Recent Blog Posts

  • Understanding the Fair Labor Standards Act’s Fluctuating Workweek

    Authored by: on Thursday, January 15th, 2015

    John is an EMS dispatcher whose hours vary unpredictably from week to week. John always works at least 40 hours per week, but some weeks John works 42 hours, some weeks he works 48 hours and occasionally he works close to 60. Ellen is a water plant operator who weekly hours vary as well, but they vary on a scheduled basis. Ellen works 32 hours every first and third week of the month and 48 hours every second and fourth week. Both John and Ellen are nonexempt employees. The city for which John and Ellen work pays cash overtime instead of using compensatory time off. Yet neither John nor Ellen earns overtime at the rate of time-and-one-half. Without violating the FLSA, the city pays both John and Ellen at just one-half their regular rate of pay for each hour over 40 that they work in a given work week. How can that be? Read more »

  • Determining the Pay for the New Sheriff

    Authored by: on Tuesday, January 6th, 2015

    A new sheriff has been elected.  What will his salary be?  Must he be paid what the old sheriff was being paid, or can he be paid less?

    Here is one way to read the statutes:  the new sheriff must be paid at least as much as the old sheriff, unless the county commissioners thought far ahead and took steps way back before the election to lower the salary in the upcoming term.

    Here is another way to read the statutes:  The new sheriff can be slotted onto the county’s salary schedule at an appropriate grade and step just as any other employee coming into a new position would be.  The commissioners need take no step ahead of time other than adopting an appropriate salary schedule for all employees.

    Which interpretation is correct?  Until a court might rule on the matter in a particular case, or the General Assembly might amend the statutes to clarify matters, we cannot know for sure.  But in my opinion, the second interpretation is correct:  the new sheriff can be slotted appropriately onto the pay schedule. Read more »

  • Mayor Learns a Harsh E-Discovery Lesson

    Authored by: on Monday, December 22nd, 2014

    The City of Prescott, Arizona, and its mayor, learned a harsh lesson about the failure to preserve emails and other electronic records during (and in anticipation of) litigation. The lesson has cost the city well over $100,000 in legal fees and $35,000 in court-imposed sanctions to date. (And the parties are still litigating.) It is a lesson that all local government officials should heed about the perils of governing in the digital age. Read more »

  • Custodians of Public Records

    Authored by: on Friday, December 19th, 2014

    The North Carolina Court of Appeals has ruled that a lawsuit seeking access to public records should be dismissed if it fails to name a proper custodian (as defined in state law) as the defendant in the complaint. The case (Cline v. Hoke) involved a request for emails that the plaintiff alleged to be in the physical custody of an employee in the Administrative Office of the Courts (AOC). The plaintiff sued the assistant director of the AOC. The state, on behalf of the defendant, argued that the lawsuit should have been brought against the employee who was alleged to have the emails. The court said they were both wrong. It held that the proper party is the director of the AOC as the official custodian, defined in the public records law as the public official who is in charge of the AOC’s public records. The case also holds that 1) a person who has physical custody is not necessarily the custodian of the record for purposes of the public records law, and 2) an individual employee’s responsibility to manage and retain records is distinct from the obligation to provide access.

    Certainly, a legal custodian is an appropriate party for a lawsuit seeking access to records. But other public officials and employees have legal responsibilities in providing access to records, and may be liable for violating the public records law. The definition and responsibilities of custodians are sufficiently unclear that a narrow pleading requirement may have the unintentional effect of limiting access to public records.

    Read more »

  • January 6, Record Ownership, and Delinquent Property Taxes

    Authored by: on Thursday, December 18th, 2014

    Many children and more than a few adults are counting the days and hours until Santa arrives next week.  But taxpayers who’ve yet to pay their 2014 property tax bills should be counting the days and hours until January 6, 2015, the date on which those taxes become delinquent.

    In a previous post I described the basic issues concerning interest and enforced collections once January 6 arrives.  In today’s post, I focus on two more January 6 issues: record ownership and delinquency warning notices. Read more »

  • Sale of Historic Structures by NC Local Governments for Redevelopment

    Authored by: on Tuesday, December 16th, 2014

    Almost ten years ago, in the town of Bushwood, North Carolina, the “generous” owner of the historic textile mill building just off Main Street donated the property to the town (it was difficult to maintain and the owner didn’t want to pay property taxes on it any more). The town accepted the property, hoping that it would be able to find a new private owner who would redevelop the property and retain the historic character of the building. Some potential buyers have kicked the tires on the building, but no one has made an offer. Due to the value of the land and the excellent location of the parcel, the property appraises for $300,000.

    The town recognizes that it needs to market the building more actively—and that it may need the help of experts. “Old Mills R Us,” a regional historic preservation nonprofit with a mission to preserve historic mill buildings, has a proposal for the town:

    • The town will sell the mill to the nonprofit for one dollar.
    • Old Mills R Us (OMRU) will market the property and sell the mill to a private developer who will redevelop the property while retaining the historic features.
    • Rather than charging a broker fee, OMRU will simply keep the proceeds from the sale at whatever price OMRU can get.

    Can the town enter into this transaction with OMRU? Short answer: not on these terms. This post explains why and suggests some alternatives. Read more »

  • Three-judge Panels

    Authored by: on Friday, December 12th, 2014

    Two recent lawsuits have drawn attention as the first to be subject to a new state law treating some constitutional challenges differently from other lawsuits. The first case was brought by the town of Boone, seeking to invalidate a legislative act stripping the town of its extra-territorial jurisdiction. Governor McCrory filed the second lawsuit, disputing the General Assembly’s authority to control the membership of regulatory commissions. Instead of being tried before a single judge, these cases will go before panels of three judges.

    Why do these cases, and not others, have to go to three-judge panels? Read more »