Recent Blog Posts

  • The Mysteries of Comp Time Revealed

    Authored by: on Friday, February 22nd, 2013

    The Fair Labor Standards Act (FLSA) requires all employers to pay employees time-and-one-half their regular rate of pay for all hours over 40 that employees work in a given week, unless an employee satisfies the FLSA’s salary basis test and one of either the executive, administrative or professional duties tests. Employees who meet the requirements of these tests are called “exempt employees” (that is, exempt from the FLSA’s overtime requirements) and need not be paid overtime if they work in excess of 40 hours in a week (for how to determine whether an employee is exempt or nonexempt under the FLSA, see my article here).

    The FLSA (at section 207(o)) allows government employers an alternative way to compensate nonexempt employees for hours worked in excess of 40 that it does not allow private-sector employers: use of compensatory time-off or, as it is more commonly known, comp time. Comp time allows public employers to provide paid time-off in lieu of the cash overtime. When a government employer uses compensatory paid time-off instead of cash overtime, the time-off must be credited at the rate of one and one-half hours of compensatory time for each hour of overtime work — just as the cash rate for overtime is calculated at the rate of one and one-half times the regular rate of pay. It is a violation of the Fair Labor Standards Act for an employer to compensate a nonexempt employee for overtime hours with hour-for-hour comp time. See here for the U.S. Department of Labor’s comp time regulation.

    This post addresses common issues related to the use of comp time by government employers. Read more »

  • How Much Repair is Too Much Repair?

    Authored by: on Thursday, February 21st, 2013

    Hershel Greene runs a small animal hospital out on the edge of town. When the business first opened thirty years ago, he had a large billboard advertising the business installed out by the road.  Herschel had been heavily involved with other pressing matters recently and the sign has fallen into considerable disrepair.  Hershel had the local sign company come out to give him an estimate on fixing up the sign.  They suggested that given the poor condition of the sign structure, he should consider scrapping it and replacing it with a modern sign.  When Hershel called the city to ask about getting permits for a new sign, he was told that the city sign regulations that were adopted ten years ago no longer allow this type of billboard.  The city staff then told him this was a “nonconforming” sign and that while he could fix it up some, replacement would not be allowed.

     Can the city allow repairs but prohibit replacement of this sign? Read more »

  • New SOG Publication on HUB Participation Requirements . . . And Other SOG Purchasing and Contracting Resources

    Authored by: on Wednesday, February 20th, 2013

    Which of the following statements is true?

  • A local government can reject a construction bid if the bidder does not list enough HUB subcontractors to meet the local government’s HUB participation goals.
  • If a bidder forgets to identify on his bid the HUB subcontractors he plans to use on a project, he can submit this information within 72 hours after the bid opening.
  • Because HUB participation goals under North Carolina law are merely aspirational and not mandated quotas, the courts don’t review these programs strictly.
  • HUB participation requirements apply to all local government construction and repair projects.
  • To learn the answers to these and other questions about Historically Underutilized Business [HUB] participation requirements that apply to North Carolina local governments, check out a new SOG local government law bulletin (click here for a free downloadable pdf version).

    Read more »

  • Smoking Law Update: N.C. Court of Appeals Clarifies the Private Club Exemption

    Authored by: on Wednesday, February 20th, 2013

    Smoking has been prohibited in most North Carolina restaurants and bars for three years now, since January 2010. The legislation that imposed the smoking ban (S.L. 2009-27) included an exemption for non-profit private clubs—an exemption that began provoking questions before the law even went into effect. In recent months, the North Carolina Court of Appeals has answered two key questions:

    • Does the law’s distinction between nonprofit and for-profit private clubs deny equal protection of the law to the owners of for-profit private clubs?
    • Must a country club be nonprofit to qualify for the private club exemption?

    The Court of Appeals’ answers to these questions are no and yes, respectively. In Liebes v. Guilford County Department of Public Health,[1] the Court of Appeals held that there is a rational basis for the legislature’s decision to treat for-profit and nonprofit private clubs differently, and that the distinction therefore does not violate a for-profit club owner’s right to equal protection. In Edwards v. Morrow,[2] the court concluded that the law requires country clubs as well as other types of private clubs to be nonprofit in order to qualify for the exemption. The North Carolina Supreme Court denied review in both cases. Read more »

  • When Does An Appraisal Error Justify a Refund?

    Authored by: on Thursday, February 14th, 2013

    Which of these appraisal errors justifies a property tax refund?

    1.  Taxpayer is taxed for property that did not have a taxable situs in the jurisdiction.

    2.  Taxpayer is taxed for a house that burned the prior December.

    3.  Taxpayer has vacant land but is taxed for the land plus a house.

    4.  Taxpayer has an unfinished attic but was taxed for a finished attic.  Finish was never verified by appraiser.

    5.  Taxpayer has a 1,500 square-foot house but the assessor appraised it at 1,750 square feet based on the size of similar houses in the same neighborhood. 

    Most property tax professionals would agree that a refund is justified in situations 1, 2 and 3.  So do I.  But situations 4 and 5 are tougher nuts to crack.  Read more »

  • Local Governments Now Allowed to Charge Fees for Accepting Credit and Charge Card Payments

    Authored by: on Friday, February 8th, 2013

    In a previous post, I detailed how the major credit card companies (Visa and MasterCard) effectively prohibited a local government or public authority from assessing a surcharge on customers who remitted payment of fees, assessments, and sometimes even taxes, by credit card, charge card, or debit card. According to contractual agreements with the credit card issuers, merchants were allowed to charge a “convenience fee” to customers who paid by credit or charge card on the Internet or through an automated phone system. Such fees were prohibited in face-to-face transactions, though. (Although Visa also allowed a government to assess a “service fee” on certain face-to-face tax payments, with some restrictions.)

    That all changed on January 27, 2013. A court-sanctioned settlement between retailers, several major banks, and Visa and MasterCard, arising out of a class action anti-trust lawsuit—In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation (1:05-md-01720-JF-JO)—now authorizes merchants (including government entities) who accept credit and charge card payments to impose a “checkout fee” on all credit and charge card transactions. Read more »

  • Criticizing Public Employees in Public

    Authored by: on Wednesday, February 6th, 2013

    An incident involving the police department has riled up the citizens. The manager and the police chief are coming under heavy criticism. Several people have signed up to speak at the regular public comment period at the next council meeting and have indicated that they will speak about “the need for the firing of the police chief.” The clerk is concerned: Since it’s clear that personnel issues will be discussed, she  wonders whether the board has an obligation to hear the complaints in closed session. Or perhaps the clerk should require that the speakers submit their complaints in writing, instead of airing them in public, so that they can be maintained as confidential personnel records. Could these comments run afoul of the board’s policy against “personal attacks” during public comment periods?

    Here’s what the clerk needs to know: People have a right to complain about public employees publicly. The city has neither the obligation nor the right to require that such comments be made confidentially.  The city may be able to prohibit personal attacks, which have less First Amendment protection than substantive comments about specific concerns or issues. Of course, it’s not always easy to tell the difference between protected speech and personal attacks, especially in the heat of the moment.

    Read more »