Recent Blog Posts
Authored by: Chris McLaughlin on Thursday, February 4th, 2016
In this post I highlight some of the more egregious social media missteps made by lawyers in recent years, in the hope that others won’t repeat them. Then I describe how the NC Revised Rules of Professional Conduct apply to social media both generally and in specific contexts such as investigations, litigation, and client testimonials. Read more »
Authored by: Trey Allen on Monday, February 1st, 2016
I am often asked about the steps that local governments may take to enforce their ordinances. This blog post describes the basic enforcement options available to cities and counties. It is adapted from a section of my chapter General Ordinance Authority in County and Municipal Government in North Carolina (2d ed. 2014). (Shameless plug: The chapter contains lots of other useful information about the general ordinance authority of local governments.)
The primary statutes setting out the enforcement powers of local governments are G.S. 160A-175 (cities) and G.S. 153A-123 (counties). Collectively, they provide cities and counties with an array of criminal and civil enforcement mechanisms. Read more »
Authored by: Chris McLaughlin on Friday, January 29th, 2016
Local tax collectors have long known the power of the attachment and garnishment collection remedy. With just two pieces of paper, a tax collector may grab the entire contents of a bank account or garnish 10% of taxpayer’s wages until the delinquent taxes are paid. No court involvement, no waiting periods, no need to sell property and hope it produces enough cash to pay the delinquent taxes.
But you can’t garnish wages you can’t find. To help tax collectors locate where taxpayers work, G.S. 105-368(i) authorizes tax collectors to demand employee names and addresses from any employer. The tax collector can simply compare those employee lists with her list of delinquent taxpayers and then fire off multiple wage garnishment orders.
G.S. 105-368(i) works very well with private employers, especially when the tax office reminds them that employers who refuse to produce such lists can be subject to criminal prosecution.
But state and local government employers have been increasingly hesitant to comply with demands for employee lists for fear of violating state law that makes some public employee information confidential. Read more »
Authored by: Jill Moore on Thursday, January 28th, 2016
Is your doctor or pharmacist using text messaging to send you appointment reminders, or to tell you your prescription needs to be refilled? If you haven’t seen this yet, chances are you will soon – but you may be wondering, why didn’t this happen even sooner? Doesn’t everyone communicate simple messages by text now? Perhaps you remember the Cingular wireless commercials that brilliantly illustrated how rapidly texts had become popular: the first one had a young girl saying, “IDK, my BFF Jill,” (no relation, BTW), and the second showed cross-generation appeal with a grandmother texting her BFF Rose. That was nearly ten years ago. Why are doctors and pharmacists just now catching this trend?
Health care providers of all types have had an interest in using text for a long time, but to get there they’ve had to deal with a remarkably robust barrier – the HIPAA Security Rule. I’ll say more about that in the body of the post but here’s the main message: Before adopting a text messaging policy, a health care provider must conduct a security risk analysis, and determine and document how to address any security issues identified. This is an unskippable step that I will probably repeat about 12 times. It’s that important.
So what does this mean for the groups I primarily work with – North Carolina’s local public health agencies? They have an interest in using text messaging in a couple of different ways. They share the interests of health care providers in communicating simple messages such as appointment reminders to patients. To do that, they need to contend with HIPAA. But the agencies also recognize that text messaging can be an effective way to communicate public health messages to members of the general public who are not their patients. This raises additional legal issues, primarily related to public records access and retention. Read more »
Authored by: Kara Millonzi on Thursday, January 21st, 2016
A federal agency contracts with a North Carolina town to provide water services to the agency’s facility in the town. The agency is routinely late in making its utility payments. The town finally decides to take action after the sixth late payment. In accordance with the town’s customer contract, the town assessed a late fee penalty on the federal agency’s account when payment was not received fifteen days after the bill was issued. The town disconnected service to the federal agency’s facility ten days after the due date, which was twenty-five days after the bill was issued. (State law allows a county or municipality to disconnect service if a bill is delinquent for more than ten days. See G.S. 153A-277; G.S. 160A-314.)
A representative from the federal agency calls the town’s utility director. She is irate and demands that the town reinstate the water service immediately. She claims that federal law allows any federal agency thirty days to pay an obligation. According to the federal agency employee, because federal law trumps state law the utility cannot penalize the federal agency for any payments made during the thirty-day window after the agency receives the bill. She further refuses to pay the late fee penalty imposed on the account due to the delinquency, arguing that even if the payment was late federal law specifies the amount of interest that is due in the event of a late payment. How should the town respond? Read more »
Authored by: Adam Lovelady on Tuesday, January 19th, 2016
A developer in town is seeking approval for a large new real estate project. The zoning and subdivision ordinances call for the developer to construct and dedicate public streets and parks and water infrastructure. But, the city has plans for some additional improvements adjacent to the development—a greenway on adjoining property and some intersection improvements nearby. The developer’s contractors will already be on site, grading land and constructing improvements. Could the city just pay the developer to build the city’s improvements, too?
The answer is yes. But, of course, there are limits and procedural requirements. Cities and counties may enter into agreements for certain improvements—beyond those required as part of the development approval—to be made by a developer. The General Statutes include overlapping authority for contracting for public enterprise improvements, roadway improvements (cities only), as well as general reimbursement agreements. This blog outlines the basics of those overlapping authorities. Read more »
Authored by: Frayda Bluestein on Friday, January 15th, 2016
Hydraulic fracturing (“fracking”) may be coming to Pleasantville. The community is deeply divided about it. A majority of the town council strongly favors this opportunity to bring jobs to the area. The board has met with representatives from Extraction Services, Inc. and has reserved time on this month’s regular meeting agenda for a presentation by the company. The company will use this opportunity to advocate against the adoption of restrictions that might increase the cost of their operations. A community group has organized to advocate for legislation authorizing the town to regulate and restrict fracking operations. One of the council members is a member of the anti-fracking group. She thinks that the council should give the opponents equal time on the agenda.
Does the council have any legal obligation to provide time on the agenda for other points of view? Probably not. First Amendment cases have long held that when a forum exists for public expression, the government cannot engage in viewpoint discrimination. It can establish viewpoint neutral rules about where, when, and how the public can speak, but it cannot promote or discriminate against a particular point of view. The developing case law regarding “government speech” recognizes the government’s ability, in certain situations, to take sides. This post explores how the government speech analysis might apply to local government meetings and hearings in North Carolina. Read more »