Charlotte City Council
Restructuring Government
Committee
Meeting Summary for June 30, 2011
COMMITTEE AGENDA TOPICS
I.
Subject: Boards and Commissions with Autonomous Authority
Action:
None
COMMITTEE INFORMATION
Present:
Time:
Warren Cooksey, Patrick Cannon, Patsy Kinsey, James Mitchell and
Warren Turner
1:00 p.m. to 2:20 p.m.
ATTACHMENTS
1. Agenda Package
DISCUSSION HIGHLIGHTS
Chairman Cooksey called the meeting to order and asked everyone in the room to introduce
themselves.
I.
Boards and Commissions with Autonomous Authority
Chairman Cooksey said we will carry on with our discussion about the potential additional
criteria for Council appointees to boards and commissions that have some sort of final decision
making authority. Last meeting, the conversation was very good and we realized that the
category of final decision making authority really broke down into two categories; 1) the
authorities, the Charlotte Housing Authority (CHA) and Charlotte Regional Visitors Authority
(CRVA), and 2) those that have some decision making authority, often in a quasi-judicial setting
where their decisions are governed by established legal procedures and then are appealable to
Restructuring Government Committee
Meeting Summary for June 30, 2011
Page 2
court. Chairman Cooksey stated that Council member Turner spoke about some concerns about
the decisions that are made and the Committee came to the decision that for quasi-judicial type
bodies, adding appointment characteristics is something we could do, but it would not
necessarily be the same focus that we might have with the authorities. He also talked about
inserting Council in between the decision of a quasi-judicial board or some sort of judicial panel
and Superior Court. We have in our write-up a list of six of those boards or committees (copy
attached).
Mitchell: I apologize for being absent for so many meetings, but you mentioned that you had a
discussion about the Housing Authority, what was that?
Cooksey: The idea on the authorities was that it would be a good idea to just go through the
process of deriving a general job description as if you were hiring for the spot. Come up with
some of those characteristics and have consultations with past Chairs of those authorities. We
have some experience about what kind of qualifications would make up a good Board member.
If the Committee and Council were comfortable with this, we could adopt those kind of job
descriptions as a filter for anyone interested in serving on those authorities and kind of delegate
to the Clerk’s Office, as they get all the applications, the ability to some way shape or form filter
applicants that do not meet that criteria.
Cannon: Right now, someone can go onto the website, go into the Clerk’s information and pull
up the descriptions relative to the different boards that are out there. You’ve got a description, so
I think the question becomes are there any prerequisites that we are saying that one must meet in
order to be weeded out. It sounds like we are trying to target and scale it down to people who
really have a skill set and it would help us to be really effective on some of the boards and
commissions that we appoint people to.
Mitchell: So the next step is?
Cooksey: For the authorities’ side, I think the prerequisites; next meeting will have some kind of
preliminary looks for those two bodies, the CHA and the CRVA. Today’s meeting is focused on
those quasi-judicial boards where if a person is unhappy with a decision, the appeal goes to
Superior Court and we will talk through the question of, do we want to consider injecting
Council in between? Perhaps we do want to revisit the notion that there are some prerequisites
for an applicant to these kinds of boards that we should attach to the board description to help
maybe self-select.
Cannon: If you streamline the process too tight you will have people who normally just want to
be of service, but don’t potentially have that opportunity to serve because of the criteria. There
is nothing that would still not allow us, I don’t think, appointing those persons, even if they don’t
meet the criteria.
Mitchell: That is what I was asking, how do we find the balance? In 1992, when you appointed
me to the Zoning Board of Adjustments (ZBA), I knew nothing about it. I just wanted to get
involved and am thankful you let me. Maybe it should be a tiered approach where some boards
can be like an introduction and others you must meet a prerequisite.
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Meeting Summary for June 30, 2011
Page 3
Cooksey: The more an appointed group can act on its own, the more attention we should be
paying to who gets on there. Unless there are additional introductory conversation, picking up
from last time, I’ll turn it over to Mr. Shan-Khan to review what we are seeing in print and
answer any questions we may have about this.
Mr. Shan-Khan began reviewing the “Creation of an Intermediate Appeal of Quasi-Judicial
Decisions to the City Council” memo (copy attached). The long and short is to get the City
Council involved somewhere in the middle there will need to be changes in the state law or City
Code. He described and read through each board separately.
Cooksey: Do you have a sense of about how many appeals to Superior Court there are for each
of these six boards?
Shan-Khan: It depends. For example, Civil Service has one that is currently active. It may be a
couple a year. There are some for the Housing Appeals Board. The Zoning Board of
Adjustments sees quite a few appeals per year. I can give you a rule of thumb on it and say
perhaps, take what we have now and probably double it or perhaps triple it, because people
might appeal more if they know it’s going before Council. That is based on the feeling that
citizens, especially if there is no cost involved, would be willing to take it up or not.
Turner: I think you are right about the possibility to create more cases, but I think it is a shame
that anyone would not challenge a procedure simply because they can’t afford it and often times
that is the case. You are right that if they know they can come before this Council with no cost to
them, and we have to go through the same legal procedures pretty much, we probably would
have a lot more cases. For me to think that someone was not properly given their due diligence
and justice because they could not afford it or did not have the means to proceed after justice,
bothers me even more so. It seems to be a very hideous process when we start going to the state
level to try to change the laws. That alone could be a long process and there is no guarantee that
it will happen. I think we should look at which board from this list that we hear most of our
concerns and complaints as elected officials.
Cooksey: When these decisions do get appealed to Superior Court, how often does the board get
overturned?
Shan-Khan: It is very rare because what they have to look at is did the board not follow the law
and did it not allow witnesses to be present. It doesn’t look at the merit; it looks at the process so
it is very rare that any of those decisions are overturned by a Superior Court.
Turner: In the case of where this has occurred or someone challenges it to Superior Court, do we
find these people are trying to represent themselves or do they often time hire an attorney that
deals with this matter?
Shan-Khan: Both. I think you could say it is about half and half. I think you would have a lot
of folks who would represent themselves and then you have many others, especially in the
Zoning context that will have an attorney representing them.
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Meeting Summary for June 30, 2011
Page 4
Thomas Powers: With the Housing Appeals Board, under state law, there is a process that
allows any person who wants to represent themselves know how to actually file the appeal with
the court. So the General Assembly, because of this, actually codifies this to allow a person to
go through the actual steps with knowing how to file with the Superior Court if they want to
present an appeal on their own. With the Zoning Board of Adjustments, that also references this
codified method of allowing them to represent themselves before the Superior Court. We won’t
assist them directly, but we will at least steer them toward that general statute.
Turner: That is fine and that is their constitutional right. You have the right to represent
yourself in a court of law and you can choose to waive your right to an attorney, but that doesn’t
mean that you know what you are doing. It is one thing to have someone help you file it and get
it there, but it is another thing getting there and representing yourself and pulling out the right
questions and proposing the right evidence to make your case. If you told me we had 20 cases
and out of that 20 cases 15 of them represented themselves and they all lost, I would probably
tell you it was because they didn’t know what they were doing. If you had 5 cases and you had 3
that beat the City, then I would tell you they had 3 attorneys and either we didn’t know what we
were doing or we were in the wrong area and it was proven. It is subjective, but you don’t know
those numbers do you, specifically?
Powers: No sir, I won’t be able to give you those numbers.
Shan-Khan: We can take a look at the history for a period of time and try to get that for you for
the next meeting, but because of the standards that would have to be met, the City wins the
majority of these regardless of whether they are represented by counsel or not.
Cooksey: I confess to having no direct experience in process of Zoning Board of Adjustments,
but how often does the City provide testimony in a ZBA case?
Powers: The way the process is set up is that the City is one party and the applicant is the other
party. Typically, the City will present its case first. If there is a variance, the City will actually
get a recommendation on whether or not they agree that this variance should be granted by the
Board or denied, and also the supporting reasons. Then the City will provide testimony from the
Zoning Administrator or other individuals necessary to justify its case at that time. The applicant
also has the ability to cross examine any member or person who provides testimony on behalf of
the City, as well as the ZBA. There are times, depending on what the City’s position may be, the
ZBA may agree or disagree depending on the evidence.
Cooksey: If you have a case, for example, where an applicant is applying for a variance, the City
may agree or disagree. If you have neighbors who disagree or adjacent property owners who
disagree, talk me through how that works when the City side is in favor of the variance and how
it works when the City is opposed to the variance. How does testimony by private citizens
against the variance work in those two cases?
Shan-Khan: We have Terrie Hagler-Gray who represents the staff, Mr. Powers represents the
Board and then the third party will have an opportunity to basically provide their information or
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Meeting Summary for June 30, 2011
Page 5
whatever materials or testimony they want to present. They are sworn under oath and they have
a chance just like everybody and the Board recognizes them because they are the folks who have
a potential interest in the matter.
Mitchell: I can remember when we got down to voting it was almost like where we are as
Council because we would hear both recommendations and the neighborhood would be there in
strong opposition sometimes and we would just vote.
Cooksey: The question at this point is, Mr. Turner has expressed his interest, is anyone else
interested in the concept of Council getting in between a quasi-judicial board decision and
Superior Court?
Mitchell: I would say no for me.
Cannon: What are the ramifications?
Powers: You asked how many cases come before us or actually are hearing, Passenger Vehicle
for Hire Board right now is looking at 5 per month. The Housing Appeals Board is looking
between 4 and 5 per month. The Zoning Board of Adjustment can vary depending on how
complex the case may be. You can look at between 3 to upwards of 6 or 7 per month, depending
on how long they would be as well.
Cooksey: One of the ramifications is the caseload.
Shan-Khan: As it has been pointed out, obviously, it is the caseload. It could be you are looking
at that exact number of cases or less, but then the other part of it is, to get to this point with at
least three of your boards, you have to get the General Assembly to approve changes. That
depends on if you are forced to make it a legislative priority from a policy standpoint and that
would be something that you would have to decide as a Committee of the Council, what you
want us to do with that. Then of course, other changes, you would make to your City Code, so
the ramifications would also include what you need to do to get there and once you get there,
how many hearings you need to consider and how much time would that add to a Council
meeting?
Cannon: Which is why I think Councilmember Turner was suggesting make it one and if there
was to be one, which one, which sounds to me like he wanted some level of recommendation to
come back.
Mitchell: I have no problem with Councilmember Turner’s request coming back. Let me just
throw a little caution to the wind. We don’t want the ones appointed to feel like there was no
reason for them to be appointed if we end up making the final decision anyway.
Campbell: Spending most of my career in Virginia, one board that specifically came to mind
was our Architectural Review Board, because of all the historical properties in Virginia. Citizens
appealed directly to the City Council and Council would have to set an additional meeting late to
listen to those appeals from the Architectural Review Board that had been denied. Appeals
became very contentious because of the property owners and property rights and that sort of
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thing. It can get interesting once it is appealed directly to Council.
Kinsey: I think initially we should concentrate on the appointments and improve that process. I
think not only particularly for these, but for all boards and commissions. Particularly these, I
think we need to concentrate first on the appointments and spend some time frankly. We get the
information on Wednesday before the meeting, but Friday we are liable to get some more, but we
really don’t have time, and it takes time to read all of that stuff. I think I would rather us go that
route first than insert ourselves between a board or an authority and the Superior Court.
Cannon: I would concur and Ms. Kinsey raises an interesting point because it almost cuts us
even having timeline for nominations. The way this last thing got carried out for three months or
whatever it was, for the CRVA, that was just too much of a headache. We had staff in shambles
and we have to find some more order.
Cooksey: I’m not thrilled about inserting us and I want to talk it through as much as possible,
but one of the things that persuade me is the fact that I think to be fair, Council’s action would
have to be quasi-judicial as well and the biggest concern to me is the communication concern.
The very first time I was exposed to the ZBA was because my manager had a swimming pool
issue and I knew someone who was on that Board, so I called him up and said “hey, let me get
your advice” and as soon as he realized what I was talking about he told me to shut up because
he could not participate in any conversation outside of that. That is not the way we are
programmed as a Council. We are programmed that if people approach us to talk about
something we will talk about it, but if we do that on any of these we are going to pollute the
process and wind up potentially doing more harm than good unless all 11 of us really maintain
that discipline. Unless you’ve got a really good closing argument, I’m thinking we are not on
board with that and we will move on to the next item. I did want to hear it talked through and I
appreciate you bringing it to us.
Turner: I made my point and I think staff has to come back with the information that I requested.
I didn’t realize it was going to be such a hideous process, but even more so is the fact that there
is a lot of legal ramifications in it. It doesn’t seem that this is the right way to go and I agree
with Ms. Kinsey that we really don’t take our responsibility seriously about the appointments.
What is the process once we appoint a board and it is finalized with the members? Who can
select the Chairman? Who goes in and explains to them the importance of what we expect?
Who represents the voice of the Council and what we expect of them and how we want to hold
them accountable?
Stephanie Kelly: Our office is responsible, once you appoint someone to a particular seat, we
notify them of their appointment and we also give them information about your conflict of
interest policy, your attendance policy requirement and all of that.
Turner: I know that because I’ve been one of those members, but what I’m getting at is these are
some serious and very important boards and that is why we are having this discussion today.
Should that be a Workshop orientation?
Kelly: The staff of that particular board ordinarily has a new member orientation with individual
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Meeting Summary for June 30, 2011
Page 7
board members or with a group of members.
Turner: I hear all of that and I’m trying to quantify that process because I served on numerous
boards before I became an elected official and no one does it the same. There needs to be a
PowerPoint presentation and I think there should be some very serious things that they listen to
that DVD as part of their orientation to understand the seriousness of some of these boards.
Every DVD is going to be different based on the committee they are serving on, but the ones on
this sheet are very serious boards. I just don’t think some people really get it and I think at that
point they should have a right to opt out if they feel it is going to be beyond what they want to
do.
Mitchell: I agree with some of the things Mr. Turner said, especially with the orientation. I
know I had a very good one when I went to the ZBA’s, but I will say this, it is our responsibility
as well. Some of the candidates that we are nominating, we need to investigate more. We need
to take the nomination process a little more serious so it is the right skill set, and to your point,
on the important boards. One thing we used to do was ask the Chairman of the Committee to
send us a recommendation on what skill set was missing and I know on certain boards, that’s not
happening. Staff, are we not requiring that of all Chairmen when there is an opening to send
Council a recommendation of what skill set is missing?
Kelly: It is not a requirement. We ask for it, but we don’t hold up the process. Once we
communicate to them that we are going to send nominations to Council we ask them to weigh in
if they will, but we don’t wait until we hear from them or follow up with them to ask them
additional questions about that. If we don’t get anything we assume that they don’t have a
recommendation or don’t have any comments to share.
Mitchell: I do think input from the Chair for a skill set they are looking for would be helpful to
me and give me some guidance.
Kinsey: I agree that skill set would be very helpful, but I am very uncomfortable when a
Director of an organization or a Chair asks for an individual. Not that they are not good people,
and don’t misunderstand, but I sometimes feel well, I’m obligated so I’m not particularly excited
about that.
Cannon: Ditto and regarding the prerequisites, I can be okay with prerequisites as long as it is
not the thing that eliminates a candidate.
Cooksey: I would like to suggest we say “Council preferences” rather than prerequisites.
Kelly: In relation to what Mayor Pro Tem is discussing, the second part of your handout actually
represents input from staff and the Chair and the Vice Chair. Based on the conversation at your
last meeting, I reached out to the staff liaison for these specific boards and told them what you
were contemplating and asked them if they would provide information that would be helpful to
Council as they review applications for their specific board. The criteria that is listed for each
board represents what each individual board staff liaison had indicated would be helpful to them
and skill sets that would be useful to them in conducting their business and for the ZBA, the staff
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Meeting Summary for June 30, 2011
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sought the Chair and the Vice Chair’s viewpoints on that as well.
Cooksey: What about the idea of inserting on the appointment forms the Clerk handles, a section
called “Council Preferences?” It could say the Council is particularly seeking individuals who
meet certain criterion or background. For those of them that are purely advisory, we could come
up with some general boiler plate items so we are not eliminating people. You can have a
baseline there, and to Councilmember Cannon’s point earlier, no-one is going to be dissuaded
from applying because of that.
Turner: There is nothing there for the Civil Service Board. Is there a particular reason why?
Kelly: Yes, when we were talking about this on the staff level we were not especially
comfortable in putting that in because of the nature of what Civil Service Board does. They hire
applicants and they have the potential to terminate employees. That may somehow be a conflict
with the Council/Manager form of government if we inserted the Council in the process, that
they then would be the entity hiring or firing potentially.
Cannon: Usually the Civil Service Board has some level of law enforcement background. They
are either a lawyer or they may have been a part of some type of law enforcement. The “Council
preference” piece is one where we may have some members of our body that may say, this is
what I’d be looking for, and someone may or may not get on the board. There are some things
that are going to be on this criteria list that mean something to some and others it doesn’t. I just
want to be careful that we don’t discourage too much and I’m even concerned about the word
“criteria” because this does tell somebody you have to meet something, and we don’t want them
to have to meet, but we want them to have a level of expectation without saying you have to
meet something. Is there a fine line that staff could help us with that.
Cooksey: That is why I went with “Council preference” and if someone doesn’t quite match
those it is really the responsibility of that person to have the drive to go to Council and say, “help
me get through this process.”
Cannon: But would we stick to that? On the last appointments we just had, I was getting
feedback on one particular candidate, but does he or she possess this in their background. Do
they have business related experience? They may, but is it the kind of business related
experience that you would accept because to ask for something like that is a broad question, and
then we have to think about us on City Council and the level of experience that we have in
certain areas. How many engineers are on the board, how many architects, how many business
owners, how many homemakers? I just don’t want to make it so tight and stringent that we
discourage folks.
Cooksey: I agree, which is why I’m trying to find that balance. We need to find that balance
between the status quo, which we are not happy with, and something too rigorous that it is
designed to discourage people even from asking. That is where I think the “Council preference”
line could come in. If we, as a Committee, can come up with some basic recommendations for
these in particular and for the general advisory ones, have some boiler plate there, something a
little stricter for the authority ones, but we will talk about that at the next meeting, then we can
Restructuring Government Committee
Meeting Summary for June 30, 2011
Page 9
go to Council with this proposal and say, “going forward, when a citizen is interested in a board
or commission, they will see this is what it does and this is the general thing that Council is
looking for.” That is not going to deter someone who is really gung ho about serving, I don’t
think.
Cannon: How about “General Council Preferences?”
Kinsey: I am not real fond of the word Council on that. I think suggested criteria or something
suggestive rather than preference.
Cooksey: Perhaps going back to Mr. Mitchell’s phraseology, “skill sets.”
Kinsey: I still “suggested skill sets” might give us some wiggle room.
Turner: Well, we have a Human Resources person here and she can give us direction. I would
make it something like minimum if you are really trying to alleviate someone, but we should try
to fill with those positions with the most qualified person. I think it is imperative that they
understand that they can have no skill set in some of these positions because some of them don’t
require it and we would consider them and they would not be eliminated.
Mitchell: Going back, I think Mr. Turner had a good idea in what he said about the orientation.
I know I took it as an individual member, but I would like some orientation even at the Chairman
level because there is a difference. When you are on a committee you are just a committee
person, but when you step up to that leadership role there should be a different level of
expectation that you have to carry out. I think that is the part where I think some more
orientation needs to take place. Chairman Cooksey suggested “Council preferences,” but I’d like
to get away from making it so political. You can’t take politics totally out of the picture, but at
least we can hang our hat on it that we selected this person because we felt they were the most
qualified, but a skill set is needed on the board. In my mind, Keep Charlotte Beautiful is entry
level. I thought CRVA and Housing Authority was a plump board and you have some people
apply and I would laugh at the application because they haven’t done anything to qualify to
apply for the CRVA when you have never served on a board, and to me we are just taking up
paper because you had to make copies to put in notebooks. I don’t want to discourage and I
think there is a way to allow people to have entry level opportunities to serve and yet there are
some hierarchy boards we know at this table that we want people with real skill set.
Cooksey: Having heard these conversations, is there some kind of delightful Human Resource
phrase that you might suggest to us to carry that idea of recommended skills or suggested skills?
Cheryl Brown: In our world we qualify positions by minimum qualifications and then we have a
second set of preferred qualifications and I don’t know that qualification is the right word. I’m
okay with the word preferred, but I’m not all that comfortable with the word qualifications. I’d
like to give some thought to that.
Cooksey: I’ve got to wonder if perhaps preferred creates that connotation of exclusions that we
are trying to avoid. It is completely appropriate for a job situation, but we are trying to have our
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cake and eat it too.
Brown: Potentially, a way to phrase that would be “suggested knowledge skills and abilities.”
Kinsey: In going through this list, for the Housing Appeals, I think maybe on this there should
be at least a certain number on the board with these kinds of skills, maybe not every single one of
them. Then on the Zoning Committee, I think whatever we put there needs to apply to
everybody on the Planning Commission because of the rotation.
Cooksey: Anything we do there is going to wind up being under the Planning Commission.
Only the Zoning Committee has the power.
Kinsey: I know that, but it rotates.
Cannon: Ms. Kinsey, are you suggesting that there be like categories on the Housing Appeals?
Turner: No, don’t move everybody under real estate.
Kinsey: All I said was just have a certain number on the Board if we adopted these three criteria.
Just say 50% of the Board would be real estate.
Cannon: The point I was going to make was we ultimately do that to some extent to some
boards. We do that for Passenger Vehicle for Hire. We say we want X amount from this
industry, X amount from that industry and we do that for some other boards as well. I think what
I would ask is should we do that or do we want to at some point look at all the different areas and
consider it? That way you are creating more of a community initiative, the same way we did with
the Housing Trust Funds.
Kinsey: That makes it more difficult because we don’t have people who apply, so that is why
I’m saying just a certain percentage of the full board and not have it broken down.
Cooksey: Homework assignment for next meeting is we are moving towards the direction of any
suggested knowledge, skills and abilities component to each of our boards and committees. By
the next meeting, we will have some specifics around the authority spots discussed, but in the
meantime we have some recommendations on the quasi-judicial ones. Work through those,
make some notes about what you would like to see and we will talk about those and I hope we
can finalize some recommendations to talk through at our next meeting for the quasi-judicial
ones. Also, think about some nice general stuff for the advisory boards. Next time, we will take
that up and we hope to conclude the suggestion on skills and abilities for the quasi-judicial
decision makers. We will make as much progress as possible on the authority spots and we may
come up with the general boiler plate for the advisory ones and that will be a decent day’s work
for us there.
Mitchell: I love the homework, but just from a timeframe standpoint; do we have a lot of
appointments that are coming up in September that we might need to move the meeting up? I
think we are talking about doing a lot of good work, but would hate to do after the fact that
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we’ve got 12 boards to add nominations in September.
Kelly: I think nominations come back to you in October, but I don’t think there are that many.
Right off the top of my head, I can’t remember.
Cooksey: I don’t know that we are going to make it, even if we have other meetings, I don’t
know that we can make it by the next big slot coming up.
Mitchell: My only recommendation is why not meet the last week in August?
Cooksey: We can look at that. Angela Maynard will poll the Committee to set an August
meeting.
Cooksey: One last item for the Committee, the Mayor mentioned the idea of re-invigorating the
Council/Manager Relations Committee for kind of managing the Manager’s and Attorney’s
evaluation and pay evaluation process for this particular year. I reminded him that we actually
had that topic, but we’ve never reported anything because there wasn’t a lot of enthusiasm in this
Committee. Is there enthusiasm for staying here or creating a new committee of Council
members to work on it? That is something else we will need to take up in a future meeting,
getting some kind of recommendations for Council about what we want to do with evaluating the
Manager and Attorney this go round.
Kinsey: That might be the Mayor’s decision as to whether it stays with us or goes to another
Committee.
Turner: He wants you to do what?
Cooksey: Create a process to better manage the evaluation of the City Manager and the City
Attorney. It was referred most recently last year. After the last round of evaluations, Council
member Peacock was concerned and he wanted to get that to our Committee. The most detailed
conversation we had about didn’t exactly bubble over with enthusiasm about going anywhere
with it.
Cannon: What has changed to make us want to go back down that road?
Cooksey: The Mayor had forgotten the referral so he talked about re-invigorating
Council/Manager Relations Committee to come up with a process for evaluating the Manager
and the Attorney this go round and I had to remind him, it’s already here if there is energy about
going forward. If this Committee would like to give it up to some new temporary committee by
all means say so. (No interest shown) Okay, we will take that up at our next meeting for which
Ms. Maynard will poll us about our availability in August.
Meeting adjourned at 2:20 p.m.
Restructuring Government Committee
Thursday, June 30, 2011
1:00 – 2:30 p.m.
Charlotte-Mecklenburg Government Center
Room 280
Committee Members:
Warren Cooksey, Chair
Patrick Cannon, Vice Chair
Patsy Kinsey
James Mitchell
Warren Turner
Staff Resource:
Eric D. Campbell
AGENDA
I.
Boards and Commissions with Autonomous Authority
Staff Resource: Stephanie Kelly
The Committee and staff will continue to discuss and review Boards and
Commissions appointed by City Council with autonomous authority to act.
No decisions are requested at this meeting.
Attachment: 1. Intermediate Appeal of Quasi-Judicial Decisions to City
Council memo.doc
2. Criteria Recommendations.doc
Next Meeting: Thursday, September 22 at noon in Room 280
Distribution: Mayor & City Council
Mac McCarley
Curt Walton, City Manager
Stephanie Kelly
Leadership Team
Jeanne Peek
OFFICE OF THE CITY ATTORNEY
Memorandum
TO:
Restructuring Government Committee
FROM:
S. Mujeeb Shah-Khan, Senior Assistant City Attorney
Varsha D. Gadani, City Attorney’s Office Intern
DATE:
June 24, 2011
RE:
Creation of an Intermediate Appeal of Quasi-Judicial Decisions to City Council
______________________________________________________________________________
During the May 26, 2011 meeting of the Committee, the City Attorney’s Office was asked to
look at what would be required to create an intermediate appeal of quasi-judicial decisions of
City Boards and Commissions to the City Council. For all of the Boards and Commissions
involved, further appeals from the Council would go the Mecklenburg County Superior Court.
Civil Service Board
Section 4.61 of the City Charter establishes the Civil Service Board. Currently, an officer or
firefighter may appeal the chief of the department’s decision to terminate, suspend, or demote
them to the Civil Service Board. After the Civil Service Board decides their case, the officer or
firefighter may appeal to Superior Court by appealing within 10 days of the date of the Civil
Service Board’s order.
As the City Charter can only be changed by the General Assembly, the General Assembly would
have to approve any change to the Charter to give officers and firefighters a right of appeal to the
Council from the Civil Service Board. If the Mayor and Council wish to change the City Charter
to provide this appeal, the earliest the General Assembly could consider a change would be in
2012. It is possible that changes would need to wait until the 2013 session.
Development Review Board
Section 20-10 of the City Code establishes the Development Review Board (“DRB”). Appeals
of the DRB to Superior Court must be filed within 30 days after the DRB’s written decisions are
either received by the parties or filed with the City’s planning director.
In order to add a right of appeal to the City Council from DRB decisions, the Council would
need to amend Section 20-10 of the City Code.
Memorandum to Restructuring Government Committee
June 24, 2011
2
Housing Appeals Board
Section 11-38 of the City Code and North Carolina General Statutes § 160A-446 require that
appeals of Housing Appeals Board’s decisions must be started within 15 days of the Housing
Appeals Board’s written decision.
To add an appeal to City Council, the City would need to ask for the General Assembly to amend
G.S. § 160A-446. The Council could amend Section 11-38 of the City Code on its own, but for
the appeal to take place, the General Assembly must change state law first.
Passenger Vehicle for Hire Board
Section 22-183 of the City Code says that appeals from the Passenger Vehicle for Hire Board’s
(“PVH Board) decisions are by Superior Court and must be filed within 30 days of the date of
the PVH Board’s decision.
A change to the appeal process would require the City Council to amend Section 22-183 of the
City Code.
Planning Commission: Zoning Committee
Section 20-97 of the City Code requires that appeals from the planning commission go to the
Superior Court and must be filed within 30 days after the Zoning Committee’s decision is either
received by all parties or filed in the office of the City’s planning director.
To create an appeal to City Council, the Council would need to amend Section 20-97 to add the
new appeal.
Zoning Board of Adjustment
Under Section 5.113 of the City’s Zoning Ordinance, appeals from Zoning Board of Adjustment
(“ZBA”) decisions must be filed with Superior Court within 30 days after the date of the written
decision is received by all parties or filed with the Planning Commission.
The right to appeal ZBA decisions comes from State law. In order to add an appeal to the City
Council, the City would need to ask the General Assembly to amend State law to allow the new
appeal. If the General Assembly approves such a change, then the City Council would need to
amend the City’s Zoning Ordinance to allow the new appeal.
Conclusion
In all but three cases, any change to allow an appeal to the City Council would require approval
of the General Assembly, which may be a significant effort. If the Mayor and Council chose to
pursue this path and were successful, the Mayor and Council would have to spend significant
amounts of time hearing the new appeals during their meetings, as it would be considered
arbitrary and capricious to select some matters for appeal and not allow other appeals to go
forward. This could result in Council’s decisions being challenged.
If you have any questions concerning this issue, please do not hesitate to contact either one of us.
Mujeeb can be reached by phone at 704/336-5803 and by email to mshah-khan@charlottenc.gov;
and Varsha can be reached by phone at 704/432-4837 and by email to vgadani@charlottenc.gov.
Boards with Final Authority – Recommendations for Criteria
Board/Committee
Civil Service Board
Development
Review Board
Housing Appeals
Passenger Vehicle
for Hire
Justification
Criteria for Applicants
N/A
N/A
Hears and decides applications for alternative Board was established by Council 12/20/10. Each
compliance as prescribed in City Code Ch. 20. position on this 9 member board has a specific
occupational requirement.
Hears appeals arising from the Minimum
Housing code, and recently (since it was
promulgated), the Non Residential
Building Code. It would be good to have
more technical expertise, as it relates
to the NRBC
-Employment or experience in the commercial real
estate industry
Someone who is familiar with
transportation issues in Charlotte. This
person would be familiar with issues
that PVH regularly deals with such as
parking, taxicabs, taxi stands, etc.
- A representative from CDOT
Having someone with a background in
criminal and/or traffic law would be
helpful in the appeal process.
Currently, 4 of the 11 board member
positions must have no financial interest
or business affiliation with the PVH or
hospitality industry.
- Employment or experience in commercial
construction
-A licensed, or experienced professional in either
of the above (civil, structural, or architecture, etc.)
- A background or experience in criminal and/or
traffic law
- More at-large board members – someone who
does not derive income from the PVH process- not
from the taxi/black car industry as either owners
or drivers and not part of the hospitality side.
- the PVH Manager would like to be able to give
some input prior to their appointment
Boards with Final Authority – Recommendations for Criteria
Zoning Committee
One of two subcommittees of the 14member Planning Commission; Planning
Commission Chairperson works with
other Commissioners and staff to
appoint and rotate Planning Commission
members to the Zoning Committee.
- Prior experience on an advisory board and/or
committee
- Represents the diversity, i.e., race, gender,
professional expertise, etc. of the community
- General knowledge and understanding of Urban
Planning
- Ability to make time commitments
Zoning Board of
Adjustment
Familiarity with land use regulation is
helpful, but not necessarily a real estate
background.
While professional backgrounds are
helpful many times they do create
interest conflicts. Legal background
seems to be the most helpful.
-Ability to listen to a variety of opinions.
-Ability to get along with and work well with a
diverse group of people.
-Ability to be objective and open-minded.
- Ability to weigh data in a case objectively.
-Background or experience in how regulated land
activities are performed, monitored and addressed.