There has been no North Carolina case in which an ice-and-snow ordinance was attacked as invalid, but in Browder v. City of Winston-Salem (231 N.C. 400, 1950) the court suggested that adoption and enforcement of such an ordinance would tend to show that the adopting city had taken appropriate steps to fulfill its duty to maintain safe passage on city sidewalks.  (In that regard, it should be noted that the courts are also almost unanimous in holding that adoption of such an ordinance does not transfer to the abutter the city’s liability for injuries arising from icy sidewalks, including the North Carolina supreme court in Hartsell v. City of Asheville (164 N.C. 193, 1913).  Of course, if an abutter creates a dangerous situation, such as excavating under the sidewalk so that it collapses, that person can be held liable for any injury resulting from the situation.)

Getting back to the grassy strip, it is normally part of the street easement; indeed, a number of courts have specifically held it is part of the sidewalk (e.g., Labruzza v. Boston Ins. Co., 198 So.2d 436 – La. App. 1967).  Chief Justice Shaw’s rationale in support of Boston’s ice and snow ordinance seems to apply as well to an ordinance requiring an abutter to mow and otherwise maintain such a strip – the abutter also has a special interest in and gains benefit from the strip, both in providing access to the abutting property and in promoting the aesthetics of that property.  In addition, the clear validity of city ordinances requiring periodic mowing of vacant lots, and the more recent judicial endorsement of ordinances adopted for aesthetic purposes, each provide additional support for grassy-strip ordinances.  For all these reasons they seem an appropriate and reasonable exercise of a city’s police power.

In fact the board members, before they took the oath in a legal manner, were de facto officers, and as such their actions remain as valid as if the board members had been de jure (or entirely legal) officers.  The School of Government has just published a local government law bulletin that summarizes the law of de facto officers in North Carolina, which is available for reading or downloading here.  What follows is a short summary of the law as set out at length in the bulletin.

The case law distinguishes among three different legal statuses that might be ascribed to a person who appears to hold a public office:  the person might be a de jure officer, or a de facto officer, or what the courts characterize as an intruder or usurper.  As a practical matter, to the outside world there is no legal difference between the acts of a de jure officer and a de facto officer – the actions are valid and cannot be attacked on the ground that the officer is not legally in office.  (The difference between the two kinds of officers is that if the person’s status is challenged directly, in an action in the nature of quo warranto, the de jure officer will survive the challenge while the de facto officer will not.)  If a person is a mere intruder or usurper, however, any actions taken by the person are invalid and will not be recognized or enforced by the courts.

The rationale for upholding the actions of de facto officers has been articulated a number of times by the North Carolina courts.  The most recent expression is found in In re Wingler, a 1950 case, found at 231 N.C. 560, 58 S.E.2d 372.  The court wrote that:

The de facto doctrine is indispensable to the prompt and proper dispatch of governmental affairs. Endless confusion and expense would ensue if the members of society were required to determine at their peril the rightful authority of each person occupying a public office before they invoked or yielded to his official action. An intolerable burden would be placed upon the incumbent of a public office if he were compelled to prove his title to his office to all those having occasion to deal with him in his official capacity. The administration of justice would be an impossible task if every litigant were privileged to question the lawful authority of a judge engaged in the full exercise of the functions of his judicial office.

What does it take to become a de facto officer?  The North Carolina courts have joined the courts of most other states in recognizing four categories of de facto officers, based on the opinion in an 1871 case from Connecticut.

1.  The person has been in the office for an extended period and has been generally recognized as the officeholder.  A number of early cases that fall in this category involved persons who had originally been lawfully appointed to office but who continued in office without any evidence of subsequent reappointment.

2.  The person has been validly appointed or elected to the office, but has failed to properly take the oath of office or post a required bond.  This is the case of our unfortunate town council.

3.  The person appears to have been properly appointed or elected, but it turns out either that the appointing authority did not actually have authority to make the appointment or that the person was in fact not eligible for the office.  In one case, for example, a city council member turned out to have been convicted of a felony at some time in the past and had not yet had his rights of citizenship restored.  Therefore, under the constitution, he was ineligible for elective office.

4.  The law under which the person has been elected or appointed is unconstitutional.  The most prominent cases in this category in North Carolina were challenges to actions by the town boards of beach towns, where the town charters attempted to enfranchise persons who owned property in the towns but were not in fact resident there.

What, then, makes an intruder or usurper?  The terms conjure up a marauding band that takes over a small town, physically removing the elected officers and purporting to act in their stead.  Such a band would certainly be intruders or usurpers, but they tend to happen more often in Clint Eastwood movies than in real life.  There are, in fact, three common situations in which persons have been held to be intruders, one of which has the possibility of creating significant mischief for local governments.  In addition, the third situation suggests a fourth, which might also create significant mischief.

1.  An officer’s term of office has expired, his or her replacement is in office, and yet the former officer purports to take some kind of official action.

2.  An officer has resigned, the resignation has been accepted, but the former officer continues to exercise the duties of the office.

3.  An officer holds too many offices under the limitation on multiple office holding, now found in Article VI, § 9, of the North Carolina constitution.  In a series of cases, the North Carolina Supreme Court has treated persons in violation of the constitutional prohibition as intruders or usurpers, rather than as de facto officers.  When these cases were decided, the state constitution prohibited a person from holding two public offices, and the rules were clear about which office was lost when a person was in violation of the constitutional limitation.  Since 1971, however, the constitution has permitted a person in a number of situations to hold two offices and prohibits him or her from holding a third.  Whereas we earlier had a prohibition on dual office holding, we now have one on multiple office holding.  One consequence of this constitutional change is that we no longer can be sure of the effect when a person assumes one office too many; there have been no cases that have reached the appellate level and therefore no opportunity for the courts to fashion an appropriate rule.  If a person who legitimately holds two offices then qualifies for a third, does he or she vacate the first office assumed or the second; or, perhaps, does such a person simply never legally qualify for the third?  We simply don’t know, and this uncertainty creates the real possibility of disruption of settled legal expectations that the de facto officer doctrine is intended to avoid.

4.  A city council member moves out of the city or out of his or her district.  G.S. 160A-59 provides that when “any elected city officer ceases to meet all the qualifications for holding office pursuant to the Constitution, or when a council member ceases to reside in an electoral district that he was elected to represent, the office is ipso facto vacant.”  Most commonly this provision is triggered when a council member moves from the city or from the electoral district he or she represents.  When that happens, the office is “ipso facto” vacant – that is, the office is vacated by action of law, at the moment the move occurs.  Thus the situation is similar to that of a person who was in violation of the dual-office holding prohibition of the pre-1971 state constitution – taking a second office immediately and ipso facto vacated the first – and it might well be that a court would apply to a person who continued in public office in these circumstances the same rule applied to a person in violation of the dual-office holding prohibition: that he or she is a mere usurper and will not be accorded the status of a de facto officer.

For a number of city services and activities, the boundary doesn’t really matter.  If a crime is committed on the property, the city police will investigate if the crime occurred within the boundary and the sheriff if without.  If a fire breaks out, the location of the fire will determine which department is responsible for responding (although more than one department might well respond to such a fire).  With respect to zoning, the city’s ETJ may make the issue moot; and if there is no ETJ the city will only zone that portion of the property inside the city.  The issue really arises principally for utility services, for solid waste collection, and for participation in city recreation programs.

Not only is there no North Carolina case law on point, I couldn’t find any law directly on point from other jurisdictions as well.  The closest analogues are two sorts of cases: (1) voter registration cases where a jurisdictional boundary runs through a property, or even a house; and (2) school attendance cases, in the same situation.  In the voter registration cases in which the dwelling was entirely in or out of the jurisdiction, the rule is consistent – you can only vote where you actually live, and the location of the house determines where you live.  A good example is Dukes v. Redmond, 593 S.E.2d 606 (S.C. 2004), where the house was outside the city and therefore its occupants could not vote in city elections.  When the house itself is split by the boundary line, the courts are most likely to look to which jurisdiction contains the greater part of the house or, more simply, ask where is the bedroom.  A much older case, but one that has the fullest discussion, is Gray v. O’Banion, 138 P. 977 (Cal. Ct. App. 1913).

The school attendance cases are a little more varied in their holdings, at least if the house is split by the boundary lines.  Courts in California and Connecticut, based on the specific statutes of those states, essentially have allowed occupants of such a split house to choose which district to send their children to.  A Massachusetts court, on the other hand, followed the voting cases and looked to the location of the bedrooms and the greater portions of the dwelling.  The case is Teel v. Hamilton-Wenham School District, 433 N.E.2d 907 (Mass. Ct. App. 1982).

These cases focus on exactly where a person might be said to live, with the answer lying ultimately in the location of the person’s bedroom.  For city services that depend on residence, that sort of rule seems appropriate.  Therefore a person’s eligibility for participation, as a resident, in city recreation programs is best determined by the location of the bedrooms in that person’s residence.

Several other city services, though, are more services to property than they are to people.  For these, I would look to the location of the property that is receiving the service or generating the need for the service.  Thus, for water and sewer, I would look to the location of the dwelling or other building where the water is consumed or the sewerage generated.  If it’s inside the city, the customer would be entitled to in-city rates; if outside the city, the customer could be expected to pay extraterritorial rates.  With solid waste collection, I would look to the location of the dwelling or the principal nonresidential building or buildings, on the assumption that most waste is generated from the dwelling or those other buildings.

It might be that a strict adherence to these principles would lead to considering a property inside the city for some services and outside for others, which may be confusing and difficult to defend with the public.  For that reason, my suggestion would be to focus on the location of the dwelling, for residential properties, and on the location of the principal building or buildings, for nonresidential properties, and let that determine the treatment of the property for all services.

What I’ve just written is my best estimate of the extent of a city’s duty to provide services to a split lot.  It may be that a city could by policy be more generous to such lots, following a rule that if any portion of a lot was within the city, the city would proceed as if the entire lot were within.  I don’t know of a reason why such a more generous policy would be impermissible.

I would be interested in comments from any cities that have had to deal with this issue and in how they have decided to proceed.

The purpose of minutes is to serve as the official record of a board’s actions, and courts frequently refuse to admit parol or other evidence that seeks to contradict what is shown in a board’s minutes.  But they have been unwilling to carry that principle to the point of refusing to admit such evidence when there are no minutes at all.  A good example is Thomas v. Board of Trustees, 215 N.E.2d 434 (Ohio App. 1966).  The township trustees had been meeting late into the night, and their clerk got tired and went home.  After the clerk’s departure, the board took up the discharge of a township constable, and voted to affirm the discharge made by the chief of the township police.  Because the clerk wasn’t there, though, the discharge did not appear in the board’s minutes.  The constable claimed he therefore had not been fired and sued for lost wages.

The Ohio court admitted that township trustees were under a duty to keep minutes of their meetings, a duty a court could order them to keep.  But a failure to comply, the court said, “does not, per se, invalidate the action of the township trustees.”  It could be proved through other evidence.

A second example: New Mexico law permitted towns to withdraw from the state retirement system by adoption of a resolution.  The city of Hobbs asserted that it had adopted such a resolution, but there was no evidence of its having done so in the city records.  (The court noted that the city administration had been “in turmoil” at the time of the alleged action.)  In State ex rel Wilson v. City of Hobbs, 313 P.2d 1053 (N.M. 1957), the state brought suit to compel payment of retirement contributions by the city, and the New Mexico court allowed completely circumstantial evidence to prove that the resolution had in fact been adopted.

Bottom line: while the law requires that public boards keep minutes, and boards and their staff should make every effort to comply with that law, the failure to do so does not doom actions taken at the affected meeting, as long as there is some other evidence that can be produced to prove what in fact occurred.  (It should be noted, though, that if there is no other evidence, or if that evidence is conflicting, proving that an action was taken might become quite difficult, reinforcing the need to comply with the law in the first place and prepare and approve minutes.)

Postscript:  Don’t overlook G.S. 160A-79, which sets out the rules for pleading and proving city ordinances (and because of G.S. 153A-50, county ordinances as well).

Anyone who owns shares in a corporation or a mutual fund has experienced proxy voting.  Some weeks before the annual meeting of the corporation or fund, an envelope arrives from that entity, encouraging the recipient to fill out the enclosed proxy form and mail it back to the sender.  Proxy voting is the norm in private corporations and investment companies.  It might seem natural, then, for a governing board member to believe that proxy voting is permissible in local government as well as in the private sector.

The traditions of the public sector, however, are different.  Congress does not allow proxy voting in floor votes.  Both the Senate rules and the House rules require a member to be present to vote; indeed, the House rules permit arresting an absent member so he or she can be brought to the House in order to vote.  Similarly, the North Carolina General Assembly does not permit proxy voting.  Both the Senate and the House use electronic voting for most votes, and the rules of each house specify that no one but the member may push that member’s electronic voting device.  It would not be technologically possible to exercise a proxy.  Furthermore, the Senate rules provide for the possibility of a “pair,” to be used when a member is absent (and when, therefore, a proxy, if allowed, would be appropriate).  With a pair, a member who is present announces that the absent member would vote one way, and he or she would vote the opposite; but the effect is that neither member’s vote is counted.  There is no provision for proxy votes in either set of rules.

Given that tradition, it is reasonable to expect that if proxy voting is to be permissible at the local government level, there would be some sort of specific statutory authorization.  And there is not.  There is not a word about proxy voting in any of the statutes involving local governing boards.  This is in contrast to both the North Carolina business corporation statute and the North Carolina nonprofit corporation statute, each of which makes explicit provision for proxy voting by shareholders or members of the corporation.

There is no comprehensive statutory or constitutional bar to a local government making a profit on its operations and using that profit to support unrelated activities.  Historically, for example, cities with electric or natural gas distribution systems made significant profits and used those profits to subsidize general fund operations.  In recent years, though, the General Assembly has imposed a no-profit rule on stormwater and solid waste enterprises.  The statutes are:

Stormwater utility                 153A-277 and 160A-314

Solid waste collection          153A-292 and 160A-317

Solid waste disposal              153A-292 and 160A-314.1

In addition, when the revenues in question arise from what are called “regulatory fees” – fees imposed on someone as part of a regulatory process – the North Carolina supreme court has held that while the fees may cover the costs of the regulatory program, they may not earn a profit beyond that.  Homebuilders Assn. of Charlotte v. City of Charlotte, 336 N.C. 37 (1994).  But apart from the listed statutes, and the rule set out in the Homebuilders case, it is economics, not law, that keeps a city or county from making a profit on its various operations.

As to competing with the private sector, there is a state government statute with that effect.  G.S. 66-58, which is widely but informally known as the Umstead Act, generally prohibits any agency that is part of State government from engaging “directly or indirectly in the sale of goods, wares or merchandise in competition with the citizens of the State.”  The act is subject, though, to dozens of exceptions, the very first of which provides that it does not apply to counties and municipalities.  There is no comparable statute that does apply to local governments.

The General Assembly has regulated competitive activities of local governments engaged in two enterprises.  Competition between electric cities, electric co-ops, and investor-owned electric utilities is regulated by G.S. 160A-331 through 160A-338.  And a local government that begins to compete with private solid waste collectors must comply with procedures and protections imposed by G.S. 160A-327.  These are the only such regulations that I am aware of, however.

It might also be recalled that the state supreme court has indicated that entering into competition with the private sector can violate the public purpose limitation of the state constitution.  In Nash v. Tarboro, 227 N.C. 283 (1947), the court held that it was not a public purpose for a town to own and operate a hotel, which the court noted was “essentially a private business, conducted for private gain.”  While the case has no relevance to activities that are authorized by statute and that clearly serve public purposes, it might stand in the way of a local government that sought to get legislative authority for and then begin a new activity that was already being provided by the private sector.

Both G.S. 153A-26, for counties, and 160A-61, for cities, provide that all county or city officers, respectively, must take the constitutional oath of office.  In addition, and somewhat redundantly, G.S. 160A-284 directs that municipal police officers take the constitutional oath.  You’d think that might be enough, but it is not. Most of the duplication arises from G.S. 11-11, which sets out a variety of oaths of office to be taken “after taking the separate oath required” by the Constitution.  Among the offices listed in this statute, each with its specific oath, are the

Register of deeds

Sheriff

County attorney

Law enforcement officer

Thus, both a sheriff and a register of deeds must take both the constitutional oath and their specific statutory oath, as must any law enforcement officer, both city and county.  The oath for the county attorney seems to assume that he or she has some responsibility for enforcement of the criminal law, and perhaps that oath has lost its meaning.

In addition to the specific officers listed above, G.S. 11-11 ends with a catch-all oath, to be taken by “any officer of the State or of any county or township” whose oath is not specifically set out earlier in the statute.  The word “township” in this statute should be taken at face value and not considered to be a synonym for city or town.  When the statute was written, North Carolina townships had organized governments with elected officials, and that was the intended reference.  As a result, the catchall oath applies to all county officers but not to city or town officers.  Among city or town officers, only police officers must take an oath additional to the constitutional oath.

Finally, it might be noted that both tax assessors, in G.S. 105-295, and tax collectors, in G.S. 105-349(g), are directed to take the constitutional oath, but with specific additional language appended to the end.  If you’d like this information in tabular form, click Oaths of Office table.

We frequently also get asked who may administer these oaths of office, and the answer to that is simple.  The list is set out in G.S. 11-7.1.

The practice of decriminalizing ordinances arises from a close reading of the constitutional provision and of the Supreme Court’s decision in Cauble v. City of Asheville, 301 N.C. 340 (1980).  The constitutional provision is concerned with penalties collected for a breach of the penal laws “of the State.”  With the usual local government ordinance, violation is automatically a misdemeanor (or occasionally an infraction) pursuant to G.S. 14-4.  Although the penalties at issue in Cauble had been collected for parking violations and were civil in nature, the court pointed out that a violation of Asheville’s ordinance remained a misdemeanor under G.S. 14-4.  For that reason, the court held, persons paying the penalties were still in breach of a penal law of the State.  It is the statute, that is, that makes the ordinance a penal law “of the State.”  If G.S. 14-4 does not apply to an ordinance, then that ordinance is not a penal law of the State; although it remains clearly penal in nature, it is a penal law only of the city and not of the State.  By denying itself the possibility of criminal prosecution for violation of the ordinance, a city is thereby able to keep any penalties collected.  (The background to all of this is spelled out in the classic law review article, D. Lawrence, “Fines, Penalties, and Forfeitures: An Historical and Comparative Analysis,” 65 N.C.L.R. 49, 77-80.)

In Shavitz the court was faced with a statute that permitted High Point to enforce a state statute against running red lights (G.S. 20-158[b][2]) through means of cameras mounted at selected intersections.  The High Point statute specifically provided that a violation of the statute shown by such a camera “shall not be an infraction.”  The intent was to cause such a violation to not be a breach of a penal law “of the State.”  The court held that violations were subject to Article IX, section 7 anyway.  But the reason was that the basic offense was defined by G.S. 20-158(b)(2), which was clearly a penal law, and therefore a violation of the ordinance was also a violation of a State-enacted penal law.  As the court wrote, “if money is collected for the transgression of both a municipal ordinance and a coordinate state statute, then the penal laws of our state are implicated and Article IX, Section 7 controls the disposition of the funds.”

So understood, Shavitz is really limited to red light camera ordinances.  It is a rare ordinance that prohibits the same conduct as it prohibited by a state statute; indeed, normally such an ordinance would be preempted under G.S. 160A-174(b)(6).  For the normal sort of city ordinance, then, the Shavitz rationale is inapplicable and therefore, for that sort of ordinance, a city may continue to choose to decriminalize the ordinance and retain the proceeds of any penalties collected because of violation of the ordinance.

Well, doing nothing would be appropriate.  Although it is a widespread practice in North Carolina for presiding officers to sign copies of approved minutes or to sign ordinances, there is no statutory requirement that they do so.  Nor can I find any such requirement under earlier versions of the municipal or county statutes.  It is common to find such requirements in the laws of other states, and perhaps the practice grew up in North Carolina because officials, or their lawyers, were familiar with those other states and assumed the requirement was universal.  Another possible source of the practice is the former requirement, under old G.S. Chapter 160, that the mayor (or the clerk) certify an ordinance in order for it to be admitted into evidence.  (Current G.S. 160A-79, which applies to both cities and counties, requires only the certification of the clerk.)  It may be that mayors began routinely signing ordinances when they were adopted as a way of meeting the certification requirement.

Even if there were such a requirement – which, I repeat, there is not – the courts in those states that have the requirements have treated them as directory rather than mandatory.  That is, the failure of the presiding officer to sign an ordinance has not affected the ability of the local government to enforce the ordinance in court.  As a Michigan court pointed out, a requirement that a mayor sign an ordinance is not the same as giving the mayor a veto, and a mayor is not permitted to transform the signature requirement into a veto by refusing to sign an ordinance. (The case is City of North Muskegon v. Miller, 227 N.W. 743 [1929].)  The same logic, were it necessary, would apply to minutes.  The mayor or chair could not invalidate minutes approved by his or her board simply by refusing to sign the document.

(As an aside, there is also no statutory requirement that the mayor or chair sign a city’s or county’s contracts, either.  They are the normal people to sign on behalf of the government, but the board could certainly designate some other officer to sign if it wished to – or if the mayor or chair was being recalcitrant.)

We commonly get questions at the School about nepotism in government employment arrangements – may a town board or a manager hire a board member’s relative for a town job?  The answer is that there is no statutory policy against such a hiring (except for the sheriff – G.S. 153A-103 requires board of commissioner approval before a sheriff may hire “a relative by blood or marriage of nearer kinship than first cousin”).  Some local governments have adopted local policies that prohibit or restrict hiring relatives, but that’s a decision for each governing board to make for itself.  But even if there were a local policy prohibiting nepotism in hiring employees, that policy could not be extended to service on the governing board itself; nor could the General Assembly adopt such a policy statewide.  The state supreme court made clear, in the “resign-to-run” case, Moore v. Knightdale Bd. of Elections, 331 NC 1 (1992), that the constitutional qualifications for elective office are exclusive; the legislature cannot add additional qualifications.  If you are registered to vote for an office and at least 21 years old, you can run for that office.  To prohibit nepotism on an elected board would be to add a new qualification – that there not be a close relative already on the board.

So, if a married couple runs for seats on the same board, or an employer and employee both run, it’s up to the voters, and no one else, to decide whether they both should serve.  If a community’s voters want to elect a single extended family to be their governing board, they have the right to do so.