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  • Same-Sex Marriage And Adoptions of a Minor by a Stepparent

    Authored by: on Friday, October 17th, 2014

    This post was co-authored by Meredith Smith, Assistant Professor of Public Law and Government, UNC-CH School of Government. 

    Over the course of the last two weeks, North Carolina federal district court judges in both the western district and the middle district rendered decisions declaring North Carolina’s laws prohibiting same-sex marriage unconstitutional. See General Synod of the United Church of Christ, et. al. v. Drew Resinger, Register of Deeds for Buncombe County, et. al., Case No. 3:14-cv-00213-MOC-DLH; Fisher-Borne, et. al. v. Smith, et. al, Case No. 1:14CV299. These decisions were based on Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), in which the Fourth Circuit Court of Appeals declared unconstitutional a Virginia law and a Virginia constitutional amendment prohibiting same-sex marriages and making same-sex marriages invalid, as well as the U.S. Supreme Court’s denial of certiorari of the same case. As a result of these decisions, any prohibition on same-sex marriage — including North Carolina Const. art. XIV, Section 6, G.S. 51-1, and G.S. 51-1.2 — is invalid statewide. Same-sex marriage is now legal in North Carolina.

    We are still in the process of analyzing the impact of these decisions on other areas of the law outside the marriage context. One immediate area of concern is adoptions. Under current NC law, there are three ways by which an adoption may take place:

    • Direct placement adoption, which contemplates a complete substitution of families where biological parents sever their rights in favor of adoptive parent or parents;
    • Agency placement adoption, in which an agency acquires legal and physical custody of a minor for purposes of adoption by means of relinquishment or termination of parental rights; and
    • Stepparent adoption, whereby an individual who is the spouse of a parent of a child but who is not a legal parent adopts the child.

    See Boseman v. Jarrell, 364 N.C. 537, 543 (2010).

    This summary addresses stepparent adoptions only. Read more »

  • What Effect Do the North Carolina Marriage Case Orders Have on Local Government Employers?

    Authored by: on Thursday, October 16th, 2014

    As a result of rulings by two federal district court judges that North Carolina’s ban on same-sex marriage is unconstitutional, North Carolina local government employers may now recognize same-sex marriages performed within North Carolina or outside of North Carolina for employee benefits purposes. Read more »

  • Ethics and the Role of the Local Government Attorney

    Authored by: on Thursday, October 9th, 2014

    Following up on Frayda Bluestein’s excellent post about the appointment of new city and county attorneys, I offer answers to frequently asked questions about the proper role of a local government attorney.

    As always, my advice is guided by the North Carolina Revised Rules of Professional Conduct.  For local government attorneys, the most relevant of those rules is likely Rule 1.13, “Organization as Client.” While not aimed specifically at government attorneys, the rule helps local government attorneys answer the key question about their representations: Who is my client? The answer determines where the attorney’s ethical obligations lie.

    Other rules worth reviewing are Rule 1.6, the basic confidentiality obligation that covers all information obtained by the attorney during a representation, and Rule 1.11, the special conflict of interest provisions for government attorneys.

    We’ll touch on these rules and other ethical considerations as I answer some FAQs about LGAs (local government attorneys). Read more »

  • Permissible Deductions from the Salaries of Exempt Employees

    Authored by: on Wednesday, October 8th, 2014

    The federal Fair Labor Standards Act permits employers to exempt employees from the law’s overtime requirements if their job duties meet one of three duties tests (discussed previously here, here, here, here, and here) and, crucially, if they are paid on a salary basis (discussed previously here). What happens if an employer makes deductions from the salary of an exempt employee? As a general rule, deductions violate the salary basis test and destroy the exemption, making the employee eligible for overtime. This rule does have exceptions. This blog post discusses four circumstances in which the FLSA allows public employers to make deductions from the salary of an exempt employee without destroying the exemption. Read more »

  • Selecting and Appointing a New City or County Attorney: Answers to Frequently Asked Questions

    Authored by: on Monday, October 6th, 2014

    Each city and county in North Carolina is required to appoint an attorney “to serve at its pleasure and be its legal advisor.” See G.S. 160A-173 (cities) and 153A-114 (counties). Some cities and counties -typically larger jurisdictions – have in-house attorneys who are employees of the unit. Most local governments contract with attorneys who are in private practice. The statutes do not establish any specific requirements for the selection process or standards for selecting a city or county attorney. Here are some answers to questions about selecting and appointing a new city or county attorney.

    Read more »

  • Expending Funds After the End of the Fiscal Year

    Authored by: on Thursday, October 2nd, 2014

    It is May 2015 and several of Procrastination Village’s staff members are frantically ordering supplies and equipment to spend down remaining budget appropriations by the end of the 2014-15 fiscal year. As of May 1, the parks and recreation department has $1500 remaining in its budget for supplies. (The village board makes budget appropriations by function code within each department. The total appropriation for parks and recreation department supplies for the year was $10,000.) Department staff members place an order for t-shirts for upcoming soccer leagues totaling $1498.

    Before the order is place, the village’s finance officer, Penny Patrol, performs the statutory preaudit process. See G.S. 159-28(a). She checks to see that (1) there is a budget appropriation in the FY 2014-15 budget ordinance ($10,000 appropriation for supplies), and (2) that sufficient funds will remain to pay the amounts expected to come due this fiscal year ($1500 remaining in the appropriation). The department expects that the t-shirts will be delivered on or before June 1 and that the invoice will be paid before July 1. Penny stamps and signs the preaudit certificate on the order form.

    As it turns out, the order is significantly delayed and the t-shirts do not arrive until mid July 2015. In the meantime, a new fiscal year began on July 1, 2015, and a new budget ordinance (FY 2015-16) took effect. Having fallen on hard economic times, the village board appropriated $0 to the parks and recreation department for supplies in FY 2015-16.

    Can Penny pay the $1498 invoice on August 1, 2015? Read more »

  • How Does North Carolina Law Address Outbreaks of Communicable Disease?

    Authored by: on Monday, September 29th, 2014

    [Update: On September 30, the CDC announced that a case of Ebola had been diagnosed in the United States. The CDC's statement is here. This post initially stated that a State Health Director's temporary order to report had been issued for enterovirus D68. In fact, the temporary order required reports of middle eastern respiratory syndrome (MERS), not enterovirus. There have been no cases of MERS in North Carolina. The author regrets the error and has corrected the post.]

    Earlier this month, I attended the North Carolina Public Health Association’s annual fall conference and had the opportunity to hear a panel address the 2014 Ebola virus epidemic. The panel featured state epidemiologist Megan Davies and several local health directors who, while focusing on Ebola, spoke about many aspects of core public health infrastructure—including the capacity of North Carolina’s public health system to detect and respond to communicable disease outbreaks.

    As Dr. Davies was quick to point out, the present Ebola epidemic is still confined to west Africa. [Update: On September 30, the CDC reported that a case had been diagnosed in Texas.] While the global public health community is appropriately concerned with containing this outbreak—the worst on record—it isn’t something that we should feel imminently threatened by here in North Carolina. Any epidemic may be worthy of our attention, as North Carolinians may work, study, volunteer, or travel almost anywhere in the world. But Ebola has characteristics that make it easier to contain than other outbreaks that readers of this blog may recall. Unlike SARS or H1N1 flu, it is not an airborne illness—Ebola is spread by contact with the body fluids of an infected person. It is a zoonotic disease, meaning it can be transmitted to humans from infected animals, but the animal that are its natural hosts are not native to North America. Also, the outbreaks of Ebola that have occurred periodically since the 1970s have unfortunately and tragically been facilitated by inadequate health care facilities and supplies in the countries where the disease originated. Even the health care workers who cannot avoid dealing with patients’ body fluids can be kept healthy with infection control methods and supplies that are routine in US health care facilities.

    In other words, there is no need to panic about Ebola in North Carolina. However, this has also been the summer of enterovirus D68 and chikungunya, and those diseases have appeared in our state. Plus, some communicable diseases are endemic in North Carolina, meaning that they have not been eradicated and can be expected to appear from time to time. I hope you’ll agree, that makes this a good time to write about the laws that North Carolina has in place to detect and respond to communicable diseases. Read more »