New Legislation Addresses ABC Issues

In most legislative sessions the alcoholic beverage control laws do not get much attention. Yes, there are the usual local acts disguised as statewide bills so they can expand ABC permits to more areas ― like the act allowing permits for a private development in any county with more than 52,000 people that “borders on the Atlantic Ocean and has a seaport supporting oceangoing vessels” and has a tourism economy “made up of more than 3,000 tourism-related jobs.” And, yes, typically there are bills that tinker with the regulatory balance among breweries, wineries, wholesalers and retailers. But it is only every so often that major revisions to the ABC law come along. The 2010 session was one of those years. Read more »

All For One and One For All: Competitive Bidding Group Purchasing Programs

Have you heard of U.S. Communities?  What about National IPA?  Or HGAC?  WSCA?  TCPN?  NJPA? This alphabet soup of organizations (and others like them) can provide North Carolina local governments with purchasing flexibility and efficiency through an exception to the bidding statutes for “competitive bidding group purchasing programs.”  This exception, found in G.S. 143-129(e)(3), was added to the formal bidding statute in 2001, but many local governments are still unaware of it.  So how does it work? Read more »

No Legislative Surprises in Community and Economic Development as General Assembly Adjourns

Following the 2010 session of the North Carolina General Assembly, local governments will see an essentially unchanged statutory landscape for community and economic development. Some of the highlights are discussed below. Read more »

How Risky Are Dual Legal Roles?

Which of these three scenarios are violations of both the N.C. Rules of Professional Conduct and constitutional due process requirements?

1.  Attorneys Smith and Williams are both partners in ABC Firm, which has over 50 attorneys.  Smith is retained by the Carolina County school superintendent to help investigate alleged misconduct by Principal Pat.  At Pat’s hearing before the Board of Education, Smith helps present the case against Pat while Jones advises the board.

 2.  Wolfpack City employs two in-house attorneys, Thompson and Lowe.   Thompson routinely provides advice to the zoning administrator, including advice regarding Taxpayer Terry’s special use permit application.  When Terry appeals the denial of that application to the Wolfpack Zoning Board of Appeals, Thompson assists the zoning administrator while Lowe serves as legal advisor to the board.

 3.  Blue Devil County employs private attorney Brand as its part-time county attorney.  Brand works with the county manager to investigate allegations of misconduct by the tax assessor.  When the manager recommends to the board that the assessor be removed from office, at the subsequent required public hearing Brand advises the board on the legal issues involved.

 Would it surprise you to learn that the answer is probably “none of the above”?  Although all three scenarios create risks and are best avoided, none is a per se violation of the ethics rules or due process requirements. Read more »

Personnel Privacy Law Changes

UPDATE August 2013: A summary of the Attorney General’s opinion about these legislative changes can be found here.

The final hours of the 2010 legislative session produced agreement on changes to the personnel privacy statutes for most public agencies. Prompted by calls for more information about the salary and performance histories of public employees, the changes expand the list of information that must be made available to the public. These provisions were part of the ethics bill, S.L. 2010 – 169 (sec. 18).  This law also includes a new requirement for mediation of public records request disputes, and modifies the statute governing when attorneys’ fees may be assessed in lawsuits seeking access to public records. This blog post summarizes the personnel information changes, and this post goes over the new mediation and attorneys’ fees provisions. Read more »

Understanding the Limitations of North Carolina’s Whistleblower Protection Act

Fred is an accounts payable clerk for a North Carolina city.  He learns that some of his fellow employees, including his supervisor, are cheating the city and the taxpayers.  Fred brings this matter to the attention of the city manager.  The manager, rather than congratulating Fred, fires him.  Better to get rid of this one troublesome at-will employee than upset the entire city workforce.  Fred has a good lawsuit against the city, doesn’t he?  Does he? Read more »

Good Faith Efforts? Prove It!

Your local government has just received single-prime bids on the construction of a new civic center.  After evaluating the bids you’ve received, you determine that Crafty Contractor Construction Company (“Crafty”) is the apparent lowest responsive, responsible bidder.  Crafty identified four historically underutilized businesses (HUBs, that is, minority and women-owned businesses) that it will use on the project, and states that the HUBs will perform $250,000 worth of their $1 million bid.  (Your HUB participation goal for the project is 10%.) Crafty also submits an affidavit of good faith efforts made, but it shows that they did not make any good faith efforts.

You notify Crafty that they are the apparent lowest responsive, responsible bidder, and ask them to submit “the documentation required under G.S. 143-128.2(c).” Crafty submits documentation of good faith efforts to meet the participation goal (efforts not listed in their bid), but does not submit an affidavit showing what percentage of the work will be performed by the four HUBs.  You ask them for the affidavit, and they tell you they’ve provided the documentation required under G.S. 143-128.2(c), and they don’t need to provide you with an affidavit.  Is Crafty correct?  And do you have to award the contract to them? Read more »