Can I See What’s in My Personnel File?

North Carolina statutes protect most public employee information from public access. Public employees have the right to inspect almost all of the information in the files their employers maintain about them. The statutes do, however, carve a few types of information that the employer “need not” disclose to the employee or any other person. A recent court of appeals opinion clarifies the meaning of one of those types of extra-confidential information. In Wind v. City of Gastonia the court held that the city was required to allow an employee to inspect records of complaints made about him, including records disclosing the identities of another employee and a citizen who filed the complaints. In reaching this holding, the court ruled that a decision not to pursue disciplinary action constitutes an “official personnel decision” for purposes of the personnel privacy statute, and that the city had no authority to redact the names of the complainants. Read more »

Is it a land use yet?

In some scenarios, determining land use is fairly simple.  The ordinance permits a donut shop, the owner establishes and operates a donut shop, and the land use is clear.  But land development over time is not always straightforward, and clear land use categories may grow murky as a place evolves.  Questions arise.  When does a use become a use?  How can we distinguish uses?  And when is a use no longer a use?

This is the first in a short series of blogs on determining land use, starting at the beginning: when does an activity reach the level of regulated (or protected) land use? Read more »

Can We Top Off Our Tower?

Update:  Provisions substantially similar to the federal provisions discussed in this post were incorporated into state statutes in 2013.  S.L. 2013-185.  See the update at the end of this post for details.

Cell tower construction is a hot zoning topic.  The proliferation of smart phones and tablet devices is substantially increasing the demand for wireless data transmission.  Everyone wants good cell phone reception and high quality access for their mobile devices.  But no one wants to look at a cell tower out their back door.  This demand for more and higher quality wireless coverage, combined with widespread concern about the aesthetic impact of telecommunication towers, has sparked a considerable amount of legislation and litigation, not to mention many heated zoning hearings.

The latest wrinkle in reconciling these competing public interests is a little-noticed provision tucked into 2012 federal legislation extending payroll tax cuts and unemployment benefits.  This law, along with recently released FCC guidance, affects an issue that increasingly arises with cell towers.  Suppose there is an existing, permitted cell tower that was built to the maximum height and size allowed by local zoning regulations.  The tower owner now has an opportunity to lease space to a provider who wants to collocate a new antennae array on this tower, but there is not enough space on the tower for an additional antennae array. 

If the tower owner applies for a permit modification to add height and new antennae to the tower, this new legislation dictates whether the local government has to approve it.  Can the tower owner top off the tower?  Under the new law, in many instances the answer is yes, the local government will have to approve the modification. Read more »

NC Supreme Court Strikes Down Lumberton’s Tax on Video Sweepstakes

Were I a gambler, I would not have bet on this result.  No, I don’t mean Duke’s glorious trouncing of the Tar Heels on Saturday night.  I mean last Friday’s surprising ruling from the North Carolina Supreme Court that Lumberton’s privilege license taxes on video sweepstakes were unconstitutionally high and therefore unenforceable.  As a result, Lumberton will need to refund the $5,000-per-location and $2,500-per-machine taxes the city levied on video sweepstakes operators since 2010.

Why was this result so surprising? Mostly because the court abandoned its traditional deference to policy makers when evaluating the appropriateness of taxes.  For decades before Friday’s ruling the court had always granted elected officials great freedom to set tax rates so long as those rates were not so high as to eliminate all opportunity for the businesses subject to those taxes to operate at a profit. 

I also found it surprising that the court seemingly misinterpreted Lumberton’s privilege license tax system when it calculated the difference between city taxes levied on video sweepstakes and city taxes levied on other businesses.  Had the court calculated this difference correctly, the outcome of the case might have been different.

Here’s my take on the court’s decision and what it means for other cities that levy privilege license taxes on video sweepstakes.  Read more »

Now Therefore, Be It Resolved…

Betty Sue has served on the Caring County Board of Commissioners during politically turbulent times — the civil rights movement, the war in in Viet Nam, Apartheid in South Africa, women’s rights, and the right to bear arms. On these and many other issues, the board has felt moved or been asked to weigh in, for or against, by adopting resolutions. The board has also adopted resolutions about more local issues and events, often at the request of citizens and local organizations — in support of the local marching band’s trip to the state finals, recognizing Mrs. Beasley’s Flower Shop for 50 years of service to the community, and in support of a local bill declaring Caring County the most caring county in North Carolina.

Now comes the Society for the Exploration of Communication with Aliens (SECA). They want the board to adopt a resolution supporting their efforts to communicate with living creatures on other planets. Betty Sue is concerned. Is this something the commissioners have authority to weigh in on? Even if they do, it doesn’t seem like something they should really get involved with. But if they refuse, would they be open to criticism or even a legal challenge, given all the other groups they’ve supported? Must they create a policy on resolutions of this type in order to support their decision?

The basic answer to Betty Sue is that these types of resolutions have no legal effect and it is completely up to the board (or a majority of the board) to decide which ones to adopt.  There are, however, a few areas where the board should exercise caution, as discussed more fully below. Read more »

How to Fill a Vacancy on an Elected Board

An elected member of a North Carolina city council dies or moves away or resigns.  Or a member of a board of county commissioners.  Or a county school board.  A vacancy is created.  The statutes are clear about who picks the new person to fill the vacancy:  the city council (GS 160A-63);  the county commissioners (GS 153A-27 and -27.1);  the school board (GS 115C-37 and -37.1).

But the statutes do not tell the boards how they are to go about deciding who will fill the vacancy.  How does the board go about making that decision, conducting that vote, actually filling the vacancy?  [For a related discussion on filling vacancies on a city council, see Frayda Bluestein’s excellent Coates Canons post here.]

For all city councils there are two options.  The same is true for about half of the boards of county commissioners and all but a handful of school boards.  For the rest of the boards of commissioners and the school boards, it hardly matters. Read more »

Denying Government Services Due to Delinquent Property Taxes

Earlier this week a city official asked this interesting question, “Can we refuse to allow residents who have not paid their property taxes to use city recreational facilities?”  The city that raised the question operates a recreation center with a swimming pool and exercise equipment for which it charges residents a small membership fee.  The city wanted to deny residents who owed delinquent taxes from becoming members and using the center.

My first reaction was, “No way!”  The general rule of local government authority in North Carolina is that if a statute does not explicitly authorize local governments to engage in a particular activity then local governments may not engage in that activity.   Nothing in the Machinery Act or elsewhere in the General Statutes explicitly authorizes a local government to refuse recreational services to delinquent taxpayers.  Then cities must not be able to do this, right?

But as I thought more about the issue and bounced it off of my colleagues for their thoughts, I realized the answer wasn’t quite that simple.  Read more »