A Reasonable Search of Employee Records: City of Ontario v. Quon

In this post about access to emails, I described three categories of public employee emails: 1)emails that are public records and subject to public access; 2) emails that are public records but an exception either prohibits disclosure or eliminates the right of public access; and 3) emails that are private (do not relate to the transaction of public business), and therefore are not subject to public access at all. I noted that private emails created on a public agency’s email system may be subject to inspection by the public agency, depending upon the agency’s policies. The U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure limits the government’s ability to view communications of its employee. A recent U.S. Supreme Court decision, City of Ontario, California, et al., v. Quon, et al., held that the city’s search of its employee’s text messages did not violate the employee’s constitutional rights because it was motivated by a legitimate work-related purpose and was reasonable in scope. The case didn’t really create new law, and the Court decided not to establish any broad rules about what reasonable expectations of privacy public employees have in their electronic communications. The Court did address two important questions: 1) what should a court consider in determining whether an employee has a reasonable expectation of privacy in private on-the-job communications; and 2) when can the governmental employer review those communications even if a reasonable expectation of privacy exists. Read more »

Yer Cheat’n Heart, Tattoos, the First Amendment, and Preemption

“Where do you go in this town to get a tat, to find someone who can sling some ink? I wanna find somebody like they have on L.A. Ink that can do some real work on me. You know, a real artist. Might try one with my woman Marlene sitting on a fire-breathing dragon. Maybe in the ditch of my elbows. . . . . Whaddya mean there is no tattooing allowed around here? Well, that sure sucks. Isn’t this supposed to be a free country? That’s the kind of thing that violates my rights.”

Well now, the federal 9th Circuit Court of Appeals may agree with you about one thing: a municipal ban on tattoo parlors can be an unconstitutional limitation of your rights and, by the way, also of the rights of the tattoo artist that you hope to find. Read more »

Utility Bill Postcards

Your governing board recently instructed you to look at any and all means to cut costs. In reviewing ways to streamline administrative expenses you discover that the unit can reduce its utility fee collection costs significantly by printing and mailing its water bills in postcard form. Excited to have an action item to report back to the board, you immediately implement the new billing practice. Printed on the front of each postcard is the customer’s name and address, account number (unique number randomly created and assigned to the customer by the local unit), current applicable utility rate, monthly usage, and total amount due. Also printed on the card is a graph of the past twelve month’s water usage at the listed address. Finally, the card instructs the customer where to send payment, and lists the penalty provisions for non-payment.

Shortly after the unit distributes the first series of postcard bills, you receive a call from an irate customer. He is extremely unhappy that his utility billing information was exposed to the public. He further claims that the local unit has violated state and federal law, and he threatens to sue if you do not suspend the new billing practice immediately. Is the customer correct—does state or federal law prohibit a unit from sending utility bills in postcard form? Read more »

Local Preferences in Public Contracting, Part 1

Hard times have come to Emerald City, North Carolina.  People are out of work, no one is buying or building anything, and it doesn’t look like things will get better anytime soon.  The Emerald City Council has decided that they need to take action to help out their local businesses, so they decide to pass a local preference policy.  Is such a policy legal?

My next few blog posts will focus on local preferences in contracting—that is, when can a North Carolina local government give a preference to a contractor or vendor based on whether the contractor or vendor is “local” or based on whether the contractor or vendor will promise to hire local employees?  Although the U.S. Constitution and the North Carolina General Statutes place substantial restrictions on how and when local governments in North Carolina may institute local preferences, carefully worded preferences are permissible in a few limited contexts. This first post will set out some definitions and key questions.  In later posts, I’ll discuss the answers to those questions. Read more »

Waiting for Interpretations of the New Personnel Privacy Provisions: What Options Do Local Governments Have?

On October 1, 2010, a North Carolina city receives a request under G.S. 160A-168(b)(11) for a copy of the written notice of the final dismissal of former police chief Chris Jones, setting forth the specific acts or omissions that were the basis of the dismissal.  (This is information that will be “a matter of public record” as a result of changes in the personnel privacy statutes, summarized in a previous post.)  The city is unsure about what, if anything, must be provided in response to the request. There is no record that precisely fits the description of what is public under the statute. The city dismissed chief Jones 10 years ago. Jones was an “at will” employee, and there was no hearing or other formal process for the dismissal. Jones’ personnel file contains a memorandum from the manager laying out concerns with the chief’s performance, which was sent three months before the dismissal. The file also contains a letter of dismissal, which does not set out any specifics. Although the memorandum and the dismissal letter are documents that contain information about reasons for dismissal, perhaps the city’s only obligation is to provide a copy of a record as described in the statute if that exact type of record exists. Release of the other records might be an unlawful disclosure of confidential information. The city may also be concerned about whether the release of the reasons for dismissal might trigger the right to a “name clearing hearing” under the constitutionally protected liberty interest. On the other hand, failure to disclose the information could create liability for attorneys’ fees if the person requesting the records substantially prevails in lawsuit to compel disclosure.

Where can the city go for an interpretation – the courts? the state Attorney General? And how much time does the city have to obtain guidance before the person requesting the records can claim that the city has unlawfully refused the request? Read more »

How Much is Too Much for That Application Fee?

In her regular budget update for the town council, Mayor Juanita Beasley advised the council that the budget cuts implemented for the 2010-11 fiscal year appeared to be adequate. She cautioned, however, that while the economy seemed to be stabilizing, the town’s budget outlook for 2011-12 was still bleak. After some grim discussion about just how bleak it was, Council member Eddie Haskell suggested that the town revisit its fee schedule. “We have cut our expenses to the bone, but we still have a big gap looming. I don’t think we can realistically consider a tax increase,” he said. “I think we have to consider some fee increases to make up the gap we’re facing. How about significantly bumping up our zoning fees? They haven’t changed in the ten years I’ve been on council. With the economy turning around next year, why can’t we get all these out-of-town developers to pay a little more? Seems to me they ought to be able to afford a $1,000 fee for a rezoning application instead of the $50 we now charge. Better them than our suffering town folk.”

 How far can the town go in this direction suggested by Haskell? What limits are there on using development fees to make up for the town’s budget shortfall?  Read more »

A powerful (and often overlooked) collection remedy

Few things can get the attention of a business owner as effectively as can the sight of that business’ inventory being loaded into a truck by a deputy sheriff to pay off outstanding taxes.  Most local government officials know that the levy, seizure and sale remedy is available for delinquent property taxes.  But can this remedy be used for occupancy taxes? Privilege license taxes? Demolition liens? Read more »