No clear path if McQueen wants city manager’s job

By Kevin Spradlin
PeeDeePost.com

There’s no clear path, legally or morally, for Hamlet Councilman Jesse McQueen to apply or accept the job of city manager if he wants it, and if it’d be offered to him.

Frayda S. Bluestein

Frayda S. Bluestein

Frayda S. Bluestein, a professor of public law and government with the University of North Carolina’s School of Government, told The Pee Dee Post in a recent interview that any elected official would have a  difficult time being employed by the same jurisdiction in which they are an elected official. She wrote about such difficulties in her Coates’ Cannons blog, which specializes in NC Local Government Law.

McQueen, 43, a Hamlet native who has a master’s in public administration, acknowledged in a recent Post interview that he would like to put his education to use somebody.

“You know, I can’t say yes and I can’t say no,” said McQueen when asked if he’d considered applying for the job that soon will be vacated by City Manager Marchell Adams-David. Her effective date of resignation is Aug. 22.

“I do have a degree in public administration,” McQueen said. “Eventually, I would like to put that degree to use. I enjoy working in the public sector. But as of today (July 23), I have no plans to resign from the Hamlet City Council.”

It’s easier for towns of fewer than 5,000 people, but that doesn’t apply because Hamlet’s population was 6,495 in the 2010 Census and 6,511 in the estimated 2012 population. In Hamlet, then, the issue if McQueen wants the job is not if he would resign from City Council, but when.

That’s where it gets murky, Bluestein said.

“It’s not 100 percent clear,” she said. “This is the way I’ve analyzed that question when it’s come up in the past.”

State law prohibits a board member from having a contract with the member’s own unit of government, except as allowed in certain conditions, such as in towns with fewer than 5,000 residents.

“The idea of a board member also being an employee would be problematic under that statute,” Bluestein said.

North Carolina General Statute 160A-158 “basically prohibits a board member from serving as manager … but in towns of less than 5,000, it’s okay to do that,” Bluestein said. “If the town has more than 5,000 (people), the presumption is … the statute specifically says you can’t be a board member and an employee.”

There is, however, no specific statute on the application process. Legally, it seems — at least at first — that McQueen could apply for the job and, if he didn’t get it, keep his seat on the board. But GS 14-234(a)(1) could be a problem for McQueen or any other elected official wanting to apply for a job in the jurisdiction they help oversee without stepping down from the elected board.

GS 14-234(a)(1) reads: “No public officer or employee who is involved in making or administering a contract on behalf of a public agency may derive a direct benefit from the contract except as provided in this section, or as otherwise allowed by law.”

The simple thing to do, then would be for McQueen or any other affected party to simply recuse himself from the decision-making process on all things impacting the selection process. But Bluestein said that’s not quite good enough.

“The concern that I have is that if the person doesn’t resign when he applies and continues to serve on the board during the process that the board undertakes to select someone, even if the person sort of abstains from voting … a person who’s part of the council is considered to be involved even if he individually doesn’t vote.”

That’s according to GS 14-234-(a1)(3), which reads, in its entirety: “A public officer or employee is involved in making a contract if he or she participates in the development of specifications or terms or in the preparation or award of the contract. A public officer is also involved in making a contract if the board, commission, or other body of which he or she is a member takes action on the contract, whether or not the public officer actually participates in that action, unless the contract is approved under an exception to this section under which the public officer is allowed to benefit and is prohibited from voting.”

The idea, Bluestein said, is “if the person is still on the council while this process is taking place, it’s possible that even if he resigns when he’s chosen, if he is, he would have been involved in his role … just by being a member of this council during the time that the contract was made.”

Such a conclusion, if determined, would void the contract. But it’d be a first, at least in North Carolina.

“There’s not a case that I know of that interprets in this context,” Bluestein said. “There is also an exception in this statute for contracts in services” that allows for services values at less than $40,000 — well under the regular salary of Adams-David — in smaller jurisdictions of 15,000 or fewer residents.

“I expect skepticism that could apply to the employment contract,” Bluestein said. “It’s a little complicated. The risk, if there is one, would be under this 14-234 provision. If he’s not hired, it’s not a problem.”

If he is, without resigning at the time of application, “he might be committing a crime.” Violation of GS-14-234 is a Class 1 misdemeanor, Bluestein said.

 

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