Laws That Affect The Clerk Trey Allen UNC School of Government New - - PDF document

1/27/2016 1

Laws That Affect The Clerk

Trey Allen UNC School of Government New Clerks’ Workshop & Institute January 20, 2016

1/27/2016 2

1/27/2016 3

Part A: Selected Statutes & Publications

• Statutes: page 2
• Publications: pages 3-4

1/27/2016 4

Part B: Oath(s) of Office & Office- Holding Administration of Oaths

• Oaths of Office:

– N.C. Const. art. VI, § 7 (p. 5) – G.S. 11-7 (p. 6) – G.S. 11-11 (pp. 6-8)

• Clerks, designated others, may administer
• aths (p. 6).
• Oaths must be taken and subscribed and

filed with the governing board’s clerk (p.8).

1/27/2016 5

Multiple Office-Holding

• What is a “public office”?
• Constitutional Limitations

– N.C. Const. art. VI, § 9 (pp. 8-9)

• Statutory Provisions

– G.S. 128-1, 1.1, 1.2, & 2 (pp. 9-10)

• Basic Rule: Same person may simultaneously

hold:

– 1 elective and 1 appointive office OR – 2 appointive offices

• Ex officio service covered by G.S. 128-1.2 (p. 9)

More Office-Holding Guidelines

• Eligibility to assume elective office

– N.C. Const. art. VI, § 8 (p. 10) – G.S. 128-7.2 (p. 10)

• Leaves of absence for military service

for public officials (p. 10-11)

– Procedures: G.S. 128-40 to -42 (pp. 10-12) – Role of Clerk: G.S. 128-42 (pp. 11-12)

1/27/2016 6

Part C: Open Meetings

(Adapted from a Presentation by Frayda Bluestein)

Open Meetings: Public Notice and Access

Official Meetings of Public Bodies

1/27/2016 7

What’s a Public Body? (p. 19)

• Public Body

– 2 or more members – Intentionally created or appointed – Governmental (not private) – Exercising any one of 5 functions

• Functions

– Legislative – policy-making – quasi-judicial – administrative – advisory

What’s Not a Public Body

• A group consisting only of professional staff
• A group comprising only the medical staff of a

public hospital

1/27/2016 8

Applicability of Sunshine Laws To Private Entities

• Key Factors:

– Control over board – Control over fiscal affairs – Transfer/residual rights in assets

• Other factors:

– Created by government – Staffed by government – Carrying out mandated function

What’s an Official Meeting?

• Majority of the

members of the public body

• Gather together, in

person or electronically (p. 19)

• Purposes:

– conduct a hearing – deliberate – vote on public business – otherwise transact the public business (p. 19)

1/27/2016 9

What’s Not an Official Meeting

• A social meeting or other informal gathering of a

public body

– unless it is called or held to evade the “spirit and purposes” of the open meetings law (p. 19)

Notice Requirements

• Regular meetings: File schedule with clerk;

post on website (pp. 20-21)

• Special meetings: 48 notice to those who

request it; post on bulletin board or meeting room door; post on website (pp. 20-21)

• Emergency meetings: Notice to news media;

same manner as board (pp. 20-21)

• Recessed meetings: Post on website (pp. 20-

21)

1/27/2016 10

Limited authority to meet in closed session (pp. 19-20) Process: Motion in open session, stating general purpose of closed session (p. 20)

Closed Session Purposes (pp. 19- 20)

• Preserve confidentiality of

records

• Preserve attorney client

privilege

• Discuss economic

development

• Discuss bargaining

position for property acquisition

• Consider performance,

qualifications, appointment, of public employees and public

• fficers (not members of

the board itself or other boards)

• Matters involving alleged

criminal misconduct

1/27/2016 11

Remedies for Violations

• Injunctive Relief = court
• rder entered to

prevent threatened, recurring, or continuing violations of open meetings law (p. 24)

• Members of public body

who violate such an

• rder may be held in

contempt of court.

More Remedies for Violations

• Judicial declaration that

public body took, considered, or deliberated action in violation of open meetings law (p. 24)

• If the court finds that a

violation occurred, it may – but doesn’t have to – invalidate the public body’s action (p. 24)

1/27/2016 12

More Remedies for Violations

• Attorneys’ fees to prevailing

party or parties (p. 24).

• If court finds that public

body’s member(s) “knowingly

• r intentionally” committed

violation, it may order the member(s) to pay all or some

• f opposing party’s attorneys’

fees (p. 24).

– But not if member(s) sought and followed attorney’s advice (p. 24).

Part D: Public Records

(Adapted from a Presentation by Frayda Bluestein)

1/27/2016 13

Public Records

• G.S. 132-1 (p. 27)

– Records made or received in the transaction

• f public business

– Right of access = inspection or copy

Records, not information.

1/27/2016 14

What is a record?

• All kinds of records (p. 27)

Content, not location determines status of email. Does it involve the transaction of public business?

1/27/2016 15

Exceptions

• Records made or received in the

transaction of public business are public unless an exception provides that they

– Need not be provided, but you may do so – Shall not be provided, and you may not do so

What Can You Charge?

• Actual, direct costs only (p. 40)
• Not personnel time

1/27/2016 16

• No exception for drafts
• No need to retain notes
• Motive doesn’t matter (p. 38)

1/27/2016 17

Part E: Public Notice Requirements

1/27/2016 18

Why Are Notices Required?

• To keep citizens informed about what gov’t

has done and plans to do

• To ensure public officials know what gov’t

is doing

• To keep media informed of gov’t activities

When Are Notices Commonly Needed?

• Prior to meeting of public body

– Regular meetings: notice filed, posted on website – Special meetings: 48 hour notice to “sunshine list”; posted on principal bulletin board or door

• f usual meeting room; posted on website

– Emergency meetings: notice to news media who have requested it, in same manner as given to members of the public body – Recessed meetings: post on website

1/27/2016 19

When Are Notices Commonly Needed? (cont’d)

Prior to public hearings?

• General Rule: No extra notice required for

hearings at public meetings.

• BUT subject matter of hearing may trigger

statutory notice requirements.

When Are Notices Commonly Needed? (cont’d)

Prior to certain types of gov’t action

• Opening of bids on purchase contracts for

$90,000 or more or construction contracts for $500,000 or more (143-129(b)) (pp. 51-52)

• Public hearing on annual budget (159-12) (p.

52)

• Resolution authorizing private sale of local

gov’t property (153A-176; 160A-267) (pp. 53- 54)

1/27/2016 20

When Are Notices Commonly Needed? (cont’d)

• Hearing on adoption, amendment, or

repeal of development regulation (153A- 323; 160A-364) (p. 54)

• Hearing on quasi-judicial zoning decision

(special or conditional use permit application, variance request) (153A- 345.1; 160A-388(a2)) (pp. 56-57)

Types of Commonly Used Notices

• Filed Notices

– Regular meeting schedule w/clerk (143- 318.12(a)(2)&(3)) (p. 20)

• Posted Notices

– Special meeting notices (143-318.12(b)(2)) (pp. 20- 21) – Rezoning (153A-343(d); 160A-384(c)) (pp.55-56)

• Notice of rezoning hearing must be posted on site affected or

adjacent street right of way.

– Hearing on quasi-judicial zoning decision (153-345.1; 160A-388(a2)) (pp. 56-57)

• Notice must be posted on site involved in hearing at least 10

but not more than 25 days before hearing.

1/27/2016 21

Types of Commonly Used Notices (cont’d)

• Mailed Notices

– Special Meetings (143-318.12(b)(2)) (pp. 20- 21) – Quasi-judicial Zoning Decisions

• Pre-hearing (160A-388(a2)) (pp. 56-57)

– Notice must be mailed to owners of affected & abutting properties at least 10 but not more than 25 days before hearing.

• Post-hearing (160A-388(e2)(1)) (p. 58)

– Board must make decision “within reasonable time.” – If decision is mailed, first class mail must be used.

Types of Commonly Used Notices (cont’d)

• E-mailed Notices

– Special Meeting (143-318.12(b)(2)) (pp. 20-21) – Emergency Meeting (143-318.12(b)(3)) (p. 21) – Quasi-judicial zoning decision (160A-388(e2)(1)) (p. 58)

• Delivered Notices

– Individual governing board members prior to special meeting (153A-40(b); 160A-71(b)(1)) (pp. 21-22) – Quasi-judicial zoning decision (160A-388(e2)(1)) (p.58)

1/27/2016 22

Types of Commonly Used Notices (cont’d)

• Published Notices

– Annual budget ordinance (159-12) (p. 52) – Sale of county property (various statutes) – Construction/purchase contracts subject to bidding requirements (143-129(b)) (pp. 51-52)

• 7 calendar days between publication and opening
• f bids

Types of Commonly Used Notices (cont’d)

• Published notices (cont’d)

– Amendment to development ordinance (153A-323(a); 160A-364(a)) (p. 54)

• Notice published twice (i.e., once a week

for 2 successive calendar weeks).

• 1st publication at least 10 and not more

than 25 days before hearing on proposed amendment.

1/27/2016 23

Types of Commonly Used Notices (cont’d)

• Website Notices

– Regular, special, and recessed meetings (143-318.12(d)&(e)) (p. 21) – Construction/purchase contract subject to bidding requirements (143-129(b)) (pp. 51-52)

• 7 days between publication and opening of bids
• Advertisement may be solely by electronic means

if approved by governing board

Publication Rules

• Advertising must be in “newspaper of general

circulation.” (1-597) (p. 50)

– Actual paid subscribers – Admitted to U.S. mails in “Periodicals” class in county/subdivision where publication required – Have been regularly & continually issued in county at least one day in each calendar week for 25 of 26 consecutive weeks immediately preceding publication

• There are exceptions to these requirements,

primarily in counties with only one paper.

1/27/2016 24

Computing Time (p. 49)

• Don’t count day of publication
• Do count last day of period to be

computed, unless that day is Saturday, Sunday, or legal holiday.

• If period of time < 7 days, don’t count

intermediate Saturdays, Sundays, or holidays.

Computing Time (cont’d)

Specific statutory requirements sometimes

• verrule general calculation rules.

– Construction/purchase contracts subject to bidding requirements (143-129(b)) (pp. 51-52)

1/27/2016 25

Proving Publication

A newspaper can provide proof of proper publication, which the clerk may include in

• minutes. (1-598, 1-600) (pp. 50-51)

– A properly sworn statement is prima facie evidence that the newspaper satisfied the requirements G.S. 1-597 when the notice at issue was published.

More Publication Rules

• Required notices need only be published
• nce unless a statute specifically requires
• therwise.
• Some laws require publication after an

action is taken.

– Charter amendment by ordinance (160A-102) (p. 59)

• In many cases no published or other

notice is required.

1/27/2016 26

Why Publication Rules Matter

• Improper publication or failure to publish

can be grounds for invalidating government’s action.

• Notification requirements must be followed

to the letter, including rules about

– when notices are mandated – where they must be published – what they must contain

Determining Notice Required

• How should you go about determining

whether or what kind of notice is required?

• Don’t forget Chapter 13 of the M.O.R.E.

Manual, available at http://www.ncamc.com/nc_document.php

• What if you have no other options?

1/27/2016 27

Part F: Ethics Education & Codes of Ethics Ethics Education Requirements

• Minimum education requirements for local

elected officials (p. 60)

– 2 hours within 12 months of initial election or appointment – 2 hours within 12 months of each subsequent election or appointment

1/27/2016 28

Ethics Education Requirements

• Qualified education sources (pp. 60-61)

– UNC SOG, NCLM, NCACC, NCSBA – “[O]ther qualified sources”

• Role of Clerk? (p.60)

Code of Ethics

• What must it address? (pp. 61-62)
• Help for drafting Code? (p. 62)

1/27/2016 29

Gender-Equity Reporting Statute

• Explanation of the law (p. 63)
• The law’s appointment and reporting

requirements (p. 63)

• Local boards to which the law applies (pp.

63-64)

• http://www.secretary.state.nc.us/apprpt/

Questions?

Trey Allen UNC School of Government 919-843-9019 tallen@sog.unc.edu