Featured Posts on Budgeting

Recent Blog Posts

  • Trial Court Review of Closed Session Minutes

    Authored by: on Tuesday, July 28th, 2015

    A North Carolina local school board renews its contract with a superintendent for an additional four years. Seven months later, the board meets in closed session to discuss a personnel matter. Immediately after the closed session, the superintendent resigns and the board approves a $200,000 severance payment. The newspaper requests a copy of the closed session minutes. The board responds that the minutes are confidential personnel records and their release would frustrate the purpose of the closed session. The newspaper files a lawsuit to compel the release of unredacted minutes relating to the superintendent’s employment. The board files a motion to dismiss the lawsuit arguing that the records are not subject to disclosure, so the complaint fails to state a claim for which relief can be granted.

    Must the trial court take the board’s word for it that the minutes are entirely confidential, and grant the motion to dismiss? Or should the trial court review the records to determine whether records may lawfully be withheld? The North Carolina Court of Appeals has held that the trial court must review the records.

    The decision is Times News Publishing Company v. Alamance-Burlington Board of Education. It involves the interplay between the public records law and the open meetings law. As I discussed in my blog post here, these two distinct open-government laws intersect in G.S. 143-318.10(e). That statute states that minutes and general accounts of closed sessions are public records, but they can be withheld from public inspection “so long as inspection would frustrate the purpose of a closed session.”

    The Times News opinion contains an important holding. It says that records of closed sessions that contain information protected under the personnel privacy statutes will always frustrate the purpose of the closed session and can be withheld under the open meetings law provision. The exception in the public records law for personnel information is permanent, the court notes, so the withholding of meeting records containing such information “does not expire with the passage of time.”

    So why the need for trial court review? The court said that even if the personnel information may be permanently withheld:

    [T]hat does not mean that all contents of closed session minutes in personnel cases are beyond disclosure. When a public body meets—particularly one made up of elected officials—the discussion of a personnel matter often could include political and policy considerations broader than the “core” personnel information described in Section 115C-319. Moreover, as we explained above, when the withholding is challenged in court, it is for the trial court, not the school board, to assess what is and is not subject to disclosure under this legal test.

    Slip op. at 10 (emphasis added). The court remanded the case to the trial court for in camera review (that is, review by the judge in chambers out of public view) to determine whether releasing the minutes would frustrate the purpose of the closed session. The court also suggested that trial courts should not hesitate to grant stays pending appeal of orders to disclose records “because the court cannot un-ring the bell once information has been publicly disclosed.” Slip op. at 11, note 2.

    I can imagine plenty of situations in which trial court review would be necessary to determine whether the release of closed session minutes would frustrate the purpose of the closed session. In my blog post, I suggest three questions to ask in making this determination:

  • Was the closed session validly held?
  •  What is the nature of the matter that was the subject of the session and what is its status at the time of the request for or decision to release?
  •  What specific information is included in the minutes/account and what is its status at the time of the request for or decision to release?
  • What is a bit puzzling about the Times News decision is the court’s statement that closed session discussions “often could include political and policy considerations broader than the core personnel information” that is protected by the personnel privacy statute. This assertion does not seem to square with the language in the open meetings law, which specifically prohibits consideration of policy matters in a closed session held to consider personnel matters. The pertinent provision allows closed sessions:

    To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session.

    G.S. 143-318.11(a)(6)(emphasis added). So if a closed session included discussions of policy or political considerations unrelated to a specific employee, that part of the meeting was held in violation of the law. If the minutes disclosed that improper discussion, then a review of the minutes would disclose the violation. As a practical matter, however, it seems unlikely that such discussions, if they occurred, would be reflected in the minutes. The court’s statement nevertheless seems to suggest that such non-personnel discussions might often occur, hence the need for trial court review. To the contrary, the list of personnel matters that may be considered in a closed session tracks quite closely with the core personnel information that is confidential under the personnel privacy statute. So it seems unlikely that minutes of closed sessions discussing personnel matters could lawfully include any information that is not confidential.

    Of course there is no reason for the court to require that litigants must take the public agency’s word for it when the agency says the minutes must be withheld. In camera review is a fair way to make sure that the balance of privacy and transparency is maintained. But since the court concluded that the release of confidential personnel information always frustrates the purpose of a closed session, the only purpose of such review would be to determine whether the minutes reflect discussions that should not have occurred in closed session. It follows, as well, that in order to survive a motion to dismiss, a complaint should have to clearly indicate that the plaintiff seeks records that do not contain core personnel information that is confidential under the personnel privacy statutes.

  • Public Health Law Update: Back-to-School Edition

    Authored by: on Friday, July 24th, 2015

    For many families in North Carolina, the arrival of August means it’s time to start preparing to send children back to school. In addition to shopping for school supplies and new sneakers, it’s a good time to make sure children’s school health needs are in order. This post reviews some new immunization requirements that took effect on July 1, and provides a refresher and update on kindergarten health assessments, rescue medications in schools, and that ever-present childhood nuisance – head lice. Read more »

  • King v. Burwell: The U.S. Supreme Court Saves the ACA’s Employer Mandate

    Authored by: on Wednesday, July 22nd, 2015

    In June 2015, the U.S. Supreme Court, in King v. Burwell, upheld the lawfulness of the way the Affordable Care Act works in North Carolina and the 33 other states where the federal government, rather than the state, runs the health insurance exchanges. As a result, the ACA’s employer mandate is still effective. That means that employers must continue to keep track of those employees who qualified for and were offered health insurance, and those who did not, in order to comply with the ACA’s stringent reporting requirements — which will be due next winter for the 2015 calendar year. For those of you interested in the way in which the Court reached its decision, read on. For those who are more concerned with the bottom line of the decision – keep on counting! That’s the lesson of the decision. Read more »

  • Sign Litigation: A Brief Analysis of Reed v. Town of Gilbert

    Authored by: on Tuesday, July 21st, 2015

    Temporary yard signs are springing up all around town. Town council wants to reduce the clutter, but also wants to respect the free speech rights of the community. Council is considering new rules that will allow campaign signs during election season, event signs within a day of the event, and ideological signs anytime. It seems like a reasonable balance—allowing the signs but limiting them to a relevant time-frame. Can the town’s regulations distinguish among signs this way?

    A recent U.S. Supreme Court decision says no. Such distinctions are unconstitutional content-based regulation of speech.

    To be clear, every sign ordinance distinguishes among signs. Ordinances commonly distinguish between locations (commercial property, residential property, public property, etc.), between types of signs (free-standing, wall signs, electronic signs, etc.), and between messages on the signs (commercial, safety, political, etc.). Reasonable distinctions concerning location and types of signs remain permissible.

    The Reed decision, though, clearly invalidated some distinctions based on the message content of signs, and it will require adjustments to many local ordinances and some state statutes. The decision, with its four separate concurring opinions, also left open several legal questions.

    This blog considers the decision of Reed v. Town of Gilbert, 576 U.S. __ (2015), and its impact on local sign ordinances. Read more »

  • They’re Finally Here: The U.S. Department of Labor’s Proposed New FLSA Regulations

    Authored by: on Monday, July 20th, 2015

    Here’s something to shake you out of a nice summer nap: it is virtually certain that beginning in 2016, local governments will have to pay time-and-one-half overtime premium pay to some employees who now earn a straight salary regardless of how many extra hours they work. If a proposed new federal rule goes into effect – as it likely will – nobody paid less than $50,440 will be exempt from the overtime requirement of the federal Fair Labor Standards Act (FLSA). The city manager, the human resources director, the solid waste director and the chief sheriff’s deputy are all now exempt because of the nature of their duties. You pay them a salary and you don’t owe them overtime pay when they work more than 40 hours. But if any of those positions make less than $50,440 per year, that is about to change. Read more »

  • Local Government Utilities and the Equal Credit Opportunity Act—Part I: Notice Requirements

    Authored by: on Friday, July 17th, 2015

    Dale Linquent is a resident of Carolina Village. He has lived in three different apartments in as many years and each time has left an outstanding utility balance on his account. This year the village board adopted a new water ordinance specifying that an applicant will not be able to open a new account with the utility if he/she owes any outstanding delinquencies on a water account. Furthermore, if an applicant has incurred a delinquency on a village water account within the past three years, he/she must either pay a deposit of $120 (which is the average amount of a residential bill for two months of service) or have an individual who has not incurred a delinquency on a village water account within the past three years co-sign on the account.

    Dale moves into his fourth apartment and attempts to open a new water account. Utility Jones, the village’s utility manager, informs him that he first must pay off the $93 in delinquencies and penalties owed on his prior accounts. Mr. Jones also informs Dale that he must pay the $120 deposit or have another eligible individual co-sign on the account. Dale agrees to pay the outstanding balance of $93. He does not have the funds to also pay the deposit, though. He informs Utility Jones that he cannot come up with the money for the deposit and he cannot find anyone willing to co-sign on the account. He is thus unable to establish utility service.

    Dale explains his dilemma to his buddy Ida Suue. Although not a lawyer by trade, Ida fashions herself a bit of a legal guru. She tells Dale that the city cannot effectively deny him service by making him pay a deposit or get a co-signer because that clearly violates some federal law she once read about. Dale calls the utility department the next morning and informs Utility Jones that he intends to sue the village for violating federal law. Should the village be worried?

    Yes and no. Ida actually is correct that federal law applies in this situation. In fact, there are two different federal statutes that are implicated—the Equal Credit Opportunity Act (ECOA), 15 U.S.C. Sect. 1691, and the Fair Credit Reporting Act (FCRA), 15 U.S.C. Sect. 1681. Neither of these statutes prohibits the village from requiring a deposit or co-signer on Dale’s account because of the prior delinquencies, but both statutes require that the village comply with notice requirements. And the ECOA prohibits a government utility from engaging in certain other practices related to the establishment and maintenance of a utility account.

    This post discusses the notice requirements of the ECOA. Future posts will address other provisions of the ECOA, as well as the notice provisions of the FCRA. Read more »

  • When a Local Government Purchases Property at a Tax Foreclosure (Part I)

    Authored by: on Thursday, July 16th, 2015

    Local governments are free to purchase property at any tax foreclosure auction, be it one of their own or one initiated by another government.  This often occurs by default when a local government enters an initial bid at the amount of taxes and costs owed on the property and no other parties offer bids.  Or it can occur intentionally when a local government wants to purchase the property being sold and successfully outbids another party.

    Either way, the local government will become the owner of the property assuming that the government does not assign its bid to another party and that its bid is not topped during the upset bid period.  The local government’s ownership of the property will be governed by G.S. 105-376.

    A few important points to keep in mind if a local government is the high bidder:

    Read more »