Outsourcing Local Government Communications: Implications of the Federal Stored Communications Act

In August 2011, the City of HighTech contracted with an external SaaS (software as a service) provider to host its e-mail system. The basic parameters of the contract require the SaaS provider to furnish e-mail service to all city employees and officials. City employees and officials access the e-mail system through a web-based portal from any computer or device with an internet connection. Each user may manage her e-mails by keeping them in her inbox or moving them to one or more file folders set up in the e-mail system. There is no option to download the e-mails to a user’s computing device or to the city’s IT system. However, a user may copy and paste the substance of the e-mails into word processing files and save them to her hard-drive or the city’s IT system.

According to the provisions of the contract, the SaaS provider will store any unopened e-mails and opened e-mails that are not deleted by the user indefinitely on its active system. If a user deletes an e-mail, it is retrievable for a period of 30 days, after which it is permanently deleted from the SaaS provider’s system. The SaaS provider does not maintain a back-up or “archive” copy of any of the e-mails.

The city manager has instructed all employees and officials to “store” any e-mails that contain substantive information that must be retained according to the state’s public records law in appropriate file folders (labeled according to subject matter) in the e-mail system. None of these records are available on the city’s IT system.

The city manager recently received a public records request for copies of all e-mails sent or received by Emme Bezzler, a former city clerk, during the six month period from September 1, 2011 through March 1, 2011. Emme was fired by the city for cause on March 1, 2011. She since has fled the state in fear of criminal prosecution.

Before her termination, the city failed to verify whether or not Emme retained any records in her e-mail folders that might be subject to public access and/or subject to retention requirements under the State’s public records law. (Emme did not save the content of any of the e-mails as word processing files on the city’s IT system.) The only way to determine if records exist that are responsive to the public records request is to access Emme’s e-mail account. Unfortunately, the city failed to obtain Emme’s password for her city e-mail account before she skipped town. Instead, the city requests that the SaaS provider give the city access to Emme’s stored e-mails or provide the city with a copy of the e-mails. The SaaS provider refuses, claiming that federal law prohibits it from disclosing the contents of the e-mails in Emme’s account to the city, even though the city is the subscriber to the e-mail service.

The SaaS provider may be correct. The federal law at issue is the Stored Communications Act (SCA) and it restricts access to certain electronically stored information by third-party providers, even in the circumstances described above. Read more »

A Road Trip, a Parking Lot Conversation, and a Site Visit: Are These Illegal Meetings?

A North Carolina county board of elections, which has three members, is scheduled to meet with representatives of the State Board of Elections in Raleigh. May they legally travel together in one car to the meeting? Three members of a five-member town council are seen conversing in the parking lot after a board meeting. Are they violating the open meetings law? In connection with a pending economic development project, board members are invited to visit the site of an existing facility. If a majority of the board visits the site at the same time, have they violated the law? These are just a few examples of situations in which members of public boards or committees may find themselves in the same place at the same time. When does a gathering like that trigger the notice and access requirements under the open meetings law? Read more »

Boards of Social Services and Fraud Investigations

County Departments of Social Services are responsible for administering public assistance programs, such as Medicaid, the Low Income Energy Assistance Program, and the Supplemental Nutrition Assistance Program (SNAP or the “Program-Formerly-Known-As-Food-Stamps”). Department directors and staff members play an active role in monitoring these programs for potential client fraud and cooperating with law enforcement officials as appropriate. As some departments are in the process of revising their fraud policies, they have asked what the role of the governing board – the appointed board of social services – must be in these fraud investigations. The short answer is: it depends…

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Land Use Regulation of Internet Sweepstakes Cafes

Regulating video gaming and gambling of one sort or another has vexed state and local governments in North Carolina for the better part of two decades. A recent court opinion held the current version of the state’s ban on internet sweepstakes to be unconstitutional, violating First Amendment rights to free speech. A second case held that local governments may impose privilege license taxes on these businesses. But what about local land use regulation of these businesses? Can a small town zone them out? Can a city or county impose minimum separations between the businesses or between the business and other sensitive land uses? Read more »

Zoning Ordinance Amendments and Plan Consistency Statements

The city council is about to take action on a proposed rezoning of property. The rezoning will enable undeveloped land to be used for an office and retail business park. Suppose that the council has before it a planning staff analysis of the proposed rezoning that has been adopted by the planning board, recommending adoption. The analysis concludes that the expected impacts of permissible development under the proposed rezoning on safety, traffic, parking, the environment, and public facilities appear to be compatible with the development and zoning of the surrounding area. Furthermore, the analysis concludes that the rezoning is consistent with the long-range goals of the local unit as set forth in its 2015 community comprehensive plan and is reasonable in light of the community’s ability to serve expected development with public facilities and services. After reviewing this analysis and the usual public hearing comments, the council adopts the rezoning. Is there anything wrong with this scenario? Read more »

Property Taxes and Registers of Deeds

It’s pop quiz time!  Is the following statement true or false?

No one can buy real property in North Carolina without first paying all of the property taxes owed on the property.

Answer: False. Well, not entirely false.  But not entirely true, either.

Here’s why: G.S. 161-31 permits a county to prohibit its register of deeds from accepting for registration deeds that transfer ownership in real property unless the county tax collector certifies that there are no delinquent property tax liens on the property being transferred.  

But this provision covers only some counties and some property taxes.  And real estate attorneys can avoid the restriction by promising to pay the delinquent taxes at closing.  (I know you’ll be shocked to hear that sometimes attorneys do not make good on those promises.) Read more »

Governmental Employees and Religious Email Sign-offs

Here is a question that came to me from a North Carolina public employer not too long ago.  An employee regularly includes “Put Your Faith in the Lord” as part of his closing on emails, whether the emails are to fellow employees, friends, or citizens.  Should the unit of government direct the employee to stop the practice?  May it direct the employee to stop?

When a public employer restricts an employee’s expression of religious sentiments, there are many legal considerations at play.  The complexity of the analysis stumps the courts. Read more »