Recent Blog Posts

  • The New Law Addressing Child Maltreatment in Child Care Facilities: It’s the State’s Responsibility

    Authored by: on Wednesday, January 6th, 2016

    It seems fitting that my first blog post of the 2016 calendar year addresses a new law that became effective on January 1st. S.L. 2015-123 is “An Act to Transition Abuse and Neglect Investigations in Child Care Facilities to the Division of Child Development and Early Education [DCDEE] within the Department of Health and Human Services” (DHHS). In a nutshell, county child welfare agencies (county departments) retain responsibility for screening and assessing reports of suspected child abuse, neglect, and dependency by a parent, guardian, custodian, or caretaker but are no longer responsible for screening and assessing reports of suspected abuse and neglect of a child in a child care facility. As a result, petitions filed in district court by a county department that allege a child has been abused or neglected will no longer be based on circumstances created in a child care facility. Instead, the DCDEE has assumed responsibility for investigating suspected child maltreatment occurring in a child care facility. These investigations are a component of DCDEE’s licensure procedures and requirements. S.L. 2015-123 sets forth the new process in Article 7 of G.S. Chapter 110.
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  • What if No Candidates File? An Election without Candidates?

    Authored by: on Tuesday, January 5th, 2016

    There is an open seat—District 2—on the board of county commissioners, up for election.  It will be voted on in November, along with other county offices (like sheriff and school board), district offices (like state senate and district attorney), and statewide offices (like governor and commissioner of labor).  The candidate filing period has come and gone, and Republican candidates have filed their notices of candidacy to run in the Republican primary and Democratic candidates have filed their notices of candidacy to run in the Democratic primary, for all the offices at the county, district, and statewide levels.

    Except one.  No Republican candidate filed to run for the District 2 seat on the board of county commissioners.  No Democratic candidate filed.  What happens now? Read more »

  • May a Tourism Development Authority (TDA) Borrow Money?

    Authored by: on Monday, December 21st, 2015

    A Tourism Development Authority (TDA) is a local government entity that is typically created by a county or municipality to administer and expend local occupancy tax proceeds. Generally a TDA is a separate legal entity from the county or municipality that established it, although it may be reported as a component unit of the local government for financial reporting purposes. A TDA is categorized as a public authority for purposes of the Local Government Budget and Fiscal Control Act (G.S. Ch. 159, Art. 3).

    There is no general law authority for a county or municipality to levy occupancy taxes or to establish a TDA. Instead, this authority is set out in well over 100 local acts that each apply to one or a few jurisdictions. There has been significant standardization of the local acts authorizing local governments to levy occupancy taxes and establish TDAs over the past ten to fifteen years. In most cases, a county or municipality must establish a TDA and remit all, or a large portion of, the net proceeds of the occupancy tax as a condition of levying the tax. The TDA’s governing board administers the tax proceeds and makes funding decisions, subject to any statutory restrictions in the local act. A common restriction is that the money be spent to promote tourism and development within the unit’s territorial boundaries.

    Despite the standardization efforts, there are still significant variations in the authorizing language across jurisdictions. It is thus difficult to give general guidance on the function or operation of TDAs. The answers to most questions about a TDA’s board structure, and the contours of its expenditure authority, are found only in the local act that authorized its creation. There are a few questions, however, that can be addressed more generally. One of these questions is whether a TDA may borrow money? The answer to this question is no. There is a way that a TDA can become indirectly involved in a borrowing transaction, though. Read on to learn more about this issue.  Read more »

  • Setting Salaries and Closed Sessions

    Authored by: on Thursday, December 17th, 2015

    The city council has scheduled a meeting to discuss four things related to employee salaries: 1) Review of a pay study prepared by a consultant that describes current employee salaries compared with market rates; 2) Whether to authorize an across-the-board cost of living raise for all employees; 3) A proposed reorganization which includes a recommendation for a reduction in force affecting several departments; and 4) A request from the city manager for a 5% salary increase to retain a key employee who has been offered a job in another city.

    Which of these things may be discussed in closed session? Which things must be discussed in open session? Can action be taken on any of these things in closed session? Are there any of these things that can be handled either in open or closed session? Answers to these questions involve the laws governing closed sessions, the laws governing the confidentiality of personnel information, and the interplay between them. It’s complicated, and some of the answers are not altogether clear. This blog post summarizes the key provisions of the relevant statutes, sets out some questions and answers about them, and applies the resulting conclusions to the four issues facing the city council.
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  • Notice and Hearing Requirements for Economic Development Appropriations

    Authored by: on Tuesday, December 15th, 2015

    As discussed in a prior post, Session Law 2015-277 requires North Carolina local governments to issue notice and hold a public hearing prior to approval of any appropriation for economic development pursuant to North Carolina General Statutes Chapter 158, Article 1, “The Local Development Act of 1925.” Local governments have held public hearings pursuant to that act for decades, but previously such hearings were required only when an economic development appropriation was related to real property or to an incentive payment for a private business. Now local governments must issue notice and hold a public hearing prior to approving any appropriation for economic development—even when the appropriation has nothing to do with incentives or real property. In fact, the bill summary written by legislative staff states “The bill standardizes the treatment of appropriations for economic development by: Making all appropriations subject to the public hearing requirement of G.S. 158-7.1(c).” Unfortunately, S.L. 2015-277 provides no guidance on the form of notice for the new set of required hearings. This post proposes a framework for understanding and complying with the old and new notice and hearing requirements under G.S. 158-7.1. Read more »

  • Service Animals in Government Buildings

    Authored by: on Monday, December 14th, 2015

    Several federal and state laws address service animals in government buildings and public accommodations. I included a brief chapter on the topic in my 2008 animal control law book. Since then, there have been some important revisions to the regulations implementing the Americans with Disabilities Act. Below is a review of how these revised ADA regulations apply to service animals in government buildings.  Read more »

  • Verifying A Utility Applicant’s Identification

    Authored by: on Friday, December 11th, 2015

    It is common practice for North Carolina local government utilities to require an applicant for utility service to furnish government-issued photo identification. Officials cite the need to protect the integrity of utility operations as justification for the requirement, arguing that it guards against identity theft and protects the utility from (at least some) billing and collections problems.

    But is a local government utility legally authorized to require an applicant to provide identification as a condition of receiving utility services? Is it legally compelled to do so? Are there certain forms of identification that a government utility must accept or, on the flip side, may not accept? Who must adopt a policy related to identity verification? This post addresses these frequently asked questions related to verifying the identity of an applicant for utility service and highlights new legal developments in this area. Read more »