WILMINGTON — This week Wilmington city council approved an extension of its contract with American Traffic Solutions, despite being made aware that the company was still in violation of state law — after being initially notified last November.
Unlike previous years, where City Council approved contracts with ATS on its consent agenda without discussion, this year the item was passed as a resolution. And, this year, there was some discussion of the issue, prompted by a speaker earlier in the meeting who raised a number of legal concerns about red-light cameras in general and specifically ATS.
Those concerns included the fact that the North Carolina Board of Examiners for Engineers and Surveyors (NCBELS) notified Wilmington and American Traffic Solutions (ATS) that the city’s 13 red-light camera installations constituted ‘engineering practices,’ and ATS was not licensed in the state of North Carolina to provide such a service.
When City Councilman Clifford Barnett, Sr. asked staff about this – and whether it created a legal liability for civil suits over red-light camera citations – they were informed that ATS had still not corrected the plans by City Traffic Engineer Don Bennett.
City Attorney John Joye jokingly dismissed concerns about the red-light camera’s legality – pointing out that complaints came from people who were “unhappy” that they’d received citations – but did not answer whether or not the city could face liability in a lawsuit. The city attorney noted that if ATS did not correct the plans by the end of this contract (that is, in September of 2020) he would not support a new contract.
After brief speeches by Councilman Charlie Rivenbark and Councilman Kevin O’Grady about the life-saving benefits of the red-light cameras, City Council unanimously approved the contract extension. (You can find video of the resolution discussion and vote here.)
During the public information portion of the City Council meeting on Tuesday, September 17, Todd Platzer addressed city council, listing a series of concerns, including NCBELS ruling against ATS, as well how ATS has handled similar issues in other cities. Platzer also addressed some constitutional issues and questions about whether or not Wilmington interlocal agreement to send 90 percent of red-light camera citation funds to New Hanover County Schools was legal — Wilmington officials have denied there are any such issues. (You can watch Platzer’s presentation here, beginning at the 21-minute.)
Platzer also pointed out that, under state law, it is the responsibility of governments – including local government – to enforce engineering standards. Under North Carolina General Statute § 89C-23, which the unlawful practice of engineering without a license, “it shall be the duty of all duly constituted officers of the State and all political subdivisions of the State to enforce the provisions of this Chapter and to prosecute any persons violating them.”
Platzer noted that, in Greenville, ATS was also caught having installed red-light cameras without properly sealed engineering plans. In that case, ATS had a licensed engineer sign the plans — however, they did so unlawfully. According to NCBELS, ATS paid engineer Robert F. Rennebaum to sign the ATS’ plans — but Rennebaum didn’t work for ATS and didn’t himself supervise the creation of the plans, which made it a violation of state law.
In November of 2018 – at the same time NCBELS put ATS in Wilmington on notice – the engineering board investigated Rennebaum. On May 28, 2019, NCBELS formally reprimanded Rennebaum for this, charging him with affixing his seal on work not done under his own supervision and determining that he had “aided or abetted another to evade or attempt to evade the provisions” of state law. NCBELS fined Rennebaum $5,000 and ordered him to take a remedial ethics course.
In essence, after apparently breaking the law by not properly certifying its Greenville camera plans, ATS then paid an engineer to break the law again — still failing to properly seal the camera plans.
So, why has no action been brought against ATS? And what does it mean for Wilmington?
No penalties for ATS. Why?
Like the rest of North Carolina’s industry boards, NCBELS has no enforcement power. That means that, as Executive Director Andrew Ritter put it, “all we can do is determine whether or not a service provided by a company can be considered engineering.”
Complicating this is the fact that NCBELS only has jurisdiction over licensed engineers and companies. While NCBELS can fine – and strip licenses from – violators, American Traffic Solutions isn’t licensed in North Carolina, so there’s no license to strip.
Ritter said NCBELS has informed a special counsel at the North Carolina Attorney General’s office, but so far no action has been taken. Ritter said NCBELS has repeatedly asked the General Assembly for its own enforcement powers, but have been routinely rebuffed. NCBELS isn’t alone, Ritter added, pointing to a 2015 U.S. Supreme Court case that squashed the North Carolina Dental Board of Examiners attempts to regulate unlicensed teeth whitening businesses.
In a further bureaucratic twist, NCBELS can’t even say ATS is breaking the law.
Here’s the situation: (1) Practicing engineering without a license is a crime. (2) NCBELS found that ATS was practicing engineering. (3) NCBELS confirmed ATS is not licensed in North Carolina. (4) While it might be reasonable to conclude that ATS is breaking the law, NCBELS is not allowed by statute to reach such a conclusion.
So what happens to ATS?
There are no further actions NCBELS can take, according to Ritter. Under state law, it appears it is the responsibility of both the state and Wilmington to “enforce” state law and prosecute ATS for breaking it — but so far neither have taken action. The NCDOT could also issue a cease-and-desist, but that hasn’t happened, either.
In many cases, Ritter said, the resolution only comes through civil action. That includes the kind Councilman Barnett was concerned about.
During this week’s council meeting, Joye noted that he would be “more than happy to prod [ATS] along” and that Bennett would be monitoring their ATS’s progress.
The original plans, however, cannot simply be retroactively certified — that’s what got Rennebaum (but not ATS) in trouble in Greenville. According to Ritter, a licensed engineer would have to come to Wilmington, look at the plans, and then physically inspect each of the city’s camera installations to make sure they were correctly done and, if not, correct those repairs.
Bennett told council he instructed ATS to do this after hearing from NCBELS late last year. It is not clear why ATS has not hired someone to comply yet.
What’s also unclear is whether or not ATS’s failure to comply with state law creates a legal liability for Wilmington or ATS.
As Joye pointed out, and as Deputy City Attorney Meredith Everhart stated last year when asked about the camera’s legality, the actual timing mechanisms of the camera’s operation and the mechanisms by which vehicles are identified and civil fines are sent out are not part of the engineering ATS illegally provided.
Still, if the cameras were installed illegally in 2009, it is possible that anyone who received a citation since then might have a case, especially since it was only recently that NCBELS provided the finding that demonstrates how state law was violated.
There are numerous lawsuits at the local, state, and federal level around the United States over a number of issues with red-light cameras, commonly over the Sixth Amendment right to ‘confront your accuser,’ lack of enabling state statutes, engineering issues, or – in extreme cases – bribery. The Australian company Redflex – which was cited in 2007 by Ritter and NCBELS for the same issue as ATS – faced a costly lawsuit after the Chicago Tribune exposed a massive bribery scheme where Redflex paid Chicago city officials, including the city manager, for every camera installed.
State law is split on the issue. According to the Governors Highway Safety Association, the following was a snapshot of the issue as of summer 2019:
- 20 states, the District of Columbia and the U.S. Virgin Islands have enacted laws permitting some form of red-light camera use, with 11 states and the District of Columbia fully permitting use, and 9 states and the Virgin Islands allowing limited use. 8 states prohibit their use, and 21 states have no state law concerning red light camera enforcement.
- 22 states, the District of Columbia and the U.S. Virgin Islands have red-light cameras currently operating at least one location.
Send comments and tips to Benjamin Schachtman at email@example.com, @pcdben on Twitter, and (910) 538-2001.