Minutes 04-17-2018 - Laserfiche WebLink

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13 there is a controversial issue; but in larger governments, county attorneys almost always attend. He said some larger jurisdictions hire outside counsel to represent the BOA, especially if the county attorney is an active participant in the hearing on behalf of the staff whose decision is being appealed. He said it would be unethical for the county attorney to advise the BOA and represent the staff at the same time. He said Raleigh and Charlotte tend to have outside counsel for the BOA all of the time. He said another variation that is sometimes used in larger jurisdictions, is when there are multiple members of the city or county attorney staff, and they will split up the duties, with one attorney advising the BOA, and another advising the staff if necessary. Chair Dorosin referred to the scenario where the attorney wears multiple hats, and asked if this can occur in all three of the matters typically heard by BOAs, or is it more often with appeals. David Owens said it happens most often if there is a question of interpretation; where someone has applied for a variance or a SUP. He said in many jurisdictions staff does not take a position, so the attorney is generally working with the BOA, since he is not working with staff. He said the appeals are different because sometimes staff makes a determination without consulting the attorney. He said staff can ask an attorney to interpret laws, as can the BOA. He said when additional counsel is hired, it is typically due to workload, as opposed to conflict of interest. PUBLIC COMMENT Laura Streitfeld said she is here with Preserve Rural Orange, and thanked the BOCC for adding this item to the agenda. She said she brought this request to the Board of County Commissioners so as to look at the role of the BOA; access to public records; recording of BOA meetings; and for considering the bona fide farm use as a priority with the legislative delegation. She asked the BOCC to consider if using outside counsel would be appropriate when the County Attorney is directly involved in the decision making process. She said the bona fide farm item is of particular interest, and there are three properties in the County operating event centers, while claiming bona fide farm use. She said there has been legislation, since the BOCC prioritized this item last year, but the way that item #24 is worded really lays out the question of whether the primary use should be agriculture, with marketing and agritourism as secondary uses, in order to claim exemptions from zoning. Commissioner Rich said Professor Owens spoke of outside counsel being necessary due to high caseloads, and asked John Roberts if he knows the number of cases in Orange County on a yearly basis. John Roberts said the BOA meets 6-8 times per year, with usually one or two cases per meeting. He said Orange County does not have nearly the caseload of larger entities. Commissioner Rich clarified that there are 10-12 cases per year. John Roberts said there was a slow down during the recession, but that is about average. Commissioner McKee said he has previously advocated for independent counsel for the BOA, and his concern is not impropriety of staff or counsel, but rather it is one of perception. He said having in house counsel can give the perception that the County Attorney is covering the County’s position. He said he supports outside counsel, and does not think this would be a funding issue due to their being a small number of cases. Commissioner Price asked if a staff attorney is present at all BOA meetings. John Roberts said Staff Attorney James Bryan attends all BOA Meetings, and he does not advocate on behalf of staff at the BOA meetings. He said the attorney can answer a planning staff question before it makes its way to the BOA, but the attorney does not advocate