Blog

Decades ago, when I had just moved to the suburbs of Atlanta, I went out one evening for a ride on my motorcycle.

After a bit, I stopped at the bar of a local restaurant for a beer. There weren’t many folks at the bar. I struck up a conversation with a man who I recall was the only other person at the bar.

After a bit, I asked the man what he did for a living.

“I am a sign man”, he said.

“Oh, you make signs?”, I asked.

“No”, he replied, “I hold a sign at an exit off I-85 that says ‘will work for food'”.

“Really”, I replied, “How much money do you make doing that?”

“Usually around $200 a day” was his response.

This totally changed my perspective regarding people holding signs a soliciting money. I was working a 40 hour week doing software development, and this guy was making almost as much as I was by panhandling at expressway exits!

I don’t hand money to people panhandling at expressway exists anymore. And rarely to panhandlers under any other circumstance.

I have recently made a few posts regarding the legality of North Carolina Governor Roy Cooper’s executive orders in response to the COVID-19 “crisis”.

First, I wondered if Cooper had the “concurrence of the Council of State” required by NCGS 166A-19.30(b).  I then shared that I had discovered that he did not in fact have concurrence.  He had presented his orders to the Council of State, and the Council did not support them.

So, Cooper went ahead anyway. claiming authority under NCGS 166A-19.30(c), a different section of the North Carolina Emergency Management Act. A phone call from an attorney elsewhere in NC alerted me to this fact. Let’s see what the statutes have to say there.

 NCGS 166A-19.30(c)

(c)        In addition to any other powers conferred upon the Governor by law, during a gubernatorially or legislatively declared state of emergency, if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property because (i) needed control cannot be imposed locally because local authorities responsible for preservation of the public peace have not enacted appropriate ordinances or issued appropriate declarations as authorized by G.S. 166A-19.31; (ii) local authorities have not taken implementing steps under such ordinances or declarations, if enacted or declared, for effectual control of the emergency that has arisen; (iii) the area in which the emergency exists has spread across local jurisdictional boundaries, and the legal control measures of the jurisdictions are conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered; or (iv) the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it, the Governor has the following powers:

(1)        To impose by declaration prohibitions and restrictions in the emergency area. These prohibitions and restrictions may, in the Governor’s discretion, as appropriate to deal with the emergency, impose any of the types of prohibitions and restrictions enumerated in G.S. 166A-19.31(b), and may amend or rescind any prohibitions and restrictions imposed by local authorities. Prohibitions and restrictions imposed pursuant to this subdivision shall take effect in accordance with the provisions of G.S. 166A-19.31(d) and shall expire upon the earliest occurrence of either of the following: (i) the prohibition or restriction is terminated by the Governor or (ii) the state of emergency is terminated.

(2)        Give to all participating State and local agencies and officers such directions as may be necessary to assure coordination among them. These directions may include the designation of the officer or agency responsible for directing and controlling the participation of all public agencies and officers in the emergency. The Governor may make this designation in any manner which, in the Governor’s discretion, seems most likely to be effective. Any law enforcement officer participating in the control of a state of emergency in which the Governor is exercising control under this section shall have the same power and authority as a sheriff throughout the territory to which the law enforcement officer is assigned.

What does the law say?

Well, there are two parts to that.  Let’s focus on the first part – the part that defines the conditions that empower the Governor to assert the powers detailed in the second part. (emphasis mine)

if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property because

(i) needed control cannot be imposed locally because local authorities responsible for preservation of the public peace have not enacted appropriate ordinances or issued appropriate declarations as authorized by G.S. 166A-19.31;

(ii) local authorities have not taken implementing steps under such ordinances or declarations, if enacted or declared, for effectual control of the emergency that has arisen;

(iii) the area in which the emergency exists has spread across local jurisdictional boundaries, and the legal control measures of the jurisdictions are conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered; or

(iv) the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it,

What does that mean?

Let’s take this one condition at a time.

Paragraph (i) grants the Governor authority if “local authorities responsible for preservation of the public peace have not enacted appropriate ordinances or issued appropriate declarations”. 

 For the Governor to assert authority under this paragraph statewide, he must assert that local authorities (city and county governments) have failed to act appropriately in every case.

Paragraph (ii) grants the Governor authority if “local authorities have not taken implementing steps under such ordinances or declarations, if enacted or declared, for effectual control of the emergency that has arisen”.

In other words, if they have passed ordinances but have not taken steps to implement or enforce them.  For the Governor to assert authority under this paragraph, he must assert that those authorities have passed ordinances, but have not take steps to implement them.  This would appear to apply only in those areas where such a condition exists.  Not the entire state.

Paragraph (iii) grants the Governor authority if “the area in which the emergency exists has spread across local jurisdictional boundaries, and the legal control measures of the jurisdictions are conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered”

For the Governor to assert authority under this paragraph, the emergency must exist across jurisdictional boundaries (which it clearly does), AND the legal control measures of the jurisdictions must be “conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered” (which is not established).

Has Governor Cooper shared evidence that that the criteria in the preceding paragraph have been met?  I haven’t seen it.

Paragraph (iv) grants the Governor authority if “the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it, ”

Has Governor Cooper shared evidence that the criteria in the preceding paragraph have been met?  I haven’t seen it.

Summary

If we read NCGS 166A-19.30(c) carefully, upon which Governor Cooper claims authority for his emergency executive orders, we can see that the conditions might exist for assertion of authority if certain conditions exist.

What I don’t see is the evidence that such conditions actually exist.

In a post earlier today, I detailed how North Carolina Governor Cooper’s powers to issue emergency orders are dependent on concurrence from the Council of State.

What follows is information I obtained from a trusted friend who is well connected with many people in North Carolina government.  While I hate not naming him, I feel I must not do so.  The reasons may become apparent as you read on.

Did Cooper have “concurrence of the Council of State” as required by statute?

No.

Before issuance of his initial emergency orders regarding the COVID-19 “crisis”, Cooper brought them to the Council of State.  They were voted down.  There was no subsequent consultation with the Council of State by Cooper.

This is the end of the information from my trusted source.  What follows is my personal commentary.

Why aren’t Council of State members making noise about this?

First off, I must disclose that I am assuming that Council of State members aren’t making noise because I haven’t seen it, other than Lieutenant Governor Dan Forest’s initial protests.

But all of these people, six Republicans and four Democrats if I have the count right, are running for election or re-election in November.  This could be an issue used against them in the campaign, depending on how things turn out.

Conclusion

I trust my source.  If he tells me Cooper doesn’t have the concurrence of Council of State that is required by statute, that is something I feel I can take to the bank.  If in fact Cooper doesn’t have concurrence of the Council of State, his emergency orders are illegal.  The law as cited in this post makes it quite clear.

Questions?

if you have questions regarding the relevant North Carolina General Statutes or the the makeup of the Council of State, you will probably find them in this article.

Amid the COVID-19 “crisis”, Governor Cooper has issued emergency orders limiting the free travel and free association rights of the people of North Carolina.  These orders have closed businesses and caused great economic harm.

But are they legal?

The legal authority appears to come from North Carolina General Statutes at Chapter 166A in the Emergency Management Act.  Specifically relevant is NCGS 166A-19.30, which can be found here.

At subsection (b), we find the following (emphasis mine):

(b)        During a gubernatorially or legislatively declared state of emergency, with the concurrence of the Council of State, the Governor has the following powers:

(1)        To direct and compel the evacuation of all or part of the population from any stricken or threatened area within the State, to prescribe routes, modes of transportation, and destinations in connection with evacuation; and to control ingress and egress of an emergency area, the movement of persons within the area, and the occupancy of premises therein.

(2)        To establish a system of economic controls over all resources, materials, and services to include food, clothing, shelter, fuel, rents, and wages, including the administration and enforcement of any rationing, price freezing, or similar federal order or regulation.

(3)        To regulate and control the flow of vehicular and pedestrian traffic, the congregation of persons in public places or buildings, lights and noises of all kinds, and the maintenance, extension, and operation of public utility and transportation services and facilities.

(4)        To waive a provision of any regulation or ordinance of a State agency or a political subdivision which restricts the immediate relief of human suffering.

(5)        To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.

The first section highlighted above says “with the concurrence of the Council of State”  clearly stating that the Governor’s power to do the things that follow are dependent on the concurrence of the Council of State.

I am not aware that there is concurrence of the Council of State with these orders, in which case they would be illegal.

Who is the Council of State?

The North Carolina Council of State is the collective name for the senior executive offices in the Government of North Carolina, established by the North Carolina Constitution. It includes the following:

Governor
Lieutenant Governor
Secretary of State
Auditor
Treasurer
Superintendent of Public Instruction
Attorney General
Commissioner of Agriculture
Commissioner of Labor
Commissioner of Insurance

Does Cooper have concurrence?

When I look at the list of offices comprising the Council of State and consider the reputations and political affiliations of the incumbents, I find it highly unlikely.

As clearly stated in NCGS 166A-19.30(b), if Governor Cooper does not have the concurrence of the Council of State, his emergency orders are illegal.

After Commissioner Ensley told attendees at the January 21 meeting of the Haywood County Commission that we were not going about protecting our Second Amendment rights the “right” way, I sent him the following email:

The Blue Ridge Friends of the NRA certainly does an admirable job of raising funds for the NRA Foundation.  What does that Foundation fund?  It funds education – for youth, for recreational shooters, and for law enforcement officers.

What does the NRA Foundation not do?  It doesn’t fund lobbying efforts, which are funded by the NRA Institute for Legislative Action (NRA-ILA).  It doesn’t support pro-gun political candidates, which is done by the NRA Political Victory Fund (NRA-PVF).  This is not supposition on my part.

While I was pretty sure of the facts, I contacted the NRA Foundation by phone and they confirmed that they do not financially support NRA-ILA or NRA-PVF. I suspect that the NRA Foundation’s tax exempt status would prohibit them from doing so.

Providing training and properly supervised shooting competition is certainly a noble goal.  But let’s not pretend that it is nearly as vital to protecting our Second Amendment rights as lobbying for our rights and supporting candidates who will vote to protect our rights.

Sincerely,

Paul Yeager

Waynesville, North Carolina

NRA Life Member

“Our goals”? If you want to make an impact for the second amendment in Haywood county then teach our kids to respect firearms. The next generation IS our future Americans and they need to respect the Constitution. 

My father taught me at a young age how to shoot and handle a gun. I learned much from him through his sniper training in the army. And he taught me though his sacrifice overseas to respect the Constitution. In our house it was God and Country. 

Because of his efforts, I’ve forgot more than you probably know about guns. (note:  condescending much?)  When it comes to the 2A, I put my money where my mouth is. That’s the best way to make a difference and protect the 2A. (Train our young people.) 

I don’t get on FakeBook and make up “rumors” and lies about elected officials. If you want to ask a question then call me. But you don’t, because you, a grown man, likes to gossip on your FakeBook page about elected officials.I guess it’s because you are too afraid to call them and find out the facts. Or maybe you agree with Hitler – “If you tell a big enough lie, the people will believe it to be true”.

BTW, I’ve received more emails from citizens who oppose “your” resolution than are for it.(note: Ensley claims to have more emails opposing a resolution than supporting it, but he railroaded a resolution through the Commission in only two weeks.  Also, Ensley notably fails to provide evidence that I have posted anything on Facebook that isn’t true.)

 

At a recent meeting of the Haywood County Commission, Eddie Cabe called out Commissioner Mark Pless (actually Steven Mark Pless) for Pless’s email suggesting that Eddie move to Marion if he wanted to live in a Second Amendment Sanctuary County.

Later in the meeting, Joe Alan James challenged Pless, asking if he had really sent such an email.  Here it is on video:

I found Pless’ response to be totally inappropriate for an elected official speaking to a constituent, so I sent him the following email:

Commissioner Pless:

I voted for you.  At the January 21 meeting of the Haywood County Commission you made me ashamed to admit it.

Mr. Cabe can indeed be trying, and he often tests the limits of my patience.  While I generally agree with him on principle, I often disagree with him regarding his approach to problems.

Sincerely,

Paul Yeager

Waynesville, NC

Mr. Yeager

Not sure what voting or not voting for me has to do with any of this. You can be ashamed about me standing up to being bullied and harassed if that makes you feel better about your friend. You know your friends behavior got him kicked out of the the Republican Party and banished from attending any state or local events for behaving like he does. If memory serves me correct you have been banished by the Republican Party as well. Instead of bashing people who do not take his garbage you should have been a true friend all along  and helped him overcome the way he treats people. You excuse his behavior by saying he is trying and tests your limits of patience however you show no such grace toward myself or any of the other commissioners. I have disappointed you once and your ashamed of me but somehow you make excuses for the multiple failures friend had made.  You have a misguided concept that people who make the choice to seek public office deserve to be treated as less than human. This freedom of speech you extend to your buddy also is given to me by the same Constitution. If I chose to express myself your group stands offended because I am not afforded the same rights as you. Our president continually pushes back against people who harass and lie about him and you applaud his actions. When we are harassed and lied about you condemn me because I push back. Seems like a double standard. You only believe the parts of the constitution that help justify your actions, your mobs actions and your friends actions. If memory serves me correctly you have been charged with assaulting Ted Carr, trespassing and pointing a gun at someone last August. You can’t control yourself or your actions however I am supposed to be alarmed because you disagree with what I said in an email. For the record if Eddie and Monroe don’t want comments on their private emails stop addressing them to 47 people and sending them over the county email. Neither of them are county employees and have no right to send personal emails over the county system. If you involve someone in your private email conversation and then get your feelings hurt it’s your own fault. Look closely at this email you are offended by and you will see he did this as another harassment tactic. I am certain when you see that you will just say Eddie will be Eddie and that is a double standard. You were polite and respectful in your email to me and I have tried to return that in my email. If you choose not to vote for me or choose to vote for me that is a personal decision. Do not ever try to use your vote as a way of saying any public official owes you anything. It is really easy to sit back and condemn others instead of stepping up, filing for office and being the one who tries to help the people of Haywood County. Your whole attitude disgusts me because you do not appreciate anything the 5 of us try to do for the people of Haywood County. We spend hours and hours each week talking, listening and trying to help the people of Haywood County. You invest nothing in anyone but yourself and bloat your ego every time you bash us. You need people to shower you with attention so you can feel good about yourself and you choose to get that attention by bashing us. The next time you feel the need to criticize me look down deep inside and evaluate how you treat others. If you look inside and find your behavior has lead to your arrest or your banishment from the Republican Party clean up your mess before you try telling me what I should or should not say.

Mark Pless
Haywood County Commissioner
828-421-8156
Sent from my iPhone