On April 27, Wendy Jacobs, who chairs the Durham County Board of Commissioners, announced that an independent counsel would determine whether county manager Wendell Davis sought to interfere in the March 3 primary election by writing a letter accusing Commissioner Heidi Carter of “inherent bias” toward himself and people of color.
Carter prevailed, along with fellow incumbents Jacobs and Brenda Howerton. When the new Board of Commissioners takes office in December, they’ll be joined by newcomers Nimasheena Burns and Nida Allam, marking the first all-female board in county history.
Davis’s letter, written on February 11, was first reported by the INDY on February 18. Carter denied the allegations, calling Davis’s claims “baseless” and saying his letter contained “misquotes and fabrications.”
She and her supporters argued that Davis’s letter served two purposes: retaliation for her criticism of his performance and to influence the outcome of the upcoming primary. The commissioners who were elected would determine whether to renew Davis’s contract next year.
Carter’s fellow commissioners may have reached a similar conclusion. Most of them, anyway.
At their April 27 meeting—held virtually because of the COVID-19 pandemic—Jacobs announced that commissioners had instructed the county attorney and county clerk to begin notifying prospective independent counsels to conduct two investigations.
The first would look at “the letter that was sent by the county manager.” Asked whether that meant the investigation would focus on whether there was any truth to Davis’s allegations or something else, Jacobs, Howerton, and county attorney Lowell Siler declined to comment.
The second would focus on “the actions that the county manager took in the way that he sent the letter as it relates to the International County Managers Association code of ethics, and the N.C. general statutes related to the conduct of a professional executive, and about whether there were possible violations of interference with elections.”
Jacobs’s announcement wasn’t on the board’s agenda for that evening. Instead, it was prompted by a statement from Howerton—Davis’s biggest defender among the commissioners, who has pointedly said that “Heidi Carter is not the victim”—who questioned why the investigation was taking precedence over the COVID-19 crisis.
Howerton mentioned an email she’d written to Siler, Davis, and her fellow commissioners a week earlier that spoke of the “need to revisit the handling of the investigation into the county manager’s serious allegations regarding one of our county commissioners.”
Jacobs replied that commissioners were implementing what they’d already voted on.
Then things got acrimonious.
“You mentioned two issues that you had not informed me about. One of those issues, you had not informed me of,” Howerton said.
Jacobs suggested a closed session with an attorney present and said it was improper to bring up personnel matters in a public forum.
“Don’t throw stuff out that you haven’t discussed with me,” Howerton responded. “That’s all I’m asking.”
Jacobs replied that the real impropriety was when Howerton brought up the investigation in the first place. “I am going to continue because you are being hypocritical in the comment you just made,” Jacobs said.
“Oh, you get to call me names,” Howerton said, laughing.
Jacobs and Howerton declined to comment on the exchange.
In her April 21 email, Howerton wrote that she was “gravely concerned” about the investigation being “pushed through in a very clandestine way.” She said that she hadn’t voted for any investigation that would redirect resources away from COVID-19 and questioned “how decisions are being made when all board members aren’t apprised.” Howerton also warned against commissioners being “involved in any aspect of this investigation” and suggested leaving the matter to District Attorney Satana Deberry.
On May 4, Omar Beasley, who chairs the Durham Committee on the Affairs of Black People, wrote a letter to Attorney General Josh Stein asking his office to “ensure a fair and just investigation.”
“Commissioner Howerton was unaware of any such investigation” prior to the April 27 meeting, Beasley wrote, asking Stein to investigate a possible violation of the state’s open meetings law. Beasley also said Jacobs may have violated state laws protecting the privacy of employee personnel files by announcing the investigation into Davis.
(On Monday, the group Organizing Against Racism Durham sent Stein an email seconding Beasley’s call for an intervention.)
Frayda S. Bluestein, a professor of public law and government at UNC-Chapel Hill, says the confidentiality aspects of Jacobs’s announcement are “very complicated.”
“Because the situation involves actions by an employee, information in the personnel file of the employee is confidential, and discussions in closed sessions about the matter would be confidential,” Bluestein says. “At the same time, however, the matter also involves an elected official, and information related to the conduct of an elected official is not confidential under the personnel records confidentiality laws. Add to this challenge the fact that it appears that some of the people involved may have voluntarily released records or made statements disclosing some of this information.”
Asked what could come of the two investigations, Bluestein says that if the first supports Davis’s allegations against Carter, her fellow commissioners could vote to reprimand her.
“If the investigation concludes that a board member has done something that a majority of the board considers to be inappropriate they can adopt a resolution of censure,” Bluestein says.
However, “such a resolution has no legal effect,” she adds.
If the second investigation finds that Davis tried to interfere in an election, he would face more serious consequences.
“If an investigation of an employee concludes that the employee has [violated] a criminal statute, it would be up to the board to determine whether to turn the matter over to the district attorney for potential prosecution,” Bluestein says.
Even if commissioners didn’t press charges, such a finding would likely allow them to terminate Davis for cause, meaning they would not have to pay his $210,000 salary through the end of his contract next year.
On February 24, at the first commissioners meeting after news of Davis’s letter broke, about a hundred black residents packed into the board’s chambers to support the county manager. Some demanded the county investigate his claims. Others said they were concerned that he would face retribution for accusing a respected white woman of racial bias.
Carter told a skeptical audience that night that she had “listened carefully, and I hear your concerns.” Still, she added, she was “deeply disturbed and disappointed that Davis did not speak to her in private or in a closed session instead of lodging “harsh, unsupported allegations, and in such a public way, two weeks before the elections.”
“I want to be clear,” she said, “and it is important to my integrity that I say this: I unequivocally deny the misquotes in the letter and that my actions were ever racially motivated. That is simply not true.”
Contact staff writer Thomasi McDonald at tmcdonald@indyweek.com.
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