Do Local Governments have Federal Constitutional Rights?

The United States Constitution includes many provisions that protect persons and entities from government action. For example, the Due Process Clause (Fifth and Fourteenth Amendments) safeguards against arbitrary denial of life, liberty, or property by the government. The Equal Protection Clause (Fourteenth Amendment), prohibits the state from denying any person within its jurisdiction the equal protection of the laws. And the Contract Clause (Article I, section 10, clause 1) prohibits the state from enacting any law that retroactively impairs contract rights.

But do these Constitutional protections extend to local governments? Does the Due Process Clause, for example, require that a state legislature provide notice and an opportunity to be heard to a local government before deannexing property within the local unit’s territorial jurisdiction? Or does the Contracts Clause prohibit the state from requiring that a local government utility cease providing service in a particular area, over the objection of local officials? As my colleague, David Lawrence, explains in a recent Local Government Law Bulletin, Judicial Doctrines that Differentiate Local Governments and Private Persons or Entities, the answer is no. Read more »

Locally Adopted Voting Rules

The Robertsville town council recently adopted three new voting rules:

Rule #1: A motion to add an item to the agenda during a council meeting must be approved by a vote of 4/5 of the members present.

Rule #2: A final decision on a contract to hire a manager must be approved by a vote of 4/5 of all the members of the council.

Rule #3: Final recommendations and decisions of all appointed boards must be approved by a vote of 2/3 of all the members of the appointed board.

At the time of their adoption, everyone agreed that these rules made sense as a way of promoting consensus and efficiency in meetings. It was not long, however, before members became frustrated with rigid adherence to the supermajority requirements. The mayor and board chairs started to find excuses to make exceptions, but some board members are concerned that decisions may be invalid if the rules are not followed. Did the council have authority to adopt these rules? Are they are binding on the council and appointed boards? What is the procedure for suspending, modifying, or repealing them?

Read more »

Requirements for Quasi-Judicial Decision Documents

The town council has just voted to approve a highly controversial special use permit for a new apartment complex. Getting to this point was a long process – two lengthy hearings and a third night of debate and deliberation by the council. There was much discussion about the traffic impacts, whether the evidence showed whether the project would harm neighboring property values, and the adequacy of potential permit conditions. But the council eventually reached a general consensus and voted 6-1 to approve the permit with a long list of detailed conditions. With business concluded, the council meeting was adjourned.

As folks were filing out of the council chambers, the property owner turns to his attorney. “It seemed like this day would never come. Can’t tell you how relieved I am they finally saw things our way. I’m good to go now, right?” In another corner of the room, the chair of the neighborhood association, who had led the fight against the project, likewise turned to her attorney. “What just happened? They left out the most important condition we asked for. No way the evidence justifies that. We appeal now, right?”

Both attorneys tell their clients to sit tight and wait for the final decision. Is that right? Didn’t the council just take a conclusive vote? Isn’t that final?

Not quite. The decision is not final and effective until it is reduced to writing and filed. And the period to appeal doesn’t start until the written decision is delivered. Read more »

Interim Budget

Each North Carolina local government and public authority (local unit) must adopt an annual balanced budget ordinance. G.S. 159-8. The Local Government Budget and Fiscal Control Act, G.S. Ch. 159, Art. 3 (LGBFCA), provides a basic framework for the preparation and enactment of the budget ordinance. It specifies, for example, that departmental requests be submitted to the unit’s budget officer on or before April 30 (G.S. 159-10) and that the proposed budget and budget message be submitted to the governing board on or before June 1 (G.S. 159-11). These dates function more as targets than actual deadlines, though. They are intended to help keep a unit on track with the budgeting process. The only date with any legal consequence is July 1. That is the date by which the budget ordinance must be adopted in order to recognize revenues, levy property taxes, and authorize expenditures for the fiscal year. G.S. 159-13(a). (Note that some public authorities operate on a different fiscal year. The deadline for those units is the first day of the new fiscal year.)

Several local units miss the July 1 deadline each year, though. This post discusses the consequences of not having a budget ordinance in place by July 1 and the steps a unit must take until a budget ordinance is adopted. Read more »

King v. Town of Chapel Hill: The Supreme Court Issues a Major Decision on the Police Power of Local Governments (Part 1)

In King v. Town of Chapel Hill, the North Carolina Supreme Court issued what could be its most significant decision yet on the general police power of local governments. Somewhat predictably, media coverage tended to focus on the portion of the court’s opinion striking down Chapel Hill’s ban on mobile phone use by drivers 18 years of age or older. The mobile phone ruling may be the least important aspect of a complex opinion that, taken as a whole, represents a substantial victory for cities and counties. Read more »

Legal Ethics Lessons from the Penn State Scandal

[Please see this more recent post for updates on Cynthia Baldwin’s role in the PSU scandal.]

Most of the headlines relating to the Pennsylvania State University (“PSU”) child abuse scandal focused on the connections between convicted child molester Jerry Sandusky and the PSU football program.  The scandal cost legendary coach Joe Paterno his job and tarnished his otherwise sterling reputation as a coach who was unwilling to sacrifice his values for victories.

The scandal had negative repercussions for senior PSU employees beyond the football program as well.  Graham Spanier, the university’s former president, Gary Shultz, a former vice president, and Tim Curley, former athletic director, are currently facing a variety of criminal charges including perjury, obstruction of justice, and failure to report child abuse.

The university’s general counsel at the time, Cynthia Baldwin, has also garnered unwanted attention thanks to her role in the scandal.  Former PSU colleagues, outside investigators, and a state court judge have suggested that Baldwin confused her representational roles and her professional loyalties.

Few local government attorneys will face situations as dreadful as that faced by Cynthia Baldwin.  But confusion about the role of an organization’s attorney can arise in far more common scenarios. Any time an organization is accused of misconduct, potential conflicts may arise between the organization and the organization’s employees.  Those conflicts present an even greater risk if the organization’s attorney has close professional and personal relationships with those employees, as if often the case with experienced local government attorneys.  Baldwin’s predicament provides a valuable learning opportunity for any attorney who represents any type of organization.

Read more »

Acquiring real property for redevelopment—can local governments keep it confidential?

The town of Renewville wants to improve the look of its downtown Main Street, which is pocked with poorly-maintained commercial buildings. The Mayor has had his eye on a few key properties on Main Street, which, if redeveloped, would transform the look and feel of downtown, perhaps spurring additional private investment in the area. After years of watching potential developers and investors “kick the tires” downtown but decline to invest, the Mayor has given up on the private sector. He now firmly believes that the town must take the lead in acquiring properties, because the private sector isn’t willing. He knows, however, that if the town’s interest in purchasing any particular property is made public, the owner of that property will hold out for a premium on the sale price. Can the council direct the acquisition of properties downtown and keep the town’s involvement confidential during negotiations? Under North Carolina law, it depends. This post examines several situations to illustrate the possibilities. Read more »