Recent Blog Posts

  • De Facto Officers Versus Intruders

    Authored by: on Friday, October 22nd, 2010

    Last November the voters elected a new town council, and to celebrate the victors invited their local congressman to administer the oath of office.  Several months later some pedant pointed out that North Carolina law doesn’t permit congressmen to administer oaths of office, and so the new board had not legally qualified for office.  The board members quickly took the oath before a proper officer, but townspeople are now asking: What’s the status of each of the actions the board has taken since the organizational meeting?   Read more »

  • Is Metadata a Public Record? Case Law Update

    Authored by: on Thursday, October 21st, 2010

    A city resident forwards an e-mail to Councilwoman Leslie Knope. The e-mail accuses certain other city council members of improper conduct. Councilwoman Knope opens the e-mail on her home computer, which is set up to remotely log in to her public e-mail account. Councilwoman Knope later announces at a public meeting that she has received a copy of the e-mail and that the e-mail purportedly was authored by “Tom Haverford and April Ludgate.” The councilwoman also briefly discusses the contents of the e-mail. April, who is in attendance at the meeting, immediately makes an oral request for the e-mail and denies authoring it. The councilwoman subsequently forwards the e-mail to city staff to produce to April, but in so doing she removes the “to” and “from” lines to protect the identity of the citizen who forwarded the e-mail to the councilwoman. City staff produces a printed copy of the e-mail to April. April is not satisfied with the city’s response to her request, and she further requests that the city produce an electronic copy of the e-mail with all of its associated metadata. The city subsequently provides April with a hardcopy of the entire original e-mail string, including the “to” and “from” e-mail header information that Councilwoman Knope redacted from the originally forwarded e-mail. April still is not satisfied and demands that the city disclose all the metadata associated with the original e-mail. Councilwoman Knope attempts to find the metadata associated with the original e-mail but cannot find it; she concludes that she must have inadvertently destroyed the original e-mail and its associated metadata. The councilwoman, however, requests that the citizen who originally forwarded her the e-mail re-forward it to her. The citizen complies and the city ultimately produces the re-forwarded e-mail (with all of its associated metadata) to April.

    Has the city complied with its public records obligation? Read more »

  • Local Preferences in Public Contracting, Part 3

    Authored by: on Wednesday, October 20th, 2010

    In my last two posts (here and here), I’ve discussed the efforts of the City Council of Emerald City, North Carolina, to support its local businesses by adopting a local preference policy.  Purchasing Officer Scarecrow has just finished reviewing the Council’s goals for the policy: reducing local unemployment, supporting local businesses, increasing Emerald City’s tax base, and reducing the City’s carbon footprint.  The Council has asked Scarecrow to give them time to consider his comments so they can determine if there are other goals that they would like to achieve through the local preference policy.

    Meanwhile, City Attorney Tin Man is about to present his report to the Council on the legal issues presented by a local preference policy.  Tin Man explains that he’ll begin his report by discussing Emerald City’s legal authority to implement a local preference policy.  (This is number two on the list of “questions to consider” that I provided in my first post, but will provide a framework for the discussion of questions 1 and 3.)  Let’s listen in as Attorney Tin Man begins his report: Read more »

  • Flu Vaccines for Health Care Workers

    Authored by: on Tuesday, October 19th, 2010

    It’s flu shot season in North Carolina. Flu vaccine clinics are underway in physicians’ offices, health departments, drug stores, some workplaces, and even the North Carolina State Fair. Unlike last year, the vaccine supply appears to be plentiful and is not being restricted to high risk groups. The Centers for Disease Control has recommended flu vaccine for everyone over the age of six months, except for individuals who have a medical contraindication. This year, a single shot (or nasal spray, if you’re healthy and between the ages of 2 and 49) provides protection against H1N1 and two other types of flu that are expected this season.

    While flu vaccine is recommended and available for almost everyone this year, there are still certain groups for whom public health officials consider vaccination particularly important. Health care workers (HCWs) constitute one of these groups. For years, public health officials and numerous health care provider professional associations have urged HCWs to take the vaccine, but vaccination rates among HCWs have consistently hovered in the 40% range. Some professional associations and commentators have responded to this low rate by recommending mandatory flu vaccination for HCWs. (See, for example, the American Academy of Pediatrics’ recent position statement on this issue.) Although some of the recommendations–and some mandates–have been around for several years, the 2009 H1N1 pandemic brought increased activity around this issue. Unsurprisingly, legal challenges followed.

    Read more »

  • The First Amendment and Government Employees

    Authored by: on Thursday, October 14th, 2010

    [11/8/10 Update:  Andrew Shirvell has been fired for misuse of of state resources, conduct not protected by the First Amendment, and false statements made during the internal investigation of the matter.]

    What are the limits of First Amendment protection for government employees?  Consider this somewhat surreal story making recent headlines.

    Andrew Shirvell is an assistant attorney general for the state of Michigan.  He is also an anti-gay activist who is appalled that the recently elected student body president of the University of Michigan, Shirvell’s alma mater, is openly gay.  Shirvell complained about the student on a blog created specifically for that purpose.  His many postings included a comment that the student is “Satan’s representative on the Student Assembly” and a picture of the student with a Nazi swastika superimposed on his face.

    Once news of Shirvell’s blog and his in-person hounding of the gay student leader on campus became widely known, many people—including the governor of Michigan—called on state attorney general Mike Cox to fire Shirvell.  Cox, on whose campaign Shirvell worked, refused.  Cox stated that although Shirvell has “been acting like a bully and his behavior is immature, his conduct is after-hours and protected by the First Amendment.” 

    Is he right? Does the First Amendment protect this type of conduct by a government lawyer? Read more »

  • About Town Administrators

    Authored by: on Wednesday, October 13th, 2010

    North Carolina cities have a choice of governance structure: the mayor-council form or the council-manager form. According to the School of Government’s Forms of Government database, 300 cities in North Carolina use the mayor-council form, and 67 of them employ a “town administrator” who supervises all departments. What are town administrators and what laws govern what they do? This post discusses town administrators, compares them with managers, and also describes one old, and one new School of Government resource about forms of government in North Carolina. Read more »

  • If We Can’t Collect a Fee, Can We Just Say No? Use of Impact Fees and Adequate Public Facility Regulatory Requirements

    Authored by: on Tuesday, October 12th, 2010

    UPDATE September 2013:  The North Carolina supreme court subsequently ruled that counties do not have statutory authority to impose school impact fees. That 2012 case is discussed here.

    The population of Partition County has grown dramatically over the past several decades. The county has struggled to keep up with provision of public facilities to serve this growth. While the rate of growth has slowed in the past few years, the schools are still substantially overcrowded in the northern half of the county, where most of the growth has occurred. The schools there have modular temporary classrooms on site and most of these are projected to remain at least another five or six years. The county is in the midst of an expensive ten-year school construction program largely funded by a bond program. The county board has concluded it is not feasible to raise taxes or issue more bonds for school construction in the next few years. Other public facilities, including roads, water, sewer, and emergency services, have also been stretched uncomfortably thin in this part of the county.

    A local developer wants to be ready to resume work as the economy recovers. He has submitted a plan to the county for a large new mixed use development in the northern part of the county. In addition to a commercial center and health care facility, he is seeking approval for 1,200 new housing units. County officials are delighted to see early signs of economic recovery, but that is tempered by a very real concern about their ability to provide and pay for additional public facilities that will be needed to serve this new development. Staff analysis indicates the additional school children that would reside in this project cannot be accommodated in the existing school buildings. In fact, when other developments already approved are considered in relation to the existing and budgeted school capacity, staff has concluded it will be at least six years before there will be adequate school capacity to accommodate this development. Does the county have the option of denying or delaying regulatory approval of this project based on inadequate school capacity? Read more »