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Buncombe elections board considers outside counsel for county MOU, schedules call with firm
Summary
Board discussed a proposed engagement letter from Darrington Smith for drafting a memorandum of understanding with Buncombe County, debated scope and fees, and agreed to schedule a phone call with the firm for revisions before presenting a redrafted letter at a future meeting.
The Buncombe County Board of Elections discussed hiring outside counsel to help negotiate a new memorandum of understanding (MOU) with the county, and asked staff to arrange a phone call with the proposed firm to refine the engagement letter.
Director Duncan said she received a proposed retainer letter from attorney Colin Shive of the Raleigh firm Darrington Smith and recommended the board gather more information before committing. “I don't wanna get stuck in the mud on this,” Director Duncan said, describing the request as an effort to prepare the next board to take up the MOU.
Board members debated the proposed scope and the firm’s fee structure. Several members said the draft engagement limited representation to preparing the MOU and did not cover litigation; the board heard that litigation would require a separate agreement. Members pressed for clarification about a suggested contingency fee “kitty” (the draft referenced a $20,000 fund), paralegal and travel billing, photocopying and other expenses, and what would happen if the initial funds were exhausted.
One board member urged starting with a narrow retainer so the board could “test” the relationship, while others recommended using the initial contact to broaden scope language if appropriate. The board noted the value of the firm’s prior involvement in election-related legal questions, including an opinion the firm provided in 2019 about Asheville City Council election format.
Rather than vote, the board set an action plan: staff will set up a phone call with Colin Shive; Board Member Aceto (who offered to participate) will join the call; the firm will be asked to redraft the engagement letter incorporating points discussed on the call; and the revised letter will be returned to the board at a future meeting for further consideration. No formal retention or expenditure was authorized at the meeting.
Questions about county funding of outside counsel arose during the discussion. Director Duncan and other board members said the county is statutorily responsible for funding board operations and that, if outside counsel is needed and county counsel cannot represent the board, the county historically has funded outside legal expenses. The draft retainer specifically excluded litigation; board members observed that litigation representation would likely require a separate, more extensive engagement and higher rates.
Next steps recorded during the meeting were limited to scheduling the phone call and asking the firm to produce a redrafted letter for the board’s review. The board did not authorize payment or sign any agreement during the May 13 session.
