Saturday, October 22, 2016

How important is a single word?

Very, says one attorney, if it’s in a bond question on a ballot
By Roger McCredie

“Shallvb.  Used in laws, regulations or directives to express what is mandatory

“May, vb … have permission to … be in some degree likely to … have liberty to”
Webster’s Seventh New Collegiate Dictionary

One verb is imperative, one is conditional.  And the difference is enough to have caught retired Asheville attorney Sidney Bach’s attention when he read the public notice of the November 8 bond referendum, and then read the wording of the bond question on the actual ballot.

City Published Notice
The law (in this case NCGS 159-61) requires that matters to be voted on by public referendum must be published, in print, in advance of the vote.  Hence, the city’s orders for the proposed issue of each of three general obligation bonds, to be voted on November 8, appeared in the Asheville Citizen-Times on October 10.  

The order for each bond, as published, concludes:

“A tax sufficient to pay the principal of and interest on said bonds
shall be annually levied and collected.”

Voting Ballot Question
But on the official ballot itself, each bond question, which begins, “Shall the order authorizing [followed by a description of the bond’s purposes], and concludes,

“providing that additional taxesmay be levied in an amount sufficient to pay
the principal of and interest on the bonds, be approved?”

“Shall be annually levied and collected” on the previously published notice.  “May be levied” on the ballot voters will actually fill out.

The difference in wording was significant enough to send Bach to his own attorney, Albert Sneed, who in turn fired off a letter to Buncombe County Board of Elections Director Trena Parker.

On October 13, a week before early voting was due to start, Sneed wrote to Parker, “The form of the question on the ballot should reflect the mandatory nature of the bond order and notice published by the city, but it merely states that ‘additional taxes may be levied … My client [Bach] wants to call this to your attention in time for the ballot to be changed, as we believe it is a defect in the way the question is framed.”

According to Bach, the Board of Elections responded that they had consulted with Parker, Poe, Adams & Bernstein, the city’s outside bond lawyers.  “They said Parker, Poe had framed questions this way dozens of times, with no problems,” he said.

“The reason I’m harping on this,” Bach said, “is that it detracts from getting a meaningful vote.  The wording of a bond question that’s to be voted on has to be as precise as possible.  When you have a verb that in effect changes the whole meaning of the question, that’s an important word.”

While there has been extensive discussion about exactly how many additional dollars the  adoption of the bonds would add to city tax bills, it has been unilaterally accepted that some tax increase will result.  

But Bach maintains that a wobbly statement of the bond question could lead some voters to shrug and vote in favor of the bonds, thinking that additional taxation “might or might not happen.”

“When’s the last time you read a legal notice?” Bach asked.  “But people are going to have that ballot in their hands and they will read it.  “And some of them are going to say, ‘Well, they may raise taxes and they may not.  Let’s roll the dice.’  And they’ll vote yes.”

I’m not saying there’s been deliberate, premeditated misrepresentation” as part of a pro-bond strategy, Bach said, “or even a tendency to want to soften the language a little.  But the question is one of competence.

“If they’re not competent enough to make their public notice and their ballot question agree, do we want to trust them with $74 million?” he asked.
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