New city attorney says Hunt’s actions were ‘lawful’

June 9, 2014 Asheville , News Stories 1559 Views
New city attorney says Hunt’s actions were ‘lawful’

Robin Currin RS

By Roger McCredie- Asheville’s new city attorney says Vice Mayor Marc Hunt’s ultimatum to the board of Pack Place over its lease agreement with the city was “authorized and lawful in all respects.”

Robin Currin, who began her duties May 1, delivered her opinion in an e-mail to Mayor Esther Manheimer and Hunt the day after a city council meeting at which a Tribune reporter publicly questioned the validity of Hunt’s April 9 demand that Pack Place accept the city’s terms for what amounts to an administrative takeover of Pack Place, or be considered in default of the existing lease.

“I have reviewed the relevant documents and it is my opinion that Mr. Hunt’s discussions with the Pack Place Board regarding this lease extension on April 9, 2014 were authorized, and lawful in all respects,” Currin wrote.

Currin’s statement came less than 24 hours after Manheimer told the reporter she was turning his questions over to Currin for review “later, because she’s brand new.”

The Tribune reporter’s recitation of events at the April Pack Place board meeting, and his questions to council about them, were apparently the first public comment on the subject to come before council since that time.

Hunt, who sits on the Pack Place board himself as liaison for the city, came to the Pack Place meeting fresh from a closed session that followed council’s regular meeting the previous evening. He said he had been authorized to speak for the city in demanding that Pack Place enact a resolution asking a 60-day extension of the expiring lease in order to settle its affairs before turning control of the Pack Place building over to the city. This would allow the city to function as landlord, leasing space directly to the Pack Place partners. The board, should the Pack Place corporation decide even to continue in existence, would be gutted of most of its duties.

Should the board choose not to accede to his demands, Hunt said, the city was prepared to declare Pack Place in default of its lease due to failure to maintain its physical plant properly.

Contrary to frequently repeated public assertions, the city does not own the Pack Place building. It owns the land on which that building stands. If it wishes to acquire the building, it must offer Pack Place fair market value for it – unless Pack Place were to default on the physical upkeep, which City Manager Gary Jackson, in a letter to the board on January 29, said was the case. Jackson attached to his letter a list of “repairs” he said Pack Place had failed to make. Board member Barbara Field identified that list as a “wish list” of optional improvements she had compiled herself and accused Jackson of turning it into “a document with which to blackmail Pack Place” and part of a gambit to acquire the building without having to pay for it.

Hunt was challenged at the time by Pack Place attorney Mary Robinson, who asked Hunt to submit a resolution or other documentation from the city authorizing Hunt to make his demand. Both Hunt and attorney Fred Barbour, who has been retained by the city in the Pack Place matter, said there was no such document because both Hunt’s authority to seek the resolution, the authority of Jackson, who was also present, to sign off on it then and there, had come out of a closed session which, under state law, is a confidential proceeding.

However, the law also stipulates that while matters discussed in a closed session are privileged information, any action intended to be undertaken as a result of closed section discussions must be made public in the form of a resolution presented at an open meeting. On April 22, two weeks after Hunt extracted the resolution he sought from Pack Place over only token protest, council enacted a resolution empowering him to do what he had already done.

It was this anomaly that the Tribune reporter pursued at last week’s council meeting. “Did the vice mayor and the city manager, when they left this room on the night of April 8, have the legal authority to appear the following day … and make the demands that they did?

“You see, I have a problem with that – this is my ‘Columbo’ voice – because there are two people seated at this table to whom I spoke in researching this story who, to the best of their recollection, said they couldn’t recall Pack Place ever having been even discussed that evening, that the sole subject under discussion was the city’s lawsuit with MSD [over control of the city’s water system} so you can understand [the Tribune’s] confusion,” the reporter said.

“Can anybody offer me an explanation?” he asked Council.

“I guess I’m a little concerned here because you’re asking about what happened at a closed session,” the Mayor replied.

“All I know is that after the closed meeting, which I’m not allowed to ask about, there was no documentation produced to substantiate the claims that had been made –“

“Well,” said the mayor, “Maybe you can offer the hypothetical as to the process the city should engage in for lease negotiations, which is what you’re talking about here.”

“All right,” said the reporter, “Hypothetically, what would the process be? Would the process be for a representative of Council to appear the following day, armed with no actual documentation to come out of this closed session and, on the strength of his word alone, present the case?”

“Sooo, I’m going to ask the City Attorney to address that,” Manheimer said.

Hunt remained silent throughout the exchange.

Just prior to the reporter’s questions, council shut down former mayor Ken Michalove, who attempted to read into the record a list of questions about the twin issue at Pack Place: taxpayer support of the Asheville Art Museum and the museum’s not-so-gradual takeover of the Pack Place building’s interior space. The museum, in private dealings with the city, has already arranged for its own direct lease

“The assumption is that the city is going to take over Pack Place” – Michalove began.

“Are you asking if that’s the assumption?” Manheimer responded. “I don’t think that you’re connected, Mr. Michalove,” she said.

“The public hearings on the budget will be held on June 10,” said Michalove. “I’m going to submit to you a list of questions I would like to obtain answers to at the public hearing and not just [have it taken] under advisement.”

A wild card turned up in the Pack Place showdown game last week, when the county’s new Cultural and Recreation Authority voted to give Pack Place the entire $409,000 the center had requested as its annual county stipend. But, the CRA said, it would only dispense the money if Pack Place makes no change in its business model. Chairman David Gantt confirmed that a business model change would include such a management takeover as the city is pushing for.

Without those county funds, each Pack Place tenant would have to pay its own utilities and other services, or cover them in the terms of city leases. Either way, the city would be acquiring a new set of financial responsibilities.

Gantt told the Tribune he expects that county commission, which has to ratify CRA allocations, will approve the no-change stipulation at its next meeting.

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