Board hears about stormwater and Community Plan

Commissioners delay vote on county-wide anti-discrimination policy

During Tuesday night’s work session for the Wake Forest Town Board, the commissioners heard two presentations, one about the ongoing stormwater assessment and one about the status of the Community Plan and Land Use Plan.

Town engineer Monica Sarna told the board about the three tasks the engineering department and its consultant firm, Freese and Nichols, have set out on. The first is a desktop analysis of a criticality assessment, looking at the consequences of failure or the likelihood of failure in the stormwater system.

The town collects stormwater through the drains set in the curbs of all the streets, and the water flows through a piping system that is separate from the drinking water system and is sent into the streams that form the town’s drainage systems: Richland, Smith, Horse and Tom’s creeks.

Sarna said the department and its consultant have completed a hydraulic modeling of 20 miles of stream banks in Richland Creek, something that has not been done before. The department hopes to similarly model the other three drainage systems.

The third task is to develop a proactive plan to maintain the stormwater infrastructure as it continues to develop and to also develop a stormwater utility fee structure to fund the ongoing maintenance that the State of North Carolina requires for its MS4 Stormwater Permit.

Sarna will return when the fee structure has been determined.

Jennifer Currin, the assistant planning department director, was next to tell the commissioners about the possible schedule for approval of the Community and Land Use plans. The planning board approved the plans at its March 4 meeting and there will be a public hearing and possible action by the town board at its April 19 meeting.

Currin then introduced the consultants from Houseal Lavigne, who then went through the lengthy process they have followed to get the two plans to an almost-complete stage. To read the latest draft of the plan, go to the Town of Wake Forest website (https://www.wakeforestnc.gov/) and click on the button Community Plan on the first page.

Currin said there will be additional changes but the work is nearly complete.

The last item on the agenda was a request from Wake County to consider a local town ordinance about prohibiting discrimination in public accommodations and employment which the county board of supervisors has already passed for the non-municipal parts of the county. Other Wake towns are also considering the ordinance.

Hassan Kingsberry, the town attorney, went through the ordinance briefly and said it added protection against discrimination for hair styles, pregnancy, sexual orientation, national origin, age and disability and other situations/identity not covered by state or federal law.

Commissioner Nick Sliwinski asked if it affected private businesses, Kingsberry said yes, and Sliwinski said it was unenforceable and a reach into the private sector. Two other commissioners agreed and Mayor Vivian Jones said she did not like that it would affect local businesses. The mayor only has a vote when there is a tie vote among the commissioners.

The Commissioner Keith Shackleford said he would like to give the possible ordinance more consideration. He said it was “a down-to-earth version about what is happening in society. I would like to study it a little bit more.”

Jones then said she thought the town was already “observing nondiscrimination” but agreed it could be brought up again.

This is the text of the proposed ordinance:

INTERLOCAL AGREEMENT

This Interlocal Agreement is dated as of February 1, 2022, among the ___________________________; all of the above being municipal corporations organized under the laws of the State of North Carolina (collectively “Municipal Parties”); and WAKE COUNTY, NORTH CAROLINA (the “County” or “Wake”), a public body politic and corporate of the State of North Carolina (individually a “Party” and collectively “Parties”).

RECITALS:

WHEREAS, Wake County welcomes all people and recognizes the importance of diversity and the importance of all people being free from discrimination based on race, natural hair or hairstyles, ethnicity, creed, color, sex, marital or familial status, sexual orientation, gender identity or expression, national origin or ancestry, marital or familial status, pregnancy, National Guard or veteran status, religious belief or non-belief, age, or disability; and

WHEREAS, invidious discrimination and the tolerance of invidious discrimination is detrimental to the health, safety, and welfare of the citizens of Wake County and the peace and dignity which Wake County seeks to promote for all of its residents; and

WHEREAS, on October 18, 2021, in accordance with G.S. 153A-121, the Wake County Board of Commissioners enacted a Non-Discrimination Ordinance (“Wake NDO” or “NDO”) effective within the jurisdictional limits of Wake County to promote principles of diversity, inclusion, harmony, and equal treatment for all and thereby the health, safety, and welfare of those who live in, work in, and visit Wake County as well as to promote the peace and dignity of Wake County; and

WHEREAS, the Wake NDO authorizes municipalities located within Wake County to adopt the Wake NDO provided they enter into an interlocal agreement that establishes uniform enforcement procedures and guidelines; and

WHEREAS, pursuant to N.C.G.S. § 153A-122, the respective governing bodies of the Municipal Parties have enacted resolutions adopting the Wake NDO within their territorial jurisdictions; and

WHEREAS, the Parties desire to centralize the non-discrimination complaint process and procedure for improved consistency and accountability; and

WHEREAS, the Parties desire to enter into this Agreement pursuant to the statutory authority authorizing interlocal agreements, N.C.G.S §§ 160A-460 to 160A-464, in order to pursue the above stated goals.

NOW THEREFORE, for and in consideration of the premises and covenants contained in the Agreement, the sufficiency of which is hereby acknowledged, the Parties agree as follows: Page 2 of 9

 

ARTICLE I

Definitions

1.01. Definitions: For all purposes of this Agreement, unless the context requires otherwise, the following terms shall have the following meanings:

Agreement means this Interlocal Agreement.

Complaint means a written allegation of discrimination filed on the County’s adopted complaint form in accordance with the Wake NDO.

Complainant means a Person as defined under the Wake NDO who files a Complaint.

Conciliation means attempted resolution of issues raised by a complainant through informal means not involving court process.

Discrimination means any difference in treatment based on a Protected Class as defined herein.

Employer means any person employing one or more persons within the Wake County and any person acting in the interest of an employer, directly or indirectly, including an employment agency. “Employer” shall include Wake County and any Wake County Contractor.

Gender identity or expression means having or being perceived as having gender-related identity, expression, appearance, or behavior, whether or not that identity, expression, appearance, or behavior is different from that traditionally associated with the sex assigned to that individual at birth.

Municipalities means the Municipal Parties named in this Agreement.

Party means a municipality or Wake County, as the context or the usage of such term may require, which is a signatory to this Interlocal Agreement.

Person means a natural person, a corporation, company, partnership, firm, association or other entity with a separate legal existence.

Protected class means race, natural hair or hairstyles, ethnicity, creed, color, sex, pregnancy, marital or familial status, sexual orientation, gender identity or expression, national origin or ancestry, marital or familial status, pregnancy, National Guard or veteran status, religious belief or non-belief, age, or disability.

Protected hairstyle means any hairstyle, hair type, or hair texture historically associated with race such as, but not limited to, braids, locks, twists, tight coils or curls, cornrows, Bantu knots, and afros.

Public accommodation means any place, facility, store or other establishment which supplies accommodations, goods, or services to the public or which solicits or accepts the patronage or trade of the general public. A public accommodation shall not Page 3 of 9

 

include a Religious Organization and all of the activities of the Religious Organization, or a non-profit fraternal or social organization which restricts use of facilities and services to members and their guests.

Religious Organization means a church, mosque, synagogue, temple, non-denominational ministry, faith-based mission or faith-based entity that is primarily devoted to the study, practice, or advancement of religion.

Respondent means a Person as defined under the Wake NDO against whom a compliant has been filed pursuant to the Wake NDO.

ARTICLE II

Purpose, Process & Responsibilities

2.01. Recitals; Purpose: The Recitals are incorporated herein. The Parties agree to centralize all non-discrimination complaints received in their respective jurisdictions in one online portal system managed by Wake County.

2.02. Roles and Responsibilities of the Parties:

• (A) The County shall: 1. Establish and maintain an online portal for the intake of Complaints filed within the jurisdictional limits of the County and the jurisdictional limits of the Municipal Parties.

2. Perform jurisdictional review of all Complaints received in accordance with the Wake NDO and issue letters of referral and.
3. Provide administrative personnel to perform all necessary work under this Agreement.
4. Contract with third parties for the administration of the investigatory and conciliation process established in the Wake NDO.
5. Collect fees from the Municipal Parties in accordance with the terms and conditions of this Agreement.

 

Provide a Complaint form available to persons and members of the public.

• (B) The Municipal Parties shall: 1. Coordinate with the County following the receipt of any Complaint by the County falling within the jurisdictional limits of the Municipal Party.

2. Be responsible for enforcing ordinances and regulations that are not covered by the Wake NDO.
3. Compensate the County for administrative costs and fees in accordance with the terms and conditions of this Agreement.

 

2.03. Process: All Complaints regarding alleged violations of the Wake NDO must be filed with the County Manager’s Office within ninety (90) days of the alleged discriminatory act on the Complaint form provided by the County in accordance with the criteria set forth therein. Upon review of the Complaint, the County Manager, or his Page 4 of 9

 

designee, shall determine if the Complaint falls within the jurisdiction of the County or the Municipal Parties and make a recommendation for one or more of the following actions: 1) No further action based on lack of jurisdiction, whether territorial or subject matter jurisdiction, or 2) An opportunity for the Complainant and the Respondent to participate in Conciliation to resolve the dispute. The County shall be responsible for communicating the recommended action to the Complainant upon intake and review of the Complaint.

In all cases where the County recommends Conciliation, the County shall offer the Complainant and the Respondent an opportunity to participate in a conciliation process, free of charge. The Complainant and Respondent may, but are not required, to be represented by counsel, but shall be responsible for their own fees or expenses related to representation, preparation or attendance. The Conciliation session shall be a closed, informal and confidential process. All resolutions of Complaints shall be reduced to writing, signed by the Complainant and Respondent, acknowledged by the facilitator of the Conciliation. The memo of conciliation shall be enforceable as a binding contract.

All jurisdictional determinations and Conciliations facilitated by the County are final, with no right to appeal by the Complainant, Respondent, or the Municipal Party.

The County shall not be responsible for advising Complainant or Respondent of available alternatives to Conciliation.

2.04. Limitations of the County: Nothing herein shall require the County to initiate judicial action by or on behalf of any Complainant or the Municipal Parties, including but not limited to injunctive relief or any other equitable remedy under law. The Parties understand that the conciliation process established by the Wake NDO is voluntary and non-penal in nature. The County’s role under the Wake NDO is to encourage and facilitate resolution of Discrimination among Protected Classes occurring in Employment or Places of Accommodation. Nothing in this Agreement shall be interpreted or applied so as to create any requirement, power, or duty in conflict with the Wake NDO or compel the County to seek relief on behalf of a Municipal Parties and the Complainants. The Wake NDO does not create any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against Wake County, its agencies, departments or any other officers, elected officials, or employees or any other person or entity, including respondents. If the Complainant wishes to file a court action, he or she must do so through his or her own attorney or on his or her own through the court’s pro se clerk’s office.

2.06. Special Provisions Regarding Public Records: Nothing herein shall require the County to accept responsibility for responding to any public records request filed with a Municipal Party in association with this Agreement. Notwithstanding the above, Wake County shall respond to all public records requests filed with the County for documents or materials in its possession. All electronic or written communication related to the Complaint or Conciliation in the custody of the County or any Municipal Party shall be considered public record. The Conciliation session shall not be recorded and shall remain confidential. Page 5 of 9

 

 

• 01. Collection of Fees: For the initial term of this Agreement as set forth in Section 4.02, below, Wake County will not assess an administrative fee for the services provided to the Municipal Parties. Beginning July 1, 2022, Wake County shall assess and collect from the Municipal Parties an administrative fee, to be separately negotiated and determined by written addendum to this Agreement.
• 02. Responsibility for Costs: Wake County agrees to provide all personnel,
• 01. Effective Date: This Agreement shall become effective on February 1, 2022, subject to approval by the governing boards of each Party on or before this date.
• 02. Initial Term: The term of this Agreement shall commence on February 1, 2022 and terminate on June 30, 2022 unless earlier terminated in accordance with Section 4.03. If the Parties desire to extend the initial term, they must execute a separate written agreement to align with the local government fiscal years beginning July 1, 2022.
• 03. Termination: Any Party shall have the right to withdraw or terminate participation in this Agreement upon 30-day notice to the County. To the extent that any Party withdraws from this Agreement, it shall remain in force and effect as to the remaining Parties.
• 04. Addition of Parties: The County shall have the right, but not the obligation, to add any municipal party within Wake County enacting a resolution adopting the Wake NDO to this Agreement by amendment. Such amendment shall not require the approval of the governing authority of the Municipal Parties already parties to this Agreement.

 

ARTICLE III

Administrative Fees, Costs, & Personnel

resources, and equipment to carry out the Purpose of this Agreement. Costs associated with these resources will be paid by Wake County.

3.03. Attorneys Fees: There is no right to representation by an attorney in the Complaint process. If Complainant or Respondent choose to be represented by counsel, each shall be responsible for payment of attorney fees incurred.

ARTICLE IV

Effective Date, Term, Termination, and Addition of Parties

ARTICLE V

Notice

5.01. Notice: Any written or electronic notice required by this Agreement shall be delivered to the Parties at the following addresses: Page 6 of 9

 

 

• 07. Assignment: No Party shall sell or assign or subcontract any interest in or obligation under this Agreement without the prior written consent of all the Parties.
• 08. No Waiver Of Sovereign Immunity: Nothing in this Agreement shall be construed to mandate purchase of insurance by Wake County pursuant to N.C.G.S. 153A-435 or by any municipality pursuant to N.C.G.S. 160A-485; or to be inconsistent

 

For Wake County: Wake County Manager

Wake County Justice Center

301 S. McDowell St.

Raleigh, NC 27601

For City of ___________:

For Town of ____________:

ARTICLE VI

Miscellaneous

6.01. Governing Law and Venue: The Parties agree that North Carolina law shall govern this Agreement. Venue for any disputes arising under this Agreement shall be in the courts of Wake County, North Carolina.

6.02. Severability: If any provision of this Agreement shall be determined to be unenforceable by a court of competent jurisdiction, such determination will not affect any other provision of this Agreement.

6.03. Entire Agreement, Amendments: This Agreement constitutes the entire Agreement between the Parties. This Agreement shall not be modified or amended except in writing signed by all the Parties.

6.05. Liability of Officers and Agents: No officer, agent or employee of any Party shall be subject to any personal liability by reason of the execution of this Agreement or any other documents related to the transactions contemplated hereby. Such officers, agents, or employees shall be deemed to execute this Agreement in their official capacities only, and not in their individual capacities. This section shall not relieve any such officer, agent or employee from the performance of any official duty provided by law.

6.06. Counterparts: This Agreement may be executed in several counterparts, each of which shall be an original. Alternatively, each Party may execute an original of this Agreement and all individually executed originals shall constitute a single Interlocal Agreement. Page 7 of 9

 

 

• with Wake County’s “Resolution Regarding Limited Waiver of Sovereign Immunity” enacted October 6, 2003; or to in any other way waive any Party’s defense of sovereign or governmental immunity from any cause of action alleged or brought against a Party for any reason if otherwise available as a matter of law.
• 09. Indemnity: If allowed by North Carolina law and to the extent it does not operate as a waiver of sovereign immunity and is not inconsistent with County’s “Resolution Regarding Limited Waiver of Sovereign Immunity”, County shall indemnify and hold harmless the Municipal Parties from and against all claims, demand, costs and expenses arising out of or relating to County’s obligations under this Agreement caused by the negligence or willful misconduct of the County. Likewise, a Municipal Party shall indemnify and hold harmless the County from and against all claims, demand, costs and expenses arising out of or relating to the Municipal Party’s obligations under this Agreement caused by the negligence or willful misconduct of the Municipal Party. Provided, however, that in the event any such claim, suit, or cause of action is made against any Party hereto who believes they are entitled to indemnification, notice shall be given to the indemnitor within five (5) business days after that Party’s first notice of any such claim, suit, or cause of action.
• 10. Real Property: This Agreement does not involve the acquisition or ownership of real property.
• 11. Breach and Default: In the event of breach of this Agreement, the Parties shall be entitled to such legal or equitable remedy as may be available, including specific performance.

 

Notwithstanding the above, by entering into this Agreement, the Municipal Parties

hereby agree to indemnify and hold the County harmless from any damages, awards, administrative and legal costs associated with the defense of any lawsuit or legal action initiated by a Complainant in association with the Wake NDO. In the event Wake County is named a party to any lawsuit or legal action arising under the Wake NDO falling within the jurisdiction of the Municipal Party, the County it is entitled to recover from the Municipal Party, any and all administrative and legal costs, including, but not limited to, attorney’s fees and damages.

6.12 Representations and Warranties: The Parties each represent, covenant and warrant for the other’s benefit as follows:

(a) Each Party has all necessary power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and this Agreement has been authorized by Resolution spread upon the minutes of each Party’s governing body. This Agreement is a valid and binding obligation of each Party.

(b) To the knowledge of each party, neither the execution and delivery of this Agreement, nor the fulfillment of or compliance with its terms and conditions, nor the consummation of the transactions contemplated by this Agreement, results in a breach Page 8 of 9

 

of the terms, conditions and provisions of any agreement or instrument to which either Party is now a party or by which either is bound, or constitutes a default under any of the foregoing.

(c) To the knowledge of each Party, there is no litigation or other court or administrative proceeding pending or threatened against such Party (or against any other person) affecting such Party’s rights to execute or deliver this Agreement or to comply with its obligations under this Agreement. Neither such Party’s execution and delivery of this Agreement, nor its compliance with its obligations under this Agreement, requires the approval of any regulatory body or any other entity the approval of which has not been obtained.

6.13 Verification of Work Authorization; Iran Divestment Act Certification: The Parties, and all subcontractors, shall comply with Article 2, Chapter 64, of the North Carolina General Statutes. The Parties hereby certify that they, and all subcontractors, are not on the Iran Final Divestment List created by the North Carolina State Treasurer pursuant to N.C.G.S. 147-86.58. Page 9 of 9