Some of these bills have made considerable progress thus far in the legislative session; others are still pending in the committee to which they were initially referred, which does not bode well for their ultimate success.

Bills of interest in the public procurement area are summarized below along with my very tentative assessment of which bills are and are not likely to pass this session.  Keep reading to the end of this post to find out how you too can track bills you are interested in.  And finally, when the General Assembly adjourns for the year, stay tuned for the School of Government’s annual legislative summary webinars.

What’s Hot? 

The following bills affecting public purchasing and contracting have a reasonable likelihood of passing during the current legislative session – or, at least the bill met the crossover deadline:

HB857 (Public Contracts/Construction Methods/DB/P3) authorizes public entities to use the design-build method or the public private partnership method for construction projects.  While there are several other bills pending that authorize design-build and public private partnership contracts, HB857 has made the most progress through the legislative process.  Including design-build as a statutorily authorized method of building construction and repair contracting is one of the North Carolina Association of County Commissioners’ legislative goals for this session, and the bill has received considerable input from both local government and industry representatives.  It most likely will pass.

For those who are not familiar with the design-build construction method, it is an integrated construction approach that delivers both design (architectural and engineering) and construction services under one contract with a single point of responsibility. Design-build is sometimes confused with construction management at-risk (CMR), which unlike design-build, is a currently authorized building construction method under GS 143-128.  One fundamental difference between design-build and CMR is that, under CMR, the local government is required to contract separately with an architect and/or engineer for design services, while a design-build project involves a single contract with both the design professional and the contractor encompassing both the design and construction phases of the project.

It is not uncommon for the General Assembly to pass local bills authorizing individual cities and counties to use the design-build method or public private partnership method for local projects.  During the current session, Buncombe County has already received design-build authorization for two economic development projects (HB222/SL 2013-31 and HB555/SL 2013-40), and similar local acts are pending for the Town of Clinton (HB133 / SB111) and the Town of Cornelius (HB195).  Onslow County has already received authorization for a public private partnership project (SB75 / SL 2013-37).  The passage of HB857 would eliminate the need for these types of local acts.

HB110 / SB611 (Public Contracts/Project Labor) prohibits a unit of government from requiring, prohibiting, or discriminating against a bidder or contractor for adhering to or not adhering to an agreement with a labor organization for a public construction project.  The House passed its version of the bill by a vote of 108-2, so it is likely to pass the Senate as well.  A similar bill passed by the House (HB872, Protect NC Right‑To‑Work) makes void and unenforceable any contract provision that requires a contractor or subcontractor to hire union workers.

SB547 / HB645 (Energy Savings Contracting Amendments) requires contractors who are qualified to bid on guaranteed energy savings contracts (GESC) to be prequalified by the State Energy Office.  The bill also revises some of the RFP procedures for entering into a GESC, and stipulates the specific methods of measuring annual energy savings under a GESC.  The Senate passed its version of this bill unanimously, so it will likely receive favorable consideration in the House.  For more information about GESCs, see the GESC contracting process summary on our SOG Local Government Purchasing and Contracting website.

HB180 (Mechanics Liens/Technical Corrections) has already been enacted (SL 2013-16).  This bill made technical corrections to the mechanics lien law revisions enacted by the General Assembly during the 2012 Short Session.  I mention this bill mainly as a reminder that the new requirement to register a lien agent for construction projects does not apply to public entities as North Carolina law does not authorize the filing of liens against units of government.

HB449 (State Contracts/Furniture) makes furniture vendors on the federal GSA furniture schedule qualified for state furniture contracts.  This bill has passed both chambers and is awaiting the Governor’s signature.

SB78 / HB56 (Amend State Contract Review Laws) creates a new contract management section of the Department of Administration’s Division of Purchase and Contract to improve management and administration of large state contracts. Since both the Senate and House have passed their respective versions of this bill and each are pending in the other chamber, it’s likely that one of them will be enacted.

HB701 (IT Purchasing/Convenience Contracts) authorizes state agencies to purchase IT goods and services from multi-party cooperative convenience contracts approved by the State Chief Information Officer.  Having passed the House unanimously, the bill will likely be viewed favorably by the Senate.

HB289 (State Computer Equipment/Buy Refurbished) requires the state CIO and Department of Administration to offer state agencies and local government the option of purchasing refurbished computer equipment from registered computer equipment refurbishers.  The language in this bill is not codified, meaning it is not styled as an amendment to an existing statute.  It is therefore unclear whether the General Assembly intends this purchasing option to be treated as an exemption to competitive bidding requirements such as those found in GS 143-129(e), but presumably the authorization would operate the same as a codified bidding exemption.  The bill passed the House unanimously so it will likely pass the Senate as well.

HB754 (Lease Purchase of Real Property/Comm. Coll.) authorizes community colleges to use lease purchase and installment purchase contracts for acquiring real property when only local funds are used.  This bill passed the House unanimously and has already cleared the Senate Education Committee, so it appears to enjoy widespread support.

SB236 (Counties Responsible for School Construction) authorizes a county to assume responsibility for construction and ownership of public school facilities.  Although this bill passed the Senate, the controversy it generated makes predicting its ultimate fate difficult.  In its current form the bill only applies to nine counties: Beaufort, Dare, Davie, Guilford, Harnett, Lee, Rockingham, Rowan, and Wake.

SB42 (Charter School/Govt. Unit) adds charter schools to the property disposal statute that authorizes property conveyances between units of government (GS 160A-274).  This bill passed the Senate on a strong 42-3 vote, so it will likely pass the House as well. On the other hand, SB575 (Counties May Fund Charter School Capital) which authorizes counties to fund capital projects for charter schools, remains pending in the Senate, so its fate is less clear.

What’s Not?

The following bills did not meet the crossover deadline, so unless the contents of the bill become included in another piece of legislation at some point during the remainder of the session or are determined to fall into an appropriations or finance category (which is not likely at this point in the session), the bill – and its contents – will likely receive no further consideration this session.

Several bills propose local or resident bidder preferences:  HB284 (Local Contracts/Local Bidder Preference) authorizes cities and counties to give a price-match bid preference to local bidders for construction and purchase contracts if the local bidder’s bid is within 5% or $10,000 (whichever is less) of the nonlocal low bidder.  A “local bidder” is defined as a business that has paid unemployment taxes or income taxes in North Carolina and whose principal place of business is in the city or county giving the preference.  SB232 (Public Contracts/Local Business Preference) is similar to HB284.  SB19 (Bldg. Contracts/Local Business Participation) gives a somewhat different twist to local preference bills – it mandates that cities and counties require bidders on building construction projects to make good faith efforts to solicit participation by local businesses and subcontractors under a process similar to that required for historically underutilized businesses [HUB].  HB728 (NC First) codified Governor Perdue’s Executive Order 50 which established a price-match bid preference for in-state bidders on state agency purchase contracts.  As written, the bill only applies to state agency contracts, not local government contracts.

HB160 (Public Contracts/Illegal Immigrants) prohibits state and local government construction and purchase contracts with contractors who employ illegal immigrants and requires contractors to use the E-Verify program to verify the legal employment status of their employees.

HB906 (N.C. Public Contractor Safety Act) requires prequalification of construction contractors and subcontractors based on occupational health and safety records.

SB186 (Notice Publication by Counties and Cities) authorizes cities and counties to give public notice by electronic means only in lieu of publication in the newspaper.  This authorization would apply to all legal notices for which newspaper publication is currently required, including those for bidding and property disposal.

SB125 (Public Meeting/Records Law Violations) makes violations of the state’s open meetings and public records laws a Class 3 misdemeanor.

How You Can Track Bills

It’s not too late in the session to do some bill tracking of your own.  The School of Government’s online Daily Bulletin has a number of new features (see Aimee Wall’s blog post) including a really cool bill tracking function that you can customize based on your own areas of interest.  To subscribe to the Daily Bulletin, visit our Legislative Reporting Service Website.  If you’re with a local government and are interested in our special government subscription opportunity, contact Kathryn Hooker at 919.966.4120.

Which of the following statements is true?

1. A local government can reject a construction bid if the bidder does not list enough HUB subcontractors to meet the local government’s HUB participation goals.
2. If a bidder forgets to identify on his bid the HUB subcontractors he plans to use on a project, he can submit this information within 72 hours after the bid opening.
3. Because HUB participation goals under North Carolina law are merely aspirational and not mandated quotas, the courts don’t review these programs strictly.
4. HUB participation requirements apply to all local government construction and repair projects.

To learn the answers to these and other questions about Historically Underutilized Business [HUB] participation requirements that apply to North Carolina local governments, check out a new SOG local government law bulletin (click here for a free downloadable pdf version).

Our new bulletin, HUB Participation in Building Construction Contracting by N.C. Local Governments: Statutory Requirements and Constitutional Limitations (LGLB No. 131), focuses on the legal requirements for HUB participation in local government contracting: Part I outlines the statutory requirements under North Carolina law for HUB participation in public building construction and repair projects (GS 143-128.2, GS 143-128.3, and GS 143-128.4), and Part II examines the constitutional limitations placed on such programs by federal court cases.  In an appendix to the bulletin you’ll find a HUB participation program checklist that lists the various statutory requirements and constitutional limitations applicable to each of the three main HUB program components: participation goals, good faith efforts, and reporting requirements.

I want to give well-deserved credit to my co-author, Jessica Jansepar Ross.  Jessica served as a School of Government law clerk last summer, and her research, analysis, and writing contributions, especially to the discussion of constitutional limitations contained in Part II of the bulletin, were invaluable (those of you who are lawyers will truly appreciate Jessica’s chart on page 14 of the bulletin, which succinctly outlines all the elements of the strict scrutiny analysis applied by the federal courts in challenges to HUB programs).

This bulletin was a direct result of questions we received from local governments on this topic and their desire to have a resource that would help them understand this complex area of the law.  HUB participation programs are just some of the many legal requirements imposed on local governments when they contract for certain types of building construction and repair projects.  A number of legal requirements also apply to other types of construction and repair projects as well as contracts for purchases and design services.  Some requirements apply to all local government contracts.  For example, the preaudit requirement about which Kara Millonzi recently blogged – if you’ve not heard about the Court of Appeals’ recent decision reinterpreting the preaudit requirement, Kara’s blog is a “must-read”.

Sorting through, understanding, and complying with these legal requirements can be daunting.  Our SOG Local Government Purchasing and Contracting website contains a wealth of information including publications, links to bidding and contracting statutes, and really cool charts, checklists, and other tools designed to help local governments navigate through the complex world of public procurement and contracting.  Simply go to www.ncpurchasing.unc.edu and, if you can’t find a resource that you need, let me know.  Oh, and did I mention that this site also includes information on property disposal such as charts describing which procedures can be used for different types of property, as well as sample forms for property disposal and purchasing?  The resources on this website have been developed over the years by SOG faculty including David Lawrence, Eileen Youens, and Frayda Bluestein, and most of them are free.

We hope you will visit and make use of the resources on our local government purchasing and contracting website, where you can also find a copy of our new HUB Participation Programs bulletin.

Still wondering about the answers to the true/false quiz at the beginning of the post?  The answer is, they’re all false. To find out why, read the bulletin!

Let’s back up a minute.

What are RPOs and MPOs?

Rural Transportation Planning Organizations (RPOs), which are state-mandated and authorized under Article 17 of Chapter 136, are voluntary organizations of local officials that work cooperatively with the NC Department of Transportation (NCDOT) to plan rural transportation systems and advise NCDOT on rural transportation policy (GS 136-210).  Their urban counterparts, Metropolitan Planning Organizations (MPOs), are federally-mandated and authorized under Article 16 of Chapter 136 to develop transportation plans for urbanized areas of the state.  Both RPOs and MPOs are formed through memorandums of understanding between NCDOT and cities and counties in specified rural and urban areas.  Each RPO and MPO is made up of two groups: a Transportation Advisory Committee (TAC), and a Technical Coordinating Committee, also referred to as a Transportation Coordinating Committee (TCC).  The TAC is typically comprised of local elected officials (or their designees) representing the partner local governments, and is charged with the responsibility for establishing goals, priorities, and objectives for transportation plans within their collective jurisdictions.  The TCC is typically comprised of technical representatives (or their designees) from state and local governments, such as city and county managers, planners, and engineers, and provides general review, guidance, and coordination of the transportation planning process.  Typically, recommended transportation plans are developed by the TCC, submitted to the TAC for approval, and then forwarded to NCDOT for consideration.

There are currently 20 RPOs and 17 MPOs in the state, each consisting of a TAC and a TCC which have voting members as well as alternates.  Altogether, hundreds if not thousands of regional and local government officials and personnel serve on TACs and TCCs across the state.  When S.L. 2012-142, Sec. 24.16 goes into effect on January 1, 2013, all of these local officials and local government personnel will be covered under the State Ethics Act.

What is the State Ethics Act?

The State Government Ethics Act (GS Chapter 138A) establishes ethical standards of conduct for a variety of officials and employees in the legislative, executive, and judicial branches of state government.  The act basically requires individuals covered under its provisions to avoid conflicts of interest, publicly disclose their economic interests, and participate in ethics education training.  Individuals covered under the act are also generally prohibited from using their public position for private gain and accepting gifts from registered lobbyists and their clients (called “principals”).

Among the state officials covered under the act are individuals who serve on a state boards and commissions.  They, along with others in the Executive Branch covered under the act, are referred to as “public servants.”  A state board or commission becomes subject to the act by either being designated as such by the State Ethics Commission or by act of the General Assembly.  It is by the later method that RPOs and MPOs became covered under Chapter 138A.

S.L. 2012-142, Sec. 24.16 amends GS 136-211 requiring that a “Rural Transportation Planning Organization shall be treated as a board for purposes of Chapter 138A of the General Statues.”  This same legislation similarly amends GS 136-202 requiring MPOs to be treated as a board under the State Ethics Act.  Because the legislation refers to RPOs and MPOs in their entirety, the coverage of the state ethics act applies to both TACs and TCCs since each RPO and MPO is made up of both committees.  Consequently, all voting members – including their alternates and designees – of TACs and TCCs are considered public servants under the State Ethics Act as of January 1, 2013.

What does this mean for TAC and TCC members? 

Basically, they are subject to the same requirements and prohibitions as all other public servants.  For example, they must:

• monitor and avoid conflicts of interest in performing their official duties
• participate in state ethics education training
• not solicit or accept gifts from registered lobbyists, lobbyists’ principals, and entities that have certain relationships with the RPO or MPO on which the individual serves
• not use their public position for private gain, including not using their public position in nongovernmental advertising that advances their private interests or those of others, or in any advertising or public service announcement that is paid for with state funds
• disclose their economic interests on an annual basis by filing a “Statement of Economic Interest” (SEI) – the first SEI filing is due April 15, 2013.

This list is not exhaustive; there are additional requirements and prohibitions under the State Ethics Act that TAC and TCC members must also comply with.

Will elected city and county officials who also serve on a RPO or MPO have to participate in two ethics education programs?

The short answer is “yes.”  One of the requirements of the state ethics act noted above is that TAC and TCC members must participate in state ethics education training.  This training covers the requirements and prohibitions of the state ethics act (G.S. 138A-14).  Elected and appointed members of city councils and county boards of commissioners are also required to participate in ethics education on the “laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level.” (GS 160A-87)  Because the statutes require the state ethics training to cover different laws than those mandated for the local government ethics training, the local ethics training does not satisfy the state ethics training requirement and vice versa.  In other words, city and county governing board members who also serve on a RPO or MPO (most likely as a TAC member) must participate in both the state ethics training and the local government ethics education program.

In addition to covering different laws, the two ethics education requirements also have different timeframes within which the training for each must be completed:

• State ethics training – Public servants must complete at least two hours of state ethics training within six months of appointment to a state board or other state position covered under the state ethics act, and then must attend refresher training at least every two years thereafter (GS 138A-14(b)).  Since the legislation covering RPOs and MPOs under the state ethics act goes into effect on January 1, 2013, all TAC and TCC members and alternates must complete their state ethics training by June 30, 2013.
• Local ethics training – Elected and appointed members of governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city‑counties must complete at least two hours of local ethics training within twelve months of election or reelection (or appointment or reappointment) to local office (GS 160A-87).  The local training requirement is only triggered upon election (or appointment) or reelection (or reappointment) to office, so local officials must complete the local training only once during their term of office, regardless of the length of that term.

Hopefully, the chart below helps sort out these different requirements:

Does the board clerk have any responsibilities related to their local board members’ state ethics training? 

The short answer is “no.”  Local elected officials who serve on RPOs and MPOs will receive their state ethics training from the State Ethics Commission (SEC), and the SEC will advise those officials when, where, and how the state ethics training is delivered.  The SEC also provides and maintains documentation to verify compliance with the training requirement, so board clerks are not responsible for keeping any records verifying their members’ state ethics training (board clerks are, however, responsible for maintaining records verifying that their members’ have completed their local ethics training. GS 160A-87).  Boards covered under the state ethics act have ethics liaisons that coordinate ethics-related matters, including training, with the SEC.  If clerks receive questions from their board members about state ethics act training requirements, clerks should refer their board members to the SEC or the ethics liaison for their RPO or MPO once those liaisons have been designated.

Where can you get more information?

The State Ethics Commission is responsible for providing information about compliance with the state ethics act’s requirements and prohibitions as well as investigating alleged violations.  The SEC also has the authority to render advisory opinions on questions involving interpretations of the act.  The SEC has created a dedicated webpage for RPOs and MPOs to assist TAC and TCC members in understanding their new obligations and complying with the various requirements imposed on them when the legislation goes into effect on January 1, 2013.  The SEC webpage provides helpful information such as important deadlines, FAQ’s, and an overview of the state ethics act.  RPO and MPO members should consult the SEC’s website and contact the SEC if they have questions.

Modernize NC Emergency Management Act

 The reorganization act, S.L. 2012-12 (HB843), is called the “Modernize NC Emergency Management Act.” It represents the most comprehensive update and reorganization of our state’s emergency management statutes since their enactment over three decades ago.  Its primary purpose is to consolidate and reorganize the statutes that establish emergency management authorities for state and local governments currently found in two completely distinct parts of the General Statutes – Article 1 of G.S. Chapter 166A (North Carolina Emergency Management Act of 1977) and Article 36A of G.S. Chapter 14 (Riots and Civil Disorders).  Chapter 166A was enacted in 1977 to update the old civil preparedness laws.  Article 36A was enacted in 1969 during the height of the civil rights era.  Article 1 defines responsibilities within State government for direction and control of the state’s emergency management program, and authorizes cities and counties to establish local emergency management programs (municipal emergency management programs are subject to coordination with the county).  Article 36A authorizes cities and counties to enact ordinances imposing various restrictions and prohibitions during a locally declared state of emergency.

S.L. 2012-12 (HB843) amends these emergency management statutes in four primary ways:

 First, it consolidates and reorganizes all state and local emergency management authorities and responsibilities into one place in the general statutes, a new Article 1A of Chapter 166A.  The consolidated provisions are reorganized into logical sections and parts, making it easier to research and identify relevant laws and authorities.

Second, the Act clarifies and makes uniform the terminology used throughout the emergency management statutes – for example, a state of emergency is now “declared” (under current law it is either “declared” or “proclaimed,” resulting in either a “declaration” or a “proclamation”).  More importantly, the legislation draws a clear distinction between a state of emergency declaration and a disaster declaration – the former being the declaration issued by either the governor or a city or county local government official when there is an actual or imminent threat of an emergency, while the latter is a declaration issued by the governor based on the severity and impact of an emergency and which triggers state assistance programs.  The terms “emergency” and “disaster” are similarly distinguished.  Under the new law, an emergency is an actual or imminent “threat of widespread or severe damage, injury, or loss of life or property resulting from natural or man-made accidental, military, paramilitary, weather-related, or riot related case.” (S.L. 2012-12, sec. 1.(b), G.S. 166A-19.3(6)).  In short, an emergency is the threat event itself, while a disaster represents the degree and severity of the emergency’s impact as declared by the Governor.

Third, the Act incorporates operational practices that have evolved in recent years, and clears up points of confusion under current law, including:

• Codifying existing operational practices of the NC Division of Emergency Management establishing clear authority for DEM to maintain the state Emergency Operations Center (EOC) and a 24-hour operations center, plan for emergencies at nuclear power facilities, and manage mutual aid.

•  Eliminating prior statutory inconsistencies in the expiration date of a local state of emergency by simply providing that a local state of emergency remains effective until it is terminated by the issuing authority.

• Clarifying the geographic scope of a local state of emergency declaration by authorizing local officials to define the emergency area to which a declaration applies as being part(s) or all of their jurisdiction.

• Clearly authorizing local officials to impose the emergency restrictions or prohibitions deemed necessary in response to a particular emergency (in other words, clarifying that all restrictions and prohibitions provided for in local ordinances are not automatically triggered when an emergency is declared).

• Specifically including among local emergency restrictions the authority to impose a curfew and order evacuations that may be either voluntary or mandatory.

• Authorizing a mayor to extend county emergency restrictions into the jurisdictional area of a mayor’s municipality (previously, only the municipality’s governing board could take this action).

• Increasing the penalty for violations of local emergency restrictions from a Class 3 misdemeanor to a Class 2 misdemeanor to be consistent with the punishment for violations of emergency orders issued by the governor.

Fourth, in response to the federal court’s decision in Bateman v. Perdue, (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012), the Act limits the restrictions and prohibitions that cities and counties can impose on dangerous weapons during a locally declared state of emergency.  Local officials are still authorized to impose restrictions and prohibitions on the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances and gasoline (a “dangerous weapon or substance” is defined in G.S. 14-288.1(2)), but under the new Act, these restrictions now cannot apply to “lawfully possessed firearms and ammunition” (a firearm is defined as a handgun, rifle, or shotgun).  The Act also repeals G.S. 14-288.7, which automatically prohibited the off-premises possession or transportation of a dangerous weapon (including a firearm) when a state of emergency is declared or within the vicinity of a riot (a violation of this statute is punishable as a Class 1 misdemeanor).

What the Act does not do is fundamentally alter the legal or operational relationships between cities, counties, and the state.  Nor does it contain a significant number of substantive changes – roughly 90% of the bill’s text is virtually identical to existing law.

The Act goes into effect on October 1, 2012.  Cities and counties that declare a state of emergency prior to this date should operate under existing law, but are strongly advised to comply with the new limitation on lawfully possessed firearms and ammunitions discussed above if they elect to impose restrictions or prohibitions on dangerous weapons.

Other Emergency Management Changes

A second piece of legislation was passed, S.L. 2012-90 (SB798), titled “Various Emergency Management Changes.” It was recommended by the Senate Select Committee on Emergency Preparedness and Response, and makes additional modifications to the emergency management statutes by:

• Extending the expiration dates of gubernatorial disaster declarations (Type I expiration extended to 60 days; Type II expiration extended to 12 months with a total limit of 24 months; Type III disaster extended to 24 months).

• Providing that obligations under federal-state agreements are not affected when a Type II or Type III disaster declaration expires.

• Expanding the liability protection for private property owners whose property is used for emergency management purposes under the direction and control of state or local government.  The protection now includes use of the property for all emergency management functions and activities (this provision was originally introduced in HB842).

• Formally establishing the State Emergency Response Team (“SERT”) and identifying the representative group of state agency personnel designated to carry out emergency management support functions identified in the state emergency response plan.  The Director of the Division of Emergency Management is designated the SERT leader, and management of SERT is added to the Division of Emergency Management’s responsibilities and duties.

• Expanding the functions of the Division of Emergency Management to include coordinating with the Commissioner of Agriculture on agriculturally-related matters in the state emergency response plan.

• Creating the Joint Legislative Emergency Management Oversight Committee.  The Committee is made up of 6 members of the Senate and 6 members of the House, and is authorized to examine issues related to emergency management in North Carolina on an ongoing basis and make recommendations to the General Assembly.

This second piece of legislation goes into effect immediately, and is structured to conform to the statutory reorganizations enacted in HB843 when that legislation becomes effective on October 1, 2012.

Emergency Vehicle Length

A third act, S.L. 2012-33 (HB741), amends G.S. 20-116(d) to extend to 45 feet the legally allowed length of state and local government law enforcement and emergency management vehicles (under current law, the length limitation for these vehicles was 40 feet).

Terrorism Criminal Offense

Finally, S.L. 2012-38 (HB149) creates a new criminal offense of terrorism by amending G.S. Chapter 14 to create a new Article 3A (G.S. 14-10.1).  “Terrorism” is defined as committing an act of violence, including a violation of G.S. 14-17 (murder), G.S. 14-18 (manslaughter), or any other felony acts of assault, use of force or violence against a person, or use of explosives, or uses of nuclear, biological , or chemical weapons of mass destruction, with the intent to intimidate the civilian population or an identifiable group of the civilian population or influence, through intimation, the activities or conduct of the federal, state, or local government.  The new offense of terrorism is separate from the underlying felony, and is punishable as one felony class higher than the underlying offense (however, if the underlying felony is a Class A or B1, then the offense of terrorism is punished as a Class B1).  Real and personal property used in the course of committing the offense of terrorism is subject to seizure and forfeiture.

Comparing Emergency Management Changes to Existing Law

To assist emergency managers and others who work in this area identify and understand the reorganization, consolidation, and update of emergency management statutes enacted in S.L. 2012-12 (HB843) and S.L. 2012-90 (SB798), the author has created a conversion of these Session Laws to regular statutory format which identifies substantive changes and cross-references new and existing statutes.  This statutory conversion is included with the 2012 Legislative Summary available on the SOG Emergency Management website at www.sog.unc.edu/ncem under “Legislative Updates.”  (Caveat: This statutory conversion does not represent the official codification of S.L. 2012-12 and S.L. 2012-90, and is intended for general reference and educational purposes only).

Other Legislative Updates

If you are interested in learning about other legislative actions during the 2012 Session of interest to local governments, check out the SOG Legislative Summaries webpage.  And it’s not too late to register for our Local Government Legislative Review Webinars on July 18^th and July 26^th.

My previous two posts (here and here) summarized the recent federal court ruling (Bateman v. Perdue) on the constitutionality of North Carolina’s emergency gun restriction statutes, and the legislative response to that ruling.  Last week, the state Senate Judiciary I Committee approved the Senate’s version of House Bill 843 that included language limiting the authority of state and local government officials to impose restrictions under a state of emergency declaration on lawfully possessed firearms and ammunition (a firearm is defined as a handgun, rifle, or shotgun).  Earlier today, the Senate unanimously passed HB843 and sent the bill back to the House for concurrence (which means either agreement or disagreement with the Senate’s version of the bill).  While much attention has been focused on the gun restriction issue, HB843 includes many other changes to our state’s emergency management statutes. So, what else does HB843 do?

HB 843, “Modernize NC Emergency Management Act,” represents the most comprehensive update and reorganization of our state’s emergency management statutes since their enactment over three decades ago.  The bill’s primary purpose is to consolidate and reorganize the statutes that establish emergency management authorities for state and local governments currently found in Article 1 of G.S. Chapter 166A (North Carolina Emergency Management Act) and Article 36A of G.S. Chapter 14 (Riots and Civil Disorders).  Chapter 166A was enacted in 1977 to update the old civil preparedness laws.  Article 36A was enacted in 1969 during the height of the civil rights era.  Article 1 of Chapter 166A defines responsibilities within State government for direction and control of the state’s emergency management program, and authorizes cities and counties to establish local emergency management programs (municipal emergency management programs are subject to coordination with the county).  Article 36A authorizes cities and counties to enact ordinances imposing various restrictions and prohibitions during a locally declared state of emergency (for more information about local emergency authorities, see this blog post).

Working with these laws can be a challenge for local officials.  First, their emergency management authorities and responsibilities are spread among two different chapters of the general statutes, making it difficult to easily and fully identify their responsibilities and authorities.  Second, the terminology throughout the statutes is inconsistent, and some terms lack clear definitions while other important terms are not defined at all.  Third, the statutes have not kept pace with current operational practices, creating gaps and inconsistencies between the law and real-world operations.  HB843 addresses these issues.

First, the bill consolidates and reorganizes Article 1 of Chapter 166A and relevant sections of Article 36A of Chapter 14 into a new Article 1A of Chapter 166A – which means that all state and local emergency management authorities and responsibilities are consolidated in one place in the general statutes.  These statutes are also reorganized into logical sections and parts, making it easier to research, find, and compare relevant laws and authorities.

Second, the bill clarifies and makes uniform terminology throughout the emergency management statutes – for example, a state of emergency is now “declared” (under current law it is either “declared” or “proclaimed,” resulting in either a “declaration” or a “proclamation”).  More importantly, the bill draws a clear distinction between a state of emergency declaration and a disaster declaration – the former being the declaration issued by either the governor or a city or county local government official when there is an actual or imminent threat of an emergency, while the later is a declaration issued by the governor based on the severity and impact of an emergency and which triggers state assistance programs.  The terms “emergency” and “disaster” are similarly distinguished.

Third, the bill incorporates operational practices that have evolved in recent years, and clears up points of confusion under current law, including:

• Codifying existing operational practices of the NC Division of Emergency Management to establish clear authority for DEM to maintain the state EOC and a 24-hour operations center, plan for emergencies at nuclear power facilities, and manage mutual aid.
• Eliminating prior inconsistencies about the expiration date of a local state of emergency by simply providing that it remains effective until it is terminated by the issuing authority.
• Clarifying confusion about the geographic scope of a local state of emergency declaration by authorizing local officials to define the emergency area as being either part or all of their jurisdiction.
• Clearly authorizing local officials to impose the emergency restrictions or prohibitions deemed necessary in response to a particular emergency (in other words, clarifying that all restrictions and prohibitions provided for in local ordinances are not automatically triggered when an emergency is declared).
• Specifically including among local emergency restrictions the authority to impose a curfew and order evacuations that may be either voluntary or mandatory.
• Increasing the penalty for violations of local emergency restrictions from a Class 3 misdemeanor to a Class 2 misdemeanor to conform to the punishment level for violations of emergency orders issued by the governor.
• And, of course, imposing limitations on emergency gun restrictions summarized in my previous blog post.

What HB843 does not do is fundamentally alter the legal or operational relationships between cities, counties, and the state.  Nor does the bill contain a significant number of substantive changes – while it may look like an entirely new set of statutes (all that underlining you see in the bill is a technical function of the legislative bill drafting process), I’d estimate that 95% of the language in HB843 is virtually identical to existing law.

Having passed the Senate, the House will now determine whether it will concur (agree) or not concur (disagree) with the Senate’s version of the bill.  To read the bill and monitor its status, visit the bill status page on the General Assembly’s website.

As a quick reminder of the issue, North Carolina law authorizes cities and counties to impose restrictions and prohibitions during a declared state of emergency on the “possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline.” (G.S. 14-288.12(b)(4)) “Dangerous weapon” is broadly defined and includes firearms such as handguns, rifles, and shotguns.  (G.S. 14-288.1(2)).  The statutes authorizing these restrictions were found unconstitutional as applied to the plaintiffs in Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012).  As a result, while local governments still have the legal authority to impose restrictions on dangerous weapons during a declared state of emergency, those restrictions cannot infringe on core 2^nd Amendment rights.

During yesterday’s Senate Judiciary I committee meeting, the committee approved the Senate version of House Bill 843, a comprehensive rewrite of the state’s emergency management act.  The bill included an amendment to the dangerous weapons restriction authorization at issue in the Bateman case.  While the authorization to impose restrictions and prohibitions on dangerous weapons was retained, that authorization excludes “lawfully possessed firearms or ammunition.”  Firearms are defined as handguns, rifles, and shotguns.  (G.S. 14‑409.39(2))  Under this exception, any restrictions or prohibitions on dangerous weapons imposed during a declared state of emergency could not apply to lawfully possessed firearms or ammunition. The exact text of the exception is:

[Local governments may, by ordinance, impose restrictions and prohibitions during a declared state of emergency] Upon the possession, transportation, sale, purchase, storage, and use of gasoline, and dangerous weapons and substances, except that this subdivision does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition. As used in this subdivision, the term “dangerous weapons and substances” has the same meaning as it does under G.S. 14‑288.1. As used in this subdivision, the term “firearm” has the same meaning as it does under G.S. 14‑409.39(2). (HB843 3^rd ed., p. 13, lines 20-26)

What does this mean for local governments and citizens? 

If HB843 is enacted with the current version of the revised dangerous weapons restriction authorization, local governments can still impose restrictions on dangerous weapons such as explosives, incendiary devices, and radioactive materials and devices, but cannot impose restrictions on lawfully possessed handguns, rifles, and shotguns.  For example, if an individual is carrying a concealed handgun with a valid concealed carry permit during a declared state of emergency under which a dangerous weapons prohibition has been imposed, the local prohibition would not apply to this individual’s lawful possession of a concealed handgun.

The exception described above strikes a balance between the core 2^nd Amendment rights which the court found had been infringed in Bateman, and the need for local governments to still have the option to impose restrictions on dangerous weapons other than lawfully possessed firearms when necessary during a disaster situation.  Keep in mind that a wide variety of events may constitute a disaster – from a hurricane to a winter ice storm to a terrorist attack to a nuclear plant melt-down.  Some disasters may warrant restrictions on dangerous weapons to protect public health and safety (imagine the need to ban the sale of explosives when under threat of a terrorist attack).  However, under the exception, citizens can still lawfully possess handguns, rifles, and shotguns, even in these situations.

What does this NOT mean for local governments and citizens? 

This exception to the dangerous weapons restriction authorization does not override other restrictions that local governments are authorized to impose during a state of emergency.  For example, if a curfew is imposed, an individual cannot violate the curfew even if he lawfully possessed a firearm.  Or, if an evacuation is ordered, an individual may lawfully transport a firearm while evacuating, but must still heed the evacuation order.  This exception also does not override other local ordinances relating to weapons (such as those prohibiting weapons in local government buildings); it only applies if and when restrictions on dangerous weapons are imposed during a declared state of emergency.

What happens next?

HB843 still has several steps to travel in the legislative process before it becomes law.  It is currently scheduled to be considered by the full Senate during session on Monday, June 4^th.  If the bill passes the Senate, it will then be considered by the House of Representatives, which is where it originated.  The House may either agree (concur) or disagree (not concur) with the Senate version.  If the House concurs in the Senate’s version of the bill, then it will go to the Governor who can either approve it or veto it.  If the House does not concur in the Senate’s version, then the bill will go to what is called “conference,” where a committee of House and Senate members will negotiate the differences.  If agreement is reached, the compromise version of the bill will then be voted on again by both chambers and be sent to the Governor.  If agreement is not reached before the end of session, the bill is “dead.”

You can track HB843’s progress through the General Assembly’s website.  The current status of the bill and other relevant information, including the text of the bill, is on the bill page for HB843.

Stay tuned for more updates and, if HB 843 becomes law, a full summary of the entire emergency management act rewrite will be available on our SOG legislative summaries webpage after session adjourns.

UPDATE:  An update on this issue is available here.

On March 29, 2012, Senior U.S. District Judge Malcolm Howard ruled on the 2^nd Amendment challenges brought against restrictions on dangerous weapons that can be imposed during a declared state of emergency under North Carolina law.  The statutes at issue in the case, Bateman v. Perdue (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012) make it a Class 1 misdemeanor for a person to “transport or possess off his own premises any dangerous weapon or substance in any area in which a declared state of emergency exists or within the immediate vicinity of which a riot is occurring;” (G.S. 14-288.7) and authorize the governor and city and county officials to impose restrictions on the “possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline” during a declared state of emergency. (G.S. 14-288.12(b), 14-288.13(b), 14-288.14(a), and G.S. 14-288.15(d)).

The plaintiffs in the case asserted that gun restrictions imposed under these statutes during declared states of emergency denied them of their 2^nd Amendment right to keep and bear arms for lawful purposes, including self-defense.  Judge Howard ruled that these statutes were unconstitutional as applied to the plaintiffs, but did not go so far as to strike down the statutes entirely. The state chose not to appeal the decision, so Judge Howard’s ruling is now the final word in North Carolina.  So, what does this mean for local governments?

By declaring the statutes unconstitutional only as applied to the plaintiffs, Judge Howard left the door open for restrictions on dangerous weapons – including guns – to be imposed during a state of emergency so long as those restrictions are not inconsistent with core 2^nd Amendment rights.  State and local governments may face extreme conditions during a disaster when reasonable restrictions on weapons must be imposed to maintain public safety and prevent injury, loss of life, and damage to property, such as looting after a major hurricane or public rioting.  However, because of the Bateman decision, these restrictions cannot be imposed as broadly as in the past.  So, what restrictions on weapons can local governments still impose during a disaster?

In his decision, Judge Howard applied the strict scrutiny level of judicial review, the most stringent analysis used by the courts when considering constitutional challenges to governmental actions, including 2^nd Amendment challenges.  District of Columbia v. Heller, 128 S. Ct. 2783(2008). The strict scrutiny analysis requires the statutes be “narrowly tailored to achieve a compelling government interest.” Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).  There is little doubt that the government has a compelling interest in protecting public safety, ensuring order, and general crime prevention.  However, in light of the Bateman decision, restrictions imposed on weapons to achieve this interest, even during a declared state of emergency, should be narrowly tailored.

While Judge Howard does not outline specific instructions for balancing the government’s compelling interest in protecting public safety with individuals’ core 2^nd Amendment rights, aspects of the statutes that Judge Howard found troubling provide guidance for what restrictions might be constitutionally acceptable.  In particular, Judge Howard noted that the statutes:

• Applied equally to all individuals, even law-abiding citizens (as opposed to targeting dangerous individuals or dangerous conduct);
• Were not limited to a certain manner of carrying weapons;
• Were not limited to certain times of the day (such as during curfews);
• Prohibited law-abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense;
• Did not impose reasonable time, place, and manner restrictions by, for example, imposing a curfew to allow the exercise of 2^nd Amendment rights during circumscribed times.

Although Judge Howard found the statutes unconstitutional as applied to the plaintiffs in the case, he did not strike down the statutes entirely.  This still leaves local governments with the legal authority to impose restrictions on dangerous weapons during a state of emergency, but these restrictions must be narrowly tailored to achieve the compelling governmental interests of protecting public safety, ensuring order, and general crime prevention.  Drawing on Judge Howard’s concerns and applicable case law, future restrictions on weapons during a declared state of emergency should:

• Be limited to situations and geographic areas where the restriction is necessary to preserve the public peace in the face of an imminent risk of damage, injury, or loss of life or property; and
• Not prohibit the possession, storage, or use of dangerous weapons in an individual’s home or on an individual’s property for self-defense or other lawful purposes.

Within these parameters, examples of restrictions on weapons during a state of emergency that presumably would not be inconsistent with Judge Howard’s ruling might include:

• Off-premises possession, transportation, and use of dangerous weapons during curfew periods (thus still allowing transportation and use of weapons during the times of the day when the curfew is not in effect).
• Off-premises possession and transportation of dangerous weapons in the immediate vicinity of a riot or within a geographic area severely damaged by a disaster.
• Off-premises possession and transportation of dangerous weapons within a geographic area covered under a state of emergency declaration by individuals not lawfully authorized to be in that area (such as during limited reentry of an evacuated area when only certain authorized individuals are allowed into the restricted area).
• Possession and use of only certain kinds of dangerous weapons (for example, exempting from the restriction lawfully licensed handguns and hunting rifles).

The General Assembly might consider amending the challenged statutes during the upcoming legislative session which reconvenes on May 16^th.  Absent clarification from the General Assembly (and, even with it), local governments should proceed with caution if they impose restrictions on dangerous weapons during a state of emergency.

For a more detailed analysis of the Bateman decision, click here to read a summary posted on our SOG Emergency Management website.  And, feel free to read more about local government emergency authorities in the emergency management blogs posted on our Coates’ Canons NC Local Government Law Blog.

Acknowledgements:  The author wishes to thank the following for their expert advice and comments in preparing the analysis of Bateman mentioned above on which this blog post is based:  Jeff Welty, UNC School of Government, Mark Davis, General Counsel to the Governor, Will Polk, General Counsel, NC Department of Public Safety, Alec Peters, NC Attorney General’s Office, Ben Stanley, Legislative Bill Drafting.

Who is required to take the ethics training?

• cities,
• counties,
• local boards of education,
• sanitary district boards,
• unified governments, and
• consolidated city-counties.

The ethics training requirement was enacted by the General Assembly in 2009 and went into effect on January 1, 2010. (S.L. 2009-403)[2] The local government ethics act (as this legislation came to be known) required all members of governing boards covered by the act to complete their initial ethics training by January 1, 2011. Thereafter, governing board members covered by the act must receive their ethics training within 12 months of the date of election or reelection to office. For incumbents, this means the official must receive the ethics training each time he or she is reelected. (G.S. 160A-87(a)) This requirement also applies to individuals appointed or reappointed to governing boards covered by the act.

Are other local government officials and employees required to take the ethics training?

What topics must the training cover?

Who can provide the ethics training?

In collaboration with the NCLM and the NCACC, the School of Government provides ethics training for city and county governing board members. School board members receive their training through the North Carolina School Boards Association. Sanitary district board members may participate in city and county programs conducted by the School of Government.

Where and when can I get the training?

The law also authorizes local governing boards to choose another “qualified source” to provide the training. The law does not define a “qualified source,” so presumably the board is free to determine for itself whether an individual or entity is qualified to provide the training. Local boards that choose this option should ensure the training meets the legal requirement of covering the laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level. Although not required by law to do so, if a board chooses to receive training from an individual or entity other than the School of Government, NCLM, NCACC, or NCSBA (all of which are specifically identified in the statute), it is advisable for the board to adopt a resolution approving the source of the training and indicating the basis for determining that the source is “qualified” to provide the training.

How do I verify that I’ve received the training?

What if I serve on a state board and have taking ethics training under the State Ethics Act? Does that satisfy the local ethics training requirement?

The local government ethics training taken by local officials who are also covered by the State Ethics Act does not count towards the mandatory state ethics act training requirement. On the other hand, whether the mandatory state ethics act training can be used to satisfy the local governing training requirement is less clear. This issue is not specifically addressed in the local government ethics law. However, since the local ethics training must cover laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level, it is reasonable to assume that the state ethics act training will not satisfy this requirement since that training focuses on state laws that generally do not apply to local elected officials. So, for those local elected officials who are covered under both laws, the safest course is to comply with both ethics training requirements.

What happens if I don’t comply with the law requiring ethics training?

Bottom Line

1. Elected, reelected, appointed, or reappointed in 2011,
2. To a city council, county board of commissioners, local board of education, or sanitary district board (as well as unified government and consolidated city-county boards),

For more information and resources about local government ethics, feel free to visit the SOG’s Ethics for Local Government Officials website.

What is QBS?

The QBS process is a procurement process that focuses on the qualifications of potential firms rather than their fees or the price of the contract.  The architect, engineer, surveyor, or construction manager at risk that the local government wishes to contract with is selected based on “demonstrated competence and qualification for the type of professional services rendered.” (G.S. 143-64.31(a))  This is often done by using a request for qualifications (RFQ) to solicit responses from interested firms and individuals.

Is QBS the same as competitive bidding?

No.  QBS is not competitive bidding, which focuses on price under the lowest responsive responsible bidder standard of award.  In fact, the initial determination of which firm is the best qualified must be done “without regard” to the fee or price other than unit cost (an example of unit cost would be a general hourly fee, but articulation of fees that can be easily correlated as a fixed price or bid is prohibited).  So, the unit of government cannot request firms to submit an estimated total fee or contract price when they respond to the RFQ.

When can price be considered?

After evaluating RFQ responses submitted by interested firms, the unit of government can negotiate a “fair and reasonable” price for the contract with the firm the unit has determined is the best qualified based on the evaluation criteria used by the unit to evaluate responses.  The unit of government can also consider price if it exempts itself from the requirements of the Mini-Brooks Act under G.S. 143-64.32, which is discussed later in this post.

What if negotiations with the best qualified firm fail?

If the unit of government is not able to negotiate a fair and reasonable contract price with the best qualified firm, it must terminate negotiations with that firm and initiate negotiations with the next best qualified firm.  This requirement suggests that firms should be ranked in order of quality when responses to the RFQ are evaluated.

What if negotiations with the next best qualified firm fail?

While G.S. 143-64.31 does not specifically authorize continued negotiations with firms beyond the next best qualified, it is reasonable to interpret the statute to allow this (although the courts have not addressed this question).  Under federal law, continued negotiations with lower-ranked firms in priority order is actually required, obligating the agency head to undertake negotiations with the next qualified firm on the list and so on, and “continuing the process until an agreement is reached.” (40 U.S.C. § 1104(b))  Given that North Carolina’s Mini-Brooks Act is patterned after federal law (the Brooks Act, which is discussed at the end of this post), one could argue that the intent of G.S. 143-64.31 is to give similar authorization to continue negotiations with subsequent  firms until a contract agreement is eventually reached, assuming the unit wishes to do so.  The unit could also stop all negotiations and start over in the hope of a more successful outcome, or it could exempt itself from the QBS process requirements entirely under G.S. 143-64.32 (see below).

Is there a minimum cost threshold for QBS requirements?

No.  Unlike formal and informal purchase and construction and repair contracts, there are no cost thresholds that trigger the requirements of the Mini-Brooks Act.  Unless the unit of government exempts itself from these requirements under G.S. 143-64.32 (see below), the requirements of G.S. 143-64.31 apply regardless of whether the estimated cost of the contract is $100 or $1 million dollars.

Must the RFQ be formally advertised?

No.  The Mini-Brooks Act does not require formal advertisement like formal purchase and construction contracts under G.S. 143-129(b).  Instead, the unit of government must “announce all requirements” for the services sought, but the statute does not define what “announce” means.  When a word is not specifically defined, it is given its plain meaning for purposes of statutory interpretation.  Webster’s defines “announce” as “to make publically known; to proclaim.”  So, the announcement must be done in some public fashion and for some reasonable period of time to allow firms the opportunity to respond.  In her blog post, Eileen offers good suggestions such as posting on the unit of government’s website, advertising in trade journals or the newspaper, or contacting firms directly.  Regardless of which method is used, the goal is to get competition for the services needed so the unit can secure the best qualified firm.

Do minority business participation requirement apply?

Yes.  The unit of government must make a good faith effort to notify minority firms of the opportunity to submit their qualifications for the services sought.  The statute does not specify what these good faith efforts must consist of, so a good practice is to use the same methods as those used to encourage minority participation in informal construction and repair contracts.  This is another reason to think broadly about the methods to use in announcing the requirements for the services sought.

Is there a minimum number of responses that have to be received?

No.  Unlike formal construction contracts that require a minimum of three bids, the Mini-Brooks Act does not require the unit to receive a minimum number of responses before any can be considered, so presumably if only one response is received, the unit may still consider the qualifications of that firm.

Must responses be submitted sealed?

No.  The Mini-Brooks Act does not require responses to be sealed, but the unit can elect to require this if it chooses.  If it chooses to do so, it should include this requirement in the RFQ.

Must responses be opened at a public opening?

No.  The Mini-Brooks Act does not require this, and units of government do not normally elect to set a specific time and location for opening responses (and, if the unit does not require responses to be submitted sealed, setting a time for opening is irrelevant).  If the unit sets a deadline for receiving responses, this deadline should be included in the RFQ.

Are responses a matter of public record?

Yes.  Unless the unit of government requires responses to be submitted sealed, responses will be open to public inspection when received by the unit of government.  If required to be sealed, the response will be open to public inspection when it is unsealed (literally, when the envelope is opened).  In addition, rankings and any other written evaluations of qualifications and responses will also be open to the public and subject to inspection by anyone, including the firms that have submitted responses.

What are “resident firm” preferences and do they apply?

Yes.  G.S. 143-64.31(a1) requires reciprocal resident firm preferences.  This means that the unit of government must give preference to “resident” firms in this state over “nonresident” firms from another state to the same extent that the other state grants a resident preference to its in-state firms.  A “resident” firm is one that has paid unemployment taxes or income taxes in North Carolina and whose principal place of business is located in this state.  Note that this is not a “local preference” in the sense that a firm in one geographic area in this state, such as a city or county, can be given preference over a firm from another in-state geographic area.  Since this type of preference requires an analysis of price, it would only come into play if the unit of government exempts itself from the Mini-Brooks Act (see below).  For a more detailed discussion of local preferences in general, see Eileen’s six-series blog posts on local preferences (the sixth post is linked here; links to the five prior installments are contained within that post).

How does a local government exempt itself from the Mini-Brooks Act?

G.S. 143-64.32 authorizes a unit of local government to exempt itself from the Mini-Brooks Act, which means that it will not be required to use the QBS process and may select an architect, engineering, surveying, or construction management at risk firm by whatever method it chooses (or no method at all).  The statute does not impose much by way of requirements for utilizing the exemption – it simply requires the unit to put the exemption in writing and, if the estimated professional fee is $30,000 or more, to provide a justification for the exemption.  Governing board approval is not required, but many local governments choose to do so anyway, which is a good practice to follow.  Sample language for a board resolution is available on the SOG local government purchasing website.

What justification must be given for the exemption?

G.S. 143-64.32 does not set out any specific criteria for the justification if the estimated professional fee is $30,000 or more, just that the unit must state “the reasons and circumstances” for the justification.  So, the unit may give any justifications that are rational and not illegal (for example, the unit could not use a justification that constituted unlawful discrimination).  If the estimated professional fee is below $30,000, no justification is required, although the local government may still choose to provide one.  In all instances the exemption must be put in writing.

So, the ability of a local government to exempt itself is not limited to contracts under $30,000?

No.  This is a common misunderstanding of G.S. 143-64.32.  The $30,000 threshold triggers the statutory requirement to provide a justification for using the exemption, but does not limit the local government’s ability to utilize the exemption itself, which it may use for any contract, regardless of the estimated cost.  And, regardless of the estimated contract amount, the exemption must always be put in writing, whether the contract price is $100 or $1 million dollars.

Can a local government adopt a “blanket” exemption?

Local governments often prefer to have exemptions approved by their governing boards, but may find it cumbersome to take each individual exemption to the board for adoption, especially when the contracts involve small projects.  And sometimes, a local government may wish to put an architect or engineer on retainer for a period of time such as a fiscal year to call upon on a case-by-case basis, but may not have any specific projects in mind when the architect or engineer is hired.  Can the local government adopt a “blanket” exemption in these instances, such as exempting all contracts costing less than $30,000?

G.S. 143-64.32 states that the local government may exempt “particular projects” from the requirements of the Mini-Brooks Act.  In my opinion (as was Eileen’s, although opinions on this question vary as Eileen notes in her post), this language suggests that “blanket exemptions” are not authorized.  While the courts have not yet decided this question, the NC Board of Examiners for Engineers and Surveyors has taken the position that exemptions must be granted on a project-by-project basis, so an engineer runs the risk of violating licensing requirements by responding to a RFQ that solicits price if the exemption of that project is not legally valid.  To avoid an inadvertent violation of the statute (by any party), the safer course is to assume that blanket exemptions are not authorized and that the exemption must be adopted on a project-by-project basis. However, it does not seem inconsistent with the statute to include multiple specific projects in one resolution if the unit has identified several specific projects it plans to contract for.  Furthermore, given that governing board approval is not statutorily required, the board could authorize a staff member such as the manager to grant exemptions (in writing, of course) for certain projects such as contracts under $30,000 (which do not require justification to utilize the exemption).

Trivia Bonus Question:  Where did the name “Mini-Brooks Act” come from?

The name “Mini-Brooks Act” comes from the federal law, the Brooks Act, after which our state law was patterned.  The Brooks Act was passed by Congress in 1972 to establish the QBS process for procuring architectural and engineering services by federal agencies.  40 U.S.C. 1101 – 1104 (P.L. 92-582).  In the ensuing years, most states have adopted versions of the Brooks Act commonly referred to as “Little Brooks Acts” or “Mini-Brooks Acts” (North Carolina’s version was enacted by our General Assembly in 1987).  The federal law is referred to as the Brooks Act after U.S. Rep. Jack Brooks (D-TX), who authored the legislation.

So, what about the picture at the beginning of this post?  Rep. Brooks was part of the motorcade in Dallas, Texas, on November 22, 1963, when President John F. Kennedy was assassinated, and later was aboard Air Force One when Lyndon Johnson was sworn in following the President’s death (that’s Rep. Brooks standing right behind Mrs. Kennedy).

A search of the North Carolina General Statutes yields only a few references to the term “county seat,” none of which actually defines what a county seat is nor provides for how a location or town is designated as such.  Based on the nomenclature in some older local acts of the General Assembly that established counties, Professor Jim Drennan suggests the term “county seat” evolved as a shorthand reference to the county’s “seat of justice,” meaning the location or place where court convened (in other words, the location of the county courthouse).  Indeed, many local acts that established counties specifically designated a particular location for the site of the county courthouse, occasionally referring to this location as the “county seat.”  For example, when Avery County was established in 1911, its enabling legislation established a special committee to recommend to the county commissioners two or more locations for the “county-seat, upon which a courthouse and jail shall be erected,” with the final location being chosen by the voters in a county-wide election. (S.L. 1911-33, s. 11).  Superior court in Scotland County was specifically required to sit in the Town of Laurinburg along with the “several offices required to be kept at the courthouse.” (S.L. 1899-127, s. 8).  The courthouse of Hoke County was sited “within the corporate limits of the Town of Raeford.” (S.L. 1911-24, s. 11).  And, in Lee County, the “court-house” was specifically located “on Lee Avenue, between Fifteenth Street and Sixteenth Street, as nearly as practicable midway between the Union Passenger Station in the Town of Sanford and the Atlantic Coast Line Railway Station in the Town of Jonesboro.” (S.L. 1907-624, s. 10).

All of these local acts (as well as all others originally establishing counties) predate the enactment of G.S. Chapter 153A in 1973.  G.S. 153A-169 gives county commissioners broad authority over the care and use of county property, including county buildings.  Under this statute, the board may designate and redesignate the location of any county department and site for any county building, including the county courthouse.   While there is no mention of a “county seat” in G.S. 153A-169, it is clear that county boards of commissioners can redesignate the location of the county courthouse.  In addition, G.S. 153A-443 also gives the board of commissioners the authority to designate a new location for the courthouse (and its various parts) if the “traditional location [of the courthouse] has become inappropriate or inconvenient” for performing functions and posting notices required by law to be conducted or posted at the courthouse (such as on “the courthouse door” or “the courthouse steps”).

But what if the location of the courthouse is specifically designated by local act?  Can a board of commissioners relocate the courthouse to a site other than that prescribed by the General Assembly?  Which controls – the commissioner’s general authority under G.S. 153A-169 and -443, or the more specific act of the General Assembly?  The North Carolina Supreme Court answered this exact question in 1998 when the decision to move the Harnett County courthouse was challenged. In Bethune v. County of Harnett, 349 N.C. 343, 507 S.E.2d 40 (1998), the Harnett County Commissioners proposed to build a new courthouse at a location that, while still within the corporate limits of the Town of Lillington (the county seat), was outside the original boundaries of the town as they existed when the town became the county seat in 1859 pursuant to a vote of the county residents authorized by local act (S.L. 1859-5, s. 5).  Plaintiffs argued that the original local act mandated the location of the courthouse, and the subsequent enactment of G.S. 153A-169 did not supersede the original local act.  The court disagreed, relying on G.S. 153A-3(d) as the necessary expression of legislative intent to override prior local acts that restricted the authorities granted to counties and their boards of commissioners under Chapter 153A.  To the extent that a prior local act restricted or limited a board’s authority under Chapter 153A, that local act is superseded.  Since the 1859 prescriptive location of the Harnett County courthouse limited the board’s authority under G.S. 153A-169 to redesignate the location of the county courthouse, the court held that this local was superseded.  Should any other county board decide to relocate its courthouse, a challenge to that decision presumably would be met with a similar result.  Bethune makes clear that a county board of commissioners may relocate the courthouse anywhere within the county despite contrary restrictions or specific designations in prior local acts.

If a courthouse is moved, what becomes of the county seat?  There is no statutory requirement that a county designate a particular town as being the county seat, only that the county provide court facilities (in fact, counties such as Currituck that have no incorporated municipalities cannot attach this designation to a town, and thus the designation attaches to the location of the courthouse).  As Jim Drennan suggests, the county seat designation most likely has evolved as a short-hand description of the location of the courthouse (the “county seat of justice”).  Thus, if the county moves its courthouse, it will also, in effect, move its county seat.  It is the location of the courthouse that determines where the county seat is, not vice versa.

If the board relocates the courthouse outside the municipal limits of the current county seat (assuming the current county seat is located within a municipality), the board could designate the new courthouse location as the new county seat.  Such as designation would be prudent given other statutory references to “county seat” for various court operations, such as the requirement that the county provide an office for the clerk of court in the “courthouse or other suitable place in the county seat” (G.S. 7A-100(b)), the requirement that district court sit in the county seat (G.S. 7A-130), and provisions for conducting superior court in locations other than the county seat (G.S. 7A-42).

When redesignating the courthouse site, the board must publish notice of its intent to do so once at least four weeks before the meeting at which the redesignation will be made (G.S. 153A-169).  This procedural requirement is a far cry from that mandated in the original 1868 version of what is now G.S. 153A-169.  Under that older version, relocating a county building required a unanimous vote of all members of the board of commissioners at the board’s regular meeting in September, with public notice published in a “newspaper printed in the County, if there be one, and posted in one or more public places in every Township for three months next immediately preceding the annual meeting at which the final vote on the proposed change is to be taken.” (S.L. 1868-20, s. 8).  And, the new site could not be more than one mile from the old site without special approval by the General Assembly (i.e., a local act).  Times have certainly changed.

The courthouse also serves as the location for a number of legally required functions and activities beyond the operation of court, such as posting public notices (literally on the courthouse door in some instances) and conducting certain sales and auctions (literally on the courthouse steps in some instances).  G.S. 153A-443 authorizes the board of commissioners to designate a new location for these functions if the board determines that the courthouse has become “inappropriate or inconvenient” for performing these functions.  The board can take this action even if it is not relocating the county courthouse.  If the board does relocate the courthouse, it must determine whether these functions will continue to be performed at the old courthouse or moved to the new courthouse.  Most likely these functions will be performed at the new courthouse (unless an entirely different location is chosen).  If so, G.S. 153A-443 requires the board to adopt an ordinance designating the new courthouse (or any other location) as the place where these functions are to be performed.  The ordinance must be published at least once within 30 days after the date of its adoption and posted at the old courthouse for 60 days.

So, if a county board of commissioners decides to move the county courthouse, the board must take the following steps:

1.      Publish notice of its intent to relocate the courthouse once at least four weeks before the meeting at which the board will take action on the relocation (G.S. 153A-169).

2.      During the meeting (the statute doesn’t specify what type of meeting, so presumably the board could consider this matter during a regular or special meeting), adopt an ordinance designating the new courthouse as the location for acts and notices required by law to be conducted or posted at the courthouse (G.S. 153A-443).  If the location of the new courthouse is not within the current county seat, is advisable to designate the new location as the county seat (this could be done in the redesignation ordinance).

3.      After the ordinance is adopted, publish it at least once within 30 days after its adoption, and post it for 60 days at the current courthouse location (G.S. 153A-443).

If the board has previously designated another location to serve as the place for acts and notices required by law to be conducted or posted at the courthouse, then steps #2 and #3 are not necessary.  However, the board should still designate the new courthouse location as the county seat if that new location is not within the current county seat.

Author’s Note:  Thanks to Jim Drennan, Albert Coates Professor of Public Administration and Government for sharing his 2004 analysis of this issue, which served as the basis for this blog post.  Thanks also to Alex Hess, School of Government Librarian, for his assistance in researching and retrieving old session laws.