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  • Privacy, Privatization, and Transparency: 2014 Public Records and Open Meetings Legislation

    Authored by: on Tuesday, August 26th, 2014

    Should private information in government hands be considered public record? What about information in the hands of private entities that are carrying out governmental functions? These two issues dominated legislative consideration of the public records and open meetings laws in the 2014 session of the General Assembly. They involve the delicate balance between the strong public policy of transparency in government and the strong interests of private individuals and businesses in their privacy and in the protection of proprietary information. The legislature debated these policy issues, attempting to strike the right balance in several different contexts. As you read this post, think about how you have voted in each instance. Read more »

  • Adjournment Sine Die

    Authored by: on Friday, August 22nd, 2014

    On August 20, the North Carolina General Assembly adjourned sine die (Joint Res. 2014-8). The term sine die is from the Latin “without day;” this type of resolution means that the legislature did not set a date to return to Raleigh to continue the work of this legislative session. The House and Senate were considering several different adjournment resolutions and it looked like they might even return to Raleigh to take up additional legislative business after the elections in November. Ultimately, they opted to end the short session in August, which is fairly typical.

    According to the resolution, the legislators will return in January to begin the 2015-16 biennium. It’s possible they could return to Raleigh sooner if the Governor reconvenes the legislature to reconsider vetoed legislation (NC Constitution, Art. II, Sec. 23)  or the Governor or legislature calls an extra session (NC Constitution, Art III, Sec. 5; Art. II, Sec. 11). There have been a few rumors to that effect.

    Now that it’s (probably) over, you may be wondering how can you learn more about the bills that actually passed. I have a few suggestions…

    Read more »

  • That Court of Appeals Ballot

    Authored by: on Friday, August 15th, 2014

    In July John Martin, the chief judge of the Court of Appeals, announced his retirement effective August 1st. Given the timing of his decision, state law requires an election in November to fill the seat but no primary in advance to reduce the number of candidates. It appears that everyone who has ever aspired to be an appellate judge sees this as an opportunity to catch the ring, and 19 candidates have filed. One of them will get more votes than the others, though it may not be very many, and will be elected with no run-off. Nineteen candidates, one vote, one time, most votes wins. Some people may think this is not the best way to choose a judge for an eight-year term on North Carolina’s second highest court. How did we end up with such an election? Read more »

  • The FLSA’s Professional Duties Test – Part 1

    Authored by: on Wednesday, August 13th, 2014

    The FLSA’s Professional Duties Test – Part 1

    The Fair Labor Standards Act (FLSA) generally requires that employers pay employees a time-and-half premium wage for hours worked past 40 in a workweek. Many employees are not entitled to this premium overtime pay, however, because they are “exempt.” In previous blog posts here, here and here, I have discussed two of the three kinds of exemptions from overtime pay – the executive exemption and the administrative exemption. This post introduces the professional exemption, the last of the three. The professional duties exemption involves not one kind of exemption but is actually several exemptions gathered together in one name. It will take me two posts to cover them all, this post and one more to come. That last one will by my last post in this series on FLSA exemptions.

    Read more »

  • Board of Equalization & Review Procedures

    Authored by: on Monday, August 11th, 2014

    [UPDATE:  This post was edited in late August 2014 to reflect the General Assembly's ratification of S734, which among other actions permits non-attorneys to represent business entities before the Property Tax Commission.]

    The county board of equalization and review, often called “the board of E&R,” is the first stop for a taxpayer who cannot resolve a dispute with the county assessor over a property tax assessment or exemption.   The Machinery Act defines the authority and jurisdiction of these boards but offers very little guidance as to how a board of E&R hearing should be conducted.  As a result, these boards operate very differently across the state’s 100 counties—as the Department of Revenue describes in its Members Handbook for Boards of Equalization and Review, hearings vary from “leisurely informal experiences to rigid, formalized proceedings.”

    What’s the best approach? Boards of E&R hearings definitely don’t need to be as deadly serious as the famous courtroom scene in A Few Good Men(Here’s hoping your taxpayers are slightly less volatile than Jack Nicholson.) Nor do boards of E&R need to follow strict rules of evidence and civil procedure .  But as quasi-judicial proceedings, board of E&R hearings need to be formal enough so that all taxpayers have the opportunity to present their arguments to an unbiased board and to respond to rebuttal arguments presented by the county. Read more »

  • Coates’ Canons Turns 5

    Authored by: on Saturday, August 9th, 2014

    Coates’ Canons celebrated its five year anniversary this week! During the past five years, School of Government faculty members have authored over 680 posts, which have been viewed well over 1,000,000 times. We continually strive to improve the blog and appreciate your valuable feedback. We have made several recent changes based on your suggestions:

    • All archived posts are now grouped by both category and subcategory. The categories are listed on the right hand side of the blog. To access the subcategories under each category, click on the [+]. To view the posts within each subcategory, simply click on the subcategory. The number of posts within each category and subcategory are included in parenthesis.
    • The general search function is more robust. If you are searching for a blog post on a particular subject matter, simply type one or more key words in the search box in the upper right corner. A list of posts that contain that word or phrase will appear in the main window.
    • The blog now includes a “featured posts” section. Periodically we will highlight a new group of archived posts on a related topic. We will use this section to create resource guides for courses and to provide ready information on relevant issues during the year.

    Thank you for your continued support of Coates’ Canons! Keep the suggestions coming…

  • Do North Carolina Local Governments Have Authority to Assess Impact Fees for Water and Sewer Public Enterprises?

    Authored by: on Thursday, August 7th, 2014

    An impact fee is a charge on new development to pay for the construction or expansion of off-site capital improvements that are necessitated by and/or benefit the new development. A local government typically assesses impact fees as part of its development approval process. Paying the fees is often a condition of receiving a building permit or certificate of occupancy.

    North Carolina local governments have specific statutory authority to require subdivision developers to pay fees in lieu for certain road and recreational land infrastructure projects that benefit the new development. See G.S. 160A-372 (municipalities); G.S. 153A-331 (counties). There is no specific authority to charge impact fees under general law, though. (A handful of units have local act authority to assess impact fees for certain purposes.) And North Carolina courts have repeatedly refused to hold that impact fee authority is implied from a unit’s regulatory powers, at least when the revenues are used to fund general government infrastructure. See, e.g., Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142 (2012); Union Land Owners Ass’n v. County of Union, 201 N.C. App. 374 (2009), disc. rev. den’d, 364 N.C. 442 (2010); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38 (2010), aff’d by an equally divided court, 365 N.C. 305 (2011).

    But what about the authority to impose impact fees on new development to fund a unit’s public enterprise (water or sewer) systems? Relying on a federal district court case from the late 1980’s, most local governments have assumed that there is implied authority under the public enterprise fee statutes (G.S. 160A-314 and G.S. 153A-277) to assess impact fees to mitigate against the impact of the new development on the unit’s water or sewer systems. This reliance may be misplaced, though. There are several reasons to question the continued validity of the court’s holding in that case and, correspondingly, to question the authority to impose impact fees to fund water and sewer capital outlay.

    This blog post analyzes the federal district court case and discusses why it may not reflect current law. It then details the framework a North Carolina court likely would use to analyze this issue today. Read more »