Legislature May Not Deny Eligible At-Risk Kids Access to State Pre-Kindergarten Program

On August 21, 2012, a unanimous panel of the North Carolina Court of Appeals held that the State may not deny any eligible at-risk four year old admission to its Pre-Kindergarten (formerly More at Four) program. On its face, this court holding imposes a substantial, and potentially expensive, new obligation. The case is Hoke County Board of Education v. State of North Carolina, No. COA11-1545 (Aug. 21, 2012). It is the latest ruling in the long-running Leandro litigation over constitutional rights to public education in North Carolina. (The litigation began in May 1994. To date, it has resulted in multiple trial court decisions and two North Carolina Supreme Court opinions– Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (Leandro I) and Hoke County Board of Education v. State, 358 N.C. 605, 599 S.E.2d 365 (2004) (Leandro II).)

This blog summarizes the opinion and briefly discusses its implications for the State and for counties. Read more »

What is the Territorial Jurisdiction of a Board of Health Rule Regulating Smoking?

UPDATE: I wrote a more detailed manuscript about this issue for the February 2013 county attorneys’ winter conference. It is available here. Later that same month, a NC Attorney General advisory letter addressed this issue and reached conclusions similar to mine. The AG letter is available here. 

In a North Carolina county—let’s call it Dogwood county—a group of parents has approached the county board of health and asked it to “please do something” about smoking in public parks where children play. The group is especially concerned about a popular park with a large playground that is located within the town limits of the county’s only incorporated municipality. We’ll call the town Mayberry.

The Dogwood county board of health knows that a 2009 law gave it the authority to adopt rules regulating smoking in outdoor areas owned, leased or occupied by local governments. The board also knows that when it exercises its public health rule-making authority, the rules it adopts ordinarily apply throughout the county, including within the town limits of Mayberry. But the county attorney who advises the board of health, Andrea Taylor, is concerned that a board of health rule regulating smoking might be different—that the rule might apply only in the unincorporated areas of the county. Why would Ms. Taylor think this? Is she right? Read more »

Can We Consider Ownership in a Zoning Decision?

The heart of zoning ordinances are rules on land uses – rules on what uses can go where, standards on building setbacks, the size of structures, required parking, size of signs, and so forth. Sometimes, however, a question is raised about who is proposing a development.  Is the identity of the applicant or the owner of the property a relevant consideration in zoning?  Is this a legitimate factor that can be considered in a zoning decision?

Consider these situations –

1.  The planning board has recommended a set of zoning amendments to promote more housing options and affordability. One proposal is an amendment to allow accessory apartments as a permitted use in all single-family zoning districts, provided some conditions are met regarding parking and setbacks. After hearing concerns raised at the public hearing, Mayor Juanita Beasley observes that this proposal could be a good thing in many instances.  Given the increase in density it would allow in older neighborhoods where the houses are already pretty close together, she notes appropriate on-site management may well be needed to assure this works out to everyone’s benefit. She asks staff if the proposed text could be amended to allow accessory apartments only if either the principal house or the accessory apartment is owner-occupied.

2.  Rafe Hollister and Charlene Darling have proposed opening a brew pub/nightclub in a neighborhood shopping center.  Darling will own the building and manage the club while Hollister will own and manage the brewing operation.  A club at this location requires a special use permit under the town zoning ordinance.  Near the close of the town council hearing on the application, Councilor Floyd Lawson raises a question. “It’s clear from the testimony we’ve heard that this business will be a great thing for our small town.  I’ve known Charlene and her brothers all my life.  I’m sure she’ll run this business in a way that will be absolutely first rate.  Everybody around here is already familiar with Rafe’s special home brews and they’d go great with some local music.  But Charlene, like me, is getting on in years. In the wrong hands this club could turn into a real problem.  We have joints in town that are just a mess – fights, noise, drugs, all sort of bad things.  Charlene’s retired and will really look after this business, but without her around, this club could be a real nuisance.  Can we add a condition to the permit that live entertainment can be offered only as long as Ms. Darling is the owner or that they’d have to come back and get a permit amendment if she sells the club to someone else?”

Is it legally permissible for the town do either of these things? Read more »

Organization and Governance of Social Services: New Options for Counties

UPDATE September 2013: For more recent information on this topic, click here.

There was a lot of activity this past legislative session around the issue of local human services organization and governance.  In the final weeks of the session, the General Assembly enacted S.L. 2012-126 (H 438). Jill Moore’s summary of the legislation is available here but I wanted to take an opportunity to answer some of the questions that are coming up about the impact of the legislation on county departments of social services and their boards. Read more »

Local Government Commission (LGC) Approval of Contracts, Leases, and Other (Non-Debt) Financing Agreements

Which of the following proposed transactions requires that the unit first seek approval from the State’s Local Government Commission?

1. The Town of Blowing Rocks borrows $1 million from a local credit union to make repairs to several of its administrative buildings that were damaged in a recent storm. The town grants a security interest in the buildings to the credit union and agrees to repay the loan, with interest, over 59 months.

2. A developer borrows funds from a bank to construct a large office building in Trump Village’s downtown. The village enters into a 20-year lease with the developer to use a large portion of the building to house its police department. The lease payments roughly correlate to the debt service paid by the developer on the borrowed funds. Trump Village is in no way obligated to guarantee or repay the developer’s loan. The lease does not include an option to purchase or renew at the end of the lease term. The estimated total payments over the term of the lease are $4.9 million.

3. The City of Broke Springs owns and operates a water system. The city enters into an interlocal agreement with Flush County (the county in which the city is located), whereby the county agrees to loan the city $14.5 million to fund an expansion of the city’s water lines into several unincorporated areas in the county. The city grants the county a security interest in the water lines and agrees to repay the loan, with interest, over a period of 15 years.

4. Shadow City’s governing board establishes a non-profit (501(c)(3)) organization in order to qualify for certain private grants that the city is not eligible to receive. The city’s governing board appoints the non-profit’s board and approves the non-profit’s budget each year. The non-profit uses the grant proceeds to jointly run a recreation program with the city targeted to at-risk youths in the city. The non-profit leverages a private building that was donated to it by a wealthy citizen by pledging the building as security for a $500,000 loan from a local bank to fund an outdoor adventure course, which will serve as the core infrastructure for the new recreation programs. The loan will be repaid by the non-profit over a 10-year period, with interest. The city’s governing board approves the loan as part of its budget approval authority over the non-profit, but the city is in no way obligated to guarantee or repay the loan. The non-profit will donate the adventure course to the city as soon as the loan is repaid. Read more »

Do We Have to Advertise This Position?

North Carolina governmental employers regularly have this question when they are hiring:  do we have to advertise this position? Maybe they already have in mind someone for the job, perhaps someone already working within the organization. Must they go through an advertising process when they have in fact already decided who they want to hire?

Here’s the short answer. If the employer is covered by the State Personnel Act (the “SPA,” Chapter 126 of the North Carolina General Statutes), then it must advertise position openings before making a hiring decision. For all other North Carolina governmental employers—cities, counties (except county agencies covered by the SPA), public school systems, community colleges, water and sewer authorities and many others—there is no requirement of advertising unless the governing body has imposed the requirement on itself by ordinance or policy. Read more »

Ethics and Employee Email

Wally Whiner is in trouble once again.  Wally, an employee in Blue Devil City’s finance department, has been placed on administrative leave after numerous complaints from residents about his inappropriate conduct. This isn’t Wally’s first ride on the disciplinary carousel; two years ago he was reprimanded and put on a performance improvement plan after a subpar annual review and allegations of misconduct from his coworkers.

As city attorney, you’ve been asked to work with Phyllis Finance, the city’s finance officer, to investigate the matter and recommend the appropriate course of action. One morning Phyllis walks into your office with a huge stack of papers with colored sticky notes attached.  She explains that the papers are copies of Wally’s emails for the past two years.

“I hope it’s okay I went ahead and started reading these. I thought it would make your life easier if I organized them a bit,” says Phyllis. “The green stickies are emails that have offensive language.  The orange stickies are emails that are purely personal—messages to Wally’s wife and whatnot.  The red stickies are the really interesting ones—they are between Wally and his attorney talking about their plans to sue me and the city.  I can’t believe this guy.”

“Um, thanks, Phyllis,” you stammer, not sure if you should be grateful or angry.

Questions float through your head.  Is the city authorized to read Wally’s emails? Are the emails between Wally and his attorney privileged? Is it too late to accept that offer to join that private law firm?

Read more »