Recent Blog Posts
Authored by: Adam Lovelady on Wednesday, April 27th, 2016
What developments qualify as subdivisions and which ones are exempt? Who can review a subdivision plat and what standards can apply? Can the local government require streets and infrastructure? And what can local governments do with performance guarantees? A comprehensive resource now is available to answer these and other questions of land subdivision regulation. Read on for the details.
Authored by: Aimee Wall on Tuesday, April 26th, 2016
Child abuse investigations and case files. Applications for Medicaid, child care subsidies, and cash assistance. Financial records related to exploitation of disabled adults. These are only a few examples of the types of records maintained by county departments of social services. These records obviously contain very sensitive information and, as a result, are protected by numerous federal and state confidentiality laws. Social services directors, social workers, attorneys, and others involved with providing assistance to individuals all need access to this information in order to do their work and the laws clearly authorize them to have it. But what about the agency’s governing board? Does the law authorize board members to have access to identifiable information contained in these sensitive records? This post explores the relevant laws and highlights particularly restrictive provisions that apply in two areas: child protective services and public assistance.Read more »
Authored by: Frayda Bluestein on Monday, April 25th, 2016
North Carolina local governments occasionally receive requests for records under the wrong law. Here’s an example:
Dear FOIA Officer:
Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of the following records… Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities…If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act.
Does FOIA apply to local governments? No. Is the local government obligated to respond? Perhaps not. Should a local government respond? I think so. Even if the requester cites the wrong law, the local government should recognize and respond to the request if it is within the scope of North Carolina’s public records law. This blog post provides information about FOIA, and provides a sample response that local governments can use should they decide to honor the request. Read more »
Authored by: Robert Joyce on Monday, April 11th, 2016
After HB 2, may a North Carolina city adopt a personnel policy providing that it will not discriminate against applicants or employees on account sexual orientation, gender identity, or gender expression?
If it already has such policy in place, may it continue to apply it?
Suppose the city has an employee whose gender identity is female but whose sex assigned at birth was male. Suppose further that that employee has been using the women’s bathroom facilities provided by the city for its employees. May the city permit that employee to continue to use the women’s bathrooms?
Is there anything that a North Carolina city or county (or other unit of local government) must do in its capacity as an employer to comply with HB 2? Read more »
Authored by: Chris McLaughlin on Friday, April 8th, 2016
A payment plan is a voluntary agreement between a taxpayer and a local government under which the local government promises not to pursue enforced collections against the taxpayer for delinquent taxes so long as the taxpayer pays a certain amount each month toward those taxes. Local governments have no obligation to offer payment plans to taxpayers. In fact, you won’t find any mention of payment plans in the Machinery Act, that portion of the General Statutes that govern local property taxes. This lack of statutory guidance makes payment plans completely discretionary and very flexible.
Wait, you say. If the Machinery Act doesn’t mention payment plans, what authorizes local governments to offer them? Lack of specific authorization for a local government action is usually a valid concern, but in this case I think we are fine because implied authority exists for payment plans.
Nothing in the Machinery Act requires local governments to take any enforcement actions at any specific time. Instead, the Machinery Act simply puts a starting date (the date of delinquency, usually January 6 of the fiscal year in which the taxes were levied) and an ending date (10 years from the original due date) for the initiation of enforced collections. Within those restrictions, a local government is free to determine if and when it will begin enforced collections. It can also choose to hold off on all collection efforts if the taxpayer agrees to certain terms, such as the payment of a specific dollar amount each month.
Here are my thoughts on other common questions about payment plans: Read more »
Authored by: Trey Allen on Thursday, March 24th, 2016
UPDATE (4/19/16): Today the U.S. Court of Appeals for the Fourth Circuit issued an opinion in a Virginia case involving bathroom restrictions similar to those imposed by HB2 on North Carolina’s public universities and school districts. In G.G. v. Gloucester County School Board, a transgender student alleged that the defendant school board had violated Title IX regulations by refusing to allow the student – who was classified as a female at birth but who identifies as a male – to use boys’ bathrooms in the student’s high school. (Title IX and its accompanying regulations prohibit sex-based discrimination in education programs that receive federal financial assistance.) Although a federal district court ruled that the board’s actions did not violate Title IX, a divided Fourth Circuit Court of Appeals reversed. Because the Fourth Circuit encompasses North Carolina, federal district courts located within the state are bound by the appellate court’s opinion in G.G., including the court that will be hearing the American Civil Liberties Union’s lawsuit challenging HB2.
The City of Charlotte makes compliance with nondiscrimination provisions in its Code of Ordinances a condition of doing business with the city. Contractors have to agree not to discriminate based on race, gender, religion, national origin, ethnicity, age, or disability in their employment actions. Sec. 2-166. The city likewise prohibits discrimination based on race, color, religion, or national origin in places of public accommodation, which are defined to include businesses as well as refreshment, entertainment, recreational, and transportation facilities that offer goods, services, facilities, privileges, or accommodations to the public. Sec. 12-58.
On 22 February 2016, the Charlotte City Council voted seven-to-four to amend the antidiscrimination provisions in its code to encompass discrimination based on sexual orientation, gender identity, or gender expression. Much of the public debate that preceded the council’s adoption of the amendments centered on the perception that they would force businesses and other private entities to allow transgender individuals to use public bathrooms corresponding to their gender identities. (Interestingly, the amendments did not mention bathrooms.) One of the points made by supporters of the amendments was that transgender individuals, especially men who identify as women, do not always feel safe using bathrooms reserved for persons of the same biological sex. Opponents countered that the amendments would put women and girls at risk by allowing men into women’s bathrooms. The amendments had an effective date of 1 April 2016.
Although not scheduled to return to Raleigh until 25 April 2016, the General Assembly held a special legislative session on 23 March 2016 in response to the council’s action. The result was Session Law 2016-3 (House Bill 2), which – among other things – mandates that state agencies and local governments, including school districts, designate their multiple occupancy bathrooms and changing rooms for use by persons of the same biological sex. The legislation also (1) preempts local government measures that prohibit discrimination in private employment or in places of public accommodation and (2) prevents local governments from imposing their own minimum wage requirements on private employers, even employers who do business or seek to do business with them. These and other provisions in S.L. 2016-3 are considered in more detail below. Read more »
Authored by: Norma Houston on Thursday, March 24th, 2016
UPDATED April 2016: See Trey Allen’s blog post update for information on a recent 4th Circuit ruling that has bearing on HB2 (Title IX discrimination claim involving a transgender student’s use of bathrooms in a Virginia public school).
During its special session held yesterday (March 23rd), the General Assembly enacted the Public Facilities Privacy & Security Act (S.L. 2016-3 / HB2). The recent media attention leading up to the special session focused on the effect of the City of Charlotte’s non-discrimination ordinance on public restrooms. While the bill did address this issue, it also modified state laws governing wage and hour requirements and anti-discrimination in employment and access to public accommodations. In addition, state law now specifically preempts city and county ordinances relating to these issues. Perhaps not as newsworthy but nonetheless important to local governments, the legislation also places new limits on the contracting authority of cities and counties. My colleague, Trey Allen, has authored a blog post on the broader implications of this legislation; this post focuses specifically on the changes to local government contracting. Yesterday’s legislation was signed by Governor McCrory last night. It went into effect immediately, so it is now the law. Read more »