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  • Anonymous Tips: Can They Really Be Anonymous? [Revised]

    Authored by: on Wednesday, April 9th, 2014


    Note: This is a revised version of my earlier post on this topic. Thanks to my colleague Jeff Welty for his help in providing a more complete explanation of the criminal investigation exceptions. Local governments want to hear from their citizens. As one city’s website says, it wants citizens to be its “eyes and ears.” Digital government makes it easy for citizens to communicate with their local officials. Government websites promote telephone hotlines, web formsdigital suggestion boxes, and social media to get information on customer service, budget priorities, potholes and traffic jams, violations of city codes, and fraud, abuse, or other unethical acts by government employees or officials. To encourage candid comments, these forums often promise that information can be submitted “anonymously.” Is this a promise local governments can keep? The only truly anonymous system may be one that neither requests nor captures identifying information. If a local government actually receives identifying information, however, or has a contractual right to obtain it from an outside service, that information is a public record and must be provided upon request, unless an exception in the public records law applies. Read more »

  • Disposing of Small Surplus Items: One Man’s Junk is Another Man’s Treasure

    Authored by: on Thursday, April 3rd, 2014


    Warm weather is finally here and it’s time for some spring cleaning.  There’s your worn out office chair, that dented file cabinet whose drawers are stuck shut, those obsolete computers, and goodness-knows-what that is gathering dust in the public works warehouse.  You hate to throw the stuff away.  If someone will buy it (some people will buy anything!), you might generate a little much needed cash for your unit.  Or, perhaps a local non-profit would be grateful to have some of these items (after all, your office chair isn’t that old). Maybe some of your co-workers would be interested in buying some of the items (again, some people will buy anything!). Can you post the items on GovDeals and hope for the best?  Can you call a local charity and ask them to haul the stuff away?  Can you conduct an “in-house” sale open only to employees of your unit? What are your options? Read more »

  • Can a Property Owner Be Cited for a Zoning Violation by a Tenant?

    Authored by: on Thursday, April 3rd, 2014


    Betty Draper owns a single-family residence.  She rents the property to four tenants.  The zoning ordinance does not allow parking in the front yard and limits the number of cars that can be parked on the property to four vehicles.  The residents regularly park in the front yard and often have eight cars parked on the lot.  The neighbors complain.  A city investigation establishes a clear-cut zoning violation.  The staff has prepared a notice of violation, which provides that civil penalties will be assessed if the violation is not immediately remedied. Parking on the Front Lawn-charlotte meckCan the city send this citation and notice of violation directly to Betty or is it limited to citing the tenants who have too many cars parked at the house? Read more »

  • Court of Appeals Attempts to Clarify “Immaterial Irregularity” Provision

    Authored by: on Friday, March 28th, 2014


    I often describe GS 105-394 as a “get-out-of-jail-free” card for local tax officials because the provision excuses mistakes in the administration of property taxes. In other words, taxes are not waived just because the tax office messed up.  I wrote about this statute extensively here. While the provision can be extremely useful, its scope is murky at best. A recent opinion from the N.C. Court of Appeals attempts to provide some clarity but does so in a manner that raises more questions than it answers. Read more »

  • You’ve Consolidated. Do You Know Who Your Local Health Director Is?

    Authored by: on Tuesday, March 25th, 2014


    In the summer of 2012, the General Assembly enacted a law that authorized boards of county commissioners in North Carolina to consolidate county human services departments and boards. In the months since, twenty counties have taken actions under G.S. 153A-77. The exact actions have varied from place to place, but the most common action has been to create a consolidated human services agency (CHSA) combining the former county departments of health and social services, and sometimes other human services departments or functions as well. There are presently 17 CHSAs in North Carolina that include both public health and social services, as this map shows. North Carolina law requires counties to assure that public health services are available to their residents, a duty that is satisfied by the creation of a CHSA that includes public health. State law also creates the position of local health director, requires the person in that position to meet minimum education and experience requirements, and assigns quite a few powers and duties to that person. Traditional county health departments and multi-county district health departments are headed by a local health director who meets the statutory qualifications for the position and carries out the statutory powers and duties. However, a CHSA is led by a consolidated human services director--a position that is also created by statute but has its own powers and duties and is not subject to the education and experience requirements for a local health director. When a county creates a CHSA that includes public health, what becomes of the local health director? That is actually a multi-part question that is not entirely answered by law. What happens to the position of local health director is one thing, but what happens to the powers and duties of a local health director is another.  Read more »

  • Solar Farms and Solar Rooftops

    Authored by: on Monday, March 24th, 2014


    Across North Carolina solar energy systems are filling pastures and cladding rooftops.  According to solar industry reports, North Carolina ranked second in the country, behind only California, for solar photovoltaic capacity added in 2013.  The rapid rise of the solar industry in North Carolina has many communities considering how to handle this new land use. Two new resources from the UNC School of Government—a free online report and a free upcoming webinar—seek to assist communities as they plan for and zone for solar development. Read more »

  • Preauditing Employee Salaries and Wages

    Authored by: on Friday, March 21st, 2014


    Having turned the corner on the Great Recession, the Town of FingersCrossing recently hired a few new employees. The finance office begins to process the first payroll since the new employees began working for the town. It is also the first payroll for the town’s newly-promoted finance officer, Connie Scientious. Connie has diligently reviewed the statutes that govern her work. She also regularly reads Coates’ Canons blog posts () and other relevant reference materials. As she reviews the payroll for approval, she asks her staff members to check to make sure that the new employee contracts were properly preaudited. Her staff members inform her that there are no employee contracts because these are “at-will” employees. The manager verbally hired each new employee and then sent a personnel action form (PAF) to the finance department directing staff members to add each new employee (and his/her salary or wage) to the payroll system. Connie balks at this. She distinctly remembers reading that she cannot approve any disbursement of public funds unless the contract or agreement authorizing the obligation was properly preaudited. Staff members tell her that the town has never provided a new employee with a written contract and has never preaudited a new employee’s salary. They believe that she must be misinterpreting the statute. Is she? Read more »

  • Internships under the Fair Labor Standards Act

    Authored by: on Wednesday, March 19th, 2014


    Look at two interns. Tim is a twenty-year old college student majoring in accounting. He expresses interest in an internship with the city’s finance department over the summer. Chris, a high school athlete, applies for a position as an intern working in the city’s summer camp program. The city offers them the internships. Tim is offered a stipend of $2,500 for ten weeks of full-time work. Chris is told he will not be paid at all. Are these arrangements lawful? It may come as a surprise, but in paying Tim a stipend of $2,500, the city is violating the Fair Labor Standards Act (FLSA). In not paying Chris anything, on the other hand, the city is in compliance with the FLSA. How can this be so? Read more »

  • How a North Carolina Local Government Can Operate a Land Bank for Redevelopment

    Authored by: on Tuesday, March 18th, 2014


    If America’s cities and towns are to realize their greatest potential as attractive and welcoming places—and as drivers of the new American economy—they must be able to repurpose their vacant, abandoned and foreclosed properties. Those properties—whether the product of the current foreclosure crisis or the remnants of the old economy—diminish the sense of community among neighbors, erase the value of lifelong investment in a home, and make it nearly impossible for cities and towns to attract and keep the creative, innovative, entrepreneurial citizens who will build the next economy.

    Dan Kildee, founder of Genesee County Land Bank, in the foreword to Land Banks and Land Banking

    Dan Kildee’s sentiment is shared by local governments across North Carolina, but how can they “repurpose” their vacant and abandoned properties and revitalize distressed communities? The answer in Genesee County, Michigan, was a redevelopment tool called a land bank, which is a public authority created to acquire and redevelop vacant and abandoned properties. In the span of a decade, the Genesee County Land Bank acquired more than 10,000 parcels to hold or redevelop, and during the “great recession,” catalyzed more than $60 million in new private investment. Land banks continue to spring up across the nation and are playing an increasingly important role in revitalization efforts in places such as Cuyahoga County, Ohio, and Fulton County, Georgia. A complete explanation of land bank policies and approaches across the nation can be found in a downloadable text, Land Banks and Land Banking. In Michigan, forming a land bank is rather straightforward, because the Michigan state legislature enacted specific enabling authority for the establishment and operation of land banks. No such land bank legislation exists in North Carolina. Nonetheless, local governments in North Carolina can perform the basic functions of a land bank by cobbling together existing statutory authority. In this way, the local government itself serves as the land bank and performs the major activities of a land bank:
    1. Acquire and hold troubled properties
    2. Stabilize properties and eliminate encumbrances
    3. Convey properties to a redeveloper
    Each activity will be addressed in turn. Read more »

  • Privilege License Taxes & Gross Receipts, Part IV: New Businesses

    Authored by: on Monday, March 17th, 2014


    “The reports of my death have been greatly exaggerated.” – Mark Twain The same could be said of local privilege license taxes, which are rumored to be on the chopping block seemingly every time the General Assembly convenes in Raleigh.  In the past few years several bills that would have eliminated or revamped these taxes were introduced, but none of the bills gained much traction. Despite the fact that the full General Assembly will not open for business until May, one of its committees has already debated a bill that would dramatically change the privilege license tax landscape.  This bill would repeal the many Schedule B caps and exemptions and replace them with one maximum privilege license tax rate of $100 for all businesses. We won’t know for several months whether that draft bill will move forward or if other changes will be adopted.  But for now local privilege license taxes remain alive and well. With that in mind, this post continues my previous discussions about levying privilege license taxes based on gross receipts.  You can find my earlier posts on this topic here, here, and here. Read more »

  • Quick-Reference Guide for Closed Sessions

    Authored by: on Thursday, March 13th, 2014


    The North Carolina open meetings law requires most official meetings of public bodies to be open to the public. The law also lists nine permitted purposes for meeting in closed session. It sets rules for announcing and conducting closed sessions, and cases have interpreted these provisions, providing additional guidance. This blog post outlines the general requirements for closed sessions, as well as special rules that apply to particular types of closed sessions. It also debunks three common misperceptions about closed sessions. Read more »

  • Running for Office: The Hatch Act is Nearly Dead

    Authored by: on Wednesday, March 12th, 2014


    When an employee of a city or county wants to run for elective office, three legal considerations have traditionally leapt to mind—North Carolina’s criminal conflicts of interest statute, the state’s common law principle of incompatibility of office, and the federal Hatch Act. The first two are alive and well and kick up trouble for candidates every once in a while.  They apply in only one limited situation—when the employee wishes to run for office in the very city or county that is the employer.  An employee of Morganton can run for mayor of Hickory without concern about the conflicts of interest statute or the incompatibility doctrine.  But when an employee of Scotland County wishes to run for county commissioner in Scotland County itself, there may be a problem with one or both.  For a full discussion of these considerations, see Frayda Bluestein’s excellent post here. But the third consideration—the federal Hatch Act—is nearly dead.  Congress all but killed it effective January 2013. Read more »

  • Accessory Uses and Structures in the Zoning Ordinance: Eight Things to Remember

    Authored by: on Monday, March 10th, 2014


    In the world of fashion they say that accessories make the man. What kinds of accessories are we talking about? Accessories such as belts, socks, handkerchiefs, ties, and caps. They complement a man’s shirt, pants, shoes, and jacket. They enhance the style of the man. In the world of zoning we could say that accessories make a development project. What kinds of accessories are these? Accessories such as accessory uses and accessory structures. They include, parking lots, on-premises advertising signs, solar collectors, swimming pools, fuel tanks, storage sheds, basketball goals, work-place cafeterias, dish antennas, animal sheds, flower gardens and landscaping, mail boxes, helicopter pads, stormwater detention facilities, and playgrounds and recreational facilities. They complement the principal use and buildings that are a part of the premises. They are far more likely to be functional in nature than clothing accessories, but they too can enhance the style of a development project or the use of property. Read more »

  • Do Election Laws Affect Voter Turnout?

    Authored by: on Friday, March 7th, 2014


    For the last 30 years North Carolina, like most states, has been making it easier to register and vote. In the early 1980s the only way you could register was to go before an official of the local board of elections in person. Since then registration has been expanded to driver license offices and other government agencies, and now is available online. Once you register your name no longer is removed if you fail to vote in several consecutive elections, as used to be the case. Absentee voting previously was available only by mail and was reserved for voters who could not get to their precinct on election day; in recent years “early voting” polling places have been open for nearly three weeks before election day for anyone who wants to cast a ballot in advance. Other changes also have made registration and voting more convenient. In 2013 the General Assembly backtracked on some of those voting changes. The most significant actions were the shortening by one week of the time for early voting and the elimination of same-day registration and voting. Before the new rules take full effect with the 2014 election it may be a good time to ask what difference those election law changes of the last several decades made in whether people voted. Did any of the expanded opportunities to register and vote added since 1980 appreciably affect voter turnout or not? Read more »

  • New Construction Delivery Methods – Public-Private Partnerships (P3)

    Authored by: on Wednesday, March 5th, 2014


    In my last two posts, I described the new design-build and design-build bridging construction delivery methods authorized by the General Assembly during the 2013 legislative session.  This post completes our discussion of the new delivery methods by outlining the third method authorized in S.L. 2013-401/H857 – public-private partnerships (P3). Read more »

  • Databases Under the Public Records Law

    Authored by: on Monday, March 3rd, 2014


    Public agencies increasingly use databases to organize, store, and access public information. A database sometimes includes information that comes from records of multiple separate agencies, and these agencies may have access only to their own information, or to the entire database. If a member of the public seeks access to all or some of the information in the database, which agency is responsible for providing access as the custodian of the record?  The Court of Appeals opinion in LexisNexis Risk Data Management, Inc. v NC Administrative Office of the Courts provides a partial answer to this question, and establishes some key principles regarding the status of databases under the North Carolina public records law. This blog post summarizes the holding, and discusses some of its implications for public entities that create and have access to databases containing public information. Read more »

  • Budgeting Under “Tag & Tax Together”

    Authored by: on Thursday, February 27th, 2014


    It’s almost budget time again for local governments across North Carolina, and tax collectors need to be involved.  Collectors have the responsibility of estimating the property tax collection rate for the current fiscal year (2013-2014), which is the maximum collection rate a local government may use when budgeting property tax revenues for the coming fiscal year (2014-2015).  For more details, see this post. This year the task of estimating the property tax collection rate is more difficult due to the switch in September 2013 to the new registered motor vehicle (“RMV”) property tax collection system known as “Tag & Tax Together.” Read more »

  • What Is Necessary to Adopt a Code of Ordinances and Why Does It Matter?

    Authored by: on Monday, February 24th, 2014


    Peaceful Town is famous for being a quiet place to live.  The town has earned this reputation through strict enforcement of its noise ordinance, which bans the use of electronic devices to project sound that is plainly audible at a distance of more than 25 feet on public streets. As mandated by state law, the town has both an ordinance book and a code of ordinances, each of which the town clerk retains in her office.  The clerk inserts all ordinances into the ordinance book immediately upon their enactment.  At least once each year, the board of aldermen adopts a resolution for the purpose of incorporating recently enacted ordinances into the town code.  Whenever the board takes such action, the clerk adds any ordinance covered by the resolution to the code of ordinances and removes it from the ordinance book. The board of aldermen unanimously passed its noise ordinance in March 2000.  In September 2000 it adopted a resolution incorporating the noise ordinance and several other ordinances enacted during the year into the town code. Jason Stentorian, age 19, is an anomaly in Peaceful Town.  To the dismay of local merchants and their patrons, he insists on driving through the downtown area while playing his car radio at volumes well in excess of what the noise ordinance allows.  Pursuant to G.S. 14-4, local police have charged Jason with a misdemeanor for violating the noise ordinance.  At a hearing in district court, Jason’s attorney argues that the noise ordinance is unenforceable.  The attorney doesn’t dispute that the board lawfully enacted the noise ordinance in March 2000; rather, he contends that the board never properly added it to the town code.  According to Jason’s attorney, if the governing board of a county or city wishes to add a previously enacted ordinance to its code of ordinances, it must adopt a separate ordinance to that effect. Is Jason’s attorney correct in arguing that a governing board may not act by resolution to incorporate an existing ordinance into a county or city code?  Does it matter for purposes of determining whether Peaceful Town’s noise ordinance is enforceable?  This blog post answers those questions. Read more »

  • The FLSA’s Administrative Exemption from Overtime Pay

    Authored by: on Wednesday, February 19th, 2014


    Under the Fair Labor Standards Act, a government employee is entitled to overtime pay after working 40 hours in a week, unless an exemption applies. If an exemption applies, the employee is said to be “exempt” and is not entitled to overtime pay even at 60 or 80 hours worked in a week. Positions are exempt from the FLSA’s overtime rules if they meet three requirements:

    1. the position is paid on a salary basis; and
    2. the position is paid a minimum of $455 per week; and
    3. the duties of the position satisfy either the executive duties test, the administrative duties test, or the professional duties test. 
    Each of the duties tests in the third requirement is distinct and independent; a position need only satisfy one of them to be considered exempt. The executive duties test, which I discussed in an earlier blog post, evaluates whether the position is a management position with significant authority over other employees. The administrative duties test, which is the subject of this blog post, evaluates whether the position is an office position that supports management and has significant decisionmaking authority in areas other than supervision of employees. The professional duties test, which I will discuss in a future post, evaluates whether the position is one that requires an advanced academic degree or other high-level training. Read more »

  • Canceling Meetings and Hearings Because of Inclement Weather

    Authored by: on Tuesday, February 11th, 2014


    The storm is coming and there's a town council meeting scheduled for tonight. Not only that, the town is scheduled to have a public hearing on an economic development project as part of that meeting. What are the procedures for canceling and rescheduling these events? Read more »