Waddell resignation shines light on town secrets

Jan. 11, 2014 @ 04:44 PM

Editor’s Note: The following story has been reprinted by permission of Carolina Journal and Dan Way.

When Indian Trail Councilman David Waddell chose to submit his resignation from the council in Klingon — the fictional language of the aliens from the “Star Trek” franchise — it was just one of many unusual things going on in the bedroom community near Charlotte.

Waddell’s off-beat, viral letter, which drew attention from ABC News, the tech site CNet.com, and the London Daily

See Waddell/Page A9

Mail newspaper, was in keeping with other recent less visible but more important events in the Union County municipality.

He and a handful of government watchdogs have battled town leaders whom they say routinely thwart attempts to view public documents allegedly highlighting financial irregularities. Former town officials say illegal activities occurred, and media lawyers think the town may be violating state public record laws.

Exasperated with, as he said on his Facebook page, “fighting hell with a water pistol,” and being the lone nay vote in routine 4-1 council decisions, Waddell will resign, effective Jan. 31, after fulfilling two years of his four-year term.

“I’d rather take the role of an advocate because that’s where the battle is, in the hearts and minds of the people. If I can get people to think and to challenge the two-party system, then I can say, ‘Mission accomplished,’” said Waddell, who plans to run for Democrat Kay Hagan’s U.S. Senate seat on the Constitution Party ticket.

Waddell created a translation of his resignation letter in the Klingon language through the search engine Bing.com and sent it to Mayor Michael Alvarez. Waddell said the two thought it would be humorous to submit an official document to the Town Council in Klingon, but they didn’t because each agreed it would be inappropriate.

So, Waddell said he was surprised that Alvarez called the letter childish and inappropriate in a Charlotte Observer story because writing the Klingon letter had been a running joke between them, and he thought the mayor would appreciate the inside humor.

“I didn’t think it would grow legs like it has,” Waddell said of his Klingon communiqué. “I was amazed.” He released an official copy of the resignation letter, in English, to the public.

Despite this distraction, Waddell said he plans to continue attempts to crack the secrecy in which he and others allege that Indian Trail operates.

$400,000 in illegal salary

The saga was sparked by discoveries eight years ago that former town manager John Munn, over the course of a decade, had pocketed as much to $400,000 in addition to his part-time salary. Critics allege town officials swept the findings under the rug when Munn threatened to sue them.

Open-government critics say the town continues to hide behind sham personnel, attorney/client, and closed-meeting privileges to shield their decision-making activities. A former mayor was banned from Town Hall, and new council members are barred from viewing past council minutes without council approval.

Indian Trail Town Manager Joe Fivas did not respond to a phone message for comment on those issues, or on a proposed town policy that could charge as much as to $43 an hour for producing public records requested by citizens.

“It was not only not legal, it was highly illegal,” former town councilwoman Mercedes Cass said of her understanding of Munn’s unreported compensation. Munn died in 2010.

Cass, and former council members Dan Schellenkamp and Shirley Howe voted to fire Munn in 2005 after a records search by a newly elected, reform-minded majority revealed Munn’s unreported income.

“He was digging into the coffers,” Cass said. “I’m telling you, in all the years that he served, I would not be wrong if I told you he owed the town about $400,000” in compensation that was not part of his $45,000 annual salary for a 25-hour work week. They wanted Munn to repay the money.

Cass said the town’s lawyer told the council members that Munn was not authorized to collect the extra money. But, he added, if they went after Munn, “he will be suing you, because there is no other proof, there is no contract that said he was supposed to be getting $45,000 a year.”

Cass said council made a “big mistake. … When John left, nobody was there to see him go, God rest his soul. He even took the computer with him.” She said the only records were kept on his personal computer.

Ultimately, the council opted not to seek reimbursement of the overpayments. The explanation given to the public was that the extra money resulted from payroll discrepancies and accounting errors.

“People felt like they had been lied to. I wouldn’t say they were wrong,” said Fern Shubert, a former state representative and senator who briefly replaced Munn as interim town manager.

“The first phone call I made after going in and looking at the office was to the sheriff to report missing records,” Shubert said.

“I think it’s fair to say that I raised a number of issues” about Munn’s “mishandled” compensation, Shubert said. “I would love to be able to draw a complete road map of everything I know, but it becomes problematic as to what is legal and ethical.”

She said those still seeking the Munn records “are credible individuals and good citizens trying to get government to work the way it’s supposed to work.”

Closed sessions kept secret

Former Mayor John Quinn, whose served two terms from 2007-11, is among those seeking the Munn records.

“There’s never been any records released of closed-session discussions where the council discussed how they were going to deal with the problem,” Quinn said. “I felt obligated to ask for the record. ... If the guy stole money, why did they say he didn’t?”

Town Council members hid behind a claim of “employee confidentiality” in denying his request, Quinn said. The council amended a town ordinance so as to bar access to closed session minutes without council approval.

“And they voted illegally in closed session — you’re not supposed to vote in closed session — to deny me what I asked for,” said Quinn.

After leaving office, Quinn filed a second request. Many pages in the response he received were left blank.

Quinn said he has taken his plea for an investigation to the Union County sheriff’s office, the local district attorney, the FBI, the SBI and the attorney general’s office. All have refused to look into the situation because the town had ruled the case a matter of accounting errors, he said.

“The former mayor as well as the current sheriff and district attorney discussed these matters with the SBI, however, no SBI investigation was requested,” said state Department of Justice spokeswoman Noelle Talley in an email. “And you know, the SBI generally opens an investigation upon request of a local law enforcement agency with jurisdiction in the area, such as a sheriff, chief of police, or [district attorney].”

As for possible public records law violations, Talley said: “Individuals who are unable to obtain public records can pursue the matter in civil court. We also have an open government unit that informally mediates public records disputes upon request, although we cannot order records to be produced as a court can.”

Quinn said the council “banned me from Town Hall” without specifying the reason, and then refused, under a personnel exemption in state public records law, to tell him what he was alleged to have done. Even as mayor, he was not allowed to talk to department heads, and was expected to communicate through the town manager, he said.

“Those who demand the answers are often vilified in some form or fashion or written off as being extremists or crazy,” said Waddell. “There have been other people like myself who have done [public information requests] and wait[ed] two, three, four months for information they could just print out.”

At this point, Waddell said, getting access to the Munn documents “isn’t as big a deal to me as the atmosphere and the culture around why it still is buried.”

He sought to review past Town Council closed-meeting minutes on the matter but had to get Town Council approval because policy bars council members from viewing materials generated during terms in which they did not serve.

“I was not allowed to make copies, I was not allowed to take notes,” and the town manager sat beside him as he viewed the redacted documents, Waddell said. He then filed a public information request for unredacted materials, but town attorney Keith Merritt sent him a denial letter, saying the items were protected from disclosure.

Local resident Jonathon Baer, who keeps tabs on town government, has been seeking the Munn records as well. He said for one of his requests he received boxes of material that had little to do with his request.

Baer has circulated a petition for a forensic audit and grand jury investigation of “general perceived corruption of town government,” he said.

‘Didn’t see the purpose’ in viewing records

Mayor Pro Tem David Cohn has heard about the Munn matter, but has not tried to view the records.

“I didn’t really see the purpose in it,” Cohn said. “It would probably cost the town more money to investigate it — and for what, for a man that’s no longer here.”

Cohn said people “should have full access to records” and “I don’t think the town’s doing anything outside of state law” in handling records requests.

Veteran media law attorney Hugh Stevens of Raleigh disagrees. Local government entities are not permitted, as Indian Trail did, to make local ordinances more stringent than state public records laws, Stevens said.

“To the extent they are imposing or attempting to impose any kinds of conditions above and beyond what the public records law says then, in my view, that is clearly improper,” he said.

“Communications to the town from anybody are not privileged. If an attorney for the former town manager, for example, sent a demand letter to the town, that is a public record, and the town has no authority to withhold it,” Stevens said.

“The amounts that they have paid this guy for whatever basis, either as compensation, or as a settlement, or a severance, or whatever name you want to put on it, that’s all public information and anything that documents that should be released,” Stevens said.

The law is “pretty clear” that closed session minutes can be barred from disclosure only “so long as public inspection would frustrate the purpose of the closed session,” Stevens said.

“It sounds like that all of these records should now be public,” because the matter was resolved, he said.

In a Dec. 23 email to Baer and Waddell, Jonathan Jones, director of the North Carolina Open Government Coalition, reached similar conclusions.

Jones added that a three-year statute of limitations prevents disclosure of confidential communications, “such as attorney/client protected matters. That means that any communication the town’s attorneys provided about this matter [that is more than three years old] should now be public.”

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.