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Wednesday, 09 April 2014 13:57

County oversteps its authority

Written by 

To the Editor:

The Haywood County Emergency Management Ordinance was signed into effect Nov. 16, 2009, by J.W. “Kirk” Kirkpatrick, then chairman of the board of county commissioners, from a motion made by Mark Swanger (the present chairman) and seconded by Commissioner Kevin Ensley. It appears that very few people know about this ordinance, and even fewer are aware of the fact that their commissioners are signing away their rights.  

The Emergency Management Ordinance for Haywood County is part of a larger state and national scheme to protect citizens during a state of emergency. Outside of the debate on whether we actually need an emergency management scheme here in the county or not, there are a few very alarming parts of the ordinance, which should cause every innocent citizen concern.

In my view, the most important part is statute 31.07, sections 1-4, which state that the county manager, under the auspices of the board of commissioners, can do whatever it takes to make sure that the public complies with all emergency management measures. He/she can fire any public official who refuses to obey his/her will and can control all movement within the county, including the method of transportation, as well as the entrances and exits of the county. He/she can also determine where people may stay during an emergency, in what numbers, and control all “materials” and “resources” including — but not limited to — your food, clothing, home, fuel, income, etc., and can ration these at his/her discretion. One wonders what else could be considered a county “resource”? Your car? Your guns? I find it upsetting that while 31.03 defines the terms used throughout the document, what is meant by the terms “materials” and “resources” is left undefined at any point.

Perhaps the most alarming part of this entire document is section j, which states that the county manager has the authority during a state of emergency to take by any means, including “seizure” and “condemnation,” “materials and facilities” for said emergency “without regard to the limitation of any existing law.” This statement seeks to override the constitutions of both the U.S. and N.C. and gives the county the power to condemn its citizens in order to seize their “materials.” 

While this is clearly not ethical, it is also not legal, as it violates the Fourth Amendment to the U.S. Constitution, which protects citizens against property seizure, as well as Article I:5 of the state Constitution, which states that no law or ordinance can be contrary to the Constitution of the US. What’s more, in the case of a hazardous material spill, §31.08 gives the Haywood County Emergency Management Director the authority to “enter public or private property, with or without the owner’s consent”, again violating the Fourth Amendment, and §31.10 states that any official acting with regard to this ordinance during an emergency cannot be held liable for any damages to a person or their property.

I wonder: if the government’s role, as established by the constitution of the US, is to protect the rights and property of its citizens, then why in the world are our elected officials signing away our rights? Serious reconsideration needs to be taken with this ordinance. While some citizens may think these measures necessary during an emergency, surely something as sweeping as this needs to go to referendum before our rights are threatened without our knowledge.

Again, I refer to the state constitution of North Carolina, Article I:9, which states that it cannot be amended outside of the electoral process. Therefore, I suggest that our county officials become more comfortable with the referenda process before becoming so comfortable with unconstitutional executive orders. (To read the ordinance yourself, and draw your own conclusions, see haywoodnc.net/ordinances. To compare with the N.C. Constitution, see www.ncconstitution.com.

Windy McKinney

Jonathan Valley

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