Fayetteville, N.C. – Fayetteville city council members Colvin, Wright, and Haire, are writhing and squirming, desperate for a way to spin the definitions of “Just Cause”, “Good Faith”, “Reasonable”, and “Misconduct” to save the now alleged corrupt council member Williams. Williams is being ousted from the council for alleged misconduct in office for criminal acts and violations of critically important city policies regarding ethics mandated by North Carolina state law.
As predicted the installation of convicted criminal Colvin, otherwise known as “Oh Yeah, FayetteNam’s Thug Mayor!” as mayor of Fayetteville has resulted in the infection of criminal rot and disease taking root in Fayetteville city government at its highest level.
On an audiotape of a meeting legally and wisely recorded by Prince Charles Holdings, LLC, project manager Jordan Jones, Williams was allegedly heard extortionately demanding from Jones $15,000 and secrecy in exchange for “signing off on” a “defect” with the title for the Prince Charles Hotel with the implied threat that otherwise the whole city project would “go away”, except the defect was a lie.
Williams has had ample opportunity to put forth any evidence of his innocence, or even mitigating information of why he allegedly attempted to commit the crime of extortion against Prince Charles Holdings and Jordan Jones. Williams had opportunity at the April 16th, 2018 Special City Council Meeting and at the April 23rd, 2018 Regular City Council Meeting to defend his actions yet he chose to say nothing at all. Is that not a clear enough indication that Williams has found his very own actions indefensible?
The courts have clearly stated that a governmental body should not be paralyzed when faced with circumstances that create hostilities that thwart government functions or threaten those whose efforts are critical to performing those functions. An elected official is not necessarily immune from the government’s power to respond simply because he was elected.
It seems all too apparent that unethical behavior follows the convicted criminal mayor Colvin around like a dog because he appears to feed it so well. Especially notable is his efforts to muddy the waters, along with Wright and Haire, in his attempts to avoid having to judge a racial peer and his attempts to artificially and extraordinarily prolong the process with calls for independent investigations under the guise of transparency which only serves to help Williams.
Also in question is whether or not city attorney McDonald is truly working for the City of Fayetteville and its best interests, or her racial peer, council member Williams’, best interest. The citizenry of Fayetteville are watching her very closely in this matter. There seems to be quite a penchant, more than ordinary and proper, on city attorney McDonald’s part to continually elaborate on Williams’ ability to defend his actions, on keeping an open mind to whatever Williams, or his attorney, chooses to throw out there as an excuse for Williams’ actions.
City attorney McDonald and her staff are very much the prosecutors of Williams and council for the City of Fayetteville and certainly not to act in any manner as council, or assist council, in Williams’ defense or rebuttal. It will be interesting to see if city attorney McDonald shoulders the prosecutorial responsibility herself or foists the job off onto a white staff member for the negative optics it would foster in the public’s eyes on the city hall cameras.
N.C. BAR RULE 8.4 MISCONDUCT; It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) intentionally prejudice or damage his or her client (The City of Fayetteville) during the course of the professional relationship, except as may be required by Rule 3.3.
In their squirming and wriggling Colvin and his cronies have attempted to make that which is so simple appear to be convoluted in an attempt to squirm their way out of their duties and responsibilities. [See video above]
The courts are aware of no authority by which a city council could delegate its decision making by appointing a special committee as might a private corporation. As such, other than a recall election which is not provided for in North Carolina legislation, the city council is the only body having authority to consider removal.
Criteria for Success
What does the city of Fayetteville have to prove in this matter? Here’s the criteria that city attorney McDonald must meet for the process to pass a court review. If a court review fails it will be because of no other reason than a poor performance on her part.
- Did council member Williams know, or reasonably should have known, of the city’s policy?
- Yes, Williams received an onboarding packet of information that contained explicit information regarding ethical behavior immediately following his election to office and it was his responsibility to read, absorb, and understand the information provided.
- Is the city’s policy regarding ethical behavior reasonable?
- Yes, in fact North Carolina law § 160A-86 requires the governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city-counties to adopt local codes of ethics, and requires the members of these boards to receive ethics training after each election or re-election to office.
- The resolution or policy required by N.C.G.S. § 160A-86 shall address at least all of the following:
- The need to obey all applicable laws regarding official actions taken as a board member.
- The need to uphold the integrity and independence of the board member’s office.
- The need to avoid impropriety in the exercise of the board member’s official duties.
- The need to faithfully perform the duties of the office.
- The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.
- Did the city of Fayetteville investigate to determine that council member Williams violated city of Fayetteville policies?
- Yes, and received proof positive in the form of a legal and corporately responsible audio recording of the violations committed by city council member Williams.
- Was the investigation by the city of Fayetteville city attorney McDonald fair and objective?
- Yes, the investigation has to date been fair and objective and remains under intense citizen scrutiny to ensure it remains so.
- Did substantial evidence exist of council member Williams’ violation of the policy?
- Yes, city council and the citizens of Fayetteville received proof positive in the form of a legal and corporately responsible audio recording of the violations committed by city council member Williams.
- Council member Williams was addressed at the beginning of the meeting with Jones as a member of city council and further reinforced his attendance of the meeting as a city council member, rather than a private citizen, with the following comments in the meeting;
- Williams: Hello sir! – Jones: Council member Williams, how are you sir? Williams: Good. Good to see you. [Williams made no attempt to correct Jones perception that he, Williams, was attending the meeting as anything other than a representative of Fayetteville City Council].
- Williams: I think that I’ll be a lot more closely working a lot more closely it is my district so I guess definitely involved about 4,000 constituents on a platform that I can kind of call out to get kind of on board you know I mean so I uh, I uh I’ll support you. [Williams reaffirmed his status as a council member with a constituency.]
- Williams: Great, thank you so much for meeting me today. Jones: Yeah absolutely. Can we count on your support moving forward. Williams: yes sir, you got my support. I know I kind of started down because the to be, to be honest with you I’ll tell you this right here I will get my support we will, uh, they say I don’t see it, I don’t understand everything that’s going on yes, you have our support. [LAUGHTER] [Williams made a promise independent of the city council that as a city council member he would support Jones and Prince Charles Holdings since he was to receive $15,000 from them which is an illegal act of selling a vote for a solicited bribe.]
- Has the city’s policy been consistently applied.
- Yes, the city of Fayetteville’s policy regarding ethics has been equally applied in every case of unethical behavior detected to date since it’s mandated inception in accordance with N.C.G.S. § 160A-86.
- Did the Fayetteville City Council make their decision in a fair and impartial manner?
- Yes, they will have, Crump, 326 N.C. at 616–17, 392 S.E.2d at 586. Crump also makes clear the Commissioners are not necessarily disqualified or biased solely because they have prior knowledge of significant facts. Id. Quite to the contrary, they are entitled to a presumption that as fact finders they acted with honesty and integrity even in the face of such prior knowledge. Cases establish that a decision maker is not disqualified nor is the presumption of integrity overcome simply because she has prior knowledge related to the controversy. Kea v. Dep’t. of Health & Human Servs., 153 N.C. App. 595, 605, 570 S.E.2d 919, 926 (2002). In fact, in some instances it may be inevitable that a decision maker will have prehearing knowledge of underlying facts. See Evers v. Pender Cnty. Bd. of Educ., 104 N.C. App. 1, 16, 407 S.E.2d 879, 887 (1991).
- The courts have made two important findings regarding the impartiality requirement.
- First, the very same board that initiates removal by amotion [and even requested a resignation of the offending public officer] is considered to be an impartial decision-maker, as long as its decision is unbiased and based on the objective evidence presented at the hearing. It may seem a tall order for board members who voted to initiate removal to maintain an open mind about the evidence presented at the hearing. But the courts note that a person is not considered to be biased merely because he or she has prior knowledge of the situation. Despite the challenge of remaining open to the possibility that the evidence does not support removal, the board is the only body that can make the final decision.
- Second, the decision is valid even if any board member’s vote is based on or affected by personal opinions or impressions as long as they are supported by the evidence in the record.
- Was the discipline (removal) reasonable and proportional (the punishment fit the crime)?
- Yes, the reasonable and proportional discipline of removal has been set forth as the appropriate action in the event a public official commits misconduct in office. Per N.C.G.S. § 14-230; If it shall be proved that such officer willfully and corruptly omitted, willfully and corruptly violated his oath of office according to the true intent and meaning thereof, such officer shall be guilty of misbehavior in office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offense. If it is an appropriate action in a court of law then it certainly must be the appropriate action in a quasi-judicial proceeding conducted by the city council.
- It does not matter that Williams wastes the city council’s time by putting forth as “evidence” that Williams, “made a bad decision”, “is sorry for his actions”, or “I didn’t know”, when he knew, or reasonably should have known. None of this is evidence of anything but his ineptitude at being a city council member. You will find many a murderer, rapist, extortionist and solicitors of bribery in our jails who are “sorry for their actions”, “made a bad decision” or “didn’t know (yet should have)” and yet appropriately received punishment for their actions.
Appearing in statutes, contracts, and court decisions the term “just cause” refers to a standard of reasonableness used to evaluate a person’s actions in a given set of circumstances. If a person acts with just cause, her or his actions are based on reasonable grounds and committed in “good faith”. Therefore a determination that one’s actions are infamous, unethical and a violation of policies and procedures set forth made on reasonable grounds and in good faith equates to “just cause” for removal or dismissal.
And “good faith” is nothing more than honesty; a sincere intention to deal fairly with others.
The standard in any such proceeding whether it be a court of law, a quasi-judicial city council meeting or even your average everyday corporate board meeting remains the same across the venues. It is; What would a “reasonable person” decide in a similar issue?
What is a “reasonable person”? In the case of a city council member sitting in judgement of a peer it is a phrase frequently used in tort and criminal law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability as does any juror or any judge in a court of law.
In the case of the accused, Williams, it is how he compares with a typical person, with ordinary prudence, would act in certain circumstances. The test as to whether a person has acted as a reasonable person is an objective one, and so it does not take into account the specific abilities of a defendant.
Every person owes a duty to behave as a reasonable person would under the same or similar circumstances and thus every city council member owes a duty to behave as a reasonable city council member under the same or similar circumstances.
While they are not determining the guilt or innocence of a crime in a court of law it is certainly reasonable that they are allowed to determine if such actions meet the level of whether or not a criminal offense has been committed and use that determination in their decision regarding Williams’ ethical behavior, credibility, legitimacy, respectability and trustworthiness to remain a city council member.
Look at it like this; you and your significant other return home from your date night. You enter your house and your babysitter doesn’t hear you come in because she is talking on the phone with someone. You overhear her telling the other person on the phone all about how she drank two six packs last weekend, snorted three lines of cocaine and stomped her cat to death. You will need a babysitter for your next date night. Are you going to let someone tell you that you can’t make what you legitimately overheard a part of your decision as to whether or not you are going to continue keep her as your babysitter? Of course not. While it’s highly unlikely that the babysitter will be convicted of possession and use of cocaine you are certainly allowed to make that illegality a part of your reasonable and responsible decision.
Evidence of Misconduct
City Policy 115.19 [Procedures for Conducting a Hearing on Petition in Amotion to Remove a Council Member from Office] IV [Rendering a Decision (b) Council’s decision must be based solely on the evidence presented at the hearing. Council members shall not consider information obtained through independent research or undisclosed ex parte communications.
While 115.19IV(b) appears to severely limit the council member’s decision making to only what is presented by the attorneys in the quasi-judicial hearing regarding Williams that would be an incorrect assumption. This admonishment is solely for the purpose of restricting or stopping the influences of bad actors like the NAACP or BLM whose intent would be a race biased decision rather than a morally ethical decision.
As stated earlier it has been firmly established by the courts that;
- First, the very same board that initiates removal by amotion [and even requested a resignation of the offending public officer] is considered to be an impartial decision-maker, as long as its decision is unbiased and based on the objective evidence presented at the hearing. It may seem a tall order for board members who voted to initiate removal to maintain an open mind about the evidence presented at the hearing. The order notes that a person is not considered to be biased merely because he or she has prior knowledge of the situation. Despite the challenge of remaining open to the possibility that the evidence does not support removal, the board is the only body that can make the final decision.
- Second, the decision is valid even if any board member’s vote is based on or affected by personal opinions or impressions that are supported by evidence in the record.
The city council members sitting in judgement on Williams are not sterile computers to be loaded up with limited selective data, but rather human triers of fact fully free, and expected, to use personal opinions or impressions that are supported by evidence.
The analysis and determination of events, intentions, and motivations of this incident can be taken either from the trial/hearing or from a council member’s personal knowledge. In order to make such important decisions, council members will turn inwards to their own experiences to evaluate the case as is entirely acceptable and appropriate. They will, and should, rely on their own upbringing, training and education to make an informed decision on what is immoral, unethical or criminal.
If city attorney McDonald fails to bring out in the hearing that Williams’ actions allegedly meet the elements of the crime of Extortion yet the council members know the elements of extortion and know that extortion is wrong, are they precluded from using that knowledge in their determinations? Of course not. It is not wrong to know what a crime is and that it is wrong. It is not improper to use that knowledge when judging the actions of another either.
An excellent example would be council member Waddell’s remembrance that all new council members were given an onboarding packet containing clear and concise information regarding mandated ethical behavior immediately after being elected. Should city attorney McDonald fail to bring out this critical piece of evidence in the quasi-judicial hearing it would still be quite appropriate, and in fact necessary as a duty or responsibility, for all city council members to use that information in their deliberations and determinations.
Councilors, generally act as the legislative branch of the city government, as well as its policy-making body. The council also looks to the city’s goals, major projects and infrastructure improvements ranging from community growth to land use to finances and strategic planning.
Any action taken by a city council member in a secretive and surreptitious manner from the other council members that influences in any manner any major project whether monetarily or negatively and affects the reputation and credibility of relationships between the city council and project partners is by definition unethical.
Lawrence, p. 555, citing Rex. V. Richardson, 97 Eng. Rep. 426, 438 (K.B. 1758). Since there is no authority for removal based on any other grounds (removal “for cause” is a common standard in other states)
Since 1758 amotion has been practiced in this nation with Lord Mansfield’s justifications for amotion consistently utilized by the courts since. The standard sets forth three sorts of offences for which a public officer may be removed from office. The common law grounds for removal by amotion as delineated in the original case (in 1758) are quite specific. As summarized they are;
- Offenses not related to the office but so infamous as to render him
unfit for any public office.
- a crime is judged infamous because it constitutes treason or a felony, such as Extortion or Bribery, because it involves moral turpitude of a nature that creates a strong presumption that the one guilty is unworthy of belief in a court of law, or because it subjects the one guilty to infamy.
- An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Farrakhan v. Gregoire, 2010 U.S. App. LEXIS 141.
- Infamous, Done in Secrecy and Malice, or with Deceit and Intent to Defraud; G.S. 14-3(b) A person who commits a misdemeanor offense for which no specific punishment is prescribed and which is infamous, done in secrecy and malice, or done with deceit and intent to defraud is punished as a Class H felon. This enhancement does not apply to the offense of conspiracy to commit a misdemeanor.
- Offenses amounting to non-criminal misconduct in office.
- A pattern and practice failing to show up for mandatory meetings.
- A pattern and practice of abusive behavior towards other board members, staff, employees or constituents.
- A pattern and practice of attending meetings and functions with the appearance of intoxication by drugs or alcohol.
- A pattern and practice of failing to read, absorb, and understand all documentation received in order to function and properly vote in meetings and workshops.
- Committing violations of an ethical nature as set forth in policies and procedures of the body.
- Offenses that are both criminal and constitute misconduct in office.
- In this, the third category, the offenses need not be as serious as in the first category nor the misconduct be as gross as in the second, it is the combination of the two that justifies removal such as committing extortion or soliciting a bribe of $15,000 while representing oneself as a city council member.
The Big Decision
The city council members sitting in judgement reach the point where they’ve heard all the evidence that city attorney McDonald has introduced and have heard all the implausible excuses, misdirection and outright nonsense Williams and his attorney have will have offered up as “facts” heretofore somehow mysteriously undiscovered, misunderstood and unspoken.
What happens next is very critical. Anything that the deciding council members say in “deliberations”, which will be conducted during an open session of the Council, will most certainly be analyzed, critiqued, dissected down to even every um, ah, uh, and the breaths in between. Every word intensely reviewed for hidden meanings, intensely scanned and tested by any number of approaches to determine if partiality in the form of a “dog whistle”, “code”, “political incorrectness” or the ever ubiquitous racism exists by a reviewing court.
If the council members are smart they will keep their mouths shut, vote, and then still keep their mouths shut some more. Any findings of fact and conclusions of law should have already been adequately covered by city attorney McDonald while introducing the evidence. All that the city council need do is either accept the evidence or reject the evidence. And that doesn’t require any explanation on their part.
This is not the time to play politics. It’s not the time for council members to posture and preen trying to make themselves look like anything at all in the eyes of the public. It’s time for them to keep their mouths shut and leave the burden of whether or not they made a fair and impartial decision up to the performance of the city attorney. They are not required to “explain” themselves anymore than a jury in a court of law is. All they need do is just shut up, because unlike a jury anything they say in a so-called open session deliberation is subject to question. Anything they say will be in an open session and thus subject to interpretation, or misinterpretation. So why say anything in deliberation at all?
Leave the only thing for the reviewing court to review be the words of the city attorney, Williams, and his defense attorney. Let city attorney McDonald carry that burden because that is what she is paid to accomplish. Either she does a good job or she does a bad job. Let her carry the burden for the success or failure of the process. No “discussion” is necessary.
They should silently make their decision on the evidence presented in conjunction with their own personal opinions or impressions that are supported by evidence. They should use their own experiences to evaluate the case, their own upbringing, training and education to make an informed decision on what is immoral, unethical or criminal as is entirely acceptable and appropriate and make their vote without comment or discussion.
All any of them needs to say is “I’ve made my decision based solely on the evidence presented here today and I’m ready to vote.” They don’t need to get drawn into any “What do you think”, “What about…” or “Why?” games by other council members, especially Colvin, Haire or Wright. All they need do is just calmly and politely repeat, several times if necessary, “I’ve made my decision based solely on the evidence presented here today and I’m ready to vote.” It’s not their job to convince other council members to vote like them because this issue is decided by a majority vote, not a unanimous vote. That job belongs to city attorney McDonald and either she will have been successful or she will have been a dismal failure.
They can surely bet that one of Williams’ defense attorney’s ploys will be to try and plant as many irrelevant issues in city council member minds in the hopes that later in their “deliberations” the irrelevant issues will generate discussion that results in a council member saying something that defense can use in their challenges when demanding a court review. Just because they “can” deliberate doesn’t mean that they “should”, or even need to deliberate. If city attorney McDonald has done her job correctly then there really shouldn’t be anything to deliberate. Don’t say nothing, won’t be nothing.
They can be sure that city attorney McDonald would just love to be able to point the finger at the council members if something goes wrong. Study the previous cases. The unsuccessful ones were those that had talkative “triers-of-fact” sitting in judgement whose diarrhea of words, while attempting to look important or politically savvy, were shredded in a reviewing court.
It is better to remain silent at the risk of being thought a fool, than to talk and remove all doubt of it.
Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding.
- Removing an Elected Official by Amotion: Judge Says It Can Be Done
- Berger v. New Hanover Cnty. Bd. of Comm’rs, 2013 NCBC 45
- Ethics for Local Government Officials
- N.C. State Ethics Commission
- Audiotape Meeting Between Williams, Jenkins, Councilman Williams