Recent Blog Posts

  • Requirements for Quasi-Judicial Decision Documents

    Authored by: on Tuesday, July 8th, 2014

    The town council has just voted to approve a highly controversial special use permit for a new apartment complex. Getting to this point was a long process – two lengthy hearings and a third night of debate and deliberation by the council. There was much discussion about the traffic impacts, whether the evidence showed whether the project would harm neighboring property values, and the adequacy of potential permit conditions. But the council eventually reached a general consensus and voted 6-1 to approve the permit with a long list of detailed conditions. With business concluded, the council meeting was adjourned.

    As folks were filing out of the council chambers, the property owner turns to his attorney. “It seemed like this day would never come. Can’t tell you how relieved I am they finally saw things our way. I’m good to go now, right?” In another corner of the room, the chair of the neighborhood association, who had led the fight against the project, likewise turned to her attorney. “What just happened? They left out the most important condition we asked for. No way the evidence justifies that. We appeal now, right?”

    Both attorneys tell their clients to sit tight and wait for the final decision. Is that right? Didn’t the council just take a conclusive vote? Isn’t that final?

    Not quite. The decision is not final and effective until it is reduced to writing and filed. And the period to appeal doesn’t start until the written decision is delivered. Read more »

  • Interim Budget

    Authored by: on Friday, June 27th, 2014

    Each North Carolina local government and public authority (local unit) must adopt an annual balanced budget ordinance. G.S. 159-8. The Local Government Budget and Fiscal Control Act, G.S. Ch. 159, Art. 3 (LGBFCA), provides a basic framework for the preparation and enactment of the budget ordinance. It specifies, for example, that departmental requests be submitted to the unit’s budget officer on or before April 30 (G.S. 159-10) and that the proposed budget and budget message be submitted to the governing board on or before June 1 (G.S. 159-11). These dates function more as targets than actual deadlines, though. They are intended to help keep a unit on track with the budgeting process. The only date with any legal consequence is July 1. That is the date by which the budget ordinance must be adopted in order to recognize revenues, levy property taxes, and authorize expenditures for the fiscal year. G.S. 159-13(a). (Note that some public authorities operate on a different fiscal year. The deadline for those units is the first day of the new fiscal year.)

    Several local units miss the July 1 deadline each year, though. This post discusses the consequences of not having a budget ordinance in place by July 1 and the steps a unit must take until a budget ordinance is adopted. Read more »

  • King v. Town of Chapel Hill: The Supreme Court Issues a Major Decision on the Police Power of Local Governments (Part 1)

    Authored by: on Thursday, June 26th, 2014

    In King v. Town of Chapel Hill, the North Carolina Supreme Court issued what could be its most significant decision yet on the general police power of local governments. Somewhat predictably, media coverage tended to focus on the portion of the court’s opinion striking down Chapel Hill’s ban on mobile phone use by drivers 18 years of age or older. The mobile phone ruling may be the least important aspect of a complex opinion that, taken as a whole, represents a substantial victory for cities and counties. Read more »

  • Legal Ethics Lessons from the Penn State Scandal

    Authored by: on Tuesday, June 24th, 2014

    UPDATE: In January 2016 a Pennsylvania appellate court agreed with the analysis below, concluding that Baldwin’s conduct led the defendants to reasonably believe that she was representing them as individuals.  “We find that Ms. Baldwin breached the attorney-client privilege and was incompetent to testify as to confidential communications between her and Spanier during her grand jury testimony,” said the opinion.  The court threw out the perjury charges that were based on Baldwin’s testimony.  The defendants are scheduled to go to trial on the remaining charges in March 2017. 

    Most of the headlines relating to the Pennsylvania State University (“PSU”) child abuse scandal focused on the connections between convicted child molester Jerry Sandusky and the PSU football program.  The scandal cost legendary coach Joe Paterno his job and tarnished his otherwise sterling reputation as a coach who was unwilling to sacrifice his values for victories.

    The scandal had negative repercussions for senior PSU employees beyond the football program as well.  Graham Spanier, the university’s former president, Gary Shultz, a former vice president, and Tim Curley, former athletic director, are currently facing a variety of criminal charges including perjury, obstruction of justice, and failure to report child abuse.

    The university’s general counsel at the time, Cynthia Baldwin, has also garnered unwanted attention thanks to her role in the scandal.  Former PSU colleagues, outside investigators, and a state court judge have suggested that Baldwin confused her representational roles and her professional loyalties.

    Few local government attorneys will face situations as dreadful as that faced by Cynthia Baldwin.  But confusion about the role of an organization’s attorney can arise in far more common scenarios. Any time an organization is accused of misconduct, potential conflicts may arise between the organization and the organization’s employees.  Those conflicts present an even greater risk if the organization’s attorney has close professional and personal relationships with those employees, as if often the case with experienced local government attorneys.  Baldwin’s predicament provides a valuable learning opportunity for any attorney who represents any type of organization.

    Read more »

  • Acquiring real property for redevelopment—can local governments keep it confidential?

    Authored by: on Tuesday, June 17th, 2014

    The town of Renewville wants to improve the look of its downtown Main Street, which is pocked with poorly-maintained commercial buildings. The Mayor has had his eye on a few key properties on Main Street, which, if redeveloped, would transform the look and feel of downtown, perhaps spurring additional private investment in the area. After years of watching potential developers and investors “kick the tires” downtown but decline to invest, the Mayor has given up on the private sector. He now firmly believes that the town must take the lead in acquiring properties, because the private sector isn’t willing. He knows, however, that if the town’s interest in purchasing any particular property is made public, the owner of that property will hold out for a premium on the sale price. Can the council direct the acquisition of properties downtown and keep the town’s involvement confidential during negotiations? Under North Carolina law, it depends. This post examines several situations to illustrate the possibilities. Read more »

  • More Questions and Answers about the New Privilege License Law

    Authored by: on Friday, June 13th, 2014

    The General Assembly’s decision to eliminate local privilege licenses in S.L. 2014-3 left many unanswered questions.  I tackled some of the big ones in my first blog post on the new law last month. Today I address a few more privilege license questions plus one regarding the law’s impact on local occupancy taxes. Read more »

  • Allocating Operating Monies Among Local School Unit Funds: Local Current Expense Fund vs. Fund 8

    Authored by: on Tuesday, June 10th, 2014

    The majority of funding for North Carolina’s public schools comes from the State. Each county, however, is required to annually fund most capital expenses and at least some operating expenses of its local school administrative unit(s). Questions often arise as to whether, and how, a county can direct its appropriations to specific operating expenditures. (I’ve blogged about a county board’s authority to direct specific school expenditures here.) This issue is further complicated by the fact that a local school unit must allocate a portion of its operating monies to charter schools attended by students located within the school district. There has been considerable conflict between local school units and charter schools over how to interpret this mandate. The North Carolina Court of Appeals has weighed in several times on this issue, most recently last week. The legislature also has made statutory changes over the past few years in an attempt to clarify the directive.

    This blog summarizes the current law governing how county appropriations and other revenues may be allocated among the various funds to local school units for operating expenses. It defines “fund” and describes the authorized funds for local school units. It then details how a local school unit may allocate monies among the various funds while complying with the statutory mandate to direct certain operating monies to charter schools. Read more »