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Wednesday, 08 March 2006 00:00

Interpretation of precedent could decide Reece’s fate with Haywood TDA board

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The fate of a controversial figure on the Haywood County Tourism Development Authority is still up in the air two weeks after the tourism board voted 5 to 3 to have him ousted.

The decision whether to remove Wade Reece from the tourism board lies with Haywood County commissioners, but commissioners have postponed making a decision pending conflicting opinions from local government experts at the Institute of Government, a department of UNC-Chapel Hill. When County Attorney Chip Killian consulted a local government expert at the Institute of Government last week, he was told the only way to legally get Reece off the board was to disband the whole board and put it back together again minus Reece.

But another local government expert, also at the Institute of Government, says the county commissioners could remove Reece with just cause.

The five tourism board members who want Reece gone claim he has been an obstructionist and bully, detailing their complaints in a four-page resolution. They also claim Reece has used his position on the tourism board to funnel tourism dollars to promote events that directly benefit his hotel, the Quality Inn in Maggie Valley.

Reece has been a long-time critic of the tourism board and how it spends more than $600,000 collected through a 3 percent tax on overnight lodging and pumped back into tourism promotion. Reece often criticizes other board members and the tourism staff for not doing a good job and is rarely satisfied when the board tries to address his complaints.

Commissioner Mary Ann Enloe said removing Reece could be a slippery slope. Commissioners appoint the members of about two dozen boards — the hospital board, the library board, the planning board, the greenway commission, the economic development commission and the community college board to name a few. Enloe said removing Reece would signal that boards could vote to oust fellow members simply because they didn’t like them or didn’t get along.

“We would have to do our own due diligence,” Enloe said of the tourism board’s claims against Reece.

However Enloe said that does not mean she nor any other board member advocates Reece’s actions of late on the tourism board.

“I am extremely disappointed it has come to this,” Enloe said.

Commissioner Larry Ammons said next time commissioners appoint board members, they should be clear what is expected from those serving on boards.

“We must be civil to each other even when we do disagree,” Ammons said. “We must be able to work within a board system even when we do not agree with the way the board votes.”

The topic of Reece could be up for discussion at the commissioners’ next board meeting on March 20 if County Attorney Chip Killian has tracked down answers to the differing opinions on whether the commissioners have the authority to remove him

“I have asked (Killian) to attempt to resolve the apparent conflict in legal opinions at the Institute of Government,” said Mark Swanger, commissioner chairman. “And if the disagreement cannot be resolved, if he could give us the basis of their legal conclusions so we could try to sort it out.”

 

What’s legal?

The difference of opinion between the two local government experts at the Institute of Government is rather subtle.

One points to the lack of legal precedent in the state over the removal of board members and guards against it. The other points to the lack of state precedent and in the void, turns to precedent in other states where the removal of a board member has been upheld.

Both say it would be much easier if the legislation that set up the board spelled out grounds for a board members removal. But it didn’t.

When the county sought a 3 percent tax on lodging, the state legislature had to approve legislation creating the tax. That same legislation also called for a nine-member tourism board to oversee the tax. The board members would be appointed by commissioners to three-year terms.

Reece is only one year into his term, however. And according to Fleming Bell, removing him before his term is up would be uncharted ground and therefore he cautioned against it.

“They have to honor those terms,” Bell said.

Fellow Institute of Government local government expert David Lawrence disagreed, citing precedent in other states. While the county commissioners could not remove Reece simply because they didn’t like him, they could remove him if he did something wrong.

“The national case precedent says the appointing body can remove a member of a board they appointed with cause,” Lawrence said. “It has to be some kind of malfeasance.”

Bell said Lawrence is more familiar with cases in other states than he is.

“I do tend to stick more closely to the North Carolina cases,” Bell said. “The national law is instructive but not binding.”

In other words, if the commissioners removed Reece and Reece sued, pointing out how a similar case was decided in Virginia, that would not necessarily sway a judge here in North Carolina to rule the same way.

Lawrence agreed, saying “We don’t have any good clear cases in North Carolina on the issue.”

Bell offered another solution, however. Disband the entire board and put it back together again, minus Reece. Bell said there is state case law on that. A zoning board in the town of Swansboro made a ruling the town’s mayor didn’t like. So the town board dissolved the zoning board and then decided to form a new zoning board with all new members. The old zoning board members challenged it, but the North Carolina Court of Appeals ruled in the town’s favor.

Nothing in the legislation that created a board says the town or county has to have that board, only that it may.

“If you may have it, you may get rid of it,” Bell said. And after getting rid of it, they can decide to have it again, only they could start from scratch.

Haywood County commissioners pulled a similar move three years ago with its Economic Development Commission. It was disbanded then reconstituted with nearly all new members.

Removing someone from a board they had been appointed to is not unheard of in the state. It’s just that no one has been sued over it, so no precedent resulted. But one case involving the removal of a health board member resulted in a state statute defining just cause for removing a board member. The statute applied specifically to county-appointed health boards, but is interesting nonetheless.

After the Rockingham County commissioners removed someone they had previously appointed to the county health board, state legislation was passed justifying the removal of a health board member in certain circumstances.

The reasons include “conduct that brings the office into disrepute,” violating state conflict of interest laws, violating a written policy adopted by the county commissioners or committing a felony or crime of “moral turpitude.”

Following the dispute, Rockingham County commissioners adopted a written policy — created by Bell, actually — guiding all appointed county boards. The board must act as a body and by majority vote. Each member must have an equal opportunity to participate in decision making. The board’s actions should be the result of a decision on the merits.

The resolution calling for Reece’s removal complained he made decisions based on personal interests rather than the interests of tourism as a whole, conducted the tourism authority’s business on his own rather than in concert with the board’s majority vote, and thwarted the board’s decision-making process.

Dorie Pope, chair of the tourism board, said she hopes the county commissioners will act on the TDA board’s request.

“We understand why the commissioners would want to make sure before they made any move they were doing the right thing,” Pope said. “Hopefully the correct opinion will be passed down and the opinion would be to remove.”

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