Yesterday, I posted a story detailing the two-year drama surrounding our public defender’s office in Cumberland County.

Today, Chief Resident Superior Court Judge, Jim Ammons, issued an Order installing Cynthia Black as “acting public defender” until a permanent choice can be made. You can read the full Order here:

According to Ammons, he doesn’t have a full list of names from which to make a permanent selection:

This is odd, because Bernie Condlin told the Fayetteville Observer a month ago that he was not withdrawing his name from consideration for another appointment:

Condlin said he has not withdrawn his name as a nominee for the job, and if Ammons were to choose him, he would have to consider then whether to accept.

Edit (3-7-19): I spoke with Condlin on March 7, the day after this post went live. Condlin again confirmed that he has not withdrawn his name from consideration.

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More Gridlock Expected

Where do we go from here? Probably nowhere:

The current statute governing appointments applies:

The attorneys of Cumberland County voted in October of 2017, fulfilling the requirements of (b)(1). David Smith and Condlin were nominated, and Condlin says he hasn’t withdrawn his name from consideration despite resigning from his “holdover” position.

Ammons seems to disagree, saying in his order that “one nominee remains.” If Ammons gets his way, the local bar will need to vote again and make at least two new recommendations. If the local bar refuses to make new nominations, Ammons will likely stand his ground and refuse to make a permanent appointment.

In addition, the requirements of (b)(2) need to happen: The Administrative Officer of the Courts needs to give Ammons a name. Why this hasn’t happened by now is beyond me. Perhaps Ammons and the Administrative Officer can’t agree on who it should be?

Until this is sorted out, Cumberland County will continue to have a public defender that was not chosen under North Carolina law. This is unfair to the citizens of this county. It’s worse for the attorneys in the public defender’s office that provide the constitutionally-guaranteed right to counsel to those who can’t afford it. They deserve a leader.

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Important Update

A few hours after this post went live, I was provided with a copy of this document:

The Director of the Administrative Office of the Courts nominated David Smith on February 14, fulfilling the statutory requirement. Note that this information is absent from Judge Ammons’ Order, filed today.

Judge Ammons has ignored the recommendation of both the Cumberland County Bar and the AOC Director. Instead, he appointed a placeholder and asked for new nominations. Whether the bar will give him what he wants is the story moving forward.

“If you don’t like how the table is set, turn over the table.”

– Frank Underwood

Cumberland County is currently without a Public Defender.  For reasons known only to him, Chief Resident Superior Court Judge, Jim Ammons has failed to exercise his right under North Carolina law to appoint a person to fill the position.

When we look back at how we got here, we’re faced with an intriguing story of courthouse power and politics:

Background

Judge Ammons appointed Bernie Condlin to the Public Defender position in January of 2014.    The length of Condlin’s term of office was four years.

In 2017, lawyers in Cumberland County gathered at the courthouse, took nominations, and voted on their recommendations for the upcoming term.  David Smith, an assistant Public Defender, beat Condlin by a razor-thin margin, but the Cumberland County Bar’s decision was not binding on Ammons. He had the right under North Carolina law to choose to appoint either of the top two vote-getters.

Ammons failed to appoint Smith or Condlin to the position. Instead, he left Condlin in place throughout 2018 in “holdover” status.  Smith continued his career as an assistant, working under Condlin.

Law Changes

To add to the confusion, the law governing appointments was changed in June of 2018, giving the Administrative Officer of the Courts (of North Carolina) the power to nominate a person to be considered for the position.  Here’s the session law.  The underlined portions were added and the crossed out portions were deleted from the books:

So it would seem that once the law went into effect in June, the Administrative Officer needed to “submit a name,” and then Ammons needed to choose from the “list” of:

1. Smith or Condlin; or
2. The AOC submission.

Neither happened, and the issue dragged into 2019.

Condlin Resigns in February, New Names “Floated”

Condlin, apparently fed up with being in professional limbo as a “holdover,” resigned in February, saying he would be going back into private practice:

“I don’t know if I’m out of job in a day, a month, or a year,” Condlin said.

For the past several weeks, Cumberland County has been without a public defender.  The rumor mill has started, as it tends to do at the courthouse, and other names have been floated for the position, including Gerald Beaver and former District Court Judge Tal Baggett.

The problem is that a “new” person would have to be “submitted” by the Officer of the Courts to enable an Ammons appointment. That hasn’t happened. Instead, when questioned by the Fayetteville Observer, the Chief Officer said he was “unaware” until contacted by the paper that Condlin was in “holdover status.” 

Failure to Act

Judge Ammons holds all the cards here, and he’s failed to play a hand. He had ample time to choose between Condlin and Smith prior to June 2018, but failed to do so. It makes no sense to guess his reasons, but it’s a safe assumption that he didn’t want either of them. In that case, a simple phone call to Raleigh, telling the Administrative Officer to submit another name (to his liking) could have been sufficient.

Instead, we’re left with a breakdown that is unacceptable under the plain language of the North Carolina Statutes. The law is clear that the Chief Resident “shall” make the appointment and that is “required.”

As it stands, 15 lawyers, six support staff and two investigators are without a boss, and another important office is void of a leader.

Note:  This post is a personal theory based on circumstantial evidence.  I hope it starts a conversation that needs to be had.  Now on with the show…

Synthetic TIFs and Baseball

Fayetteville is borrowing money to to build our new baseball stadium.  We’re using a “TIF” to pay back the money.  If you’re wondering what that is, here’s an explanation:

What is a Project Development Financing/TIF?

A project development financing (hereinafter referred to as TIF) is a type of debt financing in which a local government establishes a district and borrows monies to fund public infrastructure projects that will benefit (and incentivize) new private development in the district. The unit pledges as security for the loan (and uses as funds to repay the loan) the incremental increase in property tax revenue generated within the district due to the increase in property valuation caused by the new development.

Fayetteville has gone all-in with this TIF thing.  The idea is that economic growth surrounding the stadium will pay for the stadium in the long run, without increasing taxes on Fayetteville residents.  Here’s City Manager Doug Hewett explaining how the parking garage, hotel and office tower under construction next to the stadium will “provide revenue to fuel the synthentic TIF.”

As you can see, Fayetteville needs private development and the increased tax base that comes with it to finance the stadium.   

Problem

The stadium is at least $7 million over budget.

It was projected to cost $33 million.  Unsurprising to anyone who’s ever paid a contractor to build anything, the cost has grown to over $40 million.  City officials are doing their best to encourage you to look the other way:

(Assistant City Manager Kristoff) Bauer said he does not anticipate that the extra costs will require a property tax increase. Bauer said revenues to pay off the bonds are coming from sources such as ticket sales, renting out the stadium, and tax district in downtown where any revenue from rising property values will go toward the stadium debt.

“We’re seeing it happen faster and at a higher value that we expected,” he said.

The city took out limited-obligation bonds to fund the stadium’s construction. Cumberland County is pitching in as well, contributing revenue from downtown property taxes.

There are two possibilities:

1. Bauer is correct and property values are increasing at a higher rate than “expected.”

Or, 2. The City needs to find more money.

My money’s on 2.

The additional $7+ million needed to construct the stadium will have to come from a source not contemplated in the city’s original projections.

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Likely Outcome

Lately, there have been rumblings in local press and radio of City Hall being sold along with the police station next to it.  The justification is that these buildings are now sitting on “prime real estate” thanks to downtown development.

Let me point out that I think that’s an absurd reason to sell a public building.  City Halls are supposed to sit on prime real estate, and they do in most of the cities I’ve been to.

Moreover, Fayetteville’s City Hall and police station are relatively new and modern.  Why waste these buildings and incur the cost of new land and construction???

It’s very simple:  City leaders have put a great deal of political capital into the stadium and the downtown development project.  They can’t afford to let it fail.

And so, City Hall and the police station will be sold to a private developer.  The real estate will be added to the downtown development district where it will “provide revenue to fuel the synthetic TIF,” as Mr. Hewett would say.

And so, we’re selling City Hall to play ball.