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  • Perspective on the Separation of Powers Case

    Authored by: on Tuesday, March 31st, 2015

    Earlier this month a panel of three superior court judges held that the General Assembly’s appointment of a majority of members to the new Oil and Gas, Mining and Coal Ash commissions violates the state constitutional provision on separation of powers. The decision, which is subject to direct appeal to the state supreme court, is the most recent litigation in a 30+ years’ tug-of-war between the governor and legislature over administrative agencies. Some perspective on that conflict, and a brief look at how the courts’ view of separation of powers has evolved in recent years, may be useful in thinking about what comes next. Read more »

  • Delegating Local Health Director Legal Powers & Duties

    Authored by: on Monday, March 30th, 2015

    It doesn’t happen every day, but it does happen regularly: a North Carolina community is affected by a public health problem that requires an urgent response. Perhaps it is an outbreak of a communicable disease, like the H1N1 pandemic that reached North Carolina in the spring of 2009. Or it could be an imminent threat from an environmental health hazard, like the fire that occurred at a Wake county chemical storage facility in 2006. These are dramatic examples but they represent public health issues that arise regularly, though not on a predictable schedule.

    Local health directors have legal authority to take quick action to protect the public health in these scenarios. But what happens if the health director is out of town and unreachable, or present but unable to act? Can someone else exercise the health director’s powers and duties?

    The short answer is yes. Almost all of the statutory duties of a North Carolina local health director may be delegated to another appropriate person. But what are those duties? To whom can they or should they be delegated? What should be documented? What are the special considerations for consolidated human services agencies? And finally, who needs to know about the health director’s delegation decisions? Read more »

  • When Board Members Won’t Talk Back

    Authored by: on Friday, March 27th, 2015

    Jean Jett has been waiting all month for the regular public comment period at the city council meeting. She signed up to speak, and after waiting her turn, she stands at the podium facing the council members and says, “I am here on behalf of the musicians in town, and we want to know why the city has stopped allowing the Friday night jam sessions in central park. We have provided you with a petition signed by 300 citizens requesting that they be reinstated and the city has provided no justification or explanation for the sudden change in policy. Are you willing to reconsider this decision?”

    Silence.

    The board members stare back at her and the mayor says, “Thank you Ms. Jett. We appreciate your comment. Next person please.” Jean is nonplussed. The same thing happens with the next speaker. Can the board refuse to respond to the public or even answer a simple question?

    Read more »

  • Boards of Equalization and Review, Part II

    Authored by: on Thursday, March 26th, 2015

    I hope you were able to join us for our recent board of equalization and review webinar that featured input from experts at the Department of Revenue and local tax offices across the state.  Counties that did not have the chance to convene their boards for the live webinar are strongly encouraged to watch the on-demand version.  I’ll post a note here and on the Ptax listserv when it is available for purchase and viewing at your convenience.

    I’ve blogged about boards of equalization and review (“BOERs”) once before, but our webinar audience raised some interesting questions that were worthy of a new post. For even more detailed guidance about BOER procedures, you and your board should read the Department of Revenue’s recently updated BOER manualRead more »

  • More on Advertising Tax Liens

    Authored by: on Thursday, March 19th, 2015

    It’s March, which means in addition to finalizing your NCAA bracket sheets you might also be finalizing your local government’s delinquent property tax advertisement.  These ads must be published between March 1 and June 30 in a newspaper having a “general circulation” in your jurisdiction.

    I’ve answered many of the biggest questions about these ads here and here. But my in box continues to be filled with advertising queries.  Today’s post answers some of these new questions and reviews legislation on this topic filed this session at the General Assembly. Read more »

  • The FLSA’s Overtime Pay Provisions for Law Enforcement and Firefighting Employees

    Authored by: on Wednesday, March 18th, 2015

    The Fair Labor Standards Act has two exceptions from its overtime pay rules for nonexempt employees who work different numbers of hours from week to week: the fluctuating workweek method and the section 207(k) exemption for law enforcement officers and firefighters. Look here for a post I wrote about the fluctuating workweek method, which can be used for any employee whose hours fluctuate. This post discusses the 207(k) exception, which is limited to law enforcement officers and firefighters. It is called the 207(k) exemption because it is found at 29 U.S.C. § 207(k) (it is sometimes called the 7(k) exemption after its location in the original bill). The 207(k) exemption is well-liked by law enforcement agencies and fire departments because it makes calculating the overtime of their employees more efficient and because it reduces overtime costs in a small, but real, way. Read more »

  • Conveyance of Local Government Property to Nonprofit EDC for Industrial Park

    Authored by: on Tuesday, March 17th, 2015

    Ray Kinsella leads the nonprofit economic development corporation (the “EDC”) that was jointly formed by the county and its largest city in the early 2000s, and that is now governed by an independent board of directors. Ray has heard some optimistic forecasts of “re-shoring” of manufacturing facilities to the United States, and he has a plan to take advantage of the possible trend. He proposes for the EDC to build a new industrial park with the help of the county and city. Upon completion of the park, Ray believes the available land with new infrastructure will attract manufacturing facilities to the local area.

    The EDC hasn’t amassed enough privately-raised capital to undertake the project on its own, and private developers and investors don’t have an appetite for the project, so Ray’s plan depends on direct local government support. Ray proposes for the county to contribute the land for the park by conveying a 500-acre tract of land, which the county already owns, to the EDC for one dollar. The tract lies outside of city limits, but Ray thinks he can convince the city to provide water and sewer. Ray plans to market the tract to manufacturing companies, and when a company decides to locate in the park, the EDC will sell the required land to the company. Ray hopes the EDC can keep the proceeds from any sale, and then the EDC would use those retained proceeds for future economic development activities.

    Is the EDC’s proposed structure allowable? In a word, no. Read more »