When is a Close Relationship with Your Client Too Close?

With new county commissioners, school board members, and  municipal councilpersons being sworn in after last month’s local elections, the face and voice of the client has changed for more than one local government attorney.  What happens when one of those faces and voices is related to the attorney?  Is it okay if the town attorney’s daughter was just elected mayor? What if the county attorney’s brother-in-law is appointed county manager? Read more »

North Carolina Court of Appeals Strikes Down School Board’s Random Drug-Testing Program

The Fourth Amendment to the United States Constitution provides, in part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated.” In the context of public employment, this constitutional protection against unreasonable searches comes regularly in the context of drug testing.  It has become common practice for private and governmental employers to test applicants and current employees for drug use, usually by collecting and analyzing urine samples. Read more »

Local Smoking Regulation: Should You Adopt a Health Rule or an Ordinance?

The new smoking law, S.L. 2009-27, not only prohibits smoking in most bars and restaurants across the state but it also significantly expands local governments’ authority to regulate smoking. Beginning January  2, 2010, local governments may

adopt and enforce ordinances, board of health rules, and policies restricting or prohibiting smoking that are more restrictive than State law and that apply in local government buildings, on local government grounds, in local vehicles, or in public places. (S.L. 2009-27, amending G.S. 130A-498(a))

Several local governments are already in the process of developing local laws to take advantage of this new authority. For example, I have heard from jurisdictions considering prohibitions on smoking in enclosed public places, such as malls and bowling alleys, and also in outdoor areas owned by the local government, such as parks. Under this new law, the two main options for adopting enforceable, local laws are ordinances or board of health rules. Which of these two types of laws makes more sense? The answer may vary by jurisdiction.  In choosing an option, consider these important differences between the two tools. Read more »

Binding Future Boards

In my last blog I said I would address the question of whether, after members-elect take office, the new board can undo things the “lame duck” board has done. This discussion includes the concept of “binding future boards,” although in many cases the legal issue is really about whether a particular commitment is valid, even as the to the board that made it. This post describes several specific kinds of actions and discusses whether they are valid when taken, and whether they bind, or can be undone by, a future board. Read more »

Wouldn’t It Be Nice? Agreements on Large-Scale Development

Note: In 2015 the General Assembly amended the development agreement statute discussed below to remove the requirement for a minimum acreage and the limit on the maximum term of an agreement.  The agreement can not be for a project of any size and for a length deemed reasonable by the parties. S.L. 2015-246, Section 19.

Wouldn’t it be nice if local governments, developers, and neighbors could sit together, talk through controversial large development proposals, and work to reach consensus about what would be a good project for all concerned? Wouldn’t it be nice if at least some of this process could be informal, not requiring witnesses under oath and subject to cross-examination, with no strict limits on individual conversations along the way? And wouldn’t it be nice, should that lead to consensus, that an effective tool would be available to implement that agreement, something everyone could rely on over time? It would be nice and the tool does now exist in North Carolina. Read more »

Mandates in animal control: What MUST local governments do?

I am often asked, what animal control services MUST local governments provide?  The question may come from local officials who are in the process of evaluating their options.  Perhaps money is tight and they are considering dropping some animal control services, consolidating services with another jurisdiction or otherwise streamlining animal-related functions.  Or the question may come from the media or members of the public, often because they are frustrated that local officials are not responding to an animal-related issue. For example, an article on urban coyotes in Sunday’s Charlotte Observer (11/22/2009) explained that despite the growing coyote population and the public’s expressed concerns, “county animal control doesn’t respond to coyote calls, referring residents to state officials and private contractors who trap wildlife for a fee.” So, what is the answer?

The short answer is very few. State law authorizes local governments to provide quite a few animal control services but requires only a handful of services. Read more »

Competing, Making a Profit

UPDATE August 2013: For additional limitations regarding the provision of cable and broadband services by municipalities, click here.

I have recently received several phone calls asking me about the statute that prohibits local governments from making a profit on operations or about the one that prohibits them from competing with the private sector.  There actually are no such statutes of general application, although there are a few specific statutes with that effect and a couple of cases that are relevant. Read more »