inputs on issues of sound level, time, number and frequency of performances, exceptions and so forth. We may wish to hold special meetings of the Board to collect information, both verbally and in writing, from everyone having an interest in the outcome.

As often in policy conflicts, this is not a case of good against evil. Bringing tourist dollars to town is good. Enjoying one's home is good. We have a conflict between good things, not between good and evil. Demonizing opponents doesn’t help. We have an excellent Town Board. With helpful, positive input from our citizens, we will be able to resolve these issues to everyone’s benefit.