2013 Public Purchasing and Contracting Legislative Update – What’s Hot and What’s Not

The General Assembly’s crossover deadline has come and gone, so now is a good time to pause and take stock of pending legislation affecting public purchasing and contracting.  Bills proposing changes to our state’s public contracting statutes include authorizing design-build and public private partnership construction contracts, authorizing local preferences, and requiring E-Verify by construction contractors.

Some of these bills have made considerable progress thus far in the legislative session; others are still pending in the committee to which they were initially referred, which does not bode well for their ultimate success.

Bills of interest in the public procurement area are summarized below along with my very tentative assessment of which bills are and are not likely to pass this session.  Keep reading to the end of this post to find out how you too can track bills you are interested in.  And finally, when the General Assembly adjourns for the year, stay tuned for the School of Government’s annual legislative summary webinars. Read more »

Understanding the Voting Rights Act

Determining and Distinguishing Land Uses

Through the years of local zoning and planning, we have managed to create increasingly complex use lists.  Each local ordinance has its own long list of defined uses, drawing fine lines between similar uses like “parks” and “public recreation facilities,” for example.  Despite these careful lists—or perhaps because of them—questions remain about determining and distinguishing among land uses.  Can we distinguish between owner and renter uses?  How about commercial and non-commercial?  What do we do when the use is not listed?  When do we know that a land use has changed?  This discussion explores those questions and the options and requirements for distinguishing uses. Read more »

Feds Reverse Course and Extend New Garnishment Procedures to Local Tax Collections

It was big news for tax geeks like me back in early 2011 when the federal government released new regulations controlling garnishments of bank accounts that contain certain federal benefit payments.  The regulations made banks responsible for determining if a garnished account contained Social Security payments or other protected federal benefits and, if so, to make sure that those benefits were not garnished.  I blogged about the impact of these regulations on tax garnishments here.  And I talked about them extensively in this attachment and garnishment webinar.

But soon after the regulations became effective the U.S. Treasury Department announced that the required garnishment procedures would not apply to local government tax garnishments.  That surprise announcement led to this blog post letting local tax officials across the state know that it would still be their job to figure out which bank accounts were off limits to garnishment because of federal benefit deposits.

Well, guess what? Just this week the Treasury Department and four other agencies involved with this issue changed their minds and published new “final” regulations that extend the reach of the required garnishment procedures to cover all state and local tax garnishments.

I think this development is (belated) good news for local tax collectors and taxpayers alike because it eliminates existing uncertainty about when and how bank accounts containing certain federal benefits may be garnished for delinquent taxes. Read more »

Court of Appeals Reaffirms New Interpretation of Pre-audit Requirement

In Executive Medical Transportation, Inc. v Jones County Department of Social Services, 735 S.E.2d 352 (NC Ct. App. 2012), disc. rev. den’d, 737 S.E.2d 378 (N.C. 2013), the North Carolina Court of Appeals held that an oral agreement between a medical transport company and the county was void because the agreement did not include a written preaudit certificate. As I discussed here, the court interpreted G.S. 159-28(a) (commonly referred to as the preaudit requirement) to require that all contractual agreements that obligate a local government or public authority to pay money within the current fiscal year include a preaudit certificate. This holding effectively requires that all such contracts be in writing. The Court of Appeals recently reaffirmed this interpretation of the preaudit requirement in Howard v. County of Durham, No. COA12-1484 (May 7, 2013). This post summarizes the Howard case and then provides a brief overview of when the preaudit statute is triggered, and what it requires, in light of these recent court of appeals cases. Read more »

Are Mug Shots Public Records?

This may seem like a silly question. Mug shots (more formally, “booking photographs”) are everywhere, posted for free, searchable on line, sold in magazines at convenience stores, and regularly provided by law enforcement agencies. I never considered the question of whether North Carolina law enforcement agencies could withhold mug shots until a lawyer at the North Carolina Justice Center asked me to look at an analysis he prepared, arguing that mug shots are not subject to public access. There is no North Carolina case on this point, but now that I have looked into it, I believe that mug shots are criminal investigation records and that local law enforcement agencies have the authority to deny access to them.  I’m not arguing that agencies should deny access, but I think it’s important for public agencies to understand that they can. I also think agencies have the authority to release some photographs and not others, if there is a legitimate law enforcement purpose for doing so.

Read more »

Bigelow v. Town of Chapel Hill: When May State Constitutional Claims Against Local Governments Be Dismissed?

Local governments often find themselves being sued over injuries allegedly caused by their officials or employees.  Such lawsuits sometimes include both tort claims and state constitutional claims premised on the same set of facts.  For example, a plaintiff who believes she was wrongly arrested during a public protest might sue a city for false imprisonment and for violating her right to assemble under Article I, Section 12 of the North Carolina Constitution.

Like defendants in other cases, a local government may have a particular claim or an entire lawsuit dismissed at the outset of litigation if the plaintiff’s factual allegations, taken as true, do not state a valid legal claim.  (The law generally requires a court to accept a plaintiff’s factual allegations as true when reviewing a motion to dismiss because the plaintiff hasn’t yet had the chance to compel the production of evidence favorable to his claims.)  Additionally, a local government may have a claim under the North Carolina Constitution dismissed if adequate relief is available to the plaintiff through a tort claim.  The existence of an adequate alternative remedy (“AAR”) results in the dismissal of a state constitutional claim, regardless of whether the plaintiff’s factual allegations describe a constitutional violation.

The recent opinion of the North Carolina Court of Appeals in Bigelow v. Town of Chapel Hill, ____ N.C. App. ____ (May 7, 2013), limits the authority of trial courts to dismiss state constitutional claims based on the availability of an AAR.  A cursory review of the opinion could also leave the impression that, even when a plaintiff’s allegations fail to allege a violation of the North Carolina Constitution, a trial court may not dismiss a state constitutional claim so long as the existence of an AAR is disputed.  As explained below, this is a misreading of Bigelow. Read more »