A shadow Town Attorney for Davidson Town Hall?

That's what one would believe after reviewing the results of a recent public records request on former Davidson long-time Town Attorney, Rick Kline.  At least that would be the case when it comes to real estate transactions involving the town.

Regular readers of aShortChronicle will know that before he resigned his position with the town in 2015 (effective June 30, 2016), Mr Kline's position as Town Attorney and the conflicts that presented with his private practice representing developers was a hot topic for this blog.

This list of conflicts was problematic enough that Mr Kline even mentioned them as part of his comments when the position was handed over to current Town Attorney, Cindy Reid.  Below is an excerpt from a May 2016 column penned for the Herald Weekly and re-posted here.  That column covered why aShortChronicle covers what it does.  When it came to conflicts of interest, Mr Kline was the example.

"Some of those columns were down in the weeds on the state law governing exactly what is a conflict.  Others covered specific examples – more than one involving the long time Davidson town attorney, Rick Kline.  Those columns in particular seemed to strike a nerve.  Kline announced his retirement a few months ago, and his replacement was announced at the May 10th Board meeting.  The town’s Affordable Housing  Coordinator, Cindy Reid, will be stepping into the Town Attorney role.  At the meeting, as Kline was complementing the town’s selection of Reid as his replacement, it was interesting to hear him add “unlike me, she doesn’t have any potential conflicts out there.”"

That was in May of 2016.  So, it was really very surprising to see the results of a recent public records request through June 1st 2017 showing Mr Kline still very much engaged with Davidson Town Hall - particularly when it comes to real estate transactions.

The request which ran up to June 1st, 2017 shows invoices from Kline to the town for work done every month except December 2016 since his "retirement". Per a separate email from Town Hall, Davidson has "paid Rick Kline $10,453 since July 1, 2016 for projects related to the planning department, town attorney, and real estate".

In March and April of this year, that planning/real estate work was around the controversial Beaty Street RFP project and selling public land to an unincorporated group called Davidson Development Partners or DDP.

One $400 charge on April 6th was particularly interesting.  It's for a conference call with the Beaty Street developer.  The email record sheds more light on that meeting.  At about noon on April 6th, Assistant Town Manager Dawn Blobaum contacted Kline asking him to attend on short notice and meet with the developer's attorney because they were asking questions Blobaum couldn't answer.

What makes this interesting is it shows Kline's close involvement in pushing this project forward.  Just a little over 6 weeks later Kline was called to Davidson Town Hall as a witness of sorts for the project to refute activists' claims that the parcel should be used as a park.  That story and video can be seen in this post titled "Beaty Street: Lawyers, threats, and karma at Davidson Town Hall".  The public records request did not include Kline's invoice to the Town for any work done in May because, again, the request only went through June 1st and that invoice likely had not arrived yet.  It would be interesting to know if Kline paid for that testimony or for preparing for it?

If all of that doesn't bother citizens enough regarding Mr Kline's continued involvement at Davidson Town Hall after his "retirement" from official Town Attorney duties, the gray area continues involving his private practice helping developers as well.

In this single public records request, aShortChronicle counted no less than four private sector projects Kline is working in Davidson.  Three of these are unannounced at this point.  The one that is public is The Summit at River Run.  aShortChronicle will be working on stories for the other three as they develop.

The breadth and depth of this continued involvement by the former Town Attorney in development projects is important.  It should bother readers because of the obvious chumminess between Mr Kline and the town staff particularly in the Planning Department - the department that has very direct impact on decisions impacting Mr Kline's private sector clients.  The public records request is riddled with banter and jokes with one exchange being particularly telling.

On September 1st, 2016 Kline asked for a quick 15 minute meeting with Town Planning staff either that day or the next.  It was regarding the Summit at River Run project mentioned previously.  Planning Director Jason Burdett responded "Just like a developer.  Always wanting to meet with no notice!  How's 1130?"   To that joking comment Kline replied "Perfect!  And thanks for the compliment."

The saying "fox in the henhouse" comes to mind when one sees this kind of thing, and that is not good - not good at all.  But let's be clear, that is not the the fault of the "fox".  That is the fault of the Davidson Town Board who left the door to the henhouse wide open.

Davidson Town Attorney, Rick Kline, to "Resign"...

The big bombshell this week at Davidson Town Hall was the Wednesday announcement of the pending resignation of long, long, loooooong time Town Attorney, Rick Kline.  Kline has served in that capacity for nearly 40 years, but suddenly and with not much fanfare the town put out notice of his pending resignation.

From the press release:

"Rick Kline has announced to the Davidson Mayor and Board of Commissioners that he intends to resign his position as Davidson Town Attorney.  The Davidson Mayor and Board of Commissioners have asked Rick to continue to serve as their legal counsel until they can find a suitable successor.  The search process could take several months and the mayor and commissioners want to include the new town manager, a position that has not yet been filled, in the process. Rick has agreed to help in the transition to the new Town Attorney."

According to the town's Public Information Officer, Christina Shaul, there was no resignation letter and Mr Kline came to this decision on his own.

HOWEVER, readers should be reminded that just a little over two months ago approval of a new engagement letter for Mr Kline's services appeared on the consent agenda of Davidson's July Town Board Meeting.

Per emails from town hall, prior to the meeting Commissioner Cashion asked to have the engagement letter pulled from the agenda for further discussion amongst the board and no one disagreed with her request.  This is interesting because it raises questions about how it got on the consent agenda in the first place.  Items on this part of the agenda are supposed  to be completely non-controversial.  That's what it's called the "consent" agenda.

The town had been operating without a net for a long time with this situation.  Per another earlier request, no formal contract or even an engagement letter letter had been in place for the town attorney position.  Yet, the job paid roughly $50,000 per year and sometimes more.  For example Kline received a 50% bump last year for his work in reviewing the updated planning ordinance.  (You know, the one that passed with a number of holes in it.). We do know that Kline's expenses did not cover litigation efforts however - meaning when the town got itself into legal trouble, presumably after following his advise, Kline did not have to cover the costs of getting the town out of those situations.

$50,000 per year with no written contract and no real accountability when things went sideways - a pretty sweet gig if you can get it.

So, why would Mr Kline "resign"?  That's the question.

Could it be that the Board finally wanted those things and that was just too much to bear?

Reader chimes in on Davidson Town Attorney Rick Kline

Over the years, I've given Davidson Town Hall a fair amount of grief - OK, a tremendous amount of grief.  It's not that I am anti-government, or think town hall doesn't do anything right.  I just believe that transparency and fairness are bedrock requirements for good government.  They go hand-in-hand.  That often results in having to point out where those things may not be occurring.

I recognize that can come off as a bit negative sometimes.  My guess is that more than a few at town hall want to brush off what I have to say as nothing but the words of an annoying gadfly.

That's why the below comments from long-time reader and friend, Pam Pearson of Davidson, needed to be given a little more attention.  Pearson is an attorney herself and her comments carry more weight than anything I could say regarding Davidson's Town attorney.

"On Mr. Kline, I have related my personal experiences dealing with him on Davidson issues and the jdisrespect and lack of professionalism he showed to me and others. And that's not even addressing the matters on which he advocated legal positions that had no foundation. In fairness, I expect that his "opinions" were driven, in part, by the Town Board's policy imperatives, but that's backwards thinking for an attorney who is supposed to be advising from a legal perspective.

Here is just one example:

There is an ordinance in Davidson which purports to prohibit the docking of boats with more than 10 hp overnight at a Davidson pier. Some Davidson leaders wanted to keep Lake Davidson as passive as possible, and Mr. Kline came up with this "docking" strategy on the basis that Davidson has to issue a building permit for any dock being built in Davidson (Duke Energy first has to approve and permit any dock on Lake Davidson). But that is fuzzy thinking. The NC Wildlife Resource Commission has state-wide jurisdiction over the lakes, and has delegated some of its authority locally to the Lake Norman Marine Commission (LNMC). Together with Duke Energy, these entities have ALL the authority over what happens on Lake Davidson. But Mr. Kline erroneously told the Town Board that it could make an inter-local agreement with Mooresville (which has most of the rest of the shoreline of Lake Davidson) and try to ban boats with more than 10 hp. Many hours of town officials' and commissioners' time was spent on this issue, along with an unknown amount of money, for no good reason as the towns had no legal basis for acting. It is a lawyer's responsibility to tell her/his client the truth about the legality of proposed initiatives, which sometimes means saying "NO." Going along and telling the Town of Davidson what some town officials may have wanted to hear did not serve those officials nor the public. 

Davidson may be too small to need a full-time town attorney, but that doesn't mean it needs to employ an attorney who is in private practice which may create (as here) conflicts of interest. Other small towns in the area solve this problem by jointly retaining a town lawyer, which enables this lawyer to devote her/his practice exclusively to the representation of the municipalities. In the most recently publicized controversy regarding Mr. Kline and River Run, this situation would never have arisen had Mr. Kline not advised the River Run board, which then resulted in a conflict with his advising the Davidson Town Board on the same matter."

These were posted on Facebook regarding the agenda for the upcoming Davidson Board meeting.  They are reprinted here with her permission.

As Commissioners continue discussions on the town attorney position, they would do well to consider what Ms Pearson has to say.  We need a town attorney who will tell the board "no" when needed rather than trying to find a loophole to accomplish something that will likely wind the Town up in court - something that happens all too often here in Davidson.

Per the town clerk, no previous detailed contract with the Town Attorney is in place saying "there is no other agreements/engagement letters in writing" - meaning they've been working without a net for quite some time since Rick Kline has been in that position for 39 years.

After nearly 4 decades, let's hope they get it right.

Is there a River Run phase six?

That’s effectively the question being asked by a letter received by the town on June 13th from an attorney with the Hedrick Gardner law firm in Charlotte.  Writing on behalf of the River Run Courtyard Association – a sub-association of the larger River Run neighborhood – the firm raises several questions about some proposed new lots in the River Run area of Davidson.

In a column in early April, it was mentioned that the River Run Country Club wants to convert some of its golf course property to residential lots.  If successful, these sales would bring in several hundred thousand dollars to the club.

There have been several questions about the buildability of the land because it is significantly impacted by current flood plane lines.  However, beyond just the environmental questions homeowners have been questioning whether subdivision of these lots follows current town ordinances and procedures.

The Club has been pursuing an administrative approval from the Davidson Planning department to plat the lots for sale.  The neighborhood association letter contends that the development of new lots in the proposed part of the neighborhood should not be allowed under the ordinance which brought River Run into the town back in 1992.

If anything it would appear that this should be approached as more of a new development involving a change of use from golf course to residential and approval from the town board itself – not an administrative change.

The association’s attorney sums it up by saying “the River Run Country Club’s request to plat lots on Wildcat Trail and River Crossing Blvd. is a violation of town ordinances and not substantiated by fact, or the record. The Association strongly urges the town to reject the River Run Country Club’s request.”

All of that may seem like rather mundane land development back and forth.  However, that is not the most interesting part of the letter.  The association’s attorney closes with this.

“Should the town believe that further legal opinion is necessary; the Association asks that such opinion be obtained from an outside council. Town attorney Rick Kline, is as a founding member of River Run Country Club and has advised the Country Club on this matter. Furthermore, his long tenure as the council of record for River Run Limited Partnership, and thus, his probable involvement in drafting documents for both the Partnership and the Town, that are a part of the record, makes obtaining an outside opinion the only legitimate way to insure that the rendered opinion is unbiased and without even the appearance of impropriety.”

Ouch!

For those keeping score, this is now the second time in recent months that a homeowners’ association in Davidson is officially questioning the town attorney’s role in land development in town.  The first was by the Bradford neighborhood at the end of last year for Mr Kline's role representing that neighborhood’s developer.  In that instance, Mr Kline was asked to get an opinion from the State Bar on his involvement.  As of this writing, the neighborhood has not heard back on the outcome of that request.

Based on reviewing public record emails, when Mayor John Woods saw the letter from the attorney in the current River Run Club situation, he quickly came to Mr Kline's defense.

However, that defense was roundly refuted by the HOA with several examples of Mr Kline's involvement.  These examples took place over several months and include references involving senior town staff, the Planning Department, and regular citizens.

One of those references refuting the mayor’s defense is very direct.

In early October the club’s developer sent an email to a River Run resident concerned by the lot proposal, stating, “A Club member and attorney, Rick Klein has been kind enough to participate in the plat recording process to be assured that the plats correctly reflect all these restrictions.”

In another instance the town attorney’s advice to staff  that these lots would be “grandfathered” under the original zoning for the neighborhood was actually refuted by the town manager, Leamon Brice.

Based on speaking with people familiar with the situation and reviewing the public record, multiple attorneys have reviewed this proposal as well as other planning professionals and even the UNC school of government has been contacted.  Nobody appears to think these lots should be approved without a much more involved process.

Davidson’s town attorney has been with the town for nearly four decades.  He’s also been in private practice as a real-estate attorney during that time.  After seeing the recent repeated examples where things become a bit too gray between those two jobs, it may be time for the Town Board to ask him to choose which one he would rather do.

This post first appeared in the Harold Weekly opinion section at huntersvilleHerald.com

Time to (re)appoint? Davidson's town attorney?

A few weeks ago Davidson’s Town Manager, Leamon Brice, announced his intent to retire later this year after 25 years of service to the town.

Twenty five years is a long time.  However, there is another official who works for Davidson who has a much longer tenure.  That would be Davidson’s Town Attorney, Rick Kline.  Kline has been in that position nearly 39 years.

Like the town manager, the town attorney actually actually works “at the pleasure of the Board” – meaning this position reports to the Board – not the town manager as some may think.  By statute, the position of town attorney is appointed and does not have to be reappointed after each election.  Appointments by a previous board are considered to be continuous – unless revoked.

That makes a lot of sense when the attorney is also a town employee.  For example, Mooresville's town attorney is full-time.  Cornelius’s town attorney actually serves in that role for both Cornelius and Belmont.  These town attorneys do not operate in a private practice, so it doesn't necessarily make sense to re-appoint in that situation.

However, that is not the case in Davidson.  Like in many other small towns Davidson’s town attorney is also a private attorney appointed to handle the Board’s legal questions.  That means the attorney for the Town of Davidson also operates in private practice.  In Mr Kline's case, he is an active real-estate attorney.

Recently, this arrangement has resulted in a a couple of eyebrow raising situations.

Readers may remember late last year a story regarding the Bradford neighborhood in Davidson.  At the public hearings for the town’s proposed planning ordinance re-write, Bradford’s HOA President delivered some lengthy remarks regarding long-running issues with the town and the developer – including direct reference to the town attorney wearing multiple hats while also serving as the developer’s private attorney.

In the interest of transparency, readers should know I am a Bradford resident and former president of the HOA myself, so I am intimately familiar with some of the concerns the neighborhood has with this setup.

In response to follow-up questions after these hearings, the Town Manager responded about Kline's dual roles.  After indicating that Kline had always communicated to the developer that he could not be involved with issues related to the town, he went on to say the Davidson Board had asked Kline to contact the State Bar for an opinion on the “propriety of his representation” of both the developer and the town.

That was at the beginning of last month.  As of this writing, the Board still has not heard the results of that request.  Making the results of this request public is being left up to Kline.

In another ongoing matter, the town attorney once again sits the middle of an uncomfortably close situation.

At the end of the February Board meeting, Commissioner Stacey Anderson asked about some proposed new lots in the River Run neighborhood being offered by the River Run Country Club.
Mr Kline has long served as an attorney for the overall River Run developer – an entity called River Run Limited Partnership.  He is also a long-time member of the country club which is the totally separate entity trying to sell the lots.  Multiple records requests show that there has been considerable discussion about the buildability of the lots due to floodplain and other issues with Mr Kline sometimes acting on behalf of the town in a roll more suitable to the Planning Department than the town attorney.

The Town’s position is to not want building in the floodplain, but to say the least, having someone involved with this many apparent competing interests while representing the town certainly muddies the waters.

So, why bring up these issues now?

First, the Town Board is beginning next year’s budget process.  If the Board was to decide to make a change, now is the time to do it.  Furthermore, with the above issues continuing to play out over the coming months, it would be good if the Board took steps to clarify its support (or lack thereof) for the status quo.

At this point, Davidson's Board could do any of the following:

• Officially reappoint Mr Kline as a vote of confidence.  While not required by law, according to the UNC School of Government it is something that certainly can be done.
• The Board could decide it is finally time to remove even the appearance of any conflicts of interest and begin the process of looking for a new town attorney.
• Do nothing.

Unfortunately, when the status quo brings this many headaches along with it. Doing nothing, is not really an option at all.

This story first appeared in the Herald Weekly.

Green School and Town of Davidson "Win" in Court...justice and fairness lose

Once again, the Town of Davidson's aggressive approach surrounding all things planning oriented has landed the Town in court.  This time the Town "won", but it is impossible to say that justice was served.

Readers may remember the Board of Adjustment hearing back in October regarding the new Green School in Davidson.  The hearing covered challenges to administrative approval for the school from the Davidson Planning Department.  In that hearing the Board of Adjustment sided 3-2 with the Green School administrators over long-time local resident, John Burgess.

Mr. Burgess is a member of the Town's Design Review Board and has detailed knowledge about the town's planning ordinance.  He's not one to raise issues lightly or without doing the proper homework.  After what was certainly a divided opinion on the Board of Adjustment, the issue proceeded to Mecklenburg Superior Court back on January 28th.

Some details still need to be verified, but after what appears to have been stalling tactics by the Green School's attorneys and Town Attorney, Rick Kline, the case was finally decided today.  The case was stalled because multiple motions to dismiss were filed - dragging out the case for several weeks.

The first motion to dismiss claimed a lack of standing on the part of Mr. Burgess to bring the case.  That one was denied last week.

The second motion to dismiss claimed that instead of suing the Board of Adjustment, the suit should have been brought against the Town of Davidson itself.  It may seem odd to have a defense team that included Davidson's own Town Attorney, Rick Kline, actually trying to have one part of the "town" sued instead of another part of the "town".  However, that motion was granted.  Very conveniently, it is now too late to actually add the Town of Davidson to the lawsuit because too much time has elapsed.  In reality, that motion appears to have been nothing but a move to run out the clock and not have the case decided on its merits.

Here's the thing...

Winning a case on a technicality does not serve the interests of justice.  This issue may be over, and the Green School appears to have survived.  However, it is now pretty clear that something is rotten in Town Hall when it comes to these types of planning decisions and that the Town is willing to go to any length to defend them.  This isn't the first time the town has landed itself in court - wasting taxpayer money in the process.

It's one thing for the Green School to do what it can in attempts to get the facility it wants in the location it wants.  They are a private entity, and in a sense this is just business.  It's another thing entirely for the Town government itself to jump through hoops and bend rules to help one group achieve its goals over the rights of others.

That's not how government is supposed to work, and the Town should be ashamed of itself.

Will we see any actions at Town Hall to remedy this type of situation?  Not likely.  It's much more likely to see a circling of the wagons and a continuation of business as usual.  One can even expect a little gloating over this "victory".

Regardless of today's ruling, Mr. Burgess should be commended and congratulated on standing up for what he thought was right.  That doesn't always work out, and today was unfortunately one of those days.

However, people have to continue standing up if things are to change for the better in the pursuit of transparent government.

There is obviously much work to do.

Update:  After hearing back from DNN regarding this post, we understand that they will be looking into this story.  Please be on the lookout at DavidsonNews.net for more info.