NEWBERRY COUNTY COUNCIL

MINUTES

FEBRUARY 6, 2008

The Newberry County Council met on Wednesday, February 6, 2008, at 7:00 p.m. in Council Chambers at the Courthouse Annex, 1309 College Street, Newberry, SC, for a regularly scheduled meeting.

Present were: Henry B. Summer, Chairman

William D. Waldrop, Vice-Chairman

John E. Caldwell, Councilman

Mike Hawkins, Councilman

John Dawkins, Councilman

Edgar Baker, Councilman

Henry H. Livingston, III, Councilman

Wayne Adams, County Administrator

Gary T. Pope, County Attorney

Susan C. Fellers, Clerk to Council

Debbie S. Cromer, Finance Director

Press: Cindy Pitts, The Newberry Observer

Notice of the meeting was duly advertised as required by law.

Mr. Summer called the meeting to order and determined a quorum to be present.

Mr. Dawkins had the invocation followed by the Pledge of Allegiance.

Mr. Summer congratulated John E. Caldwell on receiving a Lifetime Service Award from the Board of Directors of Carolina Scholarhips, Inc.

1. Personal Appearances.

a. Representative from Adjutant General’s Office to discuss conveying current location of Sheriff’s Department to Newberry County’s ownership.

Colonel Brad Owens, Construction and Facilities Manager for the South Carolina Army National Guard, stated they received a request from Sheriff Lee Foster for the acquisition of the maintenance facility in Newberry. They have acted on it by declaring the property excess, and it now goes to General Services with the State. A Bill has to be introduced for the property to be turned over to the County, and then a quitclaim deed will be generated through the General Services Office.

Mr. Pope received a fax today from Representative Walt McLeod confirming this. Representative McLeod also sent a copy of the joint resolution, which he will introduce. He and Senator Cromer are working actively together on this. We hope to have a favorable approval by the General Assembly and by the Governor. The target date is March 31.

Colonel Owens expressed appreciation for the outstanding support that Newberry County has provided. The Army National Guard currently receives funding from both the state government and the federal government because of their dual mission. Because they do have a ramp up in operational tempo, they have higher utility costs and more demands on their facilities. The federal government has recognized this fact and has provided additional funding. He has a shortfall this year of about $1,000,000 throughout the state and without a state match of the $1,000,000, they stand to lose the federal money next year. He maintains his facilities, about 2.6 million square feet throughout the state, at about $1.60 per square foot. The normal cost factors are about $5.60 per square foot. At the Newberry Armory, or Readiness Center, over the past couple of years he has spent $180,000 on the replacement of the HVAC system and about $44,000 per year on utility costs. In order for him to do maintenance in the Readiness Center, he has to have 50% state and 50% federal monies. If he doesn’t have the state money, he can’t spend the federal money.

Colonel Owens proposed that County Council consider supporting the Army National Guard in the amount of $10,000 per year. Mr. Summer advised that the Army National Guard would be given as much consideration as possible during budget consideration.

b. Presentation to Newberry County Council from Relay for Life.

Angela Bowers, Chairperson for Relay for Life for Newberry County, advised this was a county event for the American Cancer Society that is held the first Friday night in May at the football field at Newberry High School. Teams come on from different churches, businesses and friends, and walk all night long because cancer never sleeps and every day is a new day for cancer patients.

This past fall she attended Relay University, which is held in Spartanburg, for all relay for South Carolina. The American Cancer Society is one of the few organizations that actually give the community the major decisions to make for their fundraiser. This is a county fundraiser. Last year Newberry County raised $71,971, which was an average per capita giving of $1.91 for every person that lives in the county. Ms. Bowers presented the certificate from the Relay for Life to the Council and asked that it be displayed in a county building.

She requested the support of County Council for this year’s relay and invited Council to attend. The goal this year is to raise $100,000, but her goal is to have 45 teams out on the field because by doing that awareness has been raised in Newberry County.

c. Consideration of approval of Local Government Resolution designating Newberry County Disabilities and Special Needs to provide transportation to Persons with Disabilities.

Fred Owens, Executive Director of the Newberry Disabilities and Special Needs Agency, requested Council’s support for a grant through the Department of Transportation to purchase a 14 passenger cutaway bus. This bus will replace a 2000 Chevy 15 passenger van that has over 143,000 miles on it, and the cost is estimated at $60,000. The grant is 80/20. The DOT grant would pay $48,000 and the Newberry County Disabilities and Special Needs Agency would pay the other $12,000.

Their agency services approximately 260 families in Newberry County, and they have 163 full and part time staff. Their current budget is a little over $5,000,000, but 65% to 70% of that goes for salaries and fringe. They have a fleet of 47 vehicles, which are used to transport people all over the county. Of the 47 vehicles, the odometers read a total of over 3,000,000 miles. Nine of the 47 vehicles were purchased with DOT grants.

Mr. Owens thanked Council for the opportunity to appear and asked that Council recognize the Newberry County Disabilities and Special Needs Agency as one that is responsible for transporting people with disabilities and special needs in Newberry County.

Mr. Dawkins moved to approve the Resolution; second by Mr. Waldrop. Vote was unanimous.

2. Adoption of Consent Agenda.

Mr. Livingston moved to adopt the Consent Agenda, which consisted of the minutes of the January 16, 2008 Council meeting; second by Mr. Baker. Vote was unanimous.

3. Additions, Deletions and Adoption of Agenda.

Mr. Pope asked that an ordinance resulting from the Planning Commission’s last meeting be added to the agenda. The Planning Commission denied a request to rezone a 30/100-acre tract located at the corner of Wilson Road and Whitener Road. In order to meet the time requirements of the State Planning Act, Council needs to have first reading tonight. This one is done the same way as the other was recently done, where we take formal action to deny. Council can change it to approve the rezoning, if it so chooses, but this would give the public the right to have input with a public hearing. This is probably the way we need to go in the future with these various requests. (Agenda item 5.1)

Mr. Summer requested an Executive Session on a contractual matter prior to agenda item 8, the consideration of the lease extension on the modular homes.

Under agenda item 16, Executive Session, we need to add an update on the Highway 219 building lawsuit.

Mr. Caldwell moved to adopt the agenda as amended; second by Mr. Dawkins. Vote was unanimous.

4. Ordinance #01-01-08: An Ordinance denying a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone a tract containing approximately 20 acres, designated as TMS Parcel #284-1-27, from Rural (R-2) to General Residential (RG).

Mr. Summer called for the public hearing.

Mr. Hawkins asked before beginning the public hearing, if Council could wait until 7:30 to close the public hearing because the newspaper said tonight’s meeting was at 7:30, and we don’t need to deny anybody that walks in the door at 7:30 an opportunity to participate. Mr. Summer said it would probably be 15 minutes before we finished the public hearing.

Ernest Shealy reiterated that the community was asking Council to vote in favor of denying this request to the zoning change. That many people in that small of an area will be another burden on our strained schools and our traffic problems that are already being experienced in that neighborhood. The first night this came up, Ms. Betty Shealy was here and spoke to Council about a trailer on Civitan Road. Mr. Shealy had some photographs of that, which he passed around to Council. When we talk about getting so many units in such a small area, this is probably a good example of what we are facing.

Dell Rowe thanked Mr. Adams for requesting a traffic signal on 121. Last week the traffic survey was conducted on a Wednesday afternoon, and he requested follow up on that survey. Mr. Adams advised a follow up letter had been received from Mr. Brooks with the DOT and suggested that Mr. Rowe get a copy of that letter from the Clerk to Council later tonight.

Mr. Rowe asked what, if anything, was going to be done about the two trailers that were already out there. He asked that Council deny the rezoning request.

Mr. Hawkins asked if those two trailers were not in the City. Anne Peters, Planning/Zoning Administrator, advised that those two trailers were in the City, and they are going to be moved. We don’t know when, but some other older pre-HUD trailers have been moved out, and they are planning to replace those pre-HUD trailers so it would be an upgrade somewhere else.

Tommy Amick requested continued denial of the rezoning request. The two trailers Mr. Rowe mentioned were moved right beside his business. When Mr. Amick bought his property, he had to sign a restriction saying no mobile homes would ever be put on his property. Before he bought his property he had to have it rezoned for general commercial, and when he did that the whole side in the City limits was rezoned general commercial. Mr. Amick asked if these two mobile homes in the City limits were on general commercial property. Ms. Peters stated they were and that is why they are being moved. We just have to make sure they are moved in the appropriate manner like everybody else in the county.

Mr. Amick was told by the seller this was an industrial development area with no mobile homes whatsoever on this property.

Jimmy Morris thanked Council for its decision and support of the county. It is not just this area of the county, but anywhere in the county. It is not a race issue. We just don’t need the mobile home park, the traffic, and the crime anywhere in the county.

Mr. Summer asked if Council wanted to wait until 7:30 to vote or proceed with the vote.

Mr. Hawkins said when this ordinance came up for first reading he questioned why it was an ordinance to deny rezoning rather than an ordinance to rezone. Later tonight there will be another ordinance to deny. There are some people here tonight interested in that ordinance, and Mr. Hawkins will question it and didn’t want them to think that he questioned theirs and didn’t question this one.

There being no further comments, Mr. Summer declared the public hearing closed.

Mr. Baker moved for third reading; second by Mr. Dawkins. Vote was unanimous.

5. Ordinance #01-02-08: An Ordinance amending Chapter 152 of the Newberry County Code of Ordinances relating to flood damage prevention, so as to add certain definitions and make technical amendments to the ordinances to bring it into compliance with state and federal program requirements, and other related matters.

Mr. Summer called for the public hearing. There being no comments from the public, Mr. Summer declared the public hearing closed.

Mr. Waldrop moved for second reading; second by Mr. Livingston. Vote was unanimous.

5.1 Ordinance #01-03-08: An Ordinance denying a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone a tract containing approximately 30/100 of an acre, designated as TMS Parcel #340-1-43l, from Residential (RS-3) to General Commercial (GC).

Mr. Pope drafted the ordinance this way because the recommendation from the Planning Commission was to deny the rezoning request. The Planning staff recommended that it be approved, but the Planning Commission decided they didn’t want to do that. The reason it is done in this format is that if someone were sufficiently aggrieved by what we did to take the County to court, we want to be able to point to the fact that there was a public hearing and public comments received by this body and not just turned down. If you simply did it with an ordinance that didn’t get first reading, then really no one has had a chance to say anything about it. By having this procedure people can come in and you can have a public hearing and receive the comments pro or con and then make an informed decision. If you don’t take action within a certain period of time, there are some technicalities that may mean you have approved it inadvertently. Mr. Pope wanted to be sure Council took action in a timely manner.

Brenda Bedenbaugh, a broker at Hometown Realty, stated this request was to rezone property located at the corner of Wilson Road and Whitener Road. Her client, who lives in Virginia, decided to sell some property his late wife inherited here from her family. This piece of property is best suited for commercial zoning rather than residential as it is really not large enough to build a home or a residence of any size. It has been surveyed, and it has been perked, and it will perk for a business. Most everything in that area is either commercial, general commercial or is going that direction as is most of Wilson Road. This is the best use for this piece of property because setbacks are not as strict for commercial as they are for residential. It would be much easier to fit a small commercial establishment there than anything else. The only person that objected to this at the meeting where it was denied was the adjoining property owner, who Ms. Bedenbaugh personally approached when this property was listed for sale to give him the first right of refusal. He just said it was too much, but he made no offer of any lesser amount. We are more than happy to have him buy this piece of property, but he has made no offers to this date. Since he has not chosen to purchase it, my client would very much like you to consider rezoning it general commercial.

Mr. Waldrop asked what was located around this property. Ms. Bedenbaugh said there was a car dealership on the opposite corner and a construction place on the other corner.

Mr. Waldrop asked why we were denying it. Mr. Pope said the Planning staff recommended to the Planning Commission that they approve the rezoning request. The Planning Commission considered it but decided it was a setback to the buffer requirements and the minimal lot size. They said it would have a neutral and negative impact on the orderly growth and development in the area, and they decided it was not consistent with the comprehensive plan. The Planning staff had a slightly different viewpoint but it is the Planning Commission that makes the decision. Council makes the final choice. Mr. Pope drafted it as a continuation of what the Planning Commission recommended but Council can amend it or do anything it likes with it. Council may want to receive testimony from Mr. Haltiwanger or some of the other people in the vicinity that might have something to say about it.

Mr. Waldrop felt it should be considered because the Wilson Road area has become commercialized. He felt it should be delayed because it is commercial property.

Mr. Hawkins knew Mr. Pope had good reasons for wording the ordinance this way but felt to lay persons who don’t know the law it gets kind of confusing. Right now the property is residential. If we have a motion and second and 4 people vote in favor of denying this zoning change with two more readings and votes, when we get through, it will be residential. If we have a motion and second tonight and 4 people vote not to deny the change, the property will still be residential. Then we would have to have a motion to approve the rezoning and start over.

Mr. Pope said Council could move to amend the ordinance to approve instead of disapprove. Council could make the motion and then move to amend it to reflect that Council is in favor of having it approved and then vote for it on that basis and the appropriate amendments will be made in the body of the ordinance for the next meeting.

Mr. Waldrop felt it should be delayed for more research to make sure we are making the right decision. Mr. Summer said we would have three readings and a public hearing.

Mr. Waldrop moved to amend the ordinance to approve the rezoning request to general commercial; second by Mr. Livingston.

Mr. Hawkins asked Mr. Pope if he understood from his previous comments that if Council did nothing, it would get rezoned. Mr. Pope said there were technicalities in the law and steps to be taken. If somebody doesn’t take those steps, you can sometimes get tripped up on these technicalities. He wanted to be sure Council took action within thirty days of the Planning Commission’s action. Mr. Hawkins clarified that it would not get rezoned unless at least four people voted to do it.

There being no further discussion, Mr. Summer called for the question on the motion to amend. Vote was unanimous.

Mr. Waldrop moved for first reading as amended; second by Mr. Livingston. Voting for the motion: Councilmen Summer, Waldrop, Caldwell, Livingston, Baker and Dawkins. Voting against the motion: Councilman Hawkins. Motion passed by majority vote.

6. Committee Reports.

No reports.

7. Appointments.

No appointments.

8. Consideration of Lease Extension on Modular Units at Sheriff’s Office.

Mr. Caldwell moved to go into Executive Session to consider a contractual matter relating to the lease extension of the modular units at the Sheriff’s Office; second by Mr. Livingston. Voting for the motion: Councilmen Summer, Waldrop, Caldwell, Livingston, Dawkins and Hawkins. Councilman Baker abstained. Motion passed by majority vote.

[EXECUTIVE SESSION 7:41 P.M. – 7:56 P.M.]

Mr. Caldwell moved to return to open session; second by Mr. Waldrop. Vote was unanimous.

Mr. Summer overlooked an appointment Mr. Caldwell had of Curtis Wicker for the Board of Rescue Squads to replace Terry Greene. Mr. Caldwell moved to approve the appointment; second by Mr. Dawkins. Vote was unanimous.

Crystal Waldrop, Purchasing Director, stated the lease on the modulars had expired and was on a month-to-month basis right now. She presented proposals for the continued leasing and purchasing the units.

Mr. Dawkins moved to continue the 18 month lease; second by Mr. Hawkins. Voting for the motion: Councilmen Summer, Waldrop, Caldwell, Livingston, Dawkins and Hawkins. Councilman Baker abstained. Motion passed by majority vote.

9. Consideration of Bids to bring Community Hall kitchen into Code Compliance.

Crystal Waldrop, Purchasing Director, presented bids to bring the fire suppression system up to standards. The low bidder is Wilson Fire Equipment in the amount of $24,167 plus any costs for permitting.

No frying can be done on the stoves because the City has locked the gas to the stove. They are continuing to use the ovens on the electrical stoves.

Mr. Dawkins said if we vote to do this, it would be a new fire suppression hood for a gas stove so people that lease the Community Hall are able to go up there and actually fry foods there. Because most events are catered, most places have a heating or warming cabinet and a steaming island. The City purchased both of those items are about $4,800. Mr. Dawkins was not only concerned about the price but the historical building. He wasn’t sure the County wanted the liability for people frying food there and didn’t feel it was a good policy to lease such a building to allow people to open fry.

Mr. Baker asked Ervin West if they took out the gas stove and replaced it with an electric stove, could the County do away with the fire suppression system. Mr. West said the County would have to put in the commercial type hood for an electric stove, which is a lot less expensive than the hood for the gas stove and the fire suppression for the gas stove. You would still be putting in a vent hood, but that is exactly what it is. It is a vent hood and not a fire suppression hood. Mr. Baker asked if the hood there would suffice for a vent hood. Mr. West said it could, but Mr. Palmer, Fire Marshal, would need to be the one to tell us. He is the one we have to satisfy. As long as you have a gas stove, you must have a fire suppression system. If you get away from the gas and go electric, a regular vent hood taking the fumes out is all you need.

Mr. Baker suggested tabling this and checking the price for an electric stove and hood approved by the Fire Marshal and see if Mr, Palmer will let us use the existing. If he won’t, what would it cost to put in a new one and the electric stove.

Muriel Lake, Chairperson of the Community Hall Commission, said they don’t really want the gas stove and hood up there. They would like to have 2 electric stoves and whatever the code requires as far as fans or whatever for that.

Mr. Hawkins moved to postpone it; second by Mr. Baker.

Mr. Caldwell asked to when it was being postponed. Mr. Hawkins said the next meeting if they had the information.

There being no further discussion, Mr. Summer called for the question to postpone. Vote was unanimous.

10. Consideration of approval of letters of credit and bonds for Road Construction and Sewer System for final plat approval of the Lake Club, a new development on Lake Greenwood.

Mr. Pope said under the County Code anything bonded off has to come before Council for approval. He recommended that Council entertain an ordinance to delegate that to the County Administrator instead of Council having to bother with it.

The Lake Club has gotten preliminary engineering approval for their sewage disposal system and they have a fixed contract to build that system. They have a price for the road. They have posted letters of credit with the County as beneficiary, and they have signed performance bonds guaranteeing that they will complete these improvements within a specified period of time or the County will be able to draw on the letters of credit to finish the construction. It also means they are not off the hook if that is not enough money. This would allow them to begin selling the lots down there so they can get some money back on their project. This is part of the bonding off process under our final plat approval process in the subdivision regulations.

As we get more and more development in Newberry County, this is more of an administrative matter, and in the future Council might want to consider delegating that to the Administrator, or his designee.

Mr. Pope drafted the performance bond for both the sewage system and the road system, and they have accepted it and have signed it. We are just waiting for Council to approve and Mr. Adams to sign it. The letters of credit is in a form that is satisfactory. Mr. Pope recommended that it be approved.

Mr. Waldrop said there had been concern about the sewage system and fire protection. Jerry Spearman said it would be individual wells. They looked at doing the deep well for the community individually but the problem is the DHEC regulations on that are so onerous. It has to be tested almost every day for a community system, and we couldn’t figure out how the people could afford to do it. Mr. Spearman told the fire chief if he had a tank, there was property in the back that he would deed for the purpose of putting the tank on it. Mr. Waldrop said the people need to understand that this area has a high ISO rating.

Another concern was this would be cluster homes and not just one acre lots. Mr. Spearman said the basic density stays within the zoning regulations. It allows them to move the homes to one side of the development to allow for a green space and in this case lake access and views. As far as the septic system, basically the people who live around it are getting the same quality water treatment as provided from Newberry County municipal sewer system. It is highly regulated and is run by a state regulated facility and not the homeowner’s association. They build the residences based on the state rates for sewer service. The water is highly treated and introduced very slowly back into the environment. The rate allowed for this property amounts to about a soda can full a day per square foot, the max rate, which you will probably never hit. You can only do it at night and over very long periods of time. The thing even has a weather station on it, and if it rains too much, it stores it until conditions are right. There are two or three test wells on the property to test ground water, and they have to test those every week. Environmentally this is the best way to treat it versus sending it to a big facility where it goes out and gets dumped in one place. This treats it over a much larger area.

Mr. Dawkins suggested looking into putting a dry fire hydrant there. We have them all across the county near ponds and the lake area. Newberry County Soil and Water takes care of the kind of permitting and design. Mr. Spearman said they thought about doing that but there is a problem with the elevation.

Mr. Waldrop asked if they would be maintaining the roads and would not want to give the roads to the County later on. Mr. Spearman said the roads are being built better than the county standards. As long as developers are in there, we will keep them private, but if the homeowners want to turn them over to the County, and the County wants them, that would be an option.

Mr. Baker asked the difference between the two letters of credit. Mr. Pope explained that the $376,000 is the performance bond for the sewage system and the other letter for $225,000 is for construction of the road system. Mr. Baker asked if they had to have two. Mr. Pope said it was two different projects. They have signed two different bonds, which are agreements that they will do this work as required. Mr. Baker asked if they could be combined into one. Mr. Spearman said this money is being held until the bond is satisfied, and it won’t tie up our money as long.

Mr. Waldrop asked if there was a DHEC problem, who would be responsible. Mr. Spearman stated the property is turned over to Jacob Utility, and they will report directly to DHEC. They are bonded to the state because the state would be the one responsible for taking over the operation and running the septic system. They are state regulated and there would be no burden on the county.

Mr. Waldrop asked if there was any stipulation that people couldn’t put campers on this property. Mr. Spearman advised there were no campers or trailers, and there are very strict covenants.

Mr. Hawkins asked the acreage. Mr. Spearman said it was 18 acres. Mr. Hawkins said they planned to put 24 houses, and Council just turned down somebody because it was too concentrated.

Mr. Livingston thought DHEC required one acre per septic tank and well. Mr. Spearman said this comes under totally different regulations. Mr. Waldrop said this was a different treatment system. Mr. Spearman said the issue with the wells has to be directed with the septic systems, and if you had the plans in front of you, you would see that the septic systems have to be so many feet from the septic lines to the treatment area. It is all very well planned out and there are stringent regulations as to how you do this. It is not something you throw together. It is a year long process to get this approved by DHEC.

Mr. Hawkins called for the question.

Mr. Waldrop moved to approve the letters of credit and bonds; second by Mr. Dawkins. Vote was unanimous.

11. Consideration of increase of room rates at J.F. Hawkins Nursing Home.

Mr. Summer allowed several people who had signed up for public comments to speak prior to Council’s consideration of this matter.

Penny Nichols said her mother was 73 years old, has lived in Newberry County all her life and has been a patient at Springfield Place for a little over four years as a private pay patient. This is the largest proposed rate hike they have ever experienced and is double the average annual cost of living increase that most people receive. Just because a patient is private pay doesn’t mean they are wealthy. The increases include the private pay and Medicaid residents at both homes, J.F. Hawkins and Springfield Place in skilled, private, semi-private and Alzheimer’s Unit, but she has read nothing regarding the amount of increase in the assisted living, the apartments or the patio homes. What is the amount of their increases? Are they going to be charged the same 11% increase as well? These residents in these areas don’t want a rate increase either but if some areas are going to experience increases to balance the books, then all areas should be raised. Raising all areas may cause it to be a lower amount overall instead of this 11%.

She said the food issue needs to be looked at because especially in the skilled care units a lot of days they bring the food, and it is cold when they get it. Sometimes the grits is so stiff there is no way to melt butter in them. Sometimes the meat is tough and dry and a lot of times the vegetables are not cooked completely done.

It was also mentioned that if they didn’t raise the rates at the nursing home, there would have to be a tax increase. As far as a tax increase, the one-cent sales tax is paying for the ball field, the library, community center, and these same elderly patients are paying this tax each time they have items bought for them. Her mother still pays property taxes. They will never use any of these facilities. She asked Council to put themselves in the place these residents are in and think about the repercussion it would have on you if you had to come up with an 11% increase.

Vassie Pugh said when the new Administrator went to the 4 or 5 homes within a 40 mile radius to find out how much they charged per day, maybe he could have asked them how much they charged and how did they make their money pay their expenses. The County Council is forever having a problem with Jesse Frank meeting their expenses. It is not fair to all the county taxpayers to have to pay extra property taxes.

Last year during the tax issue, the taxes on the nursing home were about $850,000. If the property tax on that property was $850,000, does the county have to pay their taxes and meet that $850,000 for those buildings or how is that handled. Mr. Adams advised that the nursing home does not pay property taxes.

Ms. Pugh said you have a projected income every year and you should know your estimated expenses. You should know where the problems arise for the financial planner to know where to cut.

Mr. Summer advised that Mr. Parks would address all of these questions when she finished speaking.

Ms. Pugh said last year in the fall Mr. Caldwell brought up it might be a good idea to sell the home because if something major happened, there would be no money to fix it. In January Mr. Buddy Livingston made the comment in a sub-committee meeting that it might be in the best interest if the county got out of the nursing home business altogether.

Ms. Pugh read that the County applied for $1.2 million economic development grant to construct phase one of the Mid-Carolina Commerce Park. Is that something new the county is going to buy? Mr. Dawkins said this was for the new industry down at 773 and I-26. The county already owns the property. This is to prepare for Nasmyth, the new industry coming in.

Ms. Pugh read further that council members, Bill Waldrop, John Dawkins, Edgar Baker and Mike Hawkins, voted to hold up the project in order to apply for the grant but that if the application is rejected the county would immediately start the bid process. Where are you going to get the $1.2 million to start the project? If you don’t get the grant, where are you going to get the money? You can’t even run Jesse Frank.

Mr. Summer told Ms. Pugh she had way extended her time and recommended that she talk to the Administrator tomorrow about these questions since they have nothing to do with the nursing home.

Ms. Pugh asked how Newberry County people have the chance to vote on whether you should keep the nursing home operation or to sell. She wants the answer to that tonight or the next time she comes.

Les Parks, Nursing Home Administrator, requested a vote tonight on the increases.

This increase is based on the Medicaid cost report audit that covered the period from 7/1/2006 to 6/30/2007. During that time period our nursing home experienced costs that exceeded the charges by $475,000. For anyone to think this nursing home is a money-making operation, that is not a correct assumption. This rate increase is greatly needed. This generated a new Medicaid rate that is 11% higher than our current rate, which would go into effect October 1. Our rate proposal across the board is an 11% increase for the Medicaid and the self-pay.

The self-pay resident by federal regulations must pay a higher rate than the Medicaid rate. If we do not implement this rate, we are looking to pay back anywhere from $475,000 to $500,000 in a year’s time. We already realized that over a year ago we lost that much money and then to pay back an additional would be extremely hurtful to the operation of the nursing home.

This rate increase is needed and necessary to cover increased costs in insurance, labor, and supplies and as well necessary and significant capital improvements that need to be made at J.F. Hawkins. It is not something we are expecting to make a whole lot of money from. We are trying to cover costs to operate the nursing home, to provide the care that everybody wants, and the food and quality. We are interested in providing good quality care to the residents of our nursing home and to think you can do that with decreased funds doesn’t make logical sense financially. We feel this rate increase is required and necessary.

As far as the competitive rate analysis, we are at or below the existing nursing homes. Those rates that we compared with are before they raised their rates. Most of those facilities we are already below now. Even with our rate increase when they increase their rates, they will be higher again. To think that we are overcharging is an erroneous assumption.

Mr. Parks is not asking for support from the County. The reason for the rate increase is to prevent that. Without this rate increase, we have no other source of revenue.

Mr. Summer said Ms. Nichols mentioned the independent living. When is the last time those rates increased. Mr. Parks said they had an increase November 1, 2007. The nursing home self-pay residents haven’t had an increase since 2006, and it would be close to two years if we wait until October. We have to give a 30-day notice, and it would be April 1^st now. We want to prevent losing $60,000 over the next several months.

Mr. Livingston asked what percentage the others went up last time. Glenn Wicker, Chief Finance Officer, said the assisted living was a 5% increase in November.

Mr. Livingston asked if we had a higher occupancy rate now than in the past three to five years. Mr. Wicker said we did. Mr. Livingston asked if that would not help cut this. Mr. Parks said that number is based on 98% occupancy so it would not help. If we maintain 98% occupancy, then that is what the $475,000 is based on. This 11% increase is from that time period, and it is based on per diem. This is the actual cost of delivery of care. The Medicaid cost report is based on costs.

Mr. Caldwell asked the comparison among the nursing homes of senior citizens, population and income. Mr. Parks said this sample was taken in Newberry County, Laurens County and Saluda County so we are talking about the same socio-economic bracket.

Mr. Waldrop asked why the nursing home didn’t make any profit. Mr. Parks said most nursing homes involved in Medicaid and WHO have a substantial number of residents that are Medicaid are not profitable. They actually live off of cash flow. As far as saying we make a profit that is not correct. We may be able to hopefully have a positive cash flow when we add back our depreciation expense but we don’t make a profit. The nursing home industry in general has a profit margin somewhere in the 1% to 1 ½%.

Mr. Waldrop asked what the future was of the nursing home and if it was always going up 4% to 5% each year. Mr. Parks said there probably won’t be much cost control. The number one cost in healthcare is the labor cost such as the nurses. There is a dramatic shortage of nurses and CNAs across the country, and Newberry County has a significant one. It is the old principle of supply and demand. There are not enough nurses so we have to pay them more. In order for us to be competitive, we have to raise the wages of our nurses and CNAs to get them from some other place, and there is a limited pool. As far as long term, that is a question for the federal government. It is a crisis. When the baby boomers get to that age, there is a dramatic increase in the need for this. The supply of services by licensed nurses and CNAs are not even available. If you compared our nursing home with a total private pay, self-pay, nursing home, you would see rates that are astronomically higher than ours.

Mr. Hawkins thought the Medicaid people were pulling us down. So if they were pulling us down and our private pay people have to pay more to make up for that, it looks like in an all private pay institution rates would be lower. Mr. Parks said in an all private pay facility usually the services are way above what we particularly provide so that is why they charge more. Nobody knows which residents in our nursing home are private pay and which are Medicaid or Medicare except for the billing office. They are all treated the same.

Mr. Livingston asked why the other residents got a 5% and we are looking at 11%. What would happen if we go back and look at everybody getting an 8% increase to bring everybody to the same level. Mr. Parks said the self-pay haven’t had an increase since 2006.

Mr. Livingston said there was a 6% difference in what we are doing so why don’t we go back and tack on a 6% to all of those that only got the 5% if we are going to look at 11%. Mr. Parks said it affects the revenues, and the revenues are necessary to operate the nursing home. We can come up with all different scenarios but we need the increases to provide quality care to our nursing home.

Mr. Dawkins said when we went up on the 5% it was also done on a competitive study for those units. Had that gone up any more than 5%, we wouldn’t have the occupancy we have now because we would have been way above other places. Mr. Parks said we would not keep up with the local charges if we don’t increase this. By the time they increase theirs in October, we will be behind again. This will get us somewhat current with the local nursing homes. This is not an exorbitant charge compared to the competitors. By the end of this year some of those nursing homes, even with our increase, will be higher than we are again.

Mr. Waldrop called for the question.

Mr. Waldrop moved to approve the rate increase; second by Mr. Baker.

Mr. Livingston said he would not support it unless we bring in both of them in October.

Mr. Hawkins said other facilities similar to this in Newberry County are privately owned. Are they required to post their rates? Mr. Parks said they were.

Mr. Summer said we have a knowledgeable nursing home director. If we don’t recover costs, we will be in a lot of trouble. It is painful to raise rates, but if you put it off, it is going to be more painful in the future. We need to support our nursing home administrator and support the rate increases he recommends.

Mr. Baker will support the rate increase because he doesn’t want Council to have to put out another tax at the end of the year.

Mr. Dawkins hates to go up but we are still below what they charge.

There being no further discussion Mr. Summer called for the question. Voting for the motion: Councilmen Summer, Waldrop, Baker, Dawkins and Hawkins. Voting against: Councilmen Livingston and Caldwell. Motion passed by majority vote.

Mr. Livingston’s only reason for voting against it was that they were not being implemented at the same time.

Mr. Caldwell said he voted against it because he gets a lot of complaints from constituents as far as the care and services out there.

12. Discussion of illegal immigration laws.

Sheriff Lee Foster said according to the US Census Bureau the 2006 population as estimated is 37,762. They do not estimate the breakout in the demographics in the 2006 estimates. We are primarily going to speak in Newberry County about illegal immigration as Hispanic or Latino because we have very little Asian population. If you go back to the 2000 census, it says the Hispanic population in Newberry County was 1,533, or 4.2% of our population. Sheriff Foster believed that to be an inadequate number. The School District of Newberry states that in all the schools 9.879% are Hispanic. Not all Hispanics living in Newberry County are illegal, but we believe the majority of them are. Most of the Newberry County Hispanic population is centered in and around the City of Newberry, primarily in the I-26 and 34 corridor (7-9%). The next highest population is in the Silverstreet area going up to Chappells, but not inclusive of Chappells (2%). Prosperity and Chappells each have about 1% of their population being Hispanic. Whitmire and the consolidated areas have the fewest. Those are numbers provided by the US Census Bureau. Sheriff Foster estimates we have somewhere around 7,000 and growing.

Newberry County is a regional shopping hub for the Hispanic population, and that might give people the impression that we have a whole lot more. Saluda County has a larger per capita Hispanic population than Newberry County, but Saluda doesn’t have a super Wal-Mart. The super Wal-Mart in Newberry attracts people from Saluda, southern Laurens, southern and western Fairfield County and also portions of Union County into Newberry.

Illegal immigration is a federal problem. It is statutorily federal. Local law enforcement or state law enforcement have no actual jurisdiction to arrest an illegal immigrant. The only time we can arrest an illegal immigrant is if they violate a United States Sovereign law but even with that we do not have the ability to charge them with an immigration violation. That relies solely on the United States Federal Government through the Department of Homeland Security and the Immigrations Custom Enforcement (ICE).

With that in mind they passed legislation called the 287G Program, which Newberry County could certify officers as special deputy immigration and customs enforcement officers; however, we would have to pay for most of the training. We would have to dedicate those officers to customs enforcement, and it would be our responsibility to take the illegal immigrant to a federal immigrations holding facility, which the closest one to us is in Ardale County, North Carolina (north of Charlotte, up around Albemarle) or to Atlanta, Georgia, but we would have to fund the cost of transporting them there.

We began a program with ICE in August of last year that we are able to report anyone we suspect as illegal after they have violated a law. Once they violate the law, we notify ICE if we believe that person to be an illegal immigrant, and we do that through a number of ways. If they don’t have any identification, it is automatically assumed they are an illegal immigrant. If the person does not have a valid Social Security Number, if a person does not have a valid I-9 card, if a person does not have proper identification, it is assumed they are illegal. We run a query through the national customs computer. Then if they are not wanted for any other crime anywhere else in the United States, we notify them by fax and by e-mail that we have an illegal immigrant in our jail and what the person is charged for. It is up to them to place a detainer on that person. They then come pick that person up if they so choose and take them to one of their federal holding facilities. Most of the times they don’t so choose.

Another problem that is not a creation of local or state government is if a person is detained on a federal illegal immigration statute and they are not a felon or convicted of a high misdemeanor, then they are taken to the federal holding facility, and they have the opportunity to make a bond and return back for a customs hearing on deportation. A lot of them don’t show up for the hearing.

From August 18, 2007 until the end of the month, we identified 19 illegal aliens in the jail that were arrested. ICE placed detainers on none of these people. September we arrested 40, ICE placed detainers on 8. October was 40; ICE placed detainers on 6. November was 32; ICE placed detainers on 6. December was 65; ICE placed detainers on 3. Through January 24 there were 38 illegal aliens and ICE placed detainers and picked up 3 of those. Thus far over that period 234 illegal aliens have been identified through arrest in Newberry County. Of the 234, 26 have been detained and transported out of Newberry County, which is about 11% of those we identify. The remainders of those get a bond like anybody else.

In 2006 there were 493 people of Hispanic descent believed to be illegals arrested. That is 13.5% of all arrested in Newberry County. In 2007 there were 3,990 total bookings. Of the total bookings 745 were identified as illegal, which is 18.7% of all bookings in the jail.

The problem is we don’t have statutory requirements to be able to detain them on an illegal violation unless we determine there is a criminal law. Even if a criminal law of the state has been violated or a local law, there is no guarantee that that person will be deported. It is a federal problem they have failed to address.

Mr. Livingston asked how many were repeaters who were actually arrested. Sheriff Foster did not know, but said he could find out.

Mr. Hawkins thanked Sheriff Foster for the information. A lot of people ask about this and why we are not doing more about it and it may be there is some ordinance we can pass because other counties do. We had a briefing yesterday morning from the Legislative Delegation, and they told us they were about to pass a comprehensive immigration bill. My question to Representative Duncan was who was going to enforce it. His answer was Sheriff Foster and local police, and we would be responsible for funding all of this. Once again the State Legislature bragged about this bill that it was so powerful they were going to solve illegal immigration and be the heroes of the State and then the County Council will raise your taxes to enforce their law. They put a cap on the increase we could do on the budgets, but then when we said there was a cap, they said no, this is a state mandate and you don’t have to abide by that. On State mandates we can go above the cap. Try explaining that to the 37,000 people in Newberry County that the Legislature mandated this new law that the local people are going to pay dearly for.

If we arrest an illegal Hispanic on burglary, they are not going to come get them right away because they are going to stay in our jail until they have met justice in the United States. Then they will be deported from the South Carolina Department of Corrections for however long they put them there.

York County Sheriff’s Office is the only one in South Carolina doing the 287G Program. We are one of the few law enforcement agencies in the state that are doing what we do to get those 26 out. Most of them don’t do it at all because most of them say it is not my problem. It is the federal government’s problem, and if they want to come get them, they can come get them. We are actually doing more than most places are doing because we do report them.

Sheriff Foster said ICE didn’t want them to do what they are doing. They told us you don’t have to report somebody who has violated a crime. The federal statute says you do have to report it. We asked them to give us a letter stating we don’t have to do it, and they said they couldn’t do that. The federal government blames state government, and state government blames the local government.

Sheriff Foster said the legislation the state wants to do with illegal immigration is probably not going to add any more work on his office because it doesn’t do a whole lot. We are reporting it but we can’t do it. They would advocate their authority under a 287G Program. For us to do a 287G Program we would have to have a very minimum of two deputies assigned to nothing but 287G Program. With fringe benefits that would cost $50,000 or better and then up and down the road to Ardale County in North Carolina. The taxpayers couldn’t afford that.

Sheriff Foster said over Christmas they had a safe driving checkpoint and quite a few people were arrested (not all Hispanics) and the Magistrate gave them all a personal recognizance bond. All they had to do was sign a piece of paper saying they would return back to court.

Mr. Baker said not only do we have to house these people and furnish the jail, we have to feed them and furnish them with insurance and medical. Then they want to know where the expenses of the county are going.

Sheriff Foster said they were doing everything they could legally do.

An unidentified gentleman from the audience asked Mr. Dawkins what was so wrong with the state trying to do something about the problem. Mr. Dawkins didn’t object to the state or federal, but if the state is going to create another law that puts a burden on the local taxpayers, the state should fund it.

Sheriff Foster said all kind of requirements are put on the local level. They put a requirement on that sex offenders have to register. Now they have to register twice a year. Then they added a layer on that we have to go to their house and make sure they live where they say they live, and then we have to go to their place of employment. We collect a fee for that, but we couldn’t collect a fee on anybody that made under a certain amount per year. The fee that we collect half of it goes back to the state, which doesn’t do anything to help us do what we have to do. The State will pass the laws and tell us we have to do things and they are all for the right reason, but they don’t do anything to help us from the state tax pool. It is all taxpayers’ dollars no matter where it comes from.

Mr. Adams said unfortunately we are in a trap because the more intensely we enforce it, the more it cost us. We are putting more people in jail. We need more officers to do it. We have to expand the jail to hold them.

Sheriff Foster said most of the ones violating the law and getting arrested in Newberry County are traffic violations. The traffic violations are a result of not having the documentation they need to get insurance for the car, driver’s license. South Carolina has one of the toughest laws about getting a driver’s license. We don’t have a lot of felony violations, and you don’t get a lot of actual calls for persistence per se because they want to fly below the radar. They don’t want to be identified. Sheriff Foster would like to participate in the 287G Program but doesn’t feel it is cost effective to the taxpayers to do it.

Mr. Hawkins asked how many sex offenders were in the county. Sheriff Foster said there were 120.

13. Requests by Councilmen.

Mr. Dawkins said he was against illegal immigration and he supports the Legislature if they can come up with a good enforceable bill. No matter what state law it has to be enforceable and approved by the federal government. The state is trying to do something. The federal government is not. Look at the bills proposed on the Senate side and the House side. Before saying way to go, the bill might not be the way to go.

14. Public Comments.

Scott Bell asked for clarification on the new library. The extra $1,300,000 needed was donated, and it was an assumption on everybody’s part that it was a cash donation. He asked council who originally knew it was a land donation instead of a cash donation.

Mr. Summer said the anonymous private donor said “I will give you $1,300,000 for the library.” We thanked the donor and the donor said they were in the process of selling some commercial property and wanted to take some of the proceeds of the commercial property to make the donation, and Council agreed to that.

Mr. Bell asked if the entire Council knew that this was a land donation and not strictly a cash donation. Mr. Baker responded no.

Mr. Hawkins knew it was contingent upon the sale of the property. Mr. Summer said the gift was not contingent but they made the gift of $1,300,000 and said this is how I want to give you the money. They wanted to wait until the property sold and then they would give us the money.

Mr. Bell asked if the donor was responsible for the $1,300,000 regardless of whether the property sells or not. Mr. Summer said that was correct.

15. Vote for Executive Session, when necessary.

Mr. Summer said Executive Session was needed for an update on the Eagle Container lawsuit and the 219 Building lawsuit. Mr. Dawkins moved to go into Executive Session; second by Mr. Waldrop. Vote was unanimous.

16. Executive Session.

[EXECUTIVE SESSION 9:47 PM. – 10:51 P.M.]

[Councilman Baker and Gary Pope, County Attorney, were excused form Executive Session during discussions of the 219 Building lawsuit. Councilman Baker left the meeting at 10:30 p.m.]

Mr. Waldrop moved to return to open session; second by Mr. Hawkins. Vote was unanimous. (Councilman Baker absent.)

17. Necessary action on matters discussed in Executive Session.

No action.

18. Comments from County Administrator.

Mr. Adams called Council’s attention to the letter of appreciation concerning Melony Fellers in the Assessor’s Office, a very complimentary note from a citizen who appreciated the tone and patience of the service she provided.

Mr. Adams stated at the last meeting Ervin West mentioned a change order to muck out some of the unsuitable soils and that change order cost about $15,000 to $20,000. He expressed frustration about that because soil borings had been done. He has looked into this and learned that the soil borings were done in April of last year and done at a location staked by the Rescue Squad. In the summer the architect was trying to bring this project into budget and he moved it closer to Adelaide Street so he wouldn’t have to pay the road paving costs. He had no additional soil borings done and it was revealed that the site had soil issues. You can find that out by testing or grading. They found it out by grading it. The decision was to move the building pad back. They still wanted to save as much as they could on the road construction so he moved it halfway between the spot that was closer to Adelaide Street and the one that the company actually tested. They have achieved compaction on that building pad. S&ME, the testing firm, was never asked to test this pad closer to Adelaide Street, and they were never asked to test the roadway. To get back to the property that had the good soil, we had to put in a road anyway. The mucking out was going to have to be done. That is not a question of the soil testing costing us that. The soil where they are now is much more like where was bored. The soil borings were not entirely wasted, and you would have spent the $15,000 to $25,000 anyway. The cost of the soil borings was $2,500. Mr. Adams talked with S&ME about it. They came down and looked at the site we have now. Soil testing is not perfect. Within the boundaries of a small parcel the soils can vary somewhat so it is not fool proof.

19. Comments from Council Members.

Mr. Caldwell attended Lobby Day.

Mr. Livingston recognized David Traylor, who worked the recycling station at Silverstreet and Broad River, and who passed away recently.

Mr. Waldrop requested prayers for the families in Arkansas and Tennessee.

Mr. Waldrop apologized to Mr. Adams because at the time of the donation for the Library they did know something about how it was going to work and that instead of the money being immediately given to the county, we would get it eventually. Mr. Adams thanked Mr. Waldrop.

Mr. Dawkins said a lot of conversation was held about the Library and all of Council was well aware that it was a land donation.

Mr. Dawkins reminded Council that the Coon Hunters Association would be arriving in Newberry on Monday.

20. Future Meetings.

February 20 and March 12, 2008 at 7:00 p.m.

Road Committee meets on February 12, 2008 at 3:00 p.m.

21. Vote to Adjourn.

Mr. Summer declared the meeting adjourned.

22. Adjournment.

Meeting adjourned at 11:03 p.m.

NEWBERRY COUNTY COUNCIL

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Henry B. Summer, Chairman

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Susan C. Fellers, Clerk to Council

APPROVED: FEBRUARY 20, 2008