Custodians of Public Records

The North Carolina Court of Appeals has ruled that a lawsuit seeking access to public records should be dismissed if it fails to name a proper custodian (as defined in state law) as the defendant in the complaint. The case (Cline v. Hoke) involved a request for emails that the plaintiff alleged to be in the physical custody of an employee in the Administrative Office of the Courts (AOC). The plaintiff sued the assistant director of the AOC. The state, on behalf of the defendant, argued that the lawsuit should have been brought against the employee who was alleged to have the emails. The court said they were both wrong. It held that the proper party is the director of the AOC as the official custodian, defined in the public records law as the public official who is in charge of the AOC’s public records. The case also holds that 1) a person who has physical custody is not necessarily the custodian of the record for purposes of the public records law, and 2) an individual employee’s responsibility to manage and retain records is distinct from the obligation to provide access.

Certainly, a legal custodian is an appropriate party for a lawsuit seeking access to records. But other public officials and employees have legal responsibilities in providing access to records, and may be liable for violating the public records law. The definition and responsibilities of custodians are sufficiently unclear that a narrow pleading requirement may have the unintentional effect of limiting access to public records.

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January 6, Record Ownership, and Delinquent Property Taxes

Many children and more than a few adults are counting the days and hours until Santa arrives next week.  But taxpayers who’ve yet to pay their 2014 property tax bills should be counting the days and hours until January 6, 2015, the date on which those taxes become delinquent.

In a previous post I described the basic issues concerning interest and enforced collections once January 6 arrives.  In today’s post, I focus on two more January 6 issues: record ownership and delinquency warning notices. Read more »

Sale of Historic Structures by NC Local Governments for Redevelopment

Almost ten years ago, in the town of Bushwood, North Carolina, the “generous” owner of the historic textile mill building just off Main Street donated the property to the town (it was difficult to maintain and the owner didn’t want to pay property taxes on it any more). The town accepted the property, hoping that it would be able to find a new private owner who would redevelop the property and retain the historic character of the building. Some potential buyers have kicked the tires on the building, but no one has made an offer. Due to the value of the land and the excellent location of the parcel, the property appraises for $300,000.

The town recognizes that it needs to market the building more actively—and that it may need the help of experts. “Old Mills R Us,” a regional historic preservation nonprofit with a mission to preserve historic mill buildings, has a proposal for the town:

• The town will sell the mill to the nonprofit for one dollar.
• Old Mills R Us (OMRU) will market the property and sell the mill to a private developer who will redevelop the property while retaining the historic features.
• Rather than charging a broker fee, OMRU will simply keep the proceeds from the sale at whatever price OMRU can get.

Can the town enter into this transaction with OMRU? Short answer: not on these terms. This post explains why and suggests some alternatives. Read more »

Three-judge Panels

Two recent lawsuits have drawn attention as the first to be subject to a new state law treating some constitutional challenges differently from other lawsuits. The first case was brought by the town of Boone, seeking to invalidate a legislative act stripping the town of its extra-territorial jurisdiction. Governor McCrory filed the second lawsuit, disputing the General Assembly’s authority to control the membership of regulatory commissions. Instead of being tried before a single judge, these cases will go before panels of three judges.

Why do these cases, and not others, have to go to three-judge panels? Read more »

Can We Close That Old Street Right-of-Way?

Decades ago, a landowner recorded a plat to divide his tract of land into lots and streets. The lots were sold and developed with houses. Most of the streets were constructed and opened as public streets. But there is an undersized and un-used alley running behind a block of houses. And, across the side of one large lot, there is a portion of street right-of-way that was never constructed and is not needed for access. Can the town close these old rights-of-way? Can the property owners?

This blog explores the rights and procedures involved in closing easements and rights-of-way.

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Property Taxes and New Year’s Day

New Year’s Day is best known for hangovers and college football bowl games. But among North Carolina property tax professionals, January 1 means even more than the Famous Idaho Potato Bowl (yes, that’s an actual game.)

January 1 is listing day, the date on which we take a virtual snapshot of a property’s ownership, value, situs, and use (which affects eligibility for exemptions and exclusions). The determinations made as of January 1 control how that property will be taxed (or not) during the coming fiscal year that begins on July 1.  G.S. 105-285.

The January 1 listing date is the basis for a key principle of North Carolina property taxes:

If property is taxable in a particular jurisdiction as of January 1, it will be taxable by that jurisdiction for the entire fiscal year regardless of whether the property is subsequently destroyed, moved, sold, or used for a different purpose. Read more »

Polling the Board

Consider three scenarios involving polling an elected governing board:

1. The city manager has determined that it is time for new leadership in the HR department. She contacts each of the council members to find out if they approve firing the HR director.

2. The chair of the county commissioners has negotiated a good price on a new contract for EMS services. She contacts each board member to see if they approve the contract.

3. A city council member plans to propose a revision to the zoning ordinance and contacts each of the council members to explain the proposal and get a sense of whether they approve it, or what changes they’d like to see before it is introduced.

Do these actions violate the open meetings law? Is it illegal to poll the board?

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