ADA’s firing shines light on traffic school ‘arrangement’

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By PAUL THARP, Staff Writer

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A Mecklenburg County assistant district attorney says he was terminated because he gave an interview to Charlotte’s FOX affiliate.

The attorney, Sean P. Smith, is a candidate for the district court seat held since 2009 by Gov. Bev Perdue appointee Tyyawdi M. Hands.

Smith said that in the Mecklenburg district attorney’s office, “You don’t talk about certain things.” He gave the interview on July 9 as part of his judicial campaign.

In the interview he expressed concerns about the relationship among the district attorney’s office, the Charlotte-Mecklenburg Police Depart-ment and the Safety and Health Council of North Carolina, a nonprofit organization that offers defensive-driving courses to ticketed drivers.

Smith said he “can’t figure out why [giving the interview] rattled [District Attorney Peter Gilchrist] so much, because the driving school is not a D.A.’s office program. The program actually cuts the D.A.’s office out of it,” he explained.

It is unclear whether there was any relation between Smith’s firing and the subject matter of the interview. Smith said Gilchrist did not give him a reason for his termination. “He told me I was terminated. That was all he said.”

The Mecklenburg County District Attorney’s office had not returned calls for comment by deadline; neither had the Charlotte-Mecklenburg Police Department.

Charlotte attorney Pender McElroy of James, McElroy & Diehl said that the statute that authorizes district attorneys to employ assistant district attorneys – G.S. § 7A-63 – provides that they “serve at [their] pleasure,” meaning district attorneys have wide latitude in making personnel decisions.

Smith said G.S. § 126-13(b) protects state employees from supervisorial interference “with the right of any state employee as an individual to engage in political activity while not on duty.”

He said he is exploring his legal options, and questioned the authority of government agencies to limit the free-speech rights of employees or punish those who speak out.

Speaking out

Marcus Philemon of CharMeck Court Watch, a community organization that documents court cases and rulings in Mecklenburg County, described Smith as “one of only a few assistant district attorneys who goes over and above to understand the issues.”

Philemon said that he was sure Smith was “doing what he felt like he should do. Sean has opened the door for Gilchrist to find a way to direct money to the public schools.”

Smith said that while Art. IX, § 7 of the N.C. Constitution provides that fines collected “for any breach of the penal laws of the State … shall be faithfully appropriated and used exclusively for maintaining free public schools,” in most traffic cases in Mecklenburg County fines are never levied.

Philemon said that to his knowledge no one else in Mecklenburg County has publically raised that issue.

‘Mecklenburg arrangement’

The Safety and Health Council of N.C. has been offering defensive-driving courses in Mecklenburg County since 1989, according to its president, Charles F. McDonald Jr.

McDonald said that when officers ticket drivers in Mecklenburg County, they provide a court information sheet as well as a leaflet detailing the driving-school program.

The leaflet tells drivers they can complete one four-hour driving course and receive a prayer for judgment continued. It also tells drivers they do not have to make a court appearance.

How the PJC is entered without a court appearance is what Smith described as “the million-dollar question.”

Smith said only a judicial officer – a judge – can enter a PJC. “All I know is a clerk is entering the PJC into an information system on a computer. How it gets to the clerk is beyond me.”

McDonald said that to his knowledge the PJCs are entered administratively, without a judge reviewing or signing off on each individual PJC.

“That is my understanding, although I can’t be sure,” he said. “That dates back to 1991, when we established a cooperative agreement between the clerks, the judges and the district attorney’s office.”

McDonald thought the cooperative agreement might have been reduced to a written policy at some point “as a letter or an order of some kind,” but he did not know for sure and did not have a copy of any written policy.

Raleigh criminal defense attorney John K. Fanney of Fanney & Jackson said he “can’t believe the judges and district attorney in Mecklenburg County would consent to such an arrangement.”

“The bigger problem is ultimately the economic problem,” he said. “The driving school program is making tons of money and depriving the public schools of needed money.”

That is because, as Susan A. Doyle, district attorney for Judicial District 11, which encompasses Johnston, Harnett and Lee counties, said, fines or other penalties cannot be levied with PJCs under relevant N.C. case law – most recently State v. Popp, 676 S.E.2d 613 (2009).

Fanney said the Mecklenburg arrangement deprives judges, district attorneys and local defense attorneys of functions that by law should be functions of the court.

“This is an issue of keeping the court system intact and keeping teachers in their jobs. These outside entities like the driving school are like the kudzu of the court system – a non-native species that becomes so pervasive that it covers the rest of the forest,” he said.

Lisa C. Bell, the chief district court judge in Mecklenburg County, had not returned Lawyers Weekly’s calls for comment by deadline.

Policies vary

Doyle said her prosecutors typically offer the defensive-driving course only to young drivers.

“Most adult drivers are required to come to court on their assigned court date and negotiate a reduction of their charge,” she said. “In some cases drivers may qualify for a reduction in speed; others may qualify for a reduction to an improper-equipment charge.”

In any case, she added, the negotiations occur in court and judges assess fines.

“We don’t offer PJCs,” she said. “If drivers ask for it, whether one is granted it is up to whichever judge is presiding.”

C. Colon Willoughby, district attorney for the 10th Judicial District in Wake County, said that like Doyle, “We only offer traffic school to young offenders.”

Willoughby added that traffic fines and bond forfeitures in Wake County bring in $3-4 million for the local school system.

Constitutional brilliance

Smith described the N.C. Constitutional provision mandating payment of fines and forfeitures to public schools as “brilliant.”

It is difficult to understand why, he added, in Mecklenburg County – a jurisdiction with an extremely large volume of traffic citations – an arrangement is in place that deprives the public school system of those funds.

“We’re cutting teachers,” he said. “Meanwhile the driving school is raking in millions of dollars that could otherwise be alleviating the budget woes of Charlotte-Mecklenburg Schools.”

McElroy said that “district attorneys have to make choices about how to utilize funding in ways that are most effective for the public and the justice system. If a district attorney chooses to route minor traffic charges to traffic school as a way of disposing of traffic charges, that seems to be a reasonable procedure.”

McElroy agreed that the public schools are in need of funding, but he said “it is not the responsibility of the district attorney to fund the schools.”

McDonald said that “by no means [is the driving school] out to siphon funds away from the school system.”

He added that if collecting traffic fines was “desired by the public or the legislature, we could make that work. We receive and remit the court costs to the clerk of court. We could do the same with fines if we were instructed to do so.”