The City of Blue Ridge, and specifically council members Robbie Cornelius, Mike Panter and Mayor Donna Whitener, were served with an Anti Litem notice on behalf of fellow Councilman Nathan Fitts Monday, March 8.
The notice asks that those council members apologize and revoke and rescind the motion to censure Fitts, otherwise, legal remedies will be pursued, which include seeking damages in the amount of $30,000, legal costs, and punitive damages against the council members “who acted without authority of law,” according to the notice from Attorney R. David Syfan.
The Anti Litem notice from Syfan, on behalf of Fitts, states, “In my letter of February 9, 2021, I informed you that a proposed censure of Councilmember Nathan Fitts was unconstitutional, and that there is no provision within the City Charter to provide for such an action by the City Council. Further, as you are aware, the City Council has not adopted an ordinance written with sufficient specificity to apprise all members of the Council as to conduct that would call for the disciplinary action of a censure, and with specific guidelines and conditions within the ordinance that would allow for such a disciplinary action to be applied uniformly to all elected officials concerned.
“Further, since each Councilmember has a property interest in their elected seat, the due process requirements of the Fourth Amendment of the United States Constitution would require appropriate advanced written notice of the alleged violations, and evidentiary hearing in which the alleged evidence of the alleged violation could be presented, and which would allow the accused Councilmember to have the ability to be represented by an attorney at the public evidentiary hearing and have cross-examination of witnesses, and review of any documentary evidence.
“As you will recall, Mr. Fitts, in the February 9 2021, meeting during the course of the discussion of the proposed censure, read in my letter of February 9, 2021, to you, and therefore, you were on notice that the censure was unconstitutional and not authorized under the City Charter for the City of Blue Ridge.”
As referenced, Syfan had written a letter to the council prior to the February 9 meeting, advising that if the council voted to censure Fitts, members would do so without legal authority.
The notice comes as a result of the February 9 council meeting in which said members voted to censure Fitts.
Panter introduced the censure with claims of “continuous inappropriate conduct, unfounded accusations and the creation of a hostile work environment for the employees, council members and the mayor of the City of Blue Ridge” by Fitts but provided no specific instances.
A censure, in a nut shell, holds an individual accountable, acts as a public notice and cannot impose punishment.
On the contrary, Panter had originally presented a censure that attempted to suppress Fitts’ First Amendment right to freedom of speech, and upon a second censure, would have resulted in his removal of office.
The censure had been revised prior to the meeting to omit such standards.
Council members Rhonda Haight and Harold Herndon were not named in the notice and did not vote in approval of the censure February 9.
Syfan provided City Attorney James Balli a copy of the notice by email, and Balli responded and said, “Mr. Syfan, I have forwarded your letter to our insurance carrier and have formally recused from this matter. I have requested independent, outside counsel be hired to defend.”
The email chain also alluded that an original notice had asked for the council to rescind the censure and apologize during the March 9 council meeting, and upon Balli’s recommendation to Syfan, Fitts agreed to postpone the rescinding and apology until the council can obtain legal advice on the matter. In turn, the acts were extended until the April 13 meeting.