AGENDA #5c(1)
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TO: |
Mayor and Town Council |
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FROM: |
Ralph D. Karpinos, Town Attorney |
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SUBJECT: |
Report in Response to Citizen Petition Asking Council to Adopt Resolution to “Redress Some of the Harm Caused by the Arrest and Imprisonment of Sima Fallahi” |
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DATE: |
April 11, 2007 |
The purpose of this report is to discuss the legal implications of a citizen petition asking the Council to adopt a resolution to redress harm caused by the arrest and imprisonment of Sima Fallahi.
On February 26, 2007, Margaret Misch, a resident of Carrboro identifying herself as a member of the Orange County Bill of Rights Defense Committee, presented a petition to the Chapel Hill Town Council. The petition was in the form of a Resolution that Ms. Misch asked the Council to adopt. Attachment 1 is a copy of the petition. The petition was referred to the Manager and Attorney for comment prior to further consideration by the Town Council.
This petition from Ms. Misch asks the Council to adopt a resolution which would have the Council resolve:
“To make a significant contribution to the legal costs incurred in providing effective legal counsel to Sima Fallahi in her effort to reopen her case and seek political asylum in the United States.”
Presumably, if the Council were to act as requested by the petitioner and adopt the proposed resolution, the next steps would be for the Council:
to determine what would constitute a “significant contribution”;
to determine how and to whom the contribution should be made; and,
to make the contribution for the purpose indicated by the resolution.
Under North Carolina constitutional law, expenditures of public money must be for a public purpose. Please see the attached excerpt from Local Government Finance in North Carolina, 2nd Edition, (Lawrence, UNC School of Government 1990) for a general discussion of this topic. (Attachment 2)
Article V, Sect 2 (1) of the North Carolina Constitution states:
Power of taxation. The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended, or contracted away.
As noted in the Lawrence excerpt, our State Supreme Court has stated that in order for a use to be public, its benefits must be in common and not for particular persons. In this case, the Town is being asked to make a voluntary contribution of moneys for the express purpose of directly benefiting a single private individual person.
As a voluntary contribution of money, in my opinion, this expenditure would not constitute a proper public purpose under North Carolina law and could be subject to legal challenge on this basis. The summary provided in the Lawrence excerpt, the cases cited therein, as well as other North Carolina case law, is the basis for this opinion.
If the Court were to conclude that an expenditure is not for a public purpose, the remedy could include a requirement that the moneys be paid back to the Town government.
As an alternative to the Town making this voluntary contribution, individual citizens of Chapel Hill could be encouraged to voluntarily make contributions to a fund established to provide Ms. Fallahi assistance with her legal expenses.
A process is in place to consider and respond to claims against the Town arising out of an alleged wrongful action taken by the Town or alleged wrongful failure by the Town to take action where some harm is suffered by a person or the person faces monetary loss. A person who believes he or she has such a claim may submit it to the Town Finance Department. In order for this particular claim to be considered it would need to be submitted by Ms. Fallahi herself or a representative with the authority to do so on her behalf.
Under the Town’s procedures for handling claims, the claim would be forwarded to the Town’s Insurance Program, the Interlocal Risk Financing Fund of North Carolina (IRFFNC), an agency of the North Carolina League of Municipalities. The facts and the claim would be reviewed by this office and by IRFFNC to determine if there is a basis for the Town having any legal liability and to determine if, under the terms of the Town’s insurance policies, the claim is covered under our insurance program.
Under the terms of our liability coverage with IRFFNC, IRFFNC has the contractual right and duty to defend any suit seeking damages covered by the policy and may investigate and settle any claim or suit at its discretion.
A person who files a claim and is dissatisfied with the results may pursue the matter in the courts. If the courts were to determine that there is a legal basis for any claim brought by Ms. Fallahi against the Town, there could then be a legal basis for the Town making a payment in order to satisfy that claim.
That the Council take no further action regarding this petition.