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County refuses to compel fire department to answer transparency requests

*Correction: A previous version of this article incorrectly stated Tristan Jamison served on the fire department board. Jamison was removed from the board after selling his home due to the department’s new property owner requirements. Jamison was replaced by Bobby Henry, who is serving as interim Chief of the department, despite not owning the residency he currently resides in. The public records request that have been made to the department since July 1 have been made directly to Bobby Henry. The last response from Henry we received was July 2 via Snapchat. In addition to serving as interim Cheif, Henry is currently employed full-time by Macon County with Squad 4.

Since July 1, when the majority of the volunteer firefighters at Cullasaja Gorge Fire & Rescue were banned from serving on the department due to a residency requirement made during a closed meeting, the fire department has not responded to dozens of requests for access to various public records within the department.

The Cullasaja Gorge Fire & Rescue Board of Directors advertised their annual business meeting in the Franklin Press as required by general statute. However, when the meeting began, a community member of Cullasaja asked the meeting be closed to the public and only members of the community be allowed to attend and vote. That move resulted in over a dozen volunteer firefighters that had served on the department for the last 2 to 8 years — many of whom held ranking positions within the department and had been voted Firefighter of the Year over the last few years — being forced to leave the meeting. Jack Baird, who was serving as Chairman of the Board at the time, claimed that the fire department’s bylaws allowed such an action to take place.

At the time the decision was made, the Cullasaja Gorge Fire & Rescue Board of Directors consisted of Jack Baird, Terry Scott, Linda Bryson, Todd Watkins, Doug Thompson, Steven Crisp, Mark Lamb, Aaron Holland, and Bobby Henry.

During the closed meeting, the board, along with members of the Cullasaja Community who claimed to be property owners, voted — and approved— a measure that would prohibit anyone who does not live within the Cullasaja Gorge Fire & Rescue fire district from serving on the department. There was discussion about not only requiring volunteers to live within the district but also be property owners within the district — however, the Cullasaja Fire Department has ignored multiple requests for clarification.

The board’s closed session vote resulted in 21 long-serving members of the department being no longer allowed to serve. By Tuesday of the following week, Macon County Emergency Services Director Warren Cabe conducted an inspection of the department and found that since the 21 members were removed from the active roster, enough new members had signed up to volunteer to meet the minimum requirement of having 20 active, trained firefighters, which is required by the fire department’s contract with Macon County. Beyond ensuring the number of firefighters within the department — and periodic review of the department’s financials — Macon County has no oversight into the operations of the fire department. Macon County has no authority or involvement in membership requirements, board actions, decisions, or anything else involving fire department business — despite the fire department being primarily funded through Macon County taxpayer dollars through the fire district tax.

The Southern Scoop has made multiple requests for the fire department’s bylaws — the bylaws that were cited in allowing the residency change — however Macon County leaders said their hands are tied.

The Cullasaja Fire Dept. is its own entity; their by-laws, meetings and membership is their business,” said Eric Ridenour, Macon County Attorney. “As long as the CFD complies with the requirements to receive funds from the County, that is the extent of the involvement by the County.”

According to Barry Smith, Assistant Director of Public Affairs for the North Carolina Department of Insurance, the county should have the requested public records.

“Counties contract with volunteer fire departments to provide fire service in many areas of North Carolina. These volunteer fire departments, many of which receive tax dollars and other public funds, are private, non-profit corporations,” said Smith. “If you are unable to receive requested information from a particular volunteer fire department, we recommend you contact the local county fire marshal’s office to see if it has information that may be helpful.”
The records available from the county included the department’s current roster as well as the fire department’s annual budget, which sits at just under $400,000 a year.

According to Narcisa Woods, Assistant Attorney General for the Open Government Unit for North Carolina, whether the fire department must comply with open meeting laws is a legal question.
“It appears that the volunteer fire department is a private nonprofit that was not formed by the government and has a contract with Macon County,” said Narcisa. “Ultimately, it is a legal question to be determined by the courts whether or not it is a public body subject to open meetings law. You may wish to discuss this matter with a private attorney.”

In an article published by The Franklin Press Communications Lawyer Amanda Martin with the firm Stevens, Martin, Vaughn, & Tadych, the fire department is in fact a public body/public agency and is subject to both the open meetings and public records law.

Open meeting laws were enacted as a result of citizens’ concerns over government meetings that were held in secret. Citizens rightly felt that if they were paying taxes to a government, or if governmental decisions affected them, they should have the right to attend and participate in those meetings.

A majority of the States define the entities subject to their open meeting laws in part based on their receipt of public funds. Although Cullasaja Fire Department in considered a private non-profit, its primary source of funding is public funds.

The contract local fire departments have with Macon County includes a provision mandating certain record-keeping requirements which states, “The department will maintain accurate written records regarding personnel training, infection control, Articles of Incorporation, by-laws, fire district map and descriptions, insurance district resolution, contracts with counties and municipal governments, engine/pumper serve test, certified weight tickets for all apparatus, alarm log, meeting minutes, equipment inventory, and apparatus inspection forms, which may be inspected at any time by or on behalf of the county.”

Although Macon County requires the departments to keep both meeting minutes and bylaws and allows for the county to inspect the documents at any time, Macon County Manager Derek Roland noted that the county’s hands are tied when it comes to providing those documents to the public. At the advice of Ridenour, the county is not advised to request those documents on behalf of the media in the form of a public records request or for transparency, despite the department being funded by taxpayer dollars.

According to the North Carolina Supreme Court, a unit’s governing board is responsible for ensuring that any funds appropriated to a private entity are spent for a statutorily authorized public purpose. See Dennis v. Raleigh, 253 N.C. 400 (1960). The county could amend the contract with local fire departments to include a provision that requires the department to comply with open meeting laws, even though as a private non-profit they are already required to, which would allow the county to take action when/if a department doesn’t comply, however, again at the advice of Macon County Attorney Ridenour, the county will not be pursuing that option.

North Carolina took the intentional step in 2011 with House Bill 572 when they passed and signed into law the “Accountability for Publicly Funded Nonprofits” act, which outlines the requirement for public access and inspection of nonprofits who receive public funds, which is the case for Cullasaja Gorge Girl & Rescue. Failing to provide the public records, as defined by the state of North Carolina, will ultimately result in a lawsuit and be settled by the courts.
Individuals who have been denied access to public records may attempt a. Mediated settlement under G.S. 7A-383E and may file an action under G.S. 132-9 to compel a public agency to provide the requested records. A claimant who substantially prevails in a claim under the statute may be allowed to recover attorneys’ fees from the public agency.

Nonprofit board members are bound by the duty of care, which means that they must place the interests of their organization above their own. Not knowing the open meeting laws doesn’t excuse board directors from being responsible for abiding by them. Nonprofit board directors who fail to comply with open meeting laws at any level can be held personally responsible. Lawsuits against nonprofit boards may indicate the organization, individual directors, or both.

While legal action will address the lack of transparency, a push from the public — like the one planned by members of the community –at the next fire department meeting and the next county commissioner meeting may also resolve the issues. Members of the Cullasaja Community upset over the residency change plan to address members of the Macon County Board of Commissioners at the August board meeting scheduled for August 10 at 6 p.m. The community members also plan to speak at the next Cullasaja Gorge Fire & Rescue meeting to call for a change to the requirement. However, we have been unable to verify a date of the next meeting.

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