Recent Blog Posts

  • Did the NC Supreme Court put cash economic development incentives in jeopardy?

    Authored by: on Tuesday, December 18th, 2012

    Cash economic development incentives are widely used by local governments to induce companies to locate in their jurisdictions. A 2006 survey indicated that more than 40% of North Carolina local governments employ cash incentives for business recruitment. And yet, no statute contains language specifically authorizing cash incentive payments. G.S. 158-7.1(b) contains a rather comprehensive list of activities in which local governments may engage for economic development, but cash incentives are not found on that list. Rather, authority for cash incentives is derived from a general grant of authority for making appropriations for economic development found in G.S. 158-7.1(a). In other words, the authority to offer cash incentives is implied from a general grant of authority. But what happens when the North Carolina Supreme Court becomes reluctant to find implied authority? Read more »

  • Questioning an Employee about Possibly Criminal Conduct

    Authored by: on Tuesday, December 4th, 2012

    There is reason to believe that an employee of the city has broken into a pharmacy to steal prescription drugs.  There are reports that a public school teacher has touched female students in a terribly inappropriate way.  It appears that a county inspections employee may have exploited money from a permit applicant in exchange for favorable treatment.

    In each case you, the city manager or the superintendent of schools or the county manager, would like to have the employee questioned, perhaps by the employee’s supervisor or the human resources director or the unit’s attorney.  You want to know what really happened.  If the suspicions are true, you need to get rid of this employee right away.  This is not conduct you can tolerate in an employee.

    But you are aware of a problem.  In each case, the conduct may be not only unacceptable but also criminal.  The police have been informed and will be conducting their own examination.  The district attorney may end up prosecuting, and he will not want his prosecution jeopardized.  The police and the DA may wish you would hold off on your investigation entirely.  After all, under the Fifth Amendment to the U.S. Constitution your employee, like every citizen, has the right to refuse to answer questions if the answers may implicate him in a crime.  That right of refusal applies in criminal trials, by the very wording of the Amendment itself.  It has also been interpreted to extend the privilege not to answer to any other kind of proceeding, civil or criminal, formal or informal, where the answers might incriminate the person in future criminal proceedings.

    So, you want to question your employee, but you are aware he may assert his constitutional right not to answer.  If he does, are you stuck?  It’s a constitutional right, after all.  You can’t make him answer.  Can you fire him for not answering? Read more »

  • Consolidated Human Services Agencies and the NC Local Health Department Accreditation Program

    Authored by: on Tuesday, November 27th, 2012

    UPDATE FEBRUARY 2013: The accreditation rules were amended to change the method by which the Accreditation Board determines whether a department has satisfied the required benchmarks. See 10A N.C.A.C. 48B .0103. This change had been proposed when this post was originally published, and is described under the question, “What must an agency do to be accredited?” The amendments became effective February 1, 2013. 

    Recent legislation [S.L. 2012-126 (H 438)] authorized any North Carolina county with a county-manager form of government to create a consolidated human services agency (CHSA). Under newly amended G.S. 153A-77, a board of county commissioners may create a CHSA with the authority to carry out the functions of any combination of county agencies, boards, or commissions that provide human services. Although the law does not require that a CHSA include any particular local agencies, it does specifically mention public health and social services departments as agencies that may be included. In September, my colleague Aimee Wall wrote this post about three North Carolina counties that have made changes to local human services as a result of H 438, including two that had formed CHSAs combining public health and social services. Since then, at least two more counties have created CHSAs that incorporate the local health department and several other counties are considering doing so.

    In North Carolina, local health departments are required by law to obtain and maintain accreditation. If the local health department becomes part of a CHSA, then the CHSA acquires the duty to obtain and maintain accreditation. How is this so, and what does it mean for counties that create a CHSA incorporating public health?

    Read more »

  • Are Security Videos Public Records?

    Authored by: on Friday, November 16th, 2012

    Local governments, like many other organizations, place cameras in strategic locations to monitor activities that take place on their property or in public places. Security cameras are used for various purposes, including to apprehend and deter criminal behavior by employees or members of the public and to monitor and document employee performance for evaluation, discipline or training purposes.  Public agencies may receive requests to inspect or obtain copies of security video records, which increasingly take the form of digital files rather than tapes.  Applying the framework for responding to public records requests, this blog post focuses on several exceptions that might apply to these types of records. Read more »

  • Who says I can’t rezone my rezoning?

    Authored by: on Wednesday, November 14th, 2012

    Several years ago the Town Council approved The Green as a 400 acre development with phases to include apartments, townhouses, and large single-family homes, as well as modest retail and office fronting the major thoroughfare. After a couple of good years of strong development and sales, the down economy caught up with The Green.  Today the project is half-built.  The apartment phase was sold and leased out; the commercial properties were built, but are mostly empty; a small portion of the single family lots were developed and sold; and none of the townhomes were built. The developer lost the townhome phase to the bank and sold her remaining interest in the single-family phase to Money Investment Group.

    Now, with hopes of an improving economy, Money is ready to resume development of the single-family phase of the property, but they don’t want to develop according to the original plans.  They suspect that the market has changed and that smaller housing products will sell, and, in order to make the numbers work, they need to develop on land that had been set aside as open space.  Can Money rezone the rezoning?  And if so, who has to consent to the change? Read more »

  • A Conditional What? Clarifying Some Confusing Zoning Terminology

    Authored by: on Tuesday, November 13th, 2012

    A contemporary zoning ordinance can be a complicated proposition.  A small town or rural county’s ordinance often runs over 100 pages.  Some of the zoning ordinances in our larger cities approach (and if a few instances pass) 1,000 pages.  All of the details can be confusing even for the staff and board members who work with it every day.  Imagine how it must perplex the landowner, neighbor, or developer who is picking it up for the first time and trying to figure how it applies to a particular project. 

    One common dimension of the confusion with zoning ordinances stems from an unfortunate use of very similar terminology to describe very different things.  In North Carolina land use law the leading example, and our topic for this post, is the use of the terms “conditional use permit,” “conditional use district” zones, and “conditional zoning.”  These three things sound alike, but in the world of zoning they are very different.

    Just what are these three things?  A conditional use permit is an approval issued upon an applicant establishing that standards set out in the zoning ordinance have been met.  A conditional use district rezoning involves two decisions – a rezoning to a district that has only conditional uses (and no permitted uses) plus concurrent consideration of a conditional use permit.  A conditional zoning attaches individual, site-specific conditions to the rezoning and does not involve a separate conditional use permit.  While the chart below summarizes these differences, it is easy to see why confusion arises.

    Conditional use permit Quasi-judicial permit Conditional use district Rezoning plus quasi-judicial permit Conditional zoning Rezoning only, but with conditions

    So let’s look at each of these in a little more detail. Read more »

  • A New Interpretation of the Preaudit Requirement

    Authored by: on Thursday, November 8th, 2012

    UPDATE August 2013: The Court of Appeals reaffirmed this new interpretation in May 2013. Click here for more details.

    In July 2008, the Jones County Department of Social Services (JCDSS) entered into an oral services contract with a medical transportation services company. The contract was for one year. It was renewed annually in July of 2009, 2010, and 2011. JCDSS terminated the contract in November 2011. The company sued for breach of contract. JCDSS subsequently filed motions to dismiss the case, arguing that no valid contract existed. The trial court denied the motions. On appeal, however, the North Carolina Court of Appeals reversed the trial court, holding that there was not a valid contract between JCDSS and the company because the provisions of G.S. 159-28(a), known as the preaudit requirement, were not properly followed. Exec. Med. Transp., Inc. v. Jones Cnty Dep’t. of Soc. Servs, No. COA12-573 (Nov. 6, 2012). Specifically, the court determined that the lack of a preaudit certificate rendered the contract void.

    This certainly is not the first time a court has invalidated an agreement because a local government failed to follow G.S. 159-28(a). As I detailed in a previous post, North Carolina courts have taken a fairly hard line in enforcing the statute, often to the detriment of the entity contracting with the local unit. For this reason, it is commonly referred to as the “vendor or contractor beware” statute. The Executive Medical case is different, however, in that it appears to expand the preaudit certificate requirement. Read more »