House Bill 2, Local Government Employers, and Bathrooms

After HB 2, may a North Carolina city adopt a personnel policy providing that it will not discriminate against applicants or employees on account sexual orientation, gender identity, or gender expression?

If it already has such policy in place, may it continue to apply it?

Suppose the city has an employee whose gender identity is female but whose sex assigned at birth was male.  Suppose further that that employee has been using the women’s bathroom facilities provided by the city for its employees.  May the city permit that employee to continue to use the women’s bathrooms?

Is there anything that a North Carolina city or county (or other unit of local government) must do in its capacity as an employer to comply with HB 2? Read more »

Property Tax Payment Plans

A payment plan is a voluntary agreement between a taxpayer and a local government under which the local government promises not to pursue enforced collections against the taxpayer for delinquent taxes so long as the taxpayer pays a certain amount each month toward those taxes.  Local governments have no obligation to offer payment plans to taxpayers.  In fact, you won’t find any mention of payment plans in the Machinery Act, that portion of the General Statutes that govern local property taxes. This lack of statutory guidance makes payment plans completely discretionary and very flexible.

Wait, you say.  If the Machinery Act doesn’t mention payment plans, what authorizes local governments to offer them?  Lack of specific authorization for a local government action is usually a valid concern, but in this case I think we are fine because implied authority exists for payment plans.

Nothing in the Machinery Act requires local governments to take any enforcement actions at any specific time.  Instead, the Machinery Act simply puts a starting date (the date of delinquency, usually January 6 of the fiscal year in which the taxes were levied) and an ending date (10 years from the original due date) for the initiation of enforced collections.  Within those restrictions, a local government is free to determine if and when it will begin enforced collections.  It can also choose to hold off on all collection efforts if the taxpayer agrees to certain terms, such as the payment of a specific dollar amount each month.

Here are my thoughts on other common questions about payment plans: Read more »

The General Assembly Preempts Local Antidiscrimination Measures

UPDATE 4: On 30 March 2017, the Governor signed legislation repealing HB2.  Some of the implications of the repeal are examined in blog posts available here and here.

UPDATE 3: On 26 August 2016, the federal district court judge who is hearing a legal challenge to HB2 brought by the ACLU and three transgender plaintiffs issued a preliminary injunction that temporarily bars the UNC system from requiring the transgender plaintiffs to comply with HB2’s bathroom provisions. Whether the injunction becomes permanent will depend on the outcome of the litigation, including any appeals. The order does not prevent the implementation of HB2’s bathroom and preemption provisions applicable to cities and counties. For the potential impact of the order on public school districts, see my colleague Bob Joyce’s blog post available here.

UPDATE 2: On 3 August 2016, the U.S. Supreme Court entered an order staying the implementation of ruling by the U.S. Court of Appeals for the Fourth Circuit in G.G. v. Gloucester County School Board until the Supreme Court decides whether to hear the case.    

UPDATE 1:  On 19 May 2016, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in a Virginia case involving bathroom restrictions similar to those imposed by HB2 on North Carolina’s public universities and school districts.  In G.G. v. Gloucester County School Board, a transgender student alleged that the defendant school board had violated Title IX regulations by refusing to allow the student – who was classified as a female at birth but who identifies as a male – to use boys’ bathrooms in the student’s high school.  (Title IX and its accompanying regulations prohibit sex-based discrimination in education programs that receive federal financial assistance.)  Although a federal district court ruled that the board’s actions did not violate Title IX, a divided Fourth Circuit Court of Appeals reversed.  Because the Fourth Circuit encompasses North Carolina, federal district courts located within the state are bound by the appellate court’s opinion in G.G., including the court that will be hearing the American Civil Liberties Union’s lawsuit challenging HB2.

The City of Charlotte makes compliance with nondiscrimination provisions in its Code of Ordinances a condition of doing business with the city. Contractors have to agree not to discriminate based on race, gender, religion, national origin, ethnicity, age, or disability in their employment actions.  Sec. 2-166.  The city likewise prohibits discrimination based on race, color, religion, or national origin in places of public accommodation, which are defined to include businesses as well as refreshment, entertainment, recreational, and transportation facilities that offer goods, services, facilities, privileges, or accommodations to the public.  Sec. 12-58.

On 22 February 2016, the Charlotte City Council voted seven-to-four to amend the antidiscrimination provisions in its code to encompass discrimination based on sexual orientation, gender identity, or gender expression. Much of the public debate that preceded the council’s adoption of the amendments centered on the perception that they would force businesses and other private entities to allow transgender individuals to use public bathrooms corresponding to their gender identities.  (Interestingly, the amendments did not expressly mandate that public restrooms be made available based on gender identity, though they did eliminate language that had exempted restrooms, shower rooms, and similar facilities from the city’s prohibitions on sex discrimination.)  One of the points made by supporters of the amendments was that transgender individuals, especially men who identify as women, do not always feel safe using bathrooms reserved for persons of the same biological sex.  Opponents countered that the amendments would put women and girls at risk by allowing men into women’s bathrooms.  The amendments had an effective date of 1 April 2016.

Although not scheduled to return to Raleigh until 25 April 2016, the General Assembly held a special legislative session on 23 March 2016 in response to the council’s action. The result was Session Law 2016-3 (House Bill 2), which – among other things – mandates that state agencies and local governments, including school districts, designate their multiple occupancy bathrooms and changing rooms for use by persons of the same biological sex. The legislation also (1) preempts local government measures that prohibit discrimination in private employment or in places of public accommodation and (2) prevents local governments from imposing their own minimum wage requirements on private employers, even employers who do business or seek to do business with them.  These and other provisions in S.L. 2016-3 are considered in more detail below. Read more »

Beyond Bathrooms – Special Session Legislation Impacts City and County Contracts

UPDATE March 2017:  See this post for a discussion of the impact of HB2’s repeal on city and county contracting authority.

UPDATED April 2016:  See Trey Allen’s blog post update for information on a recent 4th Circuit ruling that has bearing on HB2 (Title IX discrimination claim involving a transgender student’s use of bathrooms in a Virginia public school).

During its special session held yesterday (March 23rd), the General Assembly enacted the Public Facilities Privacy & Security Act (S.L. 2016-3 / HB2).  The recent media attention leading up to the special session focused on the effect of the City of Charlotte’s non-discrimination ordinance on public restrooms.  While the bill did address this issue, it also modified state laws governing wage and hour requirements and anti-discrimination in employment and access to public accommodations.  In addition, state law now specifically preempts city and county ordinances relating to these issues.  Perhaps not as newsworthy but nonetheless important to local governments, the legislation also places new limits on the contracting authority of cities and counties.  My colleague, Trey Allen, has authored a blog post on the broader implications of this legislation; this post focuses specifically on the changes to local government contracting.  Yesterday’s legislation was signed by Governor McCrory last night.  It went into effect immediately, so it is now the law. Read more »

How to Calculate Discovery Bills

When property that should be taxed isn’t, a local government has two options.  If the property was not taxed due to a listing error, then the local government must use the discovery process in GS 105-312.  All other taxing errors must be resolved using retroactive bills issued under GS 105-394, the “immaterial irregularity” provision.

I described the retroactive billing process in my last post.  Today I describe the discovery billing process. For the full details about both approaches, see this bulletin. Read more »

State and Local Government Financial Data Transparency Law

A provision in the state budget, Section 7.17 of S.L. 2015-241, set new transparency requirements related to certain financial data of state agencies, counties, municipalities, and local school administrative units. The law mandates full compliance by April 1, 2016. But what does it actually require?

This post summarizes the new provisions and discusses what, if anything, local governments and local school administrative units must do by April 1. Read more »

Follow Procedures Prior to Acquiring Property for Redevelopment

The Town of Renewville has ambitious redevelopment plans for several key—but tired and/or underdeveloped—properties along its Main Street. As we know from a prior post examining the limited situations in which a local government may discuss property acquisition in closed session, the Renewville town council intends to kick-start the redevelopment process by acquiring several of those key properties directly. After acquiring the properties, the council intends to engage development finance experts to conduct predevelopment analysis, and then it will sell the property to a private developer through a Request for Proposals (RFP) process, similar to the process completed by other North Carolina communities as described here and here.

However, a threshold determination must first be made. Is it necessary for the town to comply with any procedural requirements prior to acquiring the property? After all, local governments typically don’t comply with any particular procedural requirements when they acquire property. In this case, however, the answer is “yes”—certain procedures must be followed if the town wishes to convey the property to private developers selected through its RFP process. The answer is the same for a county, too. This post explains why it is advisable to issue notice and hold a public hearing prior to acquiring property for redevelopment and discusses risk mitigation for local governments that fail to do so. Read more »