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

1/27/2016 Laws That Affect The Clerk Trey Allen UNC School of Government New Clerks’ Workshop & Institute January 20, 2016 1

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1/27/2016 Part A: Selected Statutes & Publications • Statutes: page 2 • Publications: pages 3-4 3

1/27/2016 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 oaths (p. 6). • Oaths must be taken and subscribed and filed with the governing board’s clerk (p.8). 4

1/27/2016 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) 5

1/27/2016 Part C: Open Meetings (Adapted from a Presentation by Frayda Bluestein) Open Meetings: Public Notice and Access Official Meetings of Public Bodies 6

1/27/2016 What’s a Public Body? (p. 19) • Public Body • Functions – 2 or more members – Legislative – Intentionally created or – policy-making appointed – quasi-judicial – Governmental (not – administrative private) – advisory – Exercising any one of 5 functions What’s Not a Public Body • A group consisting only of professional staff • A group comprising only the medical staff of a public hospital 7

1/27/2016 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 • Purposes: members of the public – conduct a hearing body – deliberate • Gather together, in – vote on public business person or – otherwise transact the electronically (p. 19) public business (p. 19) 8

1/27/2016 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) 9

1/27/2016 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 • Consider performance, records qualifications, appointment, of public • Preserve attorney client employees and public privilege officers (not members of • Discuss economic the board itself or other development boards) • Discuss bargaining • Matters involving alleged position for property criminal misconduct acquisition 10

1/27/2016 Remedies for Violations  Injunctive Relief = court order entered to prevent threatened, recurring, or continuing violations of open meetings law (p. 24)  Members of public body who violate such an order 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) 11

1/27/2016 More Remedies for Violations • Attorneys’ fees to prevailing party or parties (p. 24). • If court finds that public body’s member(s) “knowingly or intentionally” committed violation, it may order the member(s) to pay all or some of 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) 12

1/27/2016 Public Records • G.S. 132-1 (p. 27) – Records made or received in the transaction of public business – Right of access = inspection or copy Records, not information. 13

1/27/2016 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? 14

1/27/2016 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 15

1/27/2016 • No exception for drafts • No need to retain notes • Motive doesn’t matter (p. 38) 16

1/27/2016 Part E: Public Notice Requirements 17

1/27/2016 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 of 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 18

1/27/2016 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) 19

1/27/2016 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. 20

1/27/2016 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) 21

1/27/2016 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 of 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 . 22