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  • Statutory Permission to Take Up Items Not on the Special Meeting Notice

    Authored by: on Monday, January 26th, 2015

    The Mayor of Transparent City has called a special meeting to allow the city council to designate an interim manager following the former manager’s unexpected departure. In accordance with the open meetings law, the clerk posts a notice stating the time, location, and purpose of the meeting on the council’s bulletin board 48 hours before the meeting. She also e-mails the notice to individuals and media representatives on the council’s “Sunshine List” 48 hours in advance and posts the notice on the city’s website prior to the meeting’s start time.

    The mayor has long dreamed of enlarging one of the city’s parks, which just happens to be located near his home. On the day before the special meeting, he learns that the owner of a large tract next to the park would like to sell the property. The mayor quickly calls the clerk and asks her to add a closed session to the special meeting agenda so that the council may discuss making an offer on the tract.

    The clerk is worried that adding a closed session to the agenda at this point would violate the open meetings law. She voices her concern to the city attorney, who asks whether the full council will be present for the meeting. When the clerk indicates that all members have said that they plan to attend, the attorney advises her not to worry. He tells her that G.S. 160A-71(b) permits the council to take up matters that don’t appear on the special meeting notice, provided all members are present or any absent members have executed a written waiver of their right to attend. Is the city attorney right? Read more »

  • Voting Rules for Adopting Ordinances

    Authored by: on Wednesday, January 21st, 2015

    A property owner petitioned for a rezoning in a North Carolina city. The city council voted to send the matter to the planning board for a recommendation, and voted to set the public hearing. Now, following the public hearing, the board is ready vote on the rezoning. Does it take a two-thirds vote for the rezoning ordinance to pass, or just a simple majority?

    Under the voting rules in G.S. 160A-75, if the date on which the board votes on the rezoning is regarded as the “date of introduction,” an affirmative vote of two-thirds of the actual membership of the council will be required to adopt the measure. If an earlier date is deemed to be the date of introduction, a majority of the members of the council will be sufficient. Which standard applies? If the two-thirds vote requirement applies and is not achieved, is the rezoning rejected, or may the council vote on the matter a second time at a subsequent meeting at which a majority vote will be sufficient? If this scenario involved a county rather than a city, would the answers to these questions be different? Read more »

  • The Nuts and Bolts of Property Tax Liens

    Authored by: on Friday, January 16th, 2015

    I’ve blogged recently about the importance of record ownership as of January 1 and January 6 for property tax listing and collection.  Today I continue this New Year’s theme and discuss the property tax liens on real property that arise each January 1. Read more »

  • Understanding the Fair Labor Standards Act’s Fluctuating Workweek

    Authored by: on Thursday, January 15th, 2015

    John is an EMS dispatcher whose hours vary unpredictably from week to week. John always works at least 40 hours per week, but some weeks John works 42 hours, some weeks he works 48 hours and occasionally he works close to 60. Ellen is a water plant operator who weekly hours vary as well, but they vary on a scheduled basis. Ellen works 32 hours every first and third week of the month and 48 hours every second and fourth week. Both John and Ellen are nonexempt employees. The city for which John and Ellen work pays cash overtime instead of using compensatory time off. Yet neither John nor Ellen earns overtime at the rate of time-and-one-half. Without violating the FLSA, the city pays both John and Ellen at just one-half their regular rate of pay for each hour over 40 that they work in a given work week. How can that be? Read more »

  • Determining the Pay for the New Sheriff

    Authored by: on Tuesday, January 6th, 2015

    A new sheriff has been elected.  What will his salary be?  Must he be paid what the old sheriff was being paid, or can he be paid less?

    Here is one way to read the statutes:  the new sheriff must be paid at least as much as the old sheriff, unless the county commissioners thought far ahead and took steps way back before the election to lower the salary in the upcoming term.

    Here is another way to read the statutes:  The new sheriff can be slotted onto the county’s salary schedule at an appropriate grade and step just as any other employee coming into a new position would be.  The commissioners need take no step ahead of time other than adopting an appropriate salary schedule for all employees.

    Which interpretation is correct?  Until a court might rule on the matter in a particular case, or the General Assembly might amend the statutes to clarify matters, we cannot know for sure.  But in my opinion, the second interpretation is correct:  the new sheriff can be slotted appropriately onto the pay schedule. Read more »

  • Mayor Learns a Harsh E-Discovery Lesson

    Authored by: on Monday, December 22nd, 2014

    The City of Prescott, Arizona, and its mayor, learned a harsh lesson about the failure to preserve emails and other electronic records during (and in anticipation of) litigation. The lesson has cost the city well over $100,000 in legal fees and $35,000 in court-imposed sanctions to date. (And the parties are still litigating.) It is a lesson that all local government officials should heed about the perils of governing in the digital age. Read more »

  • Custodians of Public Records

    Authored by: on Friday, December 19th, 2014

    The North Carolina Court of Appeals has ruled that a lawsuit seeking access to public records should be dismissed if it fails to name a proper custodian (as defined in state law) as the defendant in the complaint. The case (Cline v. Hoke) involved a request for emails that the plaintiff alleged to be in the physical custody of an employee in the Administrative Office of the Courts (AOC). The plaintiff sued the assistant director of the AOC. The state, on behalf of the defendant, argued that the lawsuit should have been brought against the employee who was alleged to have the emails. The court said they were both wrong. It held that the proper party is the director of the AOC as the official custodian, defined in the public records law as the public official who is in charge of the AOC’s public records. The case also holds that 1) a person who has physical custody is not necessarily the custodian of the record for purposes of the public records law, and 2) an individual employee’s responsibility to manage and retain records is distinct from the obligation to provide access.

    Certainly, a legal custodian is an appropriate party for a lawsuit seeking access to records. But other public officials and employees have legal responsibilities in providing access to records, and may be liable for violating the public records law. The definition and responsibilities of custodians are sufficiently unclear that a narrow pleading requirement may have the unintentional effect of limiting access to public records.

    Read more »