The First Amendment and Government Employees

[Update: in 2015, the Michigan Court of Appeals ruled that the First Amendment did not protect Shirvell’s conduct, based on reasoning similar to that discussed below.]

What are the limits of First Amendment protection for government employees?  Consider this somewhat surreal story making recent headlines.

Andrew Shirvell is an assistant attorney general for the state of Michigan.  He is also an anti-gay activist who is appalled that the recently elected student body president of the University of Michigan, Shirvell’s alma mater, is openly gay.  Shirvell complained about the student on a blog created specifically for that purpose.  His many postings included a comment that the student is “Satan’s representative on the Student Assembly” and a picture of the student with a Nazi swastika superimposed on his face.

Once news of Shirvell’s blog and his in-person hounding of the gay student leader on campus became widely known, many people—including the governor of Michigan—called on state attorney general Mike Cox to fire Shirvell.  Cox, on whose campaign Shirvell worked, refused.  Cox stated that although Shirvell has “been acting like a bully and his behavior is immature, his conduct is after-hours and protected by the First Amendment.”

Is he right? Does the First Amendment protect this type of conduct by a government lawyer? Read more »

About Town Administrators

North Carolina cities have a choice of governance structure: the mayor-council form or the council-manager form. According to the School of Government’s Forms of Government database, 300 cities in North Carolina use the mayor-council form, and 67 of them employ a “town administrator” who supervises all departments. What are town administrators and what laws govern what they do? This post discusses town administrators, compares them with managers, and also describes one old, and one new School of Government resource about forms of government in North Carolina. Read more »

If We Can’t Collect a Fee, Can We Just Say No? Use of Impact Fees and Adequate Public Facility Regulatory Requirements

UPDATE September 2013:  The North Carolina supreme court subsequently ruled that counties do not have statutory authority to impose school impact fees. That 2012 case is discussed here.

The population of Partition County has grown dramatically over the past several decades. The county has struggled to keep up with provision of public facilities to serve this growth. While the rate of growth has slowed in the past few years, the schools are still substantially overcrowded in the northern half of the county, where most of the growth has occurred. The schools there have modular temporary classrooms on site and most of these are projected to remain at least another five or six years. The county is in the midst of an expensive ten-year school construction program largely funded by a bond program. The county board has concluded it is not feasible to raise taxes or issue more bonds for school construction in the next few years. Other public facilities, including roads, water, sewer, and emergency services, have also been stretched uncomfortably thin in this part of the county.

A local developer wants to be ready to resume work as the economy recovers. He has submitted a plan to the county for a large new mixed use development in the northern part of the county. In addition to a commercial center and health care facility, he is seeking approval for 1,200 new housing units. County officials are delighted to see early signs of economic recovery, but that is tempered by a very real concern about their ability to provide and pay for additional public facilities that will be needed to serve this new development. Staff analysis indicates the additional school children that would reside in this project cannot be accommodated in the existing school buildings. In fact, when other developments already approved are considered in relation to the existing and budgeted school capacity, staff has concluded it will be at least six years before there will be adequate school capacity to accommodate this development. Does the county have the option of denying or delaying regulatory approval of this project based on inadequate school capacity? Read more »

Funding Solid Waste Services

UPDATE 2013: This blog has been updated to reflect legislative changes made in S.L. 2013-413.

Many local governments across the state provide some form of solid waste services for their citizens. Under the public enterprise statutes, counties and municipalities have largely coextensive authority to provide both collection and disposal services, although counties typically support landfills or other disposal facilities, whereas municipalities usually provide the collection services. But, the all important question, particularly in these tough budget times, is how can, and how should, a local government fund these services? Determining how a unit “should” fund its solid waste services is a complicated issue involving a mix of legal, policy, and strategic considerations that vary across local governments. This blog post outlines the legal authority to finance solid waste services and details some of the factors a unit might consider in selecting an appropriate funding scheme. Read more »

Local Preferences in Public Contracting, Part 2

In my last post, I talked about the efforts of the City Council of Emerald City, North Carolina, to support its local businesses by adopting a local preference policy. We now rejoin our friends in Emerald City, where the City Council has asked Purchasing Officer Scarecrow to research what goals a preference policy might achieve. (This is number four on the list of “questions to consider” that I provided in my last post—but the answer to this question will provide a necessary context for the answers to the remaining questions.)  Scarecrow is now ready to report back to the Council. Read more »

Early Voting in North Carolina

UPDATE November 2013: The 2013 General Assembly amended the early voting statutes to eliminate same-day registration and voting and to shorten the early voting period by one week.

UPDATE February 2017:  In July 2016 the federal Fourth Circuit Court of Appeals issued an injunction against elements of the 2013 legislation, reinstating early voting to the status described in this post.  The matter is before the United States Supreme Court.

You have a choice of how to vote in North Carolina.  You can vote by regular, secret ballot on election day.  Or you can vote before election day by a personally identifiable absentee ballot.  More about that secrecy difference in a moment.

It is commonly thought that absentee ballots are used exclusively by people who cannot get to the polls on election day because of illness, disability, or travel.  Once upon a time that was true, and absentee ballots are indeed still available for people in those circumstances.  They can request the absentee ballots by mail and mark them and return them by mail.

But emphatically it is no longer true that absentee ballots are used exclusively by people who cannot get to the polls on election day.  In fact, in the general election in November 2008, more than a half of all ballots cast were cast through absentee voting—2.6 million out of a total of 4.4 million votes.  How can that be true?  It is because what we routinely call “early voting” in this state is, in reality, absentee voting.

Old fashioned, traditional absentee ballots by mail, now a small minority of all absentee ballots, are available 60 days before most elections.  Generally speaking, they must be mailed back to the county board of elections by election day.  Voters who want to use such traditional absentee ballots must plan in advance in order to obtain their ballots, get them marked, and return them in time.

But early voting is different.  By early voting, a voter, during a period beginning 18 days before an election and ending on the Saturday before the election, may vote at voting places throughout his or her county in a way that feels very much like regular voting but is in fact absentee voting. Read more »

Mobile Homes and Property Taxes

What’s the only type of property that can change from real property to personal property and back again in the blink of an eye? The answer is mobile homes, the species of property that produces more headaches per tax dollar than any other. 

Actually, the more specific answer is manufactured homes, which are a subset of mobile homes.  All manufactured homes are mobile homes but not all mobile homes are manufactured homes.  Some but not all manufactured homes are real property, a distinction that used to depend on whether the home was a single-wide or a double-wide.  That distinction is no longer relevant to the real/personal property classification, but lots of folks think it still is.  Some single-wides and double-wides that are not real property can transform into real property through the stroke of a pen.   Regardless of whether they are real or personal property, all mobile homes, which means all manufactured homes, are subject to moving permit requirements that may require payment of taxes on property that the current owner of the mobile home never owned.

Now you see where the headaches come from. Read more »