Recent Blog Posts

  • Removing an Elected Official by Amotion: Judge Says It Can Be Done

    Authored by: on Thursday, September 12th, 2013

    In 2009 I wrote a blog post summarizing the common law doctrine of “amotion” which was recognized in several old North Carolina cases as an inherent power of a board to remove one of its members. Since there had been no legislative or judicial sanction of board removal of an elected official since the last case involving amotion (decided in 1935), I said it was “unclear” whether a court would uphold a local government board’s removal of one its members by amotion.

    Last week, Special Superior Court Judge James Gale issued an order in a case involving the removal of New Hanover County Commissioner Brian Berger.  Reviewing the board’s 3-2 decision to remove Mr. Berger, the judge ruled that “[a]n amotion procedure remains a lawful procedure that may be utilized for the purpose of removing an elected official so long as such procedure includes notice and hearing and is based upon sufficient competent evidence demonstrating reasonable and just cause for removal.” Brian Berger v. New Hanover County Board of Commissioners, 13 CVS 1942 (Sept. 5, 2013), slip op. at 30. Although the judge upheld the validity of the process that New Hanover developed for the amotion proceeding in general, he voided the Commissioners’ decision because it was based, in part, on findings of fact that relied on personal experiences and impressions of two commissioners, rather than on objective evidence presented at the hearing. The judge’s order restores Commissioner Berger to his elected office, but the order’s “remand” leaves open the possibility that the board could redo the amotion proceeding. The order provides specific guidance on the standard for removal, as well as the essential elements of a valid amotion process. This blog post summarizes Judge Gale’s blueprint for removal by amotion. Read more »

  • Recent Amendments to Special Assessment Authority

    Authored by: on Thursday, September 5th, 2013

    Special assessments are charges levied against property to pay for public infrastructure projects (and in some limited cases private infrastructure projects) that benefit that property. They represent a form of targeted revenue generation for capital outlay. The General Assembly has authorized two different (albeit closely related) statutory process for levying special assessments in North Carolina—Special Assessments, G.S. 160A, Art. 10 (municipalities) and G.S. 153A, Art. 9 (counties) (hereinafter traditional assessment method); and Special Assessment Authority for Critical Infrastructure Needs, G.S. 160A, Art. 10A (municipalities) and G.S. 153A, Art. 9A (counties) (hereinafter newer assessment method). The legislature recently reauthorized and made a few changes to the newer assessment method. Read more »

  • E-Verify Requirements Apply to Public Contracts – NOW!

    Authored by: on Wednesday, September 4th, 2013

    UPDATE:  The General Assembly amended the E-Verify contracting prohibition for cities and counties during the 2014 legislative session.  Under Section 13 of S.L. 2014-119which went into effect on October 1, 2014, the E-Verify contracting prohibition now ONLY applies to purchase and construction or repair contracts in the formal bidding ranges (i.e., those subject to G.S. 143-129).  This change only affects cities and counties as all other units of local government were only subject to the E-Verify contracting prohibition for formal purchase and construction and repair contracts under the original legislation.  The text of the post below has been updated to reflect this change.

    In a dramatic turn of legislative events, the Reclaim NC Act (S.L. 2013-418; HB786) was passed by the General Assembly, vetoed by the Governor, and then passed by the General Assembly again when both Chambers voted by wide margins to override the Governor’s veto yesterday and earlier today.  While controversy over the bill focused on the change in E-verify requirements for temporary workers (extending the employment period for exempted seasonal workers from 90 days to nine months), the legislation also has a significant impact on public contracting because it imposes E-Verify requirements on most public contracts.  The legislation went into effect immediately upon the Senate’s override of the Governor’s veto at 9:20am today (September 4, 2013), so it applies now – yes, now! – to all city and county contracts as well as all formal purchase and construction and repair contracts let by any public entity.  Read on to find out what the new law prohibits and what local governments should do – NOW!

    Read more »

  • 2013–A Year of Election Law Changes

    Authored by: on Tuesday, September 3rd, 2013

    UPDATE February 2017:  In July 2016 the federal Fourth Circuit Court of Appeals issued an injunction against enforcement of three elements of the of the 2013 legislation described in this post:  photo ID at the polls, end of same-day registration and vote, and shortening of the early voting period.  The matter is before the United States Supreme Court.

    In 2013, the United States Supreme Court and the North Carolina General Assembly together made major changes in the law of elections.  This was a watershed year in elections law.

    The Change from the Supreme Court—the End of Pre-Clearance

    In June, in the case of Shelby County v. Holder, the Supreme Court declared Section 4 of the Voting Rights Act of 1965 unconstitutional.  Section 4 identified the jurisdictions in the nation that were required under Section 5 of the Act to submit changes related to voting for approval by the U.S. Department of Justice, in a process known as “preclearance.”  With Section 4 unconstitutional, Section 5 is left without force.  It is, for all practical purposes, dead.

    What, exactly, does that mean for North Carolina’s 40 counties that were covered by Section 4?  For decades, those counties and their cities and school boards and boards of elections have been required to submit elections changes for preclearance.  No change related to voting in any of those 40 counties—or any municipality or school board in the county—could go into effect until the U.S. Department of Justice gave permission

    And, because any elections law that applied statewide also obviously affected those 40 counties, every state elections statute also had to be submitted to the Department of Justice for preclearance.

    Now, however, Section 5 is dead.  For elections changes made starting in June 25, 3013, preclearance is no longer required.  It is not required for changes at the county or municipal level or at the state level. Read more »

  • Legislative Update: Animal Control and Shelter Regulation

    Authored by: on Tuesday, August 27th, 2013

    Every session, the North Carolina General Assembly considers a bevy of bills related to animals, many of which relate to foxes and coyotes. This year was no exception. Only one major animal control related bill, S.L. 2013-377, was enacted. It includes several changes that are of particular interest to local governments that own or operate animal shelters. Below is a brief summary of those changes. I’ll discuss these issues and others – such as Spay/Neuter funding, animals in cars, and puppy mills – in next week’s Local Government Legislative Update Webinar.

    Read more »

  • Remote Participation in Meetings

    Authored by: on Tuesday, August 20th, 2013

    A local government board member will not be able to attend an upcoming meeting. Can she participate by calling in? Regular blog followers may recall that I have written  several posts on this topic. With the benefit of your comments and some additional research, I’ve replaced those blog posts with a Local Government Law Bulletin addressing this question. Go here to download Local Government Law Bulletin #133: Remote Participation in Local Government Board Meetings

    This bulletin addresses the following key points:

    • North Carolina law is unclear on the question of whether a member of a city or county elected board can be considered present for purposes of quorum if he or she is not physically present.
    • The legal risk of allowing remote participation is low if there are enough members who are physically present to constitute a quorum, or if the meeting involves only discussion and no action is taken. As a practical matter, even if  a vote is taken, the risk of a challenge is minimal unless the remote participant casts the deciding vote.
    • A board member does not have a right to participate remotely. It is up to the board to decide whether and under what circumstances to allow it.
    • Appointed boards are not subject to the same legal limitations as are elected boards, so local governments have clear authority to provide for remote participation for these types of boards.
    • Local governments that allow remote participation should develop policies to address the circumstances under which such participation is allowed, as well as the process and rules that will apply. Examples and key components of such policies are discussed in the bulletin.

    To peruse other bulletins or publications that might be of interest, visit the School’s Online Bookstore.

     

  • County Tax Collection Obligations for Motor Vehicles Under the “Tag & Tax Together” Program

    Authored by: on Monday, August 19th, 2013

    On September 1, the state’s Tag & Tax Together program formally launches statewide.  All N.C. vehicle owners will be required to pay property taxes owed on their vehicles at the same time they register those vehicles each year with the Division of Motor Vehicles. The joint payment system actually went live in July, meaning vehicle owners with September renewals can already pay their taxes and registration fees simultaneously via the DMV website.

    In return for payment of a small transaction fee to the DMV, counties won’t need to worry about mailing tax bills for the state’s 8 million or so registered vehicles and (hopefully) will benefit from increased collection rates for taxes on those vehicles.

    Counties can’t forget entirely about collecting these taxes, however.  A number of potentially knotty problems remain.  One of them is bankruptcy filings by vehicle owners, which I discussed here.  Another is “gap billing,” a term I use to describe the county’s obligation to collect property taxes owed on a vehicle that moves between registered and unregistered status.

    The DMV will responsible for collecting taxes owed on registered vehicles.  It remains the county’s job to collect taxes on unregistered vehicles.  When a registration expires on a vehicle and the owner waits months or years to renew that registration, it might be difficult to determine which entity collects which taxes for which time period.  This blog post should help. Read more »