DA hopefuls respond to Report questions

A new district attorney for Iredell and Alexander counties will be named on Tuesday.

Though the general election is still six months away, three Republicans – Sarah Kirkman, Alan Martin and Michael Van Buren – are vying for the DA position. And since a Democrat is not running in that race, the May 6 primary will decide the winner, said Iredell County Elections Director Becky Galliher.

Last Friday, I submitted (y)our questions to the three DA candidates, asking that they respond by 5 p.m. today. Two candidates – Kirkman and Van Buren – responded within two days. Martin has not responded.

(The candidates for county commission were asked to respond to their list of questions by tomorrow evening. I will post their responses by the end of this week.)

In the meantime, for more information on the three DA candidates, visit their websites:

Sarah Kirkman www.kirkman2008.com
Michael Van Buren www.vanburenforda.com
Alan Martin www.alanmartinforda.org

And without further ado, here are (y)our questions of the DA candidates ... and their answers:

Question #1
In September 2005 – amid awake and involved citizens in our community asking repeated questions about the finances of the Mooresville Municipal Golf Course – the Mooresville Tribune reported that District Attorney Garry Frank was reviewing the State Bureau of Investigation’s report detailing the findings from its investigation into the finances of the golf course.

Mooresville commissioners in May 2005 requested the SBI investigation after an independent audit of the golf course pro shop turned up nearly $9,300 in missing golf merchandise over an 8-month period during fiscal year 2005. During a follow-up inventory count, $4,545 worth of that merchandise was “discovered.”

Mr. Frank said in a September 2005 Tribune article: “I have received the report, and I’m in the process of reading it. Upon concluding the studying of the report, I will decide whether there are any further investigative activities I would request of the SBI, and at the conclusion of the investigation, I will make a decision on what, if anything, will be pursued for prosecution.”

To this day, the details of that investigation or Frank’s decision have not been divulged to the town’s taxpayers and, to the best of anyone’s knowledge, any town officials.

Whose desk has that report been sitting on for more than two years? Do you feel that this is acceptable? Would you have handled it differently? How so? If you are elected DA, will you make a commitment to the Mooresville public to release the results, or at least update us on that investigation?

Kirkman: I do not know what, if anything, was done in regards to that investigation. If I am elected district attorney, I will make a commitment to update concerned citizens as to the progress of a criminal investigation where appropriate.

Van Buren: Some of what you are asking I cannot comment on because I do not work in the Iredell County District Attorney’s Office. I can only answer as to my experiences and to the policies I would adopt as your District Attorney.

When I worked in Caldwell County as an Assistant District Attorney, we had a policy that every felony case summary that was turned into the District Attorney’s Office was either accepted or rejected for felony prosecution within 10 days. When that ten day time period expired, either an indictment was submitted to the grand jury or a letter was sent to law enforcement explaining why the case was not accepted for felony prosecution.

In Rowan County, where I currently work as an Assistant District Attorney, we have a probable cause system where every case goes through District Court for a judge to make a determination as to whether there is sufficient merit for felony prosecution. Once a felony case is sent to Superior Court by either being bound over by a hearing where a judge finds probable cause, or by waiver where the defense attorney does not contest probable cause, the case is sent to the next grand jury for indictment. In Rowan County our Grand Jury meets about one time per month.

In either of the systems I worked in, things would have been done differently. There are some rare cases that do not follow either of the paths indicated above; however, I am not aware of any case in either district I worked that has taken more than two years to decide on whether or not to prosecute. Most decisions are made in days not years.

If elected as your District Attorney, I would adopt the probable cause system similar to Rowan County in screening cases and, absent extraordinary circumstances, make a decision about prosecuting a case in just a few days.

I have been taught by the elected District Attorney in Rowan County William Kenerly to never ignore the media. If elected District Attorney, I will not ignore the media. When it is appropriate and the law allows, I will keep interested media members up to date and in situations when it is inappropriate to make comments or the law prevents me from making comments, I will articulate this fact to interested media members.

Martin did not respond.

Question #2
What is the new district attorney going to do about cases being continued? Also, what are you going to do about one of the government’s most important duties: putting criminals in jail and keeping them there to protect the public?

Kirkman: Which cases? And for what reason? Unfortunately, there is no one formula that will work for determining when cases get continued, as each case is different, with different underlying facts and circumstances. And, ultimately, the judge decides whether a case may be continued or not. There are numerous reasons a case may get continued, but as district attorney, I will work to make sure that the State is ready to proceed on its cases. Part of the process of determining when cases will be continued will be communicating with law enforcement agencies about turning in reports in a timely manner and communicating with other officers of the court to develop procedures and guidelines for continuances in criminal court.

As district attorney, I will seek appropriate punishment for all defendants. The legislature and the judges have more to do with whether defendants go to jail than the district attorney’s office, but in cases where the defendant is a repeat offender or a sexual predator of children, I would certainly try to get a prison sentence where appropriate to protect the public. My job as a prosecutor is to do justice – and when that means that a defendant belongs in prison, I would certainly do all in my power to see that that happens.

Van Buren: It is an unfortunate fact of our court system that cases are going to get continued for various reasons. In my experience, more cases get continued because the defense is asking for a continuance rather than the State. When appropriate, I will ask my assistants to object to continuances by the defense and limit the continuances that they request. I had a murder case scheduled in March of this year, but the defense attorney’s wife had to undergo surgery to remove tumors inside her head. The defense attorney asked for a continuance because the trial was set to start the day prior to her scheduled surgery. This is an appropriate situation to consent to a continuance. On the other hand there are going to be times when the State is going to have legitimate reasons to ask for a continuance when witnesses become unavailable for hospitalization, military service and like problems. Absent these extraordinary circumstances, I will expect my staff to be prepared and ready to prosecute.

Sometimes continuances occur because of time restraints; there are not enough hours in the day to handle every case on a large docket. Some continuances can be resolved by how court is organized. Please see my answer to question 6 for organization of court and solutions as a way that, under my management as your District Attorney, continuances would be lessened and more criminals prosecuted.

Martin did not respond.

Question #3
How can the judicial system ensure that violent criminals be punished to the fullest extent of the law, especially as the state has difficulty with providing adequate prison space?

Kirkman: I can only speak for one part of the judicial system – the district attorney’s office. As district attorney, I will work to see that violent criminals be punished to the fullest extent of the law where appropriate, regardless of the issue of prison space. As I have said before, the legislature and the judges have more control over sentencing than the district attorney, but as prosecutors, we can work to present the best case possible in these instances of violent crime.

We can expend more time and resources on these types of crime, as these defendants are the ones who threaten the very safety of our community.

Van Buren: The District Attorney cannot ensure that violent criminals are punished to the fullest extent of the law because punishment is up to the judge hearing a case. The District Attorney can, however, prosecute violent criminals to the fullest extent of the law by using aggravating factors to attempt to motivate a judge to give a greater sentence than normally given for that same crime.

According to a recent conference that Rowan County District Attorney William Kenerly attended, North Carolina has the second lowest incarceration rate in the South. Space in the North Carolina Department of Corrections (prison) is a problem, but the greater problem is space in our jails. Prison is where a person goes when convicted of a crime and jail is where one stays awaiting for trial or to enter a plea. When a District Attorney allows overcrowding in our jails to factor into plea-bargaining, then the criminals have taken over our justice system. If that strain causes the District Attorney to make decisions that may allow violent offenders to receive probation as opposed to an active sentence, then the public becomes at risk.

If elected District Attorney, I will not allow jail overcrowding to motivate me to resort to irresponsible plea-bargaining, thus more likely putting a judge in a situation to give a sufficient active sentence based on the sentencing guidelines that all judges must follow. When appropriate, I will seek and motivate my staff to seek aggravating circumstances against violent offenders to attempt to get maximum sentences.

Martin did not respond.

Question #4
How do you propose that your tenure as District Attorney will provide the most effective deterrent to crime in our district?

Kirkman: Probably the best deterrent to crime is to send criminals to prison when appropriate so that they are not out in society committing other crimes. A way to do this is to target repeat offenders, sexual predators of children and violent criminals by expending more resources and time on the aggressive and timely prosecution of these offenders.

Our office must also work with the federal authorities to obtain harsher penalties where possible and deport illegal aliens who commit crimes. Having a good relationship with law enforcement officers will also help in this regard because officers will know that their cases will not be taken lightly and that if they have any questions or need assistance, our office is there to help them.

Van Buren: I am the only candidate to publicly bring to light some of the problems with the District Attorney’s Office. At times, I am the only candidate that seems to believe that problems exist in the District Attorney’s Office. In order to be effective in the deterrence of crime, you must be tough on crime. Dismissing twice as many cases than taking guilty pleas in District Court is not being tough on crime. Accepting only about 35% of the felony cases being submitted by law enforcement for prosecution at the felony level is not being tough on crime. Fostering a dismissal rate in Superior Court of almost 1/3 after you have dismissed or pled out as misdemeanors half of the felony cases submitted for prosecution is not being tough on crime. Averaging less than 1 murder trial per year for the last 8 fiscal years is not being tough on crime when you have 22 pending murder cases as an accumulation of those last eight years. Having less weeks of court than many counties surrounding Iredell County limits how tough you can be on crime. I recognize that the Iredell County District Attorney’s Office has not been tough enough on crime.

To be a deterrence on crime I will be tougher on crime by: 1) reducing the number of dismissals in both district court and superior court; 2) accepting more felony cases for prosecution than is currently being accepted; and 3) advocating for more court time to try more cases—including murder cases. I have worked in two different prosecutorial districts, neither being perfect, but both tougher on crime than Iredell County’s District Attorney’s Office. Iredell County needs to learn that being tough on crime works.

Martin did not respond.

Question #5
Would you reinstate the death penalty?

Kirkman: The death penalty is in effect now under North Carolina law. I do support the death penalty, and as district attorney, I would seek the death penalty when possible. By law, every murder case is not eligible to be a death penalty case, but I would seek the death penalty in those cases that qualify.

Van Buren: I am guessing that your question is a little tongue and cheek since we still have the death penalty in North Carolina, although it has not been sought in Iredell County in a long time. I will seek the death penalty when appropriate aggravating circumstances exist to warrant the imposition of the death penalty. I have capital case trial experience and capital case trial training.

I am surprised by my experiences in Rowan and Caldwell Counties that more capital cases have not been tried in Iredell County. I realize that not all first degree murder cases warrant the death penalty under North Carolina law, but with the number and frequency of murders in Iredell County, you would think that some of those murder cases throughout the years would have warranted the death penalty.

Martin did not respond.

Question #6 to Van Buren only
Mr. Van Buren: Some accuse you of being “all problems” and “no solutions.” And responding to the statistics that you are sharing while campaigning, your opponent(s) say that statistics don’t tell the whole story. What’s your response?

Van Buren: Since the beginning of my campaign, I have provided in detail the ways in which I would do things different. I have not only pointed out the problems of this District Attorney’s Office, but have given examples of how things are being done better in other places. Often times I use Caldwell County as an example of how to organize Superior Court and Rowan County as how to organize District Court. Neither County is perfect, but they gave a good guide as to how some things can be done different and how we in Iredell County can get better results.

Statistics may or may not give the whole story, but are very helpful in trying to understand the whole story. My opponents have now adopted the buzzword “dangerous” in dealing with statistics. The only thing dangerous about the statistics of the Iredell County District Attorney’s Office is to the citizens of Iredell County and the campaigns of my opponents who bear responsibility for the statistics.

If not for the alarming information I provided by statistics, many would think that things are going well in the Iredell County Criminal Court System. One of my opponents has even commented that the system in Iredell County is a good system. One thing that the statistics demonstrate is that Iredell County is soft on crime. Thus, who is the Iredell County system good for? I have published my solutions on my website www.vanburenforda.com under the solutions tab, on the Record and Landmark website and the Charlotte Observer Iredell Neighbors website. Although I call the way I would do things solutions, they are not actually solutions; our court problems will always exist, it is just a different way of doing things to get better results than what we are currently getting.

Here is my proposal on how to change the current system in Iredell County:

I will reorganize court by first establishing a modern case docketing plan in Superior Court that will allow for: 1) more weeks of Superior Court, forty (40) if possible, twelve (12) of which will be non-jury administrative court; 2) setting clear principles for the expectations of the District Attorney’s Office for plea bargaining and complying with certain laws such as Discovery; and 3) allowing assistants to commit to the aggressive prosecution of felony cases and not accept a culture of indifference.

I would then establish a case docketing plan in District Court that will: 1) segregate law enforcement initiated cases from private warrants and from probation violations, so assistant district attorneys can concentrate more effectively on similar cases and law enforcement is not wasting time sitting in court rather than policing; 2) advocate for H and I felony pleas to be done in District Court to help resolve victims cases quicker; 3) establish probable cause court in District Court for all felony cases to go through in order to have a judicial official determine if probable cause exists for felony prosecution; 4) commit to prosecuting cases that probable cause is found in District Court as felonies, absent extraordinary circumstances. Provide ongoing training and support to agencies involved in the prosecution of cases in order to strengthen relationships and have mutual understanding about job responsibilities. Get involved with grant writing and other ways to raise monies and awareness of the current limitations in our court system by drawing attention and revenue for attacking ongoing problems.

Question #7 to Martin only
Mr. Martin: You have been lauded as being the assistant DA who successfully prosecuted a cop killer, Misty Witherspoon. But I don’t believe I’ve ever seen your response on the record as to why you offered her a 7-year plea deal.

Many in the Mooresville community believe it’s because the Mooresville Police Department mishandled key evidence in the case, including allowing the Witherspoon family to dispose of the couch where Quinn Witherspoon was murdered within a day or two after he was killed.

You tried to strike a 7-year plea deal with a murderer, and there’s no getting around that. Either the DAs office was willing to let a murderer walk after only seven years, or for some reason, you didn’t feel – at the moment you offered her that deal – that you had sufficient evidence to fully, successfully prosecute.

Also, the DAs office was interestingly silent about the fact that our police chief, John Crone, was on television within hours after that murder basically calling it an accident [about three hours after Witherspoon’s murder on Sept. 13, 2005, Crone was on the 5 p.m. news, stating that police had “no reason to believe there is any foul play.” He repeated that in a press conference later that afternoon], which potentially could have tainted the jury pool. Crone also issued a statement once Misty Witherspoon was indicted, publicly expressing his sympathy for the accused, asking us to remember she’s innocent until proven guilty [specifically, he asked the general public to "not pre-judge Misty until she has had a chance to defend herself in a courtroom"], and asking us to keep the Witherspoon family in our prayers. The DAs office was also interestingly silent when our police chief and a few officers, in an interrogation room [on Oct. 5, 2005], hugged Misty Witherspoon after she had apparently changed her story. [The video of that particular interrogation was played in the courtroom during Witherspoon's trial.]

Is this typically the way that police officers treat murder suspects? Would this be the treatment that an African-American or a poor, “unconnected” person would have received? Why did the DAs office try to strike a 7-year plea deal with a murderer? Why did the DAs office not take a public stance against what appears to be negligence on the part of our police department? And why did the DAs office not denounce the police department’s clear preferential treatment of Misty Witherspoon, an act that could have put our community at a great risk by releasing a cold-blooded murderer into our midst?

Martin did not respond

Question #8 to Martin only
Mr. Martin: Many people in Mooresville believe that you mishandled the investigation of Interim Town Manager Erskine Smith in 2002. As you will recall, a Mooresville citizen blew the whistle on our library director, who – thanks to the efforts of that citizen – was later indicted on embezzlement charges.

The day that the library director, Karen Khan, was dismissed from her employment with the town (on a Friday), it had been made clear to Erskine Smith (the assistant town manager at that time) that a criminal investigation by the Mooresville Police Department was underway. Yet bright and early on Monday, Smith (who has never been known to frequent our public library) showed up at the library and disappeared into Khan’s office. According to eyewitness accounts, he reappeared some time later, carrying full trash bags. What’s more, this happened before the investigative officer, Carl Robbins, went through Khan’s office for investigative purposes. Smith was fully aware that Carl Robbins was the investigative officer in the case, and Smith could have – and SHOULD have – called Robbins to go through that office first.

As I understood it from my predecessor at the Tribune, who extensively covered the library scandal, one source told him that eyewitnesses told you that Erskine Smith was in the library office for several hours and left with full trash bags. But when you asked Smith about it, apparently Smith – Khan’s boss – said he was merely “cleaning old magazines” out of Khan’s office. Smith also admitted to you that he was aware that a criminal investigation was underway at the time and that he knew he was going through her office even before the criminal investigator had.

To this day, no one – arguably, except for you – knows exactly what Smith carried out of that office and why he was allowed to do it. Yet you absolved Smith by saying that there wasn’t enough evidence to pursue it. And later, you apparently attempted to justify your actions to a Tribune source, saying that you “attended Lunch Rotary with Smith,” basically suggesting that your relationship with him trumped your duties as a public prosecutor.

Many people in the Mooresville community feel like Erskine Smith committed obstruction of justice and that you treated him preferentially. They believe that had you handled that situation correctly and more courageously, this town would have been saved a great deal of money and heartache. You had the power at that point to make sure Erskine Smith was properly held accountable, but you did not exercise that power because reportedly, you were in “Lunch Rotary” with Erskine Smith. And now, our town is stuck with him as an interim town manager making more than $100,000 a year while he is wasting our tax dollars by throwing business, to the tune of a-quarter-of-a-million dollars, to his undeserving friends.

Many people conclude that we’re in such a situation with Smith because of your single failure and inaction.

What is your response? Did your relationship with Erskine Smith influence your decision to absolve him? Do you feel you treated him preferentially? What will you do as DA to restore the Mooresville public’s confidence that you’re willing to investigate and potentially prosecute white-collar crime?

Martin did not respond.

Question #9 to Kirkman and Van Buren only
Mrs. Kirkman and Mr. Van Buren: Your opponent, Alan Martin, is clearly under fire for the strong perception among the citizens of the Town of Mooresville that he has been soft on white-collar crime, and for apparently doling out preferential treatment to people in positions of power. If you are elected, what assurances can you give to the citizens of Mooresville that you will investigate and fully prosecute white-collar crime in Mooresville, whether it is committed by a citizen or a public official?

Kirkman: I think it goes without saying that it is the duty of whoever is elected district attorney to “investigate and fully prosecute” any crime committed anywhere in our district, whether it be committed by a citizen or a public official. The fact that a crime is committed by a public official should have no bearing on the attention it receives. It may require special agencies to investigate it to prevent the appearance of any conflict of interest, but if elected, I will see to it that crimes are prosecuted regardless of the status of the alleged offender.

Van Buren: If elected District Attorney, I will prosecute all crimes whether misdemeanor, felony, violent or white collar. I have tried embezzlement cases and insurance fraud cases as an Assistant District Attorney. A person’s status will not be a barrier to prosecution in my office. I was the Assistant District Attorney who prepared the presentment and signed the Indictment of the former District Attorney in Burke, Caldwell and Catawba Counties, who came from a very strong Republican family known throughout North Carolina, to the Grand Jury of Caldwell County. No criminals will be safe under my administration.

Did Mayor operate outside state law?

“The definition of insanity is doing the same thing over and over again, expecting different results.” (Anonymous)

The South Iredell Community Development Corporation (SICDC) has paid its debt in full to the Town of Mooresville. All’s well that ends well.

Or is it?

Although we have extended sincere thanks to the SICDC for remedying this situation after it was exposed, we believe the mayor should not be let off the hook for his part in the matter.

Mayor Bill Thunberg – who also sits on the SICDC board of directors – single-handedly, and apparently without authorization from Mooresville commissioners, signed away the town’s collateral when he signed release deeds on two pieces of property that the SICDC sold earlier this year.

And it appears he may have acted outside of state law in doing so.

Town Attorney Steve Gambill recently stated in an e-mail to the Report: “State law does not address, nor lay out, the specific authority a mayor has. It seems to me that it would be a practical impossibility for the law to address each thing a mayor can do.”

And Gambill is right. But just because the law is silent about the mayor’s specific authorities does not mean that the mayor has a “free pass” to do whatever he wants, whenever he wants. In fact, state law very clearly spells out that the authority of the people is invested in the “body politic” – and in our case, that is Mooresville’s board of commissioners. Essentially, outside of breaking tied votes, the only power that the mayor has is that which our town commissioners expressly and deliberately grant him.

N.C. General Statute 160A-12 states: “All powers, functions, rights, privileges, and immunities of the corporation shall be exercised by the city council and carried into execution as provided by the charter or the general law. A power, function, right, privilege, or immunity that is conferred or imposed by charter or general law without directions or restrictions as to how it is to be exercised or performed shall be carried into execution as provided by ordinance or resolution of the city council.”

Bottom line: Neither state law nor the town charter clearly specifies the mayor’s authorities. And in the absence of those specifics, the “city council” (Mooresville’s board of commissioners) is obligated by state law to provide that power to the mayor “by ordinance or resolution.”

Yet, on behalf of the town earlier this year, and without the town board's authorization, Thunberg signed release deeds on two pieces of property that the SICDC sold in the Mooresville Business Park for a combined total of $1 million – despite the fact that at the time the SICDC owed the town more than $388,000 and had defaulted for two consecutive years on its repayment plan with the town. (See “SICDC defaults on payments to town,” April 10.)

Because the mayor – who we would certainly assume was aware of the SICDC’s debt and default – signed the release deeds, the town could not foreclose on those two specific properties and sell them to secure the money that the SICDC owed, in the event that the organization refused to pay the town.

An agreement forged between the SICDC and the Town of Mooresville in 2002 (which was unanimously approved by the town board at that time) stipulated that the SICDC would pay the town 10 percent of its outstanding balance each year and half of all proceeds from land sales in the Mooresville Business Park on Mazeppa Road until the debt was paid in full. But before the town received a check last week, the SICDC was not only two years behind on its annual payment, it had also not paid the town any portion of the $1 million it had made from the two land sales earlier this year.

Thunberg’s signing of the release deeds put the Town of Mooresville in an extremely vulnerable position. And while the town did eventually receive a final payment from the SICDC, our mayor’s actions have raised serious and fundamental questions about the democratic process in our town – such as who holds the power and who has true authority over the public’s business and our assets.

The short answer is that the people hold the power through our six elected commissioners, and our mayor did not have the authority to sign those release deeds because our commissioners had not granted him express permission to do so.

But at least two town officials say the way the situation was handled is acceptable, simply because that’s the way it’s always been done.

“In the nine years I’ve been here, the Mayor has always signed release deeds,” said Town Clerk Janet Pope when asked by the Report to produce any and all documentation showing that the town board had authorized the mayor to sign the release deeds.

Whether or not the mayor signs release deeds, however, was never the question – the question was whether he typically signs them with or without town board approval. But when asked that question, Pope did not respond.

Stated Gambill: "I believe the Mayor was acting as his predecessors had acted in an attempt to facilitate the closing of loans which would generate funds so that the Town could be paid.

"In these two instances," Gambill continued, "the town did not have advance notice of the closing dates in order to take them to the Board, and the release deeds were presented to the Mayor for signing so that the loans could close.

"All of this to say that sometimes a Mayor has to make a decision and act according to the circumstances," Gambill said. "Please note that I was aware of the release deeds and concurred with the ability of the Mayor to sign them so that funds could be generated from the sale of this property."

Gambill basically states that the mayor was acting in the best interest of Mooresville taxpayers by signing the release deeds to "generate funds so that the Town could be paid."

But the SICDC did not pay the town immediately after closing on the property. In fact, three months passed from the time the mayor signed the first release deed until the town was paid, and that payment arrived only after the matter was publicly exposed.

Why did the SICDC not send the town a payment as soon as the properties closed?

HUD-1 settlement statements, which are forms used to give borrowers and sellers a complete list of their incoming and outgoing funds for a real estate transaction, provide two separate lines for a seller to list any money it owes another bank/agency. If any debt is listed in those two lines (titled “Payoff of first Mortgage” and “Payoff of second Mortgage”), those banks/agencies will be cut a check at the real estate’s closing.

But according to the settlement statements provided to the Report by the SICDC last week, the SICDC did not disclose its debt to the Town of Mooresville on either settlement statement for the tracts of land sold earlier this year.

If Thunberg had the power to sign the release deeds, he also had the power not to. Because he has an obligation to protect the taxpayers of this town – and his position as mayor should have easily trumped that of an SICDC board member –Thunberg should have never signed a release deed without the SICDC paying its debt current or at least disclosing its debt on the settlement statements so that the town would have known that “the check's in the mail.”

Gambill also stated that the town “did not have advance notice of the closing dates in order to take them to the Board,” so “the release deeds were presented to the Mayor for signing so that the loans could close."

It is intellectually dishonest to insinuate that a sense of urgency existed and that the mayor was therefore justified in operating outside his powers. Why? Because closings don’t happen overnight. The SICDC failing to give adequate notice to the town should have been the SICDC’s problem – not the town’s. Mooresville’s town board can call a public meeting at any time of its choosing, as long as it gives the public a 48-hour notice of the meeting. In other words, the town board could have called a special meeting to grant the mayor the authority to sign the release deeds. And it would have taken only two days, from start to finish, to make that happen.

Further, we might be able to buy the “no-advance-notice” argument if it had only happened once. But Thunberg signed two release deeds – one on Jan. 18 and the other one more than one month later, on Feb. 27.

Reminds one of the old adage: Fool me once, shame on you. Fool me twice, shame on me.

Gambill also says that he “concurred with the ability of the Mayor to sign” the release deeds. But from the perspective of state law, Gambill is not the “body politic” any more than the mayor is, so Gambill’s concurrence with Thunberg’s actions is irrelevant. What is relevant is that it is incumbent upon the town attorney to ensure our elected officials adhere to the law.

At the end of the day, the mayor signed the release deeds without the consent or approval of elected commissioners because "that’s the way it’s always been done" in Mooresville. But just because it’s always been done that way does not make it right or lawful.

Furthermore, this isn't the way it's always been done in Mooresville. Take, for example, this very month’s town board meeting: our commissioners were asked to “authorize the mayor” to sign a document related to a real estate transaction. To be specific, and to quote the April town board agenda, commissioners were asked to “Consider adopting a resolution accepting the bid of $1,375,000 from LB Builders Construction Groups, Inc. for the Bandit Lane property and authorize the Mayor to sign the offer to purchase contract.”

Why did the mayor have to receive board authorization to sign documents related to that transaction, but not for the release deeds on the two tracts of land that the SICDC sold earlier this year?

The mayor does not and should not have the authority to sign anything he wants, anytime he wants. That is a slap in the face of the very democratic principles he was sworn to uphold. After all, this is a person who state law does not even allow to vote except in the event of a split vote by commissioners.

Immediate Calls for a Specific and Clearly Defined Policy
If, as Gambill admitted, state law “does not address, nor lay out, the specific authority a mayor has,” then the onus is on Mooresville’s town board to immediately develop and enact a policy that does. Commissioners have two choices: they can either establish a policy that gives the mayor carte blanche authority to sign documents at his pleasure, or they can require the mayor to receive town board authorization each and every time he signs a document on the town's behalf.

We should not, and will not, be satisfied with this particular story’s “happy ending,” because through it, we have learned that our business can apparently be conducted and carried out by one single person. And I do not care how benevolent that person is or believes s/he is, in our system of government it is not acceptable that s/he alone holds that much power.

"Thank or Spank": SICDC

During my 10 years as a newspaper reporter (the last four years of which were spent doing investigative work), I have covered many controversial issues in the Town of Mooresville. And as you can imagine, I have encountered more than my fair share of cold resistance from people when I’ve asked them for information or answers.

I have been pleasantly surprised, however, by the change in the wind that I’ve noticed in this community during the last two weeks as we've talked about the South Iredell Community Development Corporation’s (SICDC) debt to the town. For the most part, the people I have corresponded with were accommodating, honest, polite and helpful.

And sometimes, such “intangibles” are just as telling – if not more telling – than the “tangibles.”

An anonymous poster in the comments section of the entry earlier today (“SICDC satisfies debt to town”) stated this: “…the SICDC is to be commended for being responsive to the public outcry demanding repayment of this debt and for acting quickly to remedy this embarrassing situation.”

I wholeheartedly agree.

Specifically, a big thanks to Town Finance Director Maia Setzer; former state legislator Robert Brawley; Ben Thomas of Thomas & Godley, P.L.L.C. and SICDC President Woody Washam.

Setzer, as I’ve come to expect from her, quickly and respectfully responded to any and all of my questions and information requests – even when that meant digging through files two or three times during a busy day. When Setzer was out of the office, she still responded to my e-mails, letting me know that she had received the questions and would find the answers as soon as she was back at work.

I also thank former state legislator Robert Brawley for openly and candidly answering Report questions about the history of the SICDC and his opinion of the organization’s current state. Brawley showed that his courage was greater than any fear he may have had over the perceived disapproval of a few. I thank him for having the courage of his convictions, and from what I’m hearing, I’m not the only one thanking him for that ...

I must be honest: I didn’t expect for SICDC Attorney Ben Thomas to be very receptive to my recent e-mail asking for SICDC documents. But I was wrong. While Thomas could have easily made me jump through hoops (which, by the way, I would have) to obtain the information, he instead was courteous, open and prompt in providing me with what I requested.

As for Woody Washam, well, one of my readers put it best: his comments in yesterday’s e-mail to the Report “showed me that he harbors no ill will toward the exposure of this matter and that is certainly to his credit.” Washam is to be commended for that.

The only good government is an open government. I cannot stress enough how refreshing it has been the past two weeks to talk to people without feeling “the chill.” The responsiveness of Setzer, Brawley, Thomas and Washam during the Report’s coverage of the SICDC situation is very much appreciated and indicates a shift toward more open, cooperative government in our community. I also take it as a positive sign that the SICDC's new leadership is moving the organization toward being more open and transparent.

The “Thank or Spank” column is the brainchild of one of my readers and will be an ongoing feature in the Gatton Report. If you have information about a town official or employee that you think may belong in "Thank or Spank" – maybe to “thank” a friendly voice answering the phone at Town Hall or a sanitation worker who went back to pick up your trash though you didn’t have it on the curb on time … or to “spank” a public official for not responding to your e-mails or a police officer who drove past your stranded vehicle without stopping to help – please pass it along by posting a comment after any "Thank or Spank" entry or send it to me at jgatton@windstream.net

SICDC satisfies debt to town

The South Iredell Community Development Corporation (SICDC) has satisfied its debt to the Town of Mooresville, according to Town Finance Director Maia Setzer.

The organization "paid the debt in full yesterday - $388,263.32," Setzer stated in an e-mail to the Report just moments ago.

The payment came exactly two weeks after the Report exposed that the SICDC had defaulted the past two years on its payment plan to the town. (See "SICDC defaults on payments to town," April 10.)

Mayor Bill Thunberg, who also sits on the SICDC board of directors, said last week that the SICDC had intended to pay off the debt by June 30 of this year.

Interestingly, SICDC President Woody Washam, who is apparently on vacation this week, e-mailed the Report yesterday -- the same day that the debt was paid in full -- stating that the SICDC is "in the process of composing a news release as we prepare to satisfy and celebrate our payoff of all debt to the Town of Mooresville.

"As I have been on the SICDC for many years, this is an exciting time," Washam added. "When I return from vacation next week, we will we working on this wonderful announcement to the community. We have a wonderful story to tell!"

Tomorrow's the deadline for your Election 2008 questions

A quick reminder: if you have a question you want me to ask the candidates for District Attorney and/or the Iredell County Board of Commissioners, be sure to submit it by tomorrow, April 23. You can post it as a comment here, or e-mail it to jgatton@windstream.net

I plan to compile all the submitted questions and send them to the candidates by the end of this week. Then, I'll post the responses as they come in ...

Friends don't let friends gouge Mooresville taxpayers

Just like the rest of us, town officials have friends. It's just that some friends come at a higher cost than others.

And at least twice in the past four years, Mooresville taxpayers have foot the hefty bill for certain town officials throwing business to their friends.

Most recently, Jimmy McKnight – owner of Realco Investment Properties, Inc. and a lifelong friend of Interim Town Manager Erskine Smith’s – pocketed a $237,151.50 commission check, courtesy of Mooresville taxpayers, for doing practically nothing.

Last year, Mooresville commissioners directed town management – former Town Manager Jamie Justice and Smith, who was assistant town manager at the time – to hire a realtor to find potential recreation land for the town, particularly on the west side of Interstate 77.

“When the town goes looking for land, the price tends to go up awful fast,” Ward 3 Commissioner Mac Herring told the Report this week. “We decided to hire a third party to pursue negotiations.”

Jimmy McKnight, said Ward 4 Commissioner Chris Carney, was the person chosen by "management staff.”

Around the time McKnight was hired, Carney said he was approached by Statesville attorney David Parker, a friend of Judge Preston Cornelius’s who owned 70 acres on Cornelius Road. “He said he thought Judge Cornelius was open to selling the land to the town for park land and that he (Parker) would help to facilitate that if we wanted him to,” Carney said.

However, “David Parker is involved with the Langtree project (the $800 million Mt. Mourne development), which was undergoing town zoning and other issues at the time,” Carney said.

“Parker knew we had a need for land and thought (the Cornelius Road property) would be something we could use,” Carney said, “but at that time, we could not see him other than as a representative of the Langtree project, and that made it difficult for us to pursue that deal. Because of statutes, we had to be careful of not violating the public’s trust by looking like we were making side deals. That was our fault, not his. He had the best of intentions, and I appreciate it."

But when the town started talking in earnest about purchasing additional park land, Carney mentioned the Cornelius Road property to other town commissioners.

Recalled Herring: “Chris suggested that we take another look at it.”

Meanwhile, however, McKnight was scouting out properties and later took his recommendations to the town board. McKnight presented several pieces of potential park land on Mooresville’s west side, Carney recalled. But the Cornelius Road property wasn’t one of them.

Instead, McKnight proposed parcels of land on Brawley School Road and near the Target shopping center on N.C. 150.

“It’s currently impossible to build on Brawley, and there was one piece on 150 that was decent, but we were nervous about the location with that much traffic in the area,” Carney said, adding that the largest tract of land that McKnight proposed was the Mallard Head Golf Course property on Brawley School Road.

“I asked if there was currently a cemetery there,” Carney said with a chuckle, “because if we bought that land, they’d have to bury me there.

“That just wasn’t feasible,” he said. “We don’t need another golf course; that’s not even something we were entertaining.”

Especially knowing that 70 acres had already been made available to the town by Cornelius, Carney said, “I thought the most appropriate area was Bluefield and Cornelius (roads). There were several large tracts of land still available, and my question to (McKnight), when he brought his recommendations to the board, was whether or not he had looked into those areas.

“(McKnight) said that when he looked at Bluefield, he couldn’t find anybody who was willing to sell,” Carney continued. “My question to him was: ‘How about Cornelius Road? It’s already been offered to us.’

“The conversation ended there,” Carney said. “And the next thing we knew, a contract appeared before us days later on that property … (McKnight) brought us a contract back for Judge Cornelius’s property."

And as a result of that – and because of the wording of the contract that town management had secured with McKnight – the realtor walked away with $237,151.50 in commission. His “earnings” were in addition to the nearly $6 million that the town paid for the property.

And come to find out, said Carney, McKnight went against the direction of the town board by disclosing to potential sellers that he was negotiating the land purchases as a representative of the Town of Mooresville.

Fortunately, despite McKnight’s involvement and disclosure that he represented the Town of Mooresville, Cornelius sold his property to the town for the same price as he had originally offered it.

“At the end of the day,” said Carney, “we would have paid the same price (without McKnight’s involvement), just without the $237,000 commission.”

Recalled Herring: “The impression that I had is that we sort of handed (the land deal) to (McKnight) on a silver platter. It was an easy contract to fulfill, in my opinion. Did he have to do a lot of talking, convincing, etc.? Probably not.”

Did McKnight earn the $237,151.50? “Absolutely not,” said Carney emphatically. “He legally earned it because of the contract between him and staff, but he violated the principle of it which was to bring us land that we weren’t able to find.”

Added Herring: “‘Earned’ is sort of a relative term. The way the contract was worded, it said we would pay him that amount, and we had to play by the rules.” But for the amount of work, Herring said, the commission amount “was sort of excessive.”

Carney said he expected McKnight to charge the town something “for doing the legwork on a contract for land that had already been offered to us.” However, he said, “I was disappointed and certainly angered” that McKnight accepted the entire $237,151.50.

“And I expressed that repeatedly to Mr. Justice in a tone much louder than a normal speaking voice,” Carney added.

Carney said that he questioned whether the town had to pay McKnight. “But (Town Attorney Steve) Gambill did some homework on the contract and felt like we had no wiggle room,” Carney said. “So I then asked for the town to terminate any future contracts with (McKnight). We’ve asked that we do no more business with him.”

At-Large Commissioner Miles Atkins was not yet elected when the town purchased the Cornelius Road property in October 2007.

Responding to Report questions this week about McKnight’s commission on the land transaction, Atkins said: “This is the first I have heard of this, and as you can imagine it is very disturbing news. You can expect that I will seek to learn more about this so there is accountability to the citizens why such waste could or would occur.”

Several sources have confirmed for the Report in recent weeks that McKnight and Erskine Smith are lifelong friends. When they were younger, their fathers owned downtown businesses close to one another, and both families were apparently active members of the ARP church. Additionally, the Report has been told, Jimmy McKnight and Erskine Smith are approximately the same age and attended the same schools.

Smith did not respond to e-mailed Report questions asking about his relationship with McKnight and how much influence he, as the assistant town manager at the time, had on the town management’s decision to hire McKnight. A “read receipt” indicated that Smith opened the e-mail at 8:53 a.m. this morning. He was asked to respond by 2 p.m.

Commissioners Frank Rader, Mitch Abraham and Thurman Houston also did not respond to Report e-mails this week about McKnight’s commission from the purchase of the Cornelius Road property.

When asked if he is aware of Smith and McKnight’s friendship, Carney said, “I just understand that they both grew up together.

“I don’t know why he was hired over other realtors, and I’ve certainly had other realtors ask why they weren’t given the opportunity to pursue such an arrangement with the town,” Carney said. “And honestly, in the beginning when we talked about different realtors, Jimmy McKnight wasn’t a name that the board threw out. None of the commissioners weighed in (on who town management should ultimately hire), but we named five or six realtors that we knew dealt with large tracts of land development."

Justice had been town manager for less than three years when McKnight was hired, meaning he was much less familiar with realtors than Smith, a lifelong Mooresville resident who has been assistant town manager for nearly a decade.

So, why was McKnight hired?

“That’s a town management question; we didn’t hire that guy,” Carney said. “The checks-and-balances system of the board is that we give direction to the town manager, and it’s up to the manager to implement those directions.

“They (Justice and Smith) chose that individual, certainly not us.”

Unfortunately, this isn't the first time town officials have allowed friendships to stand in the way of sound decision-making. In 2004, Commissioner Mitch Abraham and former Commissioner Alice Lee spearheaded the town’s hiring of engineering firm CH2M Hill, despite staunch objections from the town’s engineering and utilities professionals. It was later discovered that Abraham, Lee and a CH2M Hill official (who, as of earlier this year, is no longer employed by the company) are close friends and attend the same church. (For more information, see “Rats Abandoning a Sinking Ship?” March 4.)

Former legislator says it's time to dissolve the SICDC

The state lawmaker who set up legislation to establish the South Iredell Community Development Corporation (SICDC) years ago said this week that the organization has served its purpose and needs to be dissolved.

“The SICDC was set up as a partnership between the Town of Mooresville, Iredell County and the Chamber of Commerce, and it took some tall talking to get it through the General Assembly because the concern was that people would take it over for greed and personal gain,” said Robert Brawley, a Mooresville resident who served 18 years (1980-1998) in the N.C. House of Representatives.

At the time the SICDC was formed, Brawley said, “Nobody was interested enough in Mooresville to make investments. We had a big tract of land that belonged to the Oliphants. They were willing to sell it for an industrial park, but nobody with money was interested in developing Mooresville.”

That tract of land eventually became the Mooresville Business Park on Mazeppa Road.

To develop that business park, the SICDC borrowed nearly $3 million from Iredell County between 1989 and 1994. The county had the money to lend because of its January 1986 sale of the former Lowrance Hospital, which turned into Lake Norman Regional Medical Center and is now the Government Center South on Center Avenue in Mooresville.

In 1994, Iredell County transferred to the Town of Mooresville the responsibility for collecting the SICDC’s debt. By 1999, the SICDC had paid back the principal amount of the loan, but it had not made a single payment on nearly $850,000 in accrued interest between 1999 and 2002.

After the debt was exposed by the local media in 2002, Mooresville’s town board voted unanimously to approve a proposal by the SICDC to repay the loan interest. The SICDC agreed to pay the town 10 percent of its outstanding balance every year and half of all proceeds from selling land in the Mooresville Business Park until the debt was paid in full.

The SICDC still owes the town $388,263 and has not made a payment since 2006. Additionally, the SICDC has not paid the town any percentage of two pieces of property that the organization sold in the business park earlier this year for a combined $1 million.

Mayor Bill Thunberg, who has sat on the SICDC board the past two years while the organization has defaulted on its repayment plan to the town, said in an e-mail Tuesday that the SICDC discussed in its annual meeting in February a plan to repay the town in full by June 30 of this year. (See “Mayor: SICDC to pay town in full by June 30," April 17.)

Brawley said this week that the SICDC was originally set up so “the Chamber and SICDC could borrow money with the backing of the taxing authority of the city and the county.

“They borrowed money from the city rather than from the outside, and they bought the land as a non-profit corporation,” he said. “As such, they’re not supposed to be in the business of buying and selling property for a profit.”

“This was a prime example of the city, county and Chamber working together for the good of the community, but there are some people that have tried to convert the SICDC into a personal-profit real estate organization,” Brawley said. “It was originally a partnership to allow the city and county to become what it is today. It’s a shame that the people in there today are turning it over to personal gain.”

“I don’t think it needs to remain in existence.”

However, Brawley said, if the SICDC dissolves and distributes its assets to the Mooresville-South Iredell Economic Development Corporation (MSIEDC), “to me, that’s going to be a real travesty. You’d be going from a government entity with the SICDC to a public-private entity with the MSIEDC.

“Some people might try to get it transferred over to make it their own little personal domain. It would make them very rich at the expense of the public, and they’d do it in the name of being public servants.

"In addition to that,” he added, “it would be illegal.”

Instead, Brawley said, the SICDC should be dissolved, and any remaining land and savings should be handed over to the Town of Mooresville and Iredell County. “They should settle up their debt and transfer their assets to the city and the county and let them use it for public purposes,” Brawley said.

He said not enough tracts of land remain in Mooresville for the SICDC to purchase and use for industrial parks, and competition to buy any land that is available should be left to private developers. “We don’t need government sponsorship of bringing development to Mooresville right now, especially government sponsorship of people trying to get on the MSIEDC and SICDC boards for personal gains,” Brawley said. “This is no longer a sleepy little town that has to have an infusion.

“We appreciate these entrepreneurs, but as a taxpayer, I want them out of my pocket,” he said. “The SICDC was in our pocket, too, but if it hadn’t been for the SICDC as it was originally formed, we wouldn’t be where we are today.

“The SICDC has served its purpose,” Brawley said, “and now it’s time to dissolve it.”

Mayor: SICDC to pay town in full by June 30

The South Iredell Community Development Corporation (SICDC) plans to pay off its debt to the Town of Mooresville by June 30.

In an e-mail to the Report on Tuesday, Mayor Bill Thunberg – who has sat on the SICDC board the past two years while the SICDC defaulted on its annual payment to the town – stated that the debt was discussed during the SICDC’s annual meeting in February. “I think the SICDC was planning to payoff the entire debt before fiscal yearend,” Thunberg wrote in the e-mail.

The SICDC still owes the town $388,263 – down from nearly $850,000 in 2002 – in accrued interest from loans of public money made to it between 1989 and 1994. An agreement forged between the SICDC and the Town of Mooresville in 2002 stipulates that the SICDC will pay the town 10 percent of its outstanding balance each year and half of all proceeds from land sales in the Mooresville Business Park on Mazeppa Road until the debt is paid in full.

The SICDC did not make its scheduled $38,826 payment in February 2007 and has not yet made a payment in 2008. The organization has also not paid the town any portion of the $1 million it made earlier this year from two land sales in the Mooresville Business Park.

Thunberg signed release deeds on those two parcels when the SICDC sold them, meaning the town cannot foreclose on those specific properties and sell them to secure the money owed by the SICDC in the event that the SICDC refuses to pay the town.

According to Thunberg, however, that won’t be an issue since the SICDC plans to pay its debt to the town, in full, within the next few months.

But that doesn’t explain why the SICDC violated its agreement with the town by not making an annual payment on the balance since 2006. And perhaps even more disturbing is that the SICDC has apparently been discussing its delinquency – and how it plans to rectify it – at least since February, while the mayor (also a member of the SICDC) has kept town commissioners and his constituents in the dark about it.

Local Election 2008: What's Your Question?

Have a question you’d like to ask the candidates for Iredell County’s board of commissioners? How about those hoping to be our next District Attorney?

Several people have asked me to write about and/or endorse certain candidates in both races. I don’t intend to endorse candidates, but I can certainly ask them your questions and post their answers here.

The primary is May 6. Polls will be open from 6:30 a.m.-7:30 p.m.

Three seats are open on Iredell County’s Board of Commissioners – including the seats currently occupied by Sara Haire Tice, who is not seeking re-election this year, Statesville’s Godfrey Williams and Mooresville resident Ken Robertson.

Joining Williams and Robertson on the Republican ballot are Statesville’s Gene Houpe, and Mooresville residents Brad Howard and Scott Keadle.

Five Democrats are also hoping to win the seats, including Statesville’s Chuck Gallyon and Mark Vanek, Union Grove resident Eugene Shuffler, and Mooresville’s Fred Coggins and Barbara Orr.

In the primary, Republicans and Democrats will whittle their respective field of five candidates down to three. And the six candidates left standing – three Republicans and three Democrats – will face off in the Nov. 4 general election for the three open seats.

In addition to the county commission race, three Republicans are vying for the position of DA for the 22A District, including Mooresville resident Alan Martin and Statesville's Sarah Kirkman and Michael Van Buren.

So, what’s your question? Post it in a comment here, or send it to jgatton@windstream.net

With the primary right around the corner, I'll need all questions in by next Wednesday, April 23, so I'll have enough time to try to track down some answers for you.

In the meantime, if you want to verify your voter registration, find out where you vote, review your voting history or see a sample ballot for the May 6 primary, visit http://www.sboe.state.nc.us/VoterLookup.aspx

SICDC defaults on payments to town

As “outside agencies” are begging for financial assistance from the Town of Mooresville for the upcoming fiscal year, another organization – the South Iredell Community Development Corporation (SICDC) – is in default of its financial obligation to the town.

The SICDC owes the town for accrued interest in loans of public money made to it between 1989 and 1994. But not only is the organization behind two years on its loan payment – totaling tens of thousands of dollars – to the town, it has also not paid the town, as it is supposed to do, for a percentage of two significant land transactions made in January and February. The SICDC made more than $1 million off those land sales, according to the Register of Deeds.

Mooresville Mayor Bill Thunberg – who has sat on the SICDC board both years that the organization has not paid its bill – signed "release deeds" on the two pieces of property that the SICDC sold in January and February – one to DKOTA Investments, Inc. and the other to Penske Realty, Inc. By signing those release deeds, Thunberg has essentially put the Town of Mooresville in a position where it cannot foreclose on those properties and sell them to secure the money owed by the SICDC in the event that the organization refuses to pay the town.

Thunberg did not respond to a Report e-mail asking why he signed the release deeds, but a “read receipt” indicated that he opened the e-mail at 9:10 a.m. today.

As of Wednesday, the SICDC has not paid the town any percentage of the $1 million land sales, though the loan-payback plan forged between the town and SICDC in May 2002 stipulates that the SICDC would use half of all proceeds from land sold in the Mooresville Business Park to make a payment on the debt to the town. The last land-sale payment that the town received from the SICDC was in October 2005, according to Town Finance Director Maia Setzer.

In addition to half of all its land-sale proceeds in the Mooresville Business Park, the SICDC agreed to annually pay the town 10 percent of its outstanding debt.

But for the past two years, that has not happened.

The SICDC owes the town $388,263 – the same amount it owed in 2006. The organization was supposed to make a payment of $38,826 in February 2007 and another, totaling 10 percent of the adjusted balance, earlier this year.

The town, in arrangements such as the one with the SICDC, does not typically send invoices. However, Setzer said she plans in the next few weeks to invoice the SICDC for two years of payments to the town.

This is not the first time the town has failed to collect the SICDC’s debt.

Rewind to 2002. In the heat of a state budget crunch that left Town of Mooresville officials wondering how they would fund critical services, Tribune reporter Michael Roessler exposed that the SICDC owed the town nearly $850,000 from loans of public money made to it between 1989 and 1994.

Between those years, the SICDC borrowed nearly $3 million from revenue gathered by Iredell County from the January 1986 sale of the former Lowrance Hospital, now the Government Center South on Center Avenue in Mooresville. The SICDC borrowed the money to develop Mooresville Business Park on Mazeppa Road.

The county transferred responsibility for collecting the debt to the town in 1994. The SICDC by 1999 had paid back the loan’s principal, but had not made a single payment on accrued interest between 1999 and March 2002.

Despite that, the organization – whose year-end 2001 audited financial statements indicated it had $913,468 in cash reserves while its debt to the town was $848,969 – awarded two $15,000 bonuses to economic developer Melanie O’Connell Underwood, one in 1998 and one in 1999, for attracting businesses to, and managing the business park for, the SICDC.

Underwood was the executive director of the Mooresville-South Iredell Economic Development Corporation (MSIEDC) before the MSIEDC’s board of directors asked her to resign in January. Before the MSIEDC was formed and split from the Mooresville-South Iredell Chamber of Commerce in 2006, Underwood sat on the SICDC board as executive vice president of the Chamber.

Here is a complete list of SICDC board members from 2007 and 2008, supplied to the Report by the MSIEDC:

2008
Jane Testerman
Mike Harrell, Beacon Properties
Dan Brewer, General Manager, Chas H. Sells, Inc.
Woodrow T. Washam, Jr., Iredell-Lake Norman Market President, CommunityOne Bank, N.A.
Mark Brady, Vice President, Fidelity Bank
Joel Mashburn, Iredell County Manager
Marvin Norman, Chairman, Iredell County Board of Commissioners
Sara Haire Tice, Iredell County Board of Commissioners
Abigail Jennings, President, Lake Norman Realty, Inc.
Holly Forester, Owner, Life Path Mission
Steve McGlothlin, Managing Partner, Sharon-Randall Group, LLC
Ben Thomas, Attorney, Thomas Godley Law Firm
Bill Thunberg, Mayor, Town of Mooresville

2007
Randy Marion, Randy Marion Chevrolet and SICDC President
Dr. Jane K. Testerman
Sandy Mills, Vice President/Banking Center Manager, Bank of America
Benjamin W. Sharpe, Senior Vice President, BB&T
Danny F. Beaver, Assistant Vice President, Carter Bank & Trust
Mike Cook, Cavin-Cook Funeral Home
Don Flowe, Senior Vice President, Citizens South Bank
Woodrow T. Washam, Jr., Iredell-Lake Norman Market President, CommunityOne Bank, N.A.
Jim Hadden, Employment Security Commission
Mark Brady, Vice President, Fidelity Bank
Rob G. Ellenburg, Business Relationship Officer, First Charter Bank
David Steen, Vice President, First Trust Bank
Joel Mashburn, Iredell County Manager
Sara Haire Tice, Iredell County Board of Commissioners
Dr. Terry Holliday, Superintendent, Iredell-Statesville School System
Joe Knox, Joe Knox Properties and Mayor Emeritus
Paul Smith, Chief Executive Officer, Lake Norman Regional Medical Center
Dr. Douglas Eason, President, Mitchell Community College
Dale Brawley, Executive Vice President, Mooresville Savings Bank
Edward L. Marxen, Executive Vice President, Piedmont Bank
Ben Goins, Piedmont National Financial Services
Ben Thomas, Attorney, Thomas Godley Law Firm
Jamie Justice, Mooresville Town Manager
Bill Thunberg, Mayor, Town of Mooresville
W.F. Newell, Jr., W.F. Newell & Associates
Kevin Pote, Assistant Manager, Wachovia

More on Wastewatergate ... The Poisoned Project

The Town of Mooresville’s request to dismiss the case against it by two former town employees was not heard as scheduled yesterday, April 7.

The town’s “motion for summary judgment” was supposed to go before a Superior Court Judge in Statesville. And while it’s unclear the exact reason why the case didn’t make it to court, one could speculate that either the hearing was postponed, or a settlement has been reached.

Either way, in the eleventh hour, the Town of Mooresville amended its motion for summary judgment with a “declaration of Tonia Wimberly,” the town’s current engineering division supervisor. Wimberly began working for the town in August 2004, and she worked beside the two former town employees, Engineering Director Richard McMillan and Utilities Director Wilce Martin, until former Town Manager Jamie Justice fired the two men in February 2006.

Both men had publicly opposed the town’s 2004 hiring of engineering firm CH2M Hill to design the town’s Rocky River Wastewater Treatment Plant expansion. Of all the engineering firms that submitted “Statements of Qualifications” to the town, CH2M Hill was the least qualified for the project, according to town staff -- including Wimberly. The 2004 town board hired CH2M Hill anyway, saying that an official with that firm was a local person who had once worked at the town’s wastewater treatment plant.

That official, David Wagoner, is no longer employed by CH2M Hill. Neither is the firm’s original manager for Mooresville’s project, Mike Osborne, nor (according to new reports) the project principal, Joe Stowe. Engineer Derek Slocum left the town last year. And Justice resigned as town manager in February 2008 per the request of Mooresville’s town board.

These are among the reasons we have dubbed this issue The Poisoned Project … or Wastewatergate -- take your pick. Almost every person who touched this doomed project has either jumped ship or "walked the plank."

In her “declaration,” Wimberly – who took over leadership of the town’s engineering department after McMillan was fired – states that she, McMillan, Martin and Slocum “were responsible for narrowing the Statements of Qualifications down to a ‘short-list’ of engineering firms who were qualified to do the project.

“We narrowed the list to six engineering firms, all of whom were qualified to do the project,” she states.

CH2M Hill “was among the six engineering firms on the short-list,” Wimberly adds.

Stop the bus. What is conveniently missing in Wimberly’s “declaration” is that several Mooresville commissioners in 2004 explicitly instructed town staff to include CH2M Hill on that “short-list.” In other words, the reason CH2M Hill was included was not because it was among the six most qualified. Wimberly also failed to mention that town board members were reportedly pressuring town staff to select CH2M Hill and that commissioners had already decided to hire CH2M Hill before town staff narrowed the field of firms to six.

Moving on…

Wimberly states in her “declaration” that “All of the short-list engineering firms … have performed similar work in the past. Based on their licensing and their experience, any of the six engineering firms on the short-list could have designed the Rocky River Treatment Plant.”

Actually, here’s how three of the six firms on that “short-list” – Black & Veatch (which town staff ultimately recommended to the town board), CDM (which was ranked second by town staff) and CH2M Hill (which the town board ultimately chose for the project) – stacked up to the town’s requirements, based on the firms' own submitted qualifications:

• Black & Veatch listed six projects in which it provided similar services as Mooresville’s in the region within the past eight years. CDM listed four. CH2M Hill listed one, which involved design improvements, modifications and upgrades to a treatment plant, not an expansion which is what the Town of Mooresville needs.
  
• Black & Veatch listed five treatment plant expansions similar in size to Mooresville’s that it had designed in the region within the past eight years. CDM listed one. CH2M Hill listed none.
  
• Black & Veatch’s proposed team included 19 employees that had worked together on a project, which was substantially more than the proposed teams of any other firms. Additionally, the teams listed in the proposals from Black & Veatch and CDM contained more professionally licensed individuals than the team proposed by CH2M Hill.
  
• Though it wasn’t addressed in the Statements of Qualifications, we have discovered in the past year that Black & Veatch, had it been hired instead of CH2M Hill, also would have known to consider phosphorous requirements before it began designing the town’s treatment plant expansion. CH2M Hill, on the other hand, said it was "unaware" of the phosphorous limits until its design was 60 percent complete. And that meant that the firm was going to need to go back and change some things in its design – to the tune of a requested additional $2 million from the Town of Mooresville ... as if we, the town's sewer customers, are expected to pay for the learning curve of such an "experienced, qualified firm." Wimberly was fully aware of the pending $2 million request for at least two weeks before she and CH2M Hill presented it to Mooresville's town board in August 2007. Yet Wimberly did not disclose the amount when a town commissioner specifically asked for it at a public meeting. But that’s another soap opera, for another day…

Back to the firm grading process:

So far, we've established that Wimberly, along with the other three town staff members (McMillan, Martin and Slocum), independently reviewed and graded the firms in 2004. Their review and grading was supposed to be based solely on the information in the firms’ own Statements of Qualifications – and how well those listed qualifications met town standards.

Judging from the first three bullet points above, Wimberly’s information in her “declaration” about CH2M Hill’s experience clearly did not come from the Statement of Qualifications that CH2M Hill itself submitted to the town’s engineering department.

And of all five engineering firms selected as finalists, CH2M Hill was ranked last -- that's right, last -- by all four town staff members, including – you guessed it – Tonia Wimberly.

In fact, Wimberly herself gave Black & Veatch a score of 51. She gave CDM a score of 43. She scored two other firms at 32 and 28. And her score for CH2M Hill: 27.

The highest attainable score was 55. The lowest was 11.

But, interestingly, Wimberly doesn’t mention any of that in her “declaration.” Instead, she states: “CH2M Hill was an engineering firm that was and is qualified to perform the work on the project.

“The Town of Mooresville,” she added, “was required to select a qualified engineering firm based on that firm’s demonstrated competence and qualification for the type of professional services required …”

Again I ask: Where exactly was that “competence and qualification” demonstrated? It certainly wasn’t in CH2M Hill’s own Statement of Qualifications submitted to the town, which was the only information town staff was supposed to use in grading and recommending the firms.

Wimberly is correct when stating in her “declaration” that “The Board of Commissioners for the Town of Mooresville had the final say in selection of the engineering firm that the Board believed was best qualified to perform the work on the Project.”

And, indeed, that board in 2004 hijacked the professional opinion of our town staff -- including Wimberly -- who recommended Black & Veatch for Mooresville’s treatment plant expansion. Town commissioners instead chose CH2M Hill, the firm that town staff – and (should I state it again?) Wimberly herself – ranked least qualified for the job.

Wimberly states in her “declaration”: “The Board’s selection of CH2M Hill was in compliance with the requirements of” state statutes. She doesn't mention, though, that the board was supposed to, but didn't, follow state statutes that regulate the selection of an engineering firm.

Even if the town board's selection of CH2M Hill was 100 percent compliant with state statutes, the question is: was its selection the best one for our town?

And Wimberly doesn’t address that either. Why? Well, I could speculate a number of reasons. Among them:

• Wimberly fears repercussions from town administration and/or elected officials. After all, her colleagues, McMillan and Martin, were fired for standing up for the taxpayers of this town. Why would she risk that?
  
• The town’s “Manager of Engineering” position – once held by McMillan – is vacant and currently being advertised.
  
• Wimberly is friends with JD Solomon, the Vice President and Carolinas Area Manager of CH2M Hill. (Solomon is the same guy, by the way, who put on a show at two different board meetings, saying per the advice of CH2M Hill “counsel,” he would need permission from town commissioners to speak to them since the town and CH2M Hill have a communication protocol which states that CH2M Hill will converse about the project only with town staff. Interestingly, Commissioner Frank Rader, in one of those same public meetings, disclosed that he had a lunch meeting with Solomon that week to discuss some aspects of the project. And rumor has it that Solomon at least tried to meet with other town commissioners, also outside the presence of the public, town staff and administrators. Hmph. So much for Solomon’s “above-board adherence” to the communication protocol…)

But Solomon isn’t the subject here.

The Rules of Professional Conduct for Engineers and Surveyors, Section 21 NCAC 56.0701 (d)(1), states that a licensee – which would include Tonia Wimberly – “shall issue public statements only in an objective and truthful manner and ... shall be objective and truthful in all professional reports, statements or testimony."

Is Tonia Wimberly being truthful and objective? You decide.

MSIEDC should operate more publicly before receiving more public funds

“The public has a right to know how their tax funds are being used. If the EDC does not want to be subject to such provisions, the EDC ought to keep its hands out of the public coffers.” (Cabarrus County Commissioner in 2006)

Not to change the subject, but the Mooresville Downtown Commission isn’t the only “outside agency” asking the Town of Mooresville for public funding this year.

The Mooresville-South Iredell Economic Development Corporation (MSIEDC) wants $100,000.

Last year, the MSIEDC happily skipped away with $95,000 in public funds from the town. Then in January, the organization asked its executive director, Melanie O’Connell Underwood, to resign. In the following days, the Charlotte Observer apparently asked the MSIEDC for Underwood's salary. And in turn, the MSIEDC turned up its nose to the press and the people, basically saying that how it chooses to spend our money is none of our business. In fact, Sara Haire Tice, chair of the MSIEDC board of directors, was quoted in newspapers saying: “we … will not allow our internal business decisions, especially those involving the livelihoods of our employees, to become topics of public debate and display.”

The MSIEDC, since it is a “public-private” entity, does not technically have to disclose its financial information ... despite the fact that it’s funded in large part by tax dollars.

But that could soon change.

The Town of Mooresville has not yet voted on the MSIEDC’s funding for the upcoming fiscal year. And four town commissioners – Thurman Houston, Mac Herring, Miles Atkins and Chris Carney – said this week that they’d like to see the MSIEDC operate more publicly. The other two commissioners – Mitch Abraham and Frank Rader – disagree. (Actually, I can’t say with certainty that Rader disagrees. He told me in December 2006, when I was freelancing for the Tribune, that the MSIEDC should not operate publicly. But he did not respond to several Report e-mails in the last few days, asking if he stands by his 2006 comments.)

Commissioner Thurman Houston, however, said on Monday: “Personally, I would like to see that their financial statement was public record.” However, he added, “As a commissioner, I would need a few questions answered” first.

And that’s understandable. Most would agree that some aspects of economic development should remain confidential … but only for a limited period of time. But, as Commissioner Mac Herring put it, some “happy medium” should be reached so the MSIEDC can maintain the confidentiality of the businesses it’s trying to recruit to southern Iredell and the public can know how its money is being spent.

Commissioner Miles Atkins said this week: “I would expect there to be oversight and accountability for any organization that receives public funding.” The MSIEDC, Atkins said, “should be accountable for those tax dollars by operating publicly, and I would add that as a stipulation to their funding this year.”

Atkins was sworn into office in December 2007 – one month before Underwood was asked to resign. “You may be surprised to learn that since taking office in December, and with the termination of the executive director shortly thereafter, the MSIEDC has not officially communicated with the town board, to my knowledge, as to what their intentions are and where they are headed,” Atkins said.

So it sounds as though at least one town commissioner is as much in the dark as the taxpayers … which is indeed surprising, considering the mayor is also the secretary of the MSIEDC board.

Commissioner Chris Carney said in December 2006, and reaffirmed this week, that he believes the MSIEDC should operate more publicly. “(The MSIEDC) is using public money,” he said. “We understand the need for closed-session meetings when conducting deals, but after the deals are done, the information should be made public.

“I would want to see a happy medium between making sure public funds are being used appropriately, providing some openness, but not taking away from the competitiveness of the economic development group,” Carney added.

In FY2006, the Town of Mooresville and Iredell County approved a combined total of $201,180 specifically for economic development purposes. In FY2007, the MSIEDC – which reportedly has an annual income of $415,550 – received $209,230 in public funds, including $95,000 from the Town of Mooresville and $114,230 from Iredell County.

This year, the MSIEDC is asking for $100,000 from the Town of Mooresville and, according to newspaper reports, $117,000 from Iredell County. All public contributions are sent directly to the MSIEDC.

Despite those public contributions, two town commissioners – Mitch Abraham and Frank Rader – said in December 2006 that they do not believe the MSIEDC should operate publicly.

Abraham, in an e-mail to the Report on Monday, said he stands by his 2006 statements. “To my knowledge the MSIEDC is not a public body and confidentiality is a must,” he wrote.

Though Rader did not respond to this week’s e-mails, he said in December 2006 that “economic development with the town board is closed session with minutes sealed until fruition or not. Until economic development gets to the town board as a deal, the talk/negotiation and name of parties should stay very close to the vest. Otherwise, there will be no deal.”

Making the MSIEDC adhere to the public laws, Rader said in 2006, “would invert the effectiveness of our economic development, to the delight of every competitor in North Carolina and out. We compete with the nation and the world for economic development and need to build our deals quickly and quietly.”

Added Abraham at that time: “We did not make a stipulation that the new MSIEDC run by the open meetings act. It was not a discussion that was brought up in any meeting I attended.”

Carney said that was a mistake that the town board made. “We should have requested that at times when appropriate, the information should be made public. We did not discuss that. That’s our mistake, and it’s something we should keep in mind for next year’s request.”

The request wasn’t made that particular year, but Carney said this week he feels the same now as he did then. “I appreciate you bringing this back up,” he said, adding that he will address the topic when the town discusses the MSIEDC’s funding. It’s unclear exactly when that will happen.

“Anybody who receives public funding should be accountable,” Carney said Monday.

And contrary to what some might say, the arrangement can be carried out successfully. For example, Cabarrus County’s Economic Development Corporation (CEcD) was reorganized in August 2004. And as a stipulation of public funding, Cabarrus County included in its contract with the CEcD the requirement to adhere to the state’s public records and open meetings laws.

“All meeting minutes, annual audits, etc. are available for public review,” said CEcD Executive Director Ryan McDaniels in December 2006. Additionally, he said, “In our contract with Cabarrus County, it states that we follow the N.C. open meetings law.”

However, he added, “We do go into closed session in accordance with (N.C. General Statute) 143-318.11. This allows us to discuss confidentially businesses that may be looking to move or expand in Cabarrus County.”

McDaniels said in 2006 that the CEdC’s total annual budget is $734,000, with $553,000 of that being from municipalities’ public money. Private contributions account for approximately $181,000 of the CEcD’s annual budget, he added.

“With this amount of money,” said one Cabarrus County Commissioner, “the EDC (economic development corporation) ought to comply with the state’s public records and open meetings laws.

“The public has a right to know how their tax funds are being used. If the EDC does not want to be subject to such provisions, the EDC ought to keep its hands out of the public coffers.”

To the contrary, Mooresville’s Abraham said in 2006, and reaffirmed this week, that while he is “100 percent for our compliance to the open meetings and public records act,” he is opposed to adding a stipulation to the MSIEDC’s public funding that would require the organization to adhere to the public records and open meetings laws.

“Many economic development contacts need confidentiality for many reasons,” Abraham said. “I believe in this system. Its past accomplishments in Mooresville-South Iredell are very apparent and monumentally successful. Why change a system that has this type of success?”

Rader agreed. “Mooresville has very effective, efficient, productive and envied economic development program which the Town of Mooresville trusts and supports,” he said in 2006.

Added Abraham: “The Chamber and Melanie (O’Connell Underwood) have operated with great integrity and confidentiality in the past.” That’s why, he said, “no one brought up the notion of the open meetings rules.”

The Danger of Only One Idea

"Nothing is more dangerous than an idea when it is the only one you have." ~Emily Chartier

From time to time, I hope to pull valid ideas from the comments section and give them a little more attention, particularly if they challenge my thinking.

Here was a comment posted on the Report this morning:

The Charlotte Observer reported yesterday that “downtown commission members say the new director must meet measurable goals, such as increasing investment, business growth, residential development and entertainment, or be fired”. How about the current director.

Opponents and proponents alike agree he is not meeting these qualifications, yet he “announced” in January that he will be staying on for another six months. MDC Board: The proof is in the pudding. If you want the taxpayers of this town to back the downtown commission, and if you want to convince us that you are indeed going to start being accountable with our tax dollars, you must start now – by firing Wayne Frick.

Ouch. The truth always hurts.

So basically what this person is saying to the Mooresville Downtown Commission board is this: put our money where your mouth is.

You cannot retain an under-performing director for three more months and then have people believe that you won't do it with the next guy. Truly, if the MDC board wants the taxpayers' blessing on this year's funding, it must prove now that it means business. And make no mistake about it – the MDC board is going to need the taxpayers on its side if it expects to be funded year after year after year.

Right now, the MDC has a lot of momentum and a lot of community support. But if the board members truly made a statement like the one that the Observer reported – and they still decide to let Wayne Frick ride out the next three months, when not one person (including MDC opponents) have come to Frick's defense – I think the MDC board will have a lot of explaining to do.

Then again, I'm only one person. What are your thoughts?

Commissioner Abraham comments on the MDC funding

Ward 1 Commissioner Mitch Abraham e-mailed me a short while ago, responding to yesterday's e-mail to elected officials asking about their stances on funding the Mooresville Downtown Commission (MDC).

Commissioners Mac Herring, Chris Carney and Miles Atkins responded yesterday. I still have not heard from Mayor Bill Thunberg or Commissioners Thurman Houston and Frank Rader

Here are Abraham's e-mailed comments:

"Chris (Carney) cc'd me his email reply yesterday to your questions. My thoughts were somewhat similar in that I didn't want to give any individual comments because I didn't want to speculate on the MDC's report that was coming to us this morning and wanted to hear their presentation.

"They gave a good presentation and have some points that are valid," wrote Abraham, whose ward includes part of the downtown area. He stated that one of the "most notable" points that the MDC made in its presentation this morning is that "the present MDC board is filled with new blood and they have very progressive ideas on how to move the MDC to be a player on the (economic development) level, mainly by getting an active (executive director) and ruling with a stiff hand to make the Downtown a vibrant and economic producing entity!!"

Also, Abraham wrote, "The increased cost is not that much, an (additional $15,000) from what we have been funding the last several years. I have more comments but will get back to you later as we discuss it on the board level."

The MDC has received around $45,000 annually from the Town of Mooresville in recent years. This year, it's asking for $60,000, in part to help offset the salary of a new executive director since its long-time director, Wayne Frick, announced he will retire in June.