Recent Blog Posts

  • Giving and Receiving Gifts

    Authored by: on Monday, December 16th, 2013

    December brings thoughts of gifts: gifts for hard-working employees, gifts for outgoing board members and retiring employees, and gifts from vendors and contractors. May public money be spent on gifts for employees or board members? May local governments honor outgoing members with gifts of public property, such as allowing them to keep their government-issued iPads? May board members or city employees accept gifts from vendors, local businesses, or contracted service providers? This blog spells out when it is a blessing to give and to receive, and when it is illegal. Read more »

  • Who Doesn’t Have a Voter ID?

    Authored by: on Thursday, December 5th, 2013

    Hotly debated before its enactment and challenged in lawsuits since, North Carolina’s new photo identification requirement for voting goes into effect in 2016. Is it a genuine bulwark against fraud, providing confidence in elections, or is it a partisan attempt by one political party to suppress the vote of the other? That argument doubtless will go on for some time. A more practical question is how many voters will be affected because they do not have an acceptable ID.

    The State Board of Elections took a first bite at answering that question in April 2013 but its report has received surprisingly little attention. Especially surprising because the board has identified by name and address each voter who may not have the necessary identification.

    The State Board was attempting to get a general idea of how many people might be affected by the photo identification requirement. To do so, they matched the full statewide list of about 6.5 million registered voters with the more than 12 million Division of Motor Vehicles’ records of state driver licenses and DMV-issued non-driver ID cards. (For simplicity, let’s use “driver license” for both cards.) The goal was to see how many registered voters had a driver license and how many did not. Voters who do not have a driver license may have another form of acceptable voter ID, such as a passport or military ID, but the license is the most common identification and the non-matches should give a good picture of the number of people who could be affected by the new law. Read more »

  • Secretly Putting a GPS Tracker on Your Employee’s Car: Can You Do That?

    Authored by: on Tuesday, December 3rd, 2013

    Fred uses a county truck to go from inspection site to inspection site.  The truck is for work use only.  The inspections make up most of Fred’s work day.  His supervisor suspects that Fred is goofing off at times he should be working.  To make sure, the supervisor attaches a global positioning system (GPS) tracking device to the truck.  For three weeks, the GPS reports exactly where the truck is at all times—out and about during the day and parked at the county offices at night.  It turns out Fred really is shirking his duties and the county starts the dismissal process.  Fred resigns.

    Tom works mainly in a state government office, but his job duties take him on the road sometimes.  When he goes out on a work assignment, he uses his own car.  Tom’s supervisor suspects that Tom is misrepresenting his time away from the office.  He attaches a GPS to Tom’s car.  For a month the GPS reports exactly where Tom’s car is at all times, including weekends and several days when Tom is off on vacation.  It turns out Tom also was shirking his duties—including visits to his secretary’s home when they were both supposed to be working—and the state fires him.

    Is it lawful for the county government employer to secretly track its employee Fred that way?  Is it lawful for the state government employer to secretly track its employee Tom that way?  According to two recent cases—Fred’s in 2012 and Tom’s in 2013—the answer is Yes and No. Read more »

  • Relinquishing Extraterritorial Planning Jurisdiction

    Authored by: on Tuesday, November 26th, 2013

    So you’ve got this extraterritorial planning jurisdiction, but how do you get rid of it? Fair question.  The statutes give clear procedures for establishing extraterritorial jurisdiction, or ETJ, but there is less clarity for relinquishment.  A good rule of thumb is this: Follow the statutory notice and procedures for establishing ETJ under GS 160A-360.  This blog walks through some of the common questions for relinquishing ETJ, using the establishment procedures as a guide. Read more »

  • The Who, What, and When of Appeals TO the Board of Adjustment

    Authored by: on Monday, November 25th, 2013

    Consider these three scenarios regarding potential appeals to the zoning board of adjustment.

  •  Scenario 1.  Marge Simpson has worked for decades to improve her neighborhood.  Several years ago the town adopted a new plan that called for the neighborhood to retain its predominately residential character, but to add some appropriately sized retail and office uses.  The zoning code was then amended to allow “neighborhood scale retail” as a permitted use along the major street that traverses the neighborhood.  Marge just read in the paper that town staff had approved permits for a new national chain office supply store in the neighborhood, about ten blocks from her house.  She is outraged, believing this in no way qualifies as a “neighborhood scale” business.  The next day she files an appeal of the staff’s interpretation of the ordinance.  Can the board hear her appeal?
  • Scenario 2.  Suppose Marge had learned of the store’s plans when they first applied for a permit, prior to any staff action on the application and that she makes her complaint about the interpretation at that time.  In this situation, suppose the staff studies the plan and the ordinance and is undecided about how the term “neighborhood scale retail” should be interpreted.  Rather than decide what is clearly a political hot potato, the staff decides it would be best to take this to the board of adjustment and let the board make the call.  Can the board hear the staff appeal?
  • Scenario 3.  Suppose the national chain store got their certificate of zoning compliance and building permit from the staff with the matter never making the paper.  A few weeks after getting the permit the site is cleared and graded, but no other site work is done.  A couple of months later, as the utility lines are being installed on the site, the applicant posts a sign announcing this as the future site of the chain store.  The next week a delegation from the neighborhood goes to the planning office and asks for details about what is being built.  After seeing the site plan for the chain store, they appeal the zoning interpretation that allowed this as a permitted use.  Can the board hear their appeal at this point in the development process?

    • The short answer is that only one of these appeals can be heard by the board of adjustment.

    Read more »

  • Who May Attend a Closed Session?

    Authored by: on Thursday, November 21st, 2013

    Two new members have been elected to the Pleasantville town council and are scheduled to be sworn in at the December meeting. A special meeting has been called for November 25, at which the current board plans to address several matters in closed session. As set out in the meeting notice, those matters are:

    • Discussion with the town attorney regarding pending litigation (Jones v. Town of Pleasantville) [G.S.143-318.11 (a)(3)]
    • Personnel matter [G.S.143-318.11 (a)(6)]
    • Consideration of economic incentives [G.S. 143-318 (a)(4)]

    To promote a smooth transition for the new board, the council would like to invite the council-members elect to join them for the discussion of these matters. Is it legal for them to attend? The answer turns on whether confidential information will be viewed or discussed in the closed session. Read more »

  • Paying Employees Who Are Absent in Inclement Weather

    Authored by: on Wednesday, November 20th, 2013

    It’s that time of year. Winter storms may make it impossible for local government employees to make it to work. Sometimes absences are for only a day or two and once the roads are clear and it is safe to drive, employees return to work. At other times, storms cause power outages that may last for a week or longer, forcing employees and their families to relocate temporarily, and closing schools and daycare centers and sometimes even the government workplace itself. Some local government employees may be able to work remotely. For others, remote work will be impossible as they must be physically present at the workplace to engage in their job duties. Under the Fair Labor Standards Act, what happens to wages and salaries when employees cannot work? The rules may briefly be summarized thus:

    • Nonexempt employees do not have to be paid.
    • Exempt employees do not have to be paid if they do not work for an entire workweek. 
    • Where the workplace remains open, exempt employees who work for less than a full work week may be required to use accrued paid leave for the time that they are absent. If they do not have accrued paid leave, then a public employer may count this as an absence for personal reasons and deduct the time lost from their salary on a pro-rata basis. 
    • If conditions require an employer to close its workplace or any part of the workplace for less than a full workweek, it must pay its exempt employees their full weekly salary, although the employer may require employees to apply as much accrued paid leave as an employee has available.  Read more »