A federal magistrate’s recommendation that limits prayer before government meetings in Forsyth County has touched off a fiery debate across the state over the long-entrenched practice.

In early November, Magistrate Judge Trevor Sharp determined that Forsyth County commissioners failed to remain religiously neutral. Even though they invited outside clergy of different denominations to deliver invocations before meetings, their prayers overwhelmingly referred to Jesus Christ, Savior or the Trinity. Such invocations “display a preference for Christianity over other religions by the government,” Sharp wrote.

The lawsuit was filed on behalf of two longtime residents of Forsyth County who said they felt coerced to stand for the prayer, alienated as county residents, and less inclined to attend county meetings.

A formal judge’s ruling is still pending, but it is widely held the magistrate’s recommendation will prevail. Forsyth County has already filed an objection and it is unclear how far an appeal might go. A decision is still pending. Precedents barring references to Christ at government meetings in the state are already on the books, however, according to a ruling by the Fourth Circuit Court of Appeals in 2004 that originated in South Carolina. There, a citizen sued his town board for praying specifically to Jesus Chirst during the invocations and won.

Repercussions

After Sharp’s recommendation came to light, Buncombe County commissioners toyed with the idea of replacing their invocations with a moment of silence. Following a backlash from some county residents, the commissioners decided to keep their system of rotating clergy in place until the Forsyth case is decided.

While each county attorney has the responsibility of advising individual boards on prayer, Jim Blackburn, general counsel for the North Carolina Association of County Commissioners, advises commissioners to track down a court decision that defends their particular type of prayer.

Blackburn said it is far from unusual for county commissioners in North Carolina to conduct prayers at meetings, but the NCACC has not yet had much discussion on the practice. With the Forsyth case striking a chord for many commissioners, that’s likely to change.

“I expect we will [discuss prayer] at various meetings in the rest of winter and spring,” said Blackburn. “I do know there are people on boards of commissioners who feel strongly they ought to be able to do them.”

Interesting nuances

With a wealth of court battles waged over public prayers producing varied results, there’s bound to be some uncertainty each time the controversial topic resurfaces.

First Amendment and Constitutional scholars have debated the issue for a hundred years, and entire law school textbooks have been devoted to the subject, according to Blackburn.

“It’s an argument that’s been going on for a long, long time,” said Blackburn.

While the First Congress held a prayer before its sessions, the Constitution plainly states that the government can never establish an official religion.

“There’s just a logical disconnect,” said Janet Ford, a Western Carolina University professor who teaches a course on civil rights.

In 1983, Supreme Court upheld opening legislative sessions with generic prayers in Marsh v. Chambers. But more recently, Supreme Court justices have grown stringent about allowing prayers in public settings, especially in schools.

Justices seem to have drawn a distinction between prayer at schools and those at government meetings, according to Collins.

For example, even school prayers that are voluntary and nondenominational have been stricken down.

The Supreme Court rejected the state of Alabama’s institution of a moment of silence for personal reflection and prayer in all elementary schools.

According to Collins, the justices are strict about prayer in school because the setting is somewhat unique.

“Children are more impressionable. They can’t just get up and leave,” Collins said.

While prayers that children encounter in school every day receive high publicity, county meetings often have sparse attendance, allowing their prayers to land further off the radar.

Local government officials are usually unaware of the law or decide to break it anyway because they feel supported in their crusade by voters, Collins said.

Until they are legally challenged, local officials can continue flagrantly violating the law, thereby drawing attention to the limits of the judicial branch’s reach.

It would be difficult to change the status quo if most voters and commissioners accepted Christian prayers before government meetings, Collins added.

“For the elected officials, it may actually be a campaign point,” said Collins. “They may actually gain votes this way.”

Katy Parker, legal director for the American Civil Liberties Union of North Carolina, said most county and city attorneys agree with the ACLU, but they are unable to force their commissioners or city council members to follow the law.

Parker advises commissioners to consider that their taxpayers would be likely to foot the bill should a lawsuit arise. In the Forsyth case, which Parker is prosecuting, ACLU has already spent in excess of $100,000.

What is allowed?

While courts throughout the country have differed wildly in their judgments on prayers, Collins said as a guideline, a generic reference to God will more likely be allowed than any words confessing a particular faith. Words like “Heavenly Father” and “Lord” tend to be acceptable at public meetings, but uttering “Jesus” is usually the ticket to a lost lawsuit.

Parker said it’s hardly ever a close call with the cases she handles.

“It’s Jesus, Jesus, Jesus all throughout the prayer,” said Parker.

The majority opinion in Marsh v. Chambers ruled that there was a historical precedence for prayer before legislative sessions. Prayers also serve to “solemnize” the occasion.

The opinion amusingly adds that legislators need all the help they can get, Parker said.

While prayers are held before sessions of the U.S. Congress, it would take a U.S. Senator or Congressman’s challenge to change policy at that level.

ACLU would not complain against a specific county unless a resident who attends meetings and is bothered by prayers contacts the organization.

“We need to hear from somebody in the community who feels harmed before we’re going to take our time and resources and get involved,” said Parker. “Whether the ACLU contacts them or not, they swore to uphold the Constitution, and they should do it.”

Other quandaries

Some religious symbols, such as a Christmas trees, have become so routine and ceremonial that they have shed their religious symbolism in the public’s eye.

“We see it so often, it’s not thought of as necessarily endorsing religion,” said Todd Collins, professor of public law at Western Carolina University.

Courts have also upheld engraving “In God We Trust” on all coins and currency, arguing that it does not endorse religion.

Collins said this particular usage of that phrase has become a part of tradition and seems to hold little meaning for many who regularly see it on currency.

They haven’t gone quietly, and they haven’t gone quickly, but Christians are losing the battle over prayer in public life.

Courts have banned public displays of the Ten Commandments in a religious context. School prayer has been demoted to a moment of silence. Prayers are no longer trumpeted from loudspeakers at the start of high school football games. Nativity scenes that once adorned courthouse lawns at Christmas have been supplanted by generic displays of candy canes. The nonsectarian rallying cry even threatened to restore the Pledge of Allegiance to its original version by stripping the words “under God.”

But in Western North Carolina, one vestige of religion in the public sphere still stands strong. Christian prayers before government meetings continue to thrive in Haywood, Macon and Swain counties.

Federal court precedent already on the books stipulates that commissioners avoid references to Jesus Christ in their prayers at meetings, and a pending ruling in a Forsyth County case (see “Latest prayer case rekindles controversy”) would strengthen that requirement. The controversial court case has ignited a passionate philosophical debate.

Minority rights

Swain County Commissioner David Monteith doesn’t see how it is possible to pray to God but not Jesus.

“That is a bunch of baloney,” Monteith said.

Monteith feels strongly that his prayers would be compromised if he could not offer them in Jesus’s name.

“If a man put a gun to my head and said I cannot say a prayer and worship Jesus Christ, I would say go ahead and pull the trigger,” Monteith said.

Those of other faiths say they are excluded when prayers are cemented in Christ’s name, however. Zvi Altman, a spiritual leader at Mountain Synagogue in Franklin, said he is sensitive to that whenever he leads a public prayer.

“When I offer a public invocation, I am mindful that I am praying on behalf of the entire community, and not just for myself or my faith community,” said Altman.

Altman said he purposely avoids language that excludes people from those prayers or implies that solely his religion is valid.

“Only Christians pray ‘in Jesus’ name,’” said Altman, adding that many in the Christian majority, especially in the South, do not reflect enough on the prayers.

“They just think, well, we’re not excluding anyone — not the Catholics, or the Methodists, or the Baptists, or the folks at Church of God, or Church of Christ,” said Altman. “But they are excluding Jews, Muslims, Hindus and anyone else who is not a Christian.”

Altman said he prefers to think that those who exclude him in their prayers are not doing so purposefully, just that they haven’t thought carefully about their actions.

“People have to adjust to a way of thinking that is broader and more tolerant,” said Alex Cury, the chair of the Western North Carolina chapter of the ACLU.

“We’re a multicultural country,” said Lu Lewellen, 69, an atheist in Waynesville. “All of these cultures should be respected.”

Lewellen said the prayer is more likely to offend non-Christians with faiths of their own than atheists like herself, however.

“Unlike some other minorities, it’s easy for us to pass,” said Lewellen.

Lianna Constantino, high priestess of the Sylva Hearth Pagan Temple, said prayers that specifically reference Jesus Christ in Haywood, Swain and Macon counties persist simply because the practice has never been challenged. In her opinion, holding any one group above another promotes an atmosphere of intolerance.

In Constantino’s view, it will take a long time for major change, somewhat due to the makeup of WNC society.

“There hasn’t been a lot of diversity like there has been in other parts of the country,” said Constantino. “As a simple fact, this is a pretty homogenous Christian-entrenched society in the South.”

Gibbs Knott, head of the political science department at Western Carolina University, said religion has long been important to life in WNC. That long-established influence means an uphill battle for ending prayers before government meetings.

“Church groups have been organized for political issues in the past,” said Knotts. “I would fully expect that many members of WNC’s religious community would get together and speak out.”

Haywood County Commissioner Kevin Ensley said the context of a local community and its prevailing faith should count for something.

“I think it is part of our community. You have 200 churches in Haywood County,” Ensley said. “If you disregard that fact, then you are catering to the atheists and the other 1 percent.”

Haywood County Commissioner Mark Swanger said as elected leaders, they are obligated to represent all their citizens, including the minority, however small.

“Lots of people would use the argument that the founding fathers were Christian and the vast majority of people in Haywood County are Christian,” Swanger said.

But that is not the premise of Constitutional freedoms, whether it’s freedom of the press or the right to vote.

“These protections are not to protect the majority. They are to protect the minority,” said Swanger, a retired special agent in the FBI.

Competing doctrines

Despite a great divide between the two camps, each side has proudly waved the U.S. Constitution in an effort to justify its standpoint.

At war are the equally compelling values of separation of church and state, and freedom of speech and religion.

“The Constitution should be honored,” said Alex Cury, chair of the WNC chapter of the American Civil Liberties Union. “This is not a Christian nation .... We don’t live in a theocracy.”

Constantino, high priestess of the Sylva Hearth Pagan Temple, said endorsing Christian prayers before meetings blatantly violates a precious partition between religion and state.

“I think it is rude, arrogant and presumptuous to impose any singular religious tradition on a religiously diverse society,” said Constantino.

Opening meetings with a prayer perpetuates the impression that one must be a believer of God to attend, according to 69-year-old Waynesville resident Lewellen.

“They could pray to almighty Zeus as far as I’m concerned,” said Lewellen, a member of WNC Atheists. “Just leave religion out of government. It doesn’t belong there.”

Meanwhile, the same Constitution that mandates separation of church and state also affords for freedom of religion and freedom of speech.

Swain County Commissioner Phil Carson said telling him what he can — or can’t — say in a prayer violates his freedom of speech and freedom of religion.

Carson’s fellow commissioner David Monteith argued that his rights to practice religion are being stripped by outsiders with different beliefs.

“To me, this is people who in the United States want all of our rights and freedoms, but they don’t want to give us our rights,” Monteith said.

Yet the courts aren’t dictating to people how they can pray on their own time or in private settings, said Mary Teslow, a resident of Macon County and president of the Unitarian Universalist Fellowship of Franklin. Instead, the court rulings are trying to prevent the government from promoting one faith at the exclusion of others.

“We would absolutely support their freedom of religion as an individual, but they are doing the work of the community and that is a shared responsibility. They have every right to have their own religious preference in their own lives, but this is the life of the community,” Teslow said.

Cury pointed out there are plenty of other arenas for prayer in Western North Carolina.

“There are churches all up and down the Main Streets of these towns,” Cury said.

A compromise that Lewellen and Constantino both support is switching to a moment of silence to allow for personal prayer.

“I don’t know any pagan who would have a problem with that,” said Constantino. “That’s a very considerate option.”

With 30 years of experience in interfaith work, Constantino said making everybody happy is not easy but it is possible.

Why pray?

Whether offered by guest pastors or by the commissioner themselves, invocations generally call on God to help the elected leaders make wise decisions, but they often touch other aspects of life as well. Commissioners have thanked the Lord for spring rains that nurtured farmer’s fields, asked for assistance in preventing an H1N1 epidemic, prayed for the safety of soldiers overseas, and asked God to be by the side of a well-known family who had lost a loved one.

At one Haywood commissioners meeting in April where a throng of angry citizens packed the audience, the prayer even thanked God for the democratic process and for living in a country where people were permitted to express their opinions.

“As a Christian, you always want to ask for blessings on all the business that’s going to transpire,” said Macon County Commissioner Ronnie Beale. “Speaking for myself, I have to ask him everyday for his guidance and direction in my life.”

While few could argue against the noble effort by elected leaders to make good decisions on behalf of their constituents, it is possible to do so without elevating their religion above others, said Mary Teslow, a resident of Macon County and president of the Unitarian Universalist Fellowship of Franklin.

Teslow said commissioners could opt for a “shared affirmation for the work at hand,” a common ritual at her own church where the congregation cuts across several different faiths. Before church meetings, they take a moment to reflect on their shared purpose, center themselves and come together as a community.

“We would be supportive to the commitment of shared work but we would rather it not have such strong Christian language. We would rather it be inclusive, whether from a religious or cultural or gender perspective,” Teslow said.

Teslow would like to see the Macon County commissioners take a similar tact by saying an inclusive prayer rather than one that excludes people of different beliefs.

“We would like the circle widened of the people who participate in our community and public life,” Teslow said.

Commissioners generally initiate the prayer at meetings with “Let us pray” or “Please bow your heads.” It poses a conundrum for Lewellen, an atheist in Waynesville, who doesn’t believe in prayer at all. Whenever she encounters prayers at events, Lewellen said she might stand up but not bow her head or move her lips. If she’s in a bad mood, she might even walk out in protest.

“I don’t believe in supernatural beings, and I don’t pray to them,” said Lewellen.

When Constantino, a pagan, comes across a prayer at a Christian function, she bows her heads respectfully and says amen. But if the prayer occurs in a public setting, Constantino said she is more likely to sit with her head up and her eyes wide open.

Rotating faiths

Macon County’s practice of inviting rotating pastors to give an invocation closely mirrors the prayer patterns in Forsyth County targeted in the latest federal suit. Like in Forsyth, Macon County leaders say the floor is open to pastors of all faiths to take a turn at the podium, but in practice, the prayers are always Christian.

Ronnie Beale, chairman of the Macon County board of commissioners, said the board has never rejected a request to lead the prayer thus far. Furthermore, no one has ever complained.

Beale said the board does not tell the ministers it invites how to pray.

“We don’t set no standards and say this is what you must say or don’t say,” said Beale. “We’re not going to dictate to people how they pray.”

Mary Teslow, a resident of Macon County and president of the Unitarian Universalist Fellowship of Franklin, said there is an underlying flaw with the notion of rotating guest pastors.

“In theory that would be nice, but in practice that doesn’t work. If you were in Atlanta or New York, you might get a variety, but in functionality, you don’t get that here,” Teslow said.

Those with different religious views are in the minority here and likely wouldn’t feel welcome showing up at a commissioners meeting to share their prayer. In other cases, they might lack an organized church with an official pastor, and could either be overlooked or not pass the vetting process, Teslow said.

In Haywood County, commissioners give the invocation rather than guest pastors, but Commissioner Kevin Ensley said he would support a request to do so from someone of another faith.

“I think if there are other faiths that want to pray during the meeting, I think you have to let them do that. You have to let the minority have their turn, too,” Ensley said.

Like Haywood, Swain commissioners take turns saying the prayers. No one from another faith has ever asked to offer the invocation at a Swain commissioner’s meeting, said Swain Commissioner David Monteith. But if they did, they could make use of the public comment period at the start of a meeting.

“We don’t ban them from standing up and praying to whoever they want to,” Monteith said. “If he signs up for his three minutes, he can say whatever he wants to. He can talk about why the sky is blue if he wants to.”

Still, it could be perceived as a double standard for commissioners to allow Christian prayers as part of the official meeting, but relegate those of other faiths to sign up to speak for up to three minutes during the public comment period.

Founding fathers

Supporters of prayer point to the long-standing practice — one as old as the nation itself — of beginning meetings with an invocation, from town halls to the halls of Congress.

“It’s part of our heritage here that we start every meeting with prayer,” said Swain County Commissioner Phil Carson, adding that the country was founded on the principles of God.

“‘In God We Trust’ is still on the money, even though people are trying really hard to take the principles of God out of our country,” said Carson.

Macon County Commissioner Ronnie Beale argued that Judeo-Christian values shaped the Constitution.

“Our country was founded pretty much by Christians,” said Beale, though he added that the government does allow people of other faiths to practice.

Jackson County Commissioner Brian McMahan holds the opposite view.

According to McMahan, the intent of the country’s founding fathers was to deter any sort of organized, government-sanctioned religion. Since so many had immigrated to the U.S. to escape religious persecution, the leaders wanted to allow everyone to worship in whatever way they pleased.

Leading a prayer at a commissioners meeting that references Allah, Jesus or another specific religious figure would be equivalent to endorsing a particular religion, McMahan said.

“That’s not what we’re there for,” said McMahan. “I think that goes against the U.S. Constitution.”

With the government gradually stripping away vestiges of Christianity from its sphere in recent decades, some are lamenting the loss of Christian principles.

“I think it is part of the downfall of our country,” Carson said. “If we all honored God and loved our neighbor, the world would be a much better place.”

Macon County Commissioner Bob Simpson agreed, stating that he was raised in a culture that respected the practice of saying the Lord’s Prayer before the Pledge of Allegiance every morning at school.

“It’s just the way I was raised,” said Simpson. “We’re taking religion out of everything. It’s made a difference in the world as we see it today ... since they took it out of schools, our morals started going downhill.”

Threat of a federal lawsuit won’t be enough to stop some county commissioners in Western North Carolina from praying in the name of Jesus Christ before their meetings.

“I wouldn’t go out and deliberately break a law, but if there was a law that said how I could pray, I think I would have to break it,” said Swain Commissioner Phil Carson.

Swain County Commissioner David Monteith said he doesn’t care what the court ruling says, and the county commissioners will continue to offer prayers in Christ’s name.

“I am going to do it anyway, it’s just that simple,” Monteith said. “I don’t want somebody to come to me and tell me I can’t do this. I guess they would just have to arrest me.”

In Macon County, Chairman Ronnie Beale says he won’t back down either, citing public support for Christian-based prayers.

“The constituents of Macon County that I represent would agree that a Christian prayer is appropriate,” said Beale, adding that the vast majority of Macon County residents are Christians.

Carson also said that commissioners are entitled to pray according to the faith held by the majority in the community.

“I think there are a lot of good Christian people in our county that put us in office, and they expect us to do our jobs with some kind of leadership other than ourselves,” Carson said.

Swain Commissioner Chairman Glenn Jones agreed many constituents would be upset if they could no longer say Jesus Christ in their prayers. At the same time, Jones isn’t as eager as Monteith and Carson to defy a court ruling.

“I would say we are on a wait and see thing right now until the judge makes a ruling,” Jones said. “We would have to have a commissioner’s meeting and discuss it.”

Technically, federal case precedent dating to 2004 already bans references to Jesus Christ during prayers at county commissioners meetings in North Carolina. But many counties have carried on unfazed.

The current lawsuit, being waged in Winston-Salem, specifically challenges the practice of a revolving door of pastors from the community being invited to give the invocations. The same practice is used in Macon County. But Beale said unless a court case landed on his own doorstep, he has no intention of changing course.

“Until we see that in Macon County, we will continue having our prayer,” said Beale.

Macon County Commissioner Bob Simpson doesn’t want to tell pastors who come to their meeting not to say the word “Jesus.” But if the choice came down to no prayer at all, he said he would compromise.

Simpson said he could see how those of other faiths might be offended, yet added that he would only change the practice if forced to.

“I’d rather not take the prayer out of the meeting,” said Simpson. “There may have to be a test case to make us stop it.”

While a federal court ruling — both the one on the books and the one still pending — can set precedent, they lack an enforcement mechanism. Counties could only be forced to comply if a lawsuit was waged against them directly.

“They can’t necessarily send an army out to enforce the rulings,” said Todd Collins, assistant professor of public law at Western Carolina University.

Many places in the South refused to comply with Supreme Court rulings to end segregation in the schools, requiring military enforcement in a few rare cases, he pointed out. But in most counties, legal cases were brought to bring the force of federal case precedent to bear.

“There, it did take groups challenging each individual school system,” Collins said.

It may take that kind of grassroots movement to change prayer before meetings in Western North Carolina, Collins said. In an area that is conservative and where religion plays a large role in many people’s lives, the process could take a long time, Collins added.

While an outside group like the American Civil Liberties Union could fund such lawsuits, the organization waits in the wings until it finds a county or city residents willing to affix their name to the complaint.

Jones said that is always a chance that could happen, thus his more cautionary stance despite his personal convictions.

“If they are wanting to, they will find a way to do it,” Jones said of ACLU. “There is nobody immune from it regardless of what county you are in.”

Haywood more tempered

While some elected leaders in Macon and Swain pledge to keep praying out loud in Jesus Christ’s name, commissioners in Haywood County say they will alter their language to comply.

“We will follow the ruling. I don’t feel like being defiant,” said Kirk Kirkpatrick, chairman of the Haywood County commissioners.

Commissioner Mark Swanger said the county can’t pick and choose which laws it will follow.

“Not just in this matter but in any matter that is finalized in the court, we have an obligation to follow the law,” Swanger said.

To do otherwise would open the county to a lawsuit, he said.

“No matter what the issue is, if you do something the courts say you should not do, you are creating liability for taxpayers,” Swanger said.

The litmus test, as Swanger understands it, is anything that has “the appearance of promoting one religion over another.” Praying simply to God seems to solve the conundrum, he said.

“If a Jewish person and a Christian said the same exact prayer to God, you couldn’t tell which one was Christian and which one was Jewish unless one said Jesus,” Swanger said.

In Haywood County, three of the five commissioners take turns giving the invocation. Two of those three already avoid direct references to Jesus Christ.

Both Kirkpatrick and Commissioner Bill Upton open their prayers with “Dear Heavenly Father.” They end with “in your name we pray.” It clearly refers to a very specific God, but they don’t expressly say “Jesus.”

“I believe in my faith, but I am not going to use my position in government to impose it on other people,” Kirkpatrick said. “I don’t know that we should impose one religion.”

While those who support prayer in public settings often point to the long-standing practice by U.S. Congress, Kirkpatrick said Congressional prayers avoid a reference to one particular faith.

“They keep that prayer fairly general and don’t refer to Jesus Christ. That’s where people get into trouble,” Kirkpatrick said. As a lawyer, Kirkpatrick has sat through enough Constitutional law classes to know where that thin grey line falls.

But for Haywood Commissioner Kevin Ensley, he can’t imagine praying without the closing words “in Jesus’ name.”

“My personal belief is if you don’t pray in Jesus’ name your prayer isn’t heard,” Ensley said. “I am not saying that if somebody is Jewish and they don’t pray to Jesus, God doesn’t hear it, but that’s just the way I was taught.”

It is so intrinsic to his prayers, he would rather not say a prayer out loud at all than be barred from offering the prayer in Jesus’ name.

When Ensley was elected to the board in 2002, the commissioners didn’t do an invocation. It was one of the first suggestions he made and within a couple of months of taking office, he had restarted the tradition of a prayer before Haywood County meetings.

One reason Haywood commissioners may be treading more cautiously than their neighbors is the still fresh memory of a lawsuit over the Ten Commandments posted in the county’s historic courtroom. A local atheist, Richard Suhre, sued the county over a tablet of the Ten Commandments that appear alongside Lady Justice in the courtroom. The case lasted several years, and several lower courts ruled in the county’s favor. The case was slated to be heard by the Fourth Circuit Court of Appeals, but Suhre died before the case was heard, effectively ending the challenge after the county spent hundreds of thousands of dollars in legal fees.

Kirkpatrick said the choice will ultimately be up to a particular commissioner what words to use when it’s his turn to give the prayer. Commissioners said they had not discussed the issue with one another yet. But Kirkpatrick doubted that Ensley would insist on praying in a way that put the county at risk.

“I think Kevin will step aside and say ‘You guys do it,’” Kirkpatrick said.

Ensley indeed said he would bow out from the rotation if he couldn’t pray in Jesus’ name.

“If you don’t want me to say that, don’t call on me to pray,” Ensley said.

Jackson is one of the few Western North Carolina counties that does not begin commissioner meetings with prayers. Their reasons aren’t to avoid a legal quagmire, but due to a strong belief in the separation of church and state, said Jackson County Commissioner Chairman Brian McMahan, who himself is a Southern Baptist and attends church on a regular basis.

“When I go to the commissioner meetings, we are there to conduct county business,” said McMahan. “That doesn’t mean I don’t pray. I do that on my own.”

Jackson County Commissioners pondered paint samples at their meeting this week in an attempt to pick an exterior color for the new library beside the historic courthouse.

“I like white,” said Chairman Brian McMahan. “It’s historically been known as a white building and should be kept that way.”

Fellow commissioners seemed to agree that the new library should be white in keeping with the historic icon perched on the hillside over Sylva, but the decision didn’t end there.

“There are different types of white. There’s an eggshell white and a bright white,” McMahan said.

McMahan recently got a lesson in the myriad hues of white when he tried to buy a can of the stuff to repaint the hallway in his house.

“They said, ‘What color white do you want?’ I didn’t realize there were so many shades of white,” McMahan said.

He ultimately made what he called the right choice: deferring to his wife.

When McMahan turned to the other commissioners and asked them to weigh in, they shifted uncomfortably in their chairs.

“I don’t know. I will have to ask my wife,” Commissioner Tom Massie replied. “I am smart enough to know to get any good woman’s opinion on this.”

Commissioner Mark Jones explained that he was colorblind, recusing himself from the discussion.

Commissioner William Shelton said his wife has ample experience when it comes to paint colors.

“You would be shocked to know how many times my wife has changed colors in our house,” Shelton said.

Shelton said the color on a tiny swatch never seems to look the same once it gets on the wall.

“I think it would be a good idea to slap some on there to see what it looks like,” Shelton said.

The architect for the library, Donnie Love, said that approach could certainly be arranged, perhaps by painting a few choices on a wall or two.

“We could let anyone who wanted to go have a look at it,” Love said.

Shelton suggested eliciting feedback from the Friends of the Library group, which is raising money for the new library.

“We’d be happy to,” responded Mary Otto Selzer, co-chair of the library capital campaign committee, who was sitting in the audience.

The new Swain jail costs the county $610,000 a year more than the old jail: $450,000 in debt payments and an additional $160,000 on overhead and staff.

The county hoped to make $500,000 a year housing prisoners from out of the county to offset the cost.

The county’s old jail was unsafe and dilapidated, so a new one was in order anyway. County leaders figured they may as well make it extra big and try to subsidize the cost by housing inmates from out of the county, and end up with a new jail for relatively little of their own money.

But revenue projections fell far short. Over the past 12 months, the county only made $140,000 housing out-of-county prisoners, a far cry from the half million it hoped for, according to County Manager Kevin King.

King said that the jail is not an undue burden for the county, however.

“We are making it just fine,” King said. “We are covering the debt. We are covering the operation. We are covering personnel.”

That said, if the new jail brought in more money, it could bolster the sheriff’s budget — which is a bitter source of contention between the county commissioners and Sheriff Curtis Cochran.

“When he first started as sheriff, I told him all this is done as a business plan,” County Manager Kevin King said. “The more revenue generated the more deputies and law enforcement we are going to be able to fund.”

When the new jail opened last fall, the county added five additional jailers, two new deputies and an extra secretary.

But King said the additional staff was contingent on an influx of inmates, which never materialized.

“It is like McDonald’s or anywhere else. If you aren’t selling hamburgers they are going to lay people off and send them home,” King said.

As the county grappled with a budget shortfall for the new fiscal year, commissioners looked to the jail to make cuts. The county cut four positions that had been added in the past year.

Two of the laid-off staff had been hired as jailers but had since been made deputies after Cochran realized he didn’t need that many jailers. A third layoff targeted one of the two new deputies added over the past year. The fourth layoff targeted the additional secretary position added over the past year.

An ongoing feud

Cochran still has one more deputy and three more jailers than he did a year ago, but has publicly criticized the commissioners’ decision to cut his staff. He accused the county commissioners of jeopardizing the safety of Swain County’s citizens by underfunding his department.

Cochran had increased deputies on the night shift from two to three. Now, he’s back down to two. If both are tied up on calls, residents are left with no backup, he said.

King points out that Cochran’s budget is still bigger than his predecessor’s, former sheriff Bob Ogle.

In reality, the Cochran’s budget comprises the exact same percentage of the total county budget now as it did under Ogle.

For the 2009-2010 fiscal year, the sheriff’s office accounts for 8 percent of the total county budget and the jail accounts for 7 percent of the county’s budget. It’s the exact same percentage as 2005-2006, the last budget allocated by commissioners under the tenure of former sheriff Bob Ogle.

Cochran’s supporters have accused the commissioners of playing politics with his budget. The commissioners are all Democrats, while Cochran is a Republican.

“There is nothing political about this issue,” King countered.

King pointed to the number of new vehicles the county provided Cochran’s office this year. Typically, the county replaces two or three vehicles a year, and sometimes skips a year altogether. This year, the county bought five new vehicles for the sheriff’s office.

Cochran and the commissioners have been warring over the sheriff’s budget since Cochran took office in late 2006. Cochran suffered a major blow to his own salary when the commissioners ended a lucrative arrangement to feed inmates enjoyed by Cochran’s predecessors. When the commissioners decided to end the long-standing practice on the eve of Cochran taking office, it was seen as political retribution.

Cochran has a lawsuit pending against the commissioners, claiming they effectively reduced his salary in violation of state statutes. Commissioner David Monteith has consistently sided with Cochran and against his fellow commissioners on budget issues.

Budget expenses

Swain county budget expenditures by year:

Jail, 2009-2010:    $875,000

Jail, 2006-2007:    $715,000

Percent of total county budget both years:    7%

Sheriff Dept., 2009-2010:    $964,000

Sheriff Dept., 2006-2007:    $796,000

Percent of total county budget both years:    8%

A member of the public was escorted from a Haywood County commissioners meeting Monday (June 15) by a deputy after getting into a verbal altercation with Chairman Kirk Kirkpatrick.

Tension has been high at county meetings for the past two months as commissioners wrestled with a budget for the coming fiscal year. The recession has strapped the county, prompting a 1.7 cent property tax hike along with layoffs, furloughs, shortened work weeks and a reduction in benefits for county workers.

Commissioners have faced stiff opposition bordering on belligerence over the proposed property tax increase. So it didn’t take much to ignite the short fuse between commissioners and the public this week.

Commissioners were considering a request from Stephen King, the solid waste director, to lease two new pieces of heavy machinery for landfill operations. King had gotten the OK from commissioners several months ago to hunt for the best deal to replace a bulldozer and excavator that King says are on their last leg.

King found what he considered the best deal out there, but as he began discussing specifications for the equipment, Kenneth Henson piped up from the audience with questions about the undercarriage on one of the pieces. Henson, a grader who is intimately familiar with heavy machinery, challenged King’s knowledge of the equipment, engaging King with questions about the type of undercarriage.

Kirkpatrick told Henson that was enough.

“You don’t want to know?” Henson asked commissioners.

“I do, but I can’t let you talk out in a meeting that way. If I let you do it then I have to let everybody do it,” Kirkpatrick said.

“All I’m trying to do is save the county money,” Henson said.

“I understand,” Kirkpatrick said.

“No, you don’t,” Henson shot back.

“Shut up,” Kirkpatrick said, firmly pointing his finger at Henson.

As the situation seemed poised to escalate further, a sheriff’s deputy who was standing by the doors at the back of the room approached Henson and asked him to leave. As Henson rose, he chastised Kirkpatrick for his method of silencing a public outburst earlier in the meeting.

In that incident, Jonnie Cure, a leader of the group opposing the tax increase, had let out a guffaw while Commissioner Bill Upton was speaking. Those around her chided in with a chorus of “no’s” to express their disapproval at Upton’s comments. Upton had been explaining the difficult decision between even deeper cuts to county staff and services versus a tax increase. Upton said the county’s level of services, whether it’s teachers or law enforcement, is important to residents.

“The reason people move to Haywood County is the services we provide,” Upton said, prompting the outburst.

“Ms. Cure, I don’t believe I have ever interrupted you. In fact I have listened. We learn that in school,” responded Upton, the former superintendent of the school system.

Kirkpatrick stuck up for Upton and told the audience there would be no more outbursts or “talking out loud” during the meeting. Henson apparently resented the way Kirkpatrick had put his foot down with Cure.

“You talked to her like a dog, and you aren’t going to do me that way,” Henson said as he was escorted out.

Henson could be heard grumbling as he moved into the hallway, followed by the deputy saying, “You can’t do that in a public meeting.”

Kirkpatrick apologized to the audience before resuming the meeting.

“It has been a long six months. I apologize for that statement. It is unfortunate and all I can do is say ‘I’m sorry,’” Kirkpatrick told the audience after Henson was escorted out.

Henson remained outside the building talking with other opponents to the tax increase. He was still there nearly an hour later when the commissioners’ meeting concluded and Kirkpatrick emerged.

Kirkpatrick approached Henson, presumably to clear the air, and the two engaged in a 5-minute conversation on the sidewalk about what had transpired during the meeting. County Manager David Cotton stuck close to Kirkpatrick’s side. The deputy who was on hand for the meeting stood a few feet away as well.

Henson said he was legitimately trying to help by educating the county on the specifications for the excavating equipment they were poised to purchase. Henson said he was afraid the county was getting hoodwinked by the promise of special features on the equipment that are unnecessary.

Henson said the county could tap into the glut of used machinery on the market and easily modify it for landfill work. Instead, the county leased two new pieces of machinery billed as having a landfill-rated undercarriage at $20,000 a year for both.

Kirkpatrick said it was his responsibility to maintain order at meetings and he couldn’t allow audience members to pipe up in a confrontational manner throughout the course of the meeting. Kirkpatrick also said the county puts faith in the knowledge of their staff who researched the equipment needs and the best deal.

The two ended their conversation amicably.

A proposed tax increase that Haywood residents have fought hard against could likely be avoided if residents would just pay their taxes on time in the first place. But property tax collections are down this year, presumably due to the economy, and is a major factor in the county’s budget woes.

The amount of delinquent property, personal property and vehicle tax payments is so high among Haywood County taxpayers that the total amount owed in back taxes could make up for the county’s budget shortfall and help commissioners avoid raising the property tax rate.

The situation was brought to light at a workshop commissioners held last week in an effort to take a last look at the county’s budget for the upcoming fiscal year. Public outcry over a proposed property tax increase prompted commissioners to make a final evaluation of places to trim, but to no avail.

The outstanding revenue from delinquent property taxes is about $1.4 million, according to county tax collector David Francis. Additionally, another $500,000 in vehicle taxes and personal property taxes is past due, bringing the total amount of past due taxes to about $1.9 million.

In a normal year, the tax collection rate is about 97 percent, but collections for the year are currently running about 94 to 95 percent.

The estimated revenue that would be generated by the proposed 1.7 cent property tax increase is just $1.2 million. The current property tax rate in Haywood County is 49.7 cents per $100 valuation.

Commissioner Skeeter Curtis argued that the county had not figured delinquent tax payments into the budget, and therefore was not considering all options when it came to balancing it.

“We’re going to let 5 percent of our people who have not paid their taxes have a tax increase for all of (the residents), and we haven’t put one dime in the budget for this money,” Curtis said. “We would not have to have a tax increase. I don’t understand how we can sit here and put a budget together when people owe us.”

But other commissioners cautioned against assuming that everyone will pay up.

“We are making a lot of assumptions right there that everybody is going to pay and everything is going to get better,” said Commissioner Bill Upton. “Some people think it’s going to get worse.”

The county hopes to recoup $500,000 of the outstanding taxes over coming months and factored that into the proposed budget. But that’s just an estimate of what the county could recover, said Chairman Kirk Kirkpatrick.

“There’s no guarantee,” Kirkpatrick said. “If everybody paid their taxes when they ought to, we wouldn’t have this problem.”

County taxpayers have indeed been hit hard in the recession, and the effect has trickled down to the county’s budget. Francis said that the county has experienced two major bankruptcies in the past year — Ghost Town in the Sky theme park, which owes the county $43,000 in back taxes, and an excavating company, which owes the county $21,000.

Francis said that personal bankruptcies throughout the county have risen dramatically this year. Last year at this time, there were 30 declared bankruptcies; this year, there are 65.

Commissioner Mark Swanger joined the chorus cautioning against assuming the county can recoup too much of the outstanding taxes.

“It’s not a projectible revenue stream,” Swanger said. “You can’t spend anticipated collections.”

The county is still stuck between a rock and a hard place as it looks to make up for a projected budget shortfall. Many of the budget cuts suggested by citizens have already been made, or they are mandated services that the state says the county must provide.

“At the end of the day, the state and the federal government tell the counties in North Carolina that you will provide these services,” said County Manager David Cotton. The county doesn’t have cart blanche discretion to cut anywhere wants, but instead has few areas where it can actually cut.

The county has already trimmed back personnel, where it spends the majority of its dollars. Cotton said the elimination of a proposed 32 full-time positions will put the county back six years in terms of staffing levels.

The state is also talking about passing on more mandatory expenses to counties in order to make up for its own severe budget shortfall, so counties are anticipating the possibility of deeper budget cuts in the future.

Still, citizens are none too happy about the county’s proposed property tax increase.

“The burden is falling too heavy on us,” Johnnie Cure, a leader in the tax opposition movement, told commissioners at the budget workshop. “Where is this going to end?”

Kirkpatrick said commissioners have almost exhausted every option in looking where to cut.

“Who else can we pass it on to?” Kirkpatrick responded to Cure. “It’s not going to come out of the sky. If the state says the county has to do it, we have to do it. We don’t have a choice. We’re trying to be the best stewards we can.”

So far, the county commissioners have been unable to come up with a good alternative to offset the proposed property tax increase, so that option still seems likely to pass.

The county commissioners will vote on the budget at their regularly scheduled meeting at 5 p.m. Monday, June 15.

Haywood County commissioners grappling with the $4.4 million price tag of a landfill expansion briefly eyed the steep engineering costs as a place to trim this week.

During a county meeting, commissioners questioned the hiring of two separate engineering firms for a total of $345,000 to design and oversee landfill construction. Commissioner Kevin Ensley was the first to broach the subject, asking why the county couldn’t just hire a single engineer rather than contracting with two entire firms.

Stephen King, the director of solid waste, cited the litany of state and federal regulations involved in building a landfill, from geotechnical permits to myriad testing of soil samples by various labs.

“It is very specialized,” King said. “It will take a whole team to get done what needs to be done.”

A engineer can be the county’s best friend in a project of this caliber, serving as both as a liability shield and a taskmaster to keep the contractors on time and on budget.

“I think having a good engineer is critical,” advised Chip Killian, the county attorney.

Ensley questioned a clause in one of the contracts, however, that would bill the county $900 a day for engineering services should the project extend beyond the estimated nine-month time frame.

“If we run into a problem like with the historic courthouse and it goes on and on, that could get expensive,” Ensley said. Ensley said the bid for the job should cover the work, period.

Commissioner Mark Swanger asked whether the county attempted to negotiate the terms. It appeared not. County Attorney Chip Killian said he had not read the contracts yet and couldn’t comment on whether the language was standard or troubling.

“We really need some of these questions answered,” Commissioner Kirk Kirkpatrick said. “I would also like to know if this is the best price they can come up with. Everybody is having to give a little now. Let’s see if they can, too.”

The contracts were with Asheville-based McGill and Associates for $175,000 and a second contract with Joyce Engineering, landfill specialists based in Maryland, for an additional $170,000.

Killian worked over the two contracts following the meeting. The county was unable to lower the price but altered some of the language.

“Mostly to protect the county against anything, essentially to make sure if they don’t perform their task we aren’t liable for it,” King said of the changes.

As for the heafty $900 a day Joyce was seeking should the project run over schedule, the language was clarified so the contractor, not the county, would be responsible for paying up. Both were approved by commissioners following the rewording.

Swain County, 86 percent of which is already owned by the federal government, lost a little more land from its tax rolls this month when commissioners voted to transfer 621 acres of land to become part of the Eastern Band of Cherokee Indian reservation.

The tribe has owned three parcels of land — located in the Cooper’s Creek area, Kituwah, and Governor’s Island —for seven years. The tribe paid $11,500 a year in property taxes to Swain County for the tracts.

But after owning the land for the required amount of time, the tribe was legally able to petition for the land to become part of the Qualla Boundary. That way, it won’t be subject to property taxes.

Swain County is operating under a tight budget, and losing the property tax base will be a small blow, to say the least. But the Cherokee plan to build affordable housing and a mental health center on the parcels — things that could benefit those who live and work in Swain County. Commissioners weighed their options, and decided it would be easier to support the Eastern Band’s proposal.

“If the tribe were going to use the property for something controversial like gaming, we would say that we wouldn’t necessarily like that,” said County Manager Kevin King. “Yes, the county could fight it, but in the end, if they can demonstrate the need for it, you’re never going to win.”

King also said the commissioners wanted to keep the tribe and county on good terms.

“We have a really good relationship with the tribe, and we want to continue it,” King said.

Receiving the support of Swain commissioners was a final step in the process of placing the land into the Eastern Band trust. Now, the tribe is waiting for the federal Bureau of Indian Affairs to give final approval to the move.

Eastern Band Principal Chief Michell Hicks praised the commissioners for their support.

“Us mountain folk here in Western North Carolina, we know we have to work together to accomplish things for the people of our tribe and our communities,” Hicks said.

Commissioner Tom Massie wants to see the county formalize how it funds capital projects.

Under the current method entities simply approach the county when they are in need and ask for funding. Massie suggested that entities fill out an application requesting capital project funding, and then county staff can study the forms to determine if the projects are really needed.

The application would give different capital projects a ranking and help the county prioritize projects. He said the N.C. Institute of Government recommends that local governments handle capital projects this way.

Under the county’s current system there is some disorganization, he said. For instance, he said SCC said it didn’t need anything eight months ago and now needs about $1 million for a new building.

Having a formal system will provide a rational and logical explanation as to why projects are needed. He said since he has been on board, some projects that have been approved were nice but not necessarily needed. The application process would enable the county to plan five to 10 years down the road, Massie said.

Massie made the recommendation to fellow commissioners at a capital projects workshop last week.