11/11/11 — City sought OK on letter-writing effort

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City sought OK on letter-writing effort

By Ty Johnson
Published in News on November 11, 2011 1:46 PM

While Goldsboro officials debated how best to fight the pending decision from the Department of Justice concerning preclearance for the deannexation petitions, they sought out legal advice from the city attorney, their hired legal team at Parker-Poe in Charlotte and a representative with the School of Government.

The city determined that there was no legal issue in soliciting the public for letters supporting the city's position on the decision -- one that asks the petition process be deemed unfair due to its exclusion of citizens who don't own property in the area of the city known as Phase 11.

The petition process is spelled out in a newly created law that reforms the annexation process to require a 60 percent return on petitions from property owners before an area can be annexed into a municipality. The process for Phase 11, which is the only annexation in the state being considered for retroactive deannexation, is similar, although the petitions have been held in Wayne County while the DOJ makes its decision.

As thorny as the situation is, Frayda Bluestein, associate dean at the University of North Carolina School of Government, told Assistant City Manager Tasha Logan that she did have some concerns about the letter soliciting process, which entailed Ms. Logan and other members of the city's staff drafting sample letters and asking for support of the city's cause, as it could be construed as an incident where public officials were using public funds to influence the outcome of an election.

But that's not quite the case, she said.

"One issue is that it's not actually an election, it's a petition process," Ms. Bluestein said.

And what's more is the fact that the letter-writing, which is all directed to the DOJ, is challenging the preclearance process, which is even further removed from the balloting process.

"The city is in the process of seeking approval as they're required to do by a federal agency and there are no limitations that I'm aware of with that. It's not an election at all," she said.

But as far as how the city is using public funds to incite petitioners to respond in a certain way, there could be an issue, albeit with more ambiguity.

"It's possible that the court might say that the process is sufficiently like an election and there are limits for the jurisdiction of what they can spend money on -- the limitations may apply," she said, adding that the petition process, while run by the Wayne County Board of Elections, is still not truly an election. "All of the registered voters don't get to vote."

The city's two legal teams seized on the ambiguity of the petition process and determined that the letter-writing campaign would not expose the city to any legal risks.

"The School of Government had some concerns about the conclusion of the draft letters but our legal counsel talked with (Ms. Bluestein) and felt that within the advocacy role the city plays alongside this issue it was appropriate to do that," Ms. Logan said. "We would never write a letter that says 'when you vote, vote this way.' We're just advocating for that. There are other state laws that we advocate against and we advocate for different things all the time."

Ms. Logan pointed to the City Council's resolution against House Bill 56 -- the predecessor to the state law that is now seeking to dissolve the city's claims to Phase 11 -- and the trip she and other city officials made to Raleigh to speak against the bill as examples of such advocacy.

And the city's campaign for support seems to have taken root, as eight citizens have said they were interested in joining the city as plaintiffs in a possible lawsuit if the deannexation were to become valid, with two of those also pledging to write a letter to the DOJ. One other person indicated a letter would be sent, but did not indicate interest in becoming involved with the lawsuit.

The DOJ has indicated that it would be taking all of the preclearance requests that have emerged from the state law's enactment -- there are similar cases in Kinston, Fayetteville, Rocky Mount and Marvin -- and considering them together.

Because the other municipalities delayed their applications for preclearance until after the petitions were mailed out -- in the case of Kinston, a delay that lasted until mid-September -- the DOJ's 60-day review period will end Nov. 14, at which time the agency will make a decision or request more information to complete the review.

The law went into effect June 18, beginning a 35-day period during which the Board of Elections was to send out the petitions. At the suggestion of the state's attorney general, however, the petitions were held until the parameters of the petition could be precleared by the DOJ.