Legal Handbook for Council Members 2022

LEGAL HANDBOOK F O R C O U N C I L M E M B E R S

O F F I C E O F T H E C I T Y AT T O R N E Y Revised 0 8 /2022

Office of City Attorney

INDEX

Chapter

Subject

1 2 3 4 5 6 7 8 9

Authority to Exercise Powers

Relationship of Council with City Management

Ground Rules for Council Meetings Council Parliamentary Procedures

Matters Delegated to Staff; Required Public Hearings

Open Meetings Law; Closed Sessions

Conflicts of Interest

Prohibition on Receiving Gifts and Favors

Ethical Responsibilities

10 11 12 13 14 15 16

Liability of Council Members

Public Records

Boards and Commissions Rezoning Real Property

Economic Development Program Water and Sewer Extensions

Equal Employment Opportunity; Affirmative Action; Minority/Women’s Business Enterprise Program (M/WBE)

17 18

City Employee Political Activity Status of City’s Insurance Coverage

PO Box 3136

Greensboro, NC 27402-3136

www.greensboro-nc.gov

336-373-CITY (2489)

TTY # 333-6930

August 11, 2022 Mayor and City Council Ch uck Watts, City Attorney Municipal Government – Derivation of Powers

DATE: TO: FROM: SUBJECT:

Chapter 160A, of the North Carolina General Statutes is devoted to municipal corporations. In addition to Chapter 160A, there are many other parts of the General Statutes that apply tomunicipal government. Afewof the basic powerswhich are given to cities and towns are: to sue and be sued; topurchase property andmake contracts; to annexproperty, regulate streets, water and sewer, and parks and recreation, and zoning; to grant public franchises, to levy and collect taxes; and to provide for the general government of its inhabitants. These and the many other specific powers granted to a municipalitymay only be exercised by the CityCouncil, which is elected by the people as the legislative body of the City. The City of Greensboro operates under a Charter enacted by the North Carolina General Assembly. The last new Charter was enacted as Chapter 1137 of the Session Laws of 1959 and has been amended over the years to grant additional powers unique to the city of Greensboro. The Charter outlines the general organization, powers, and functions of the City. It also defines in detail the boundaries of the City's corporate limits. Supplementing the Charter are local legislative acts passed by the General Assembly and having particular application toGreensboro. Under the authority of the State Charter, the City Council may adopt ordinances which have the effect of law and are compiled as the "Code" of the City of Greensboro. As an example, zoning regulations and the annual budget are enacted into law as ordinances. A large portion of routine Council action is in the formof resolutions. Resolutions are adopted, for example, to authorize contracts and to approve changes in policy regarding City government operations. Finally, the Council passes motions to approve, for example, appointments to various Boards and Commissions. All cities are creatures of the State; that is to say that cities have no inherent powers. For years courts had ruled that cities only have those powers which the State specifically delegates to them. Phrased another way: "Amunicipal corporation is a political subdivision of the State and can exercise only such powers as are granted in expresswords, or those necessary or fairly implied or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation." (Stephenson v. Raleigh, 232 N.C. 42, 59 S.E. 2d 195 (1950). This longstanding legal proposition is commonly referred to as Dillon's Rule. In 1971, the General Assembly passed NCGS 160A-4, giving broad construction to the powers of cities:

"It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon themby law. To this end, the provisions of thisChapter and of city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect: Provided, that the exercise of such additional or supplementarypowers shall not be contrary toState or federal lawor to the public policy of this State". In BellSouth Telecommunications, Inc. v. City of Laurinburg, 168 N.C.App. 75, 606 S.E.2d 721 (2005), the Court reconciledDillon's RulewithNCGS 160A-4, stating:

"The narrow Dillon's Rule of statutory construction used when interpreting municipal powers has been replaced by N.C. Gen. Stat. § 160A-4's mandate that the language of Chapter 160Abe construed in favor of extendingpowers toamunicipalitywhere there is an ambiguity in the authorizing language, or the powers, or the powers clearly authorized reasonably necessitate 'additional and supplementary powers' to carry them into execution andeffect.However,where the plainmeaningof the statute iswithout ambiguity, it 'must be enforced aswritten".

It appears, for the time being, that the longstanding proposition of Dillon'sRule shall not be the only determinative factor used by courts in determining the powers of municipalities. This could open the door for cities to lay claim to additional powers, whichmay be implied by Statute. CDW/jgs

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Council-Manager Form of Government

The City of Greensboro employs the council-manager form of government. The council is the policy-making body and appoints the manager, who is the chief administrator. The Manager and City Attorney serve at the pleasure of the Council. The Mayor, elected separately, presides over the Council but has few independent powers. The Mayor serves as the official head of the city. All Council Members including the Mayor vote. The Manager is responsible for preparing the budget and for administering it consistent with the Council's policy determinations. The Manager has to power to hire and fire employees and supervises all departments, except the City Attorney and the City Attorney’s Office. The City Attorney advises Council and the Manager regarding legal matters, oversees the legal affairs of the City and manages the City Attorney’s Office. Members of the Office serve at his pleasure. This form of government promotes separation of the Council's responsibility for political judgments and policy determinations from the Manager's responsibility for administration in accordance with the Council's overall policy guidance and his or her own politically neutral professional expertise. This explanation of the Council-Manager form of government borrows heavily from David Lawrence, Municipal Government in North Carolina, (1995), S econd Edition , Institute of Government.

CDW/jgs Reference:

City of Greensboro Charter, Chapter 2 City of Greensboro Charter, Chapter 4

DATE:

September 1, 2015

TO:

Mr. John Doe, Assistant City Manager

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Council Parliamentary Procedures

Resolution Parliamentary Procedure 09.17.13

1

DATE: TO: FROM: SUBJECT:

August 11, 2022 Mayor and City Council C huck Watts , City Attorney Ground Rules for Council Meetings

A. GENERAL -- The Council may adopt reasonable rules governing the conduct of public hearings including; 1. Fixing the maximum allotted time to each speaker. 2. Providing for the designation of spokesmen for groups of persons. 3. Providing for the maintenance of order and decorum in the conduct of the hearing. The Mayor shall preside over Council meetings. He or she has a vote just as any other councilmember. The Council members at the organizational meeting shall elect one of its members Mayor Pro Tempore who will serve in the absence of the Mayor. B. MEETINGS -- The Mayor or Mayor Pro Tem or any two members of the Council may at any time call a special meeting. Such special meeting must be preceded by a written notice posted at least forty-eight (48) hours before the meeting. All meetings of the Council shall be public meetings, but it may recess to a closed session. C. QUORUM AND VOTING PROCEDURES -- A majority of the members of the Council shall constitute a quorum to do business. No ordinance shall be adopted on the same day it is introduced unless six (6) affirmative votes are received in favor of it. After that, an ordinance only requires five affirmative votes to pass. All other matters, including resolutions, require a vote of the majority of the members present. ORDINANCE -- A local law of a municipal corporation of a general and permanent nature. It has a mandatory effect and is accomplished while the City Council is acting in a legislative capacity. RESOLUTION -- An expression of the opinion of the City Council concerning some matter of administration. It is less formal than an ordinance and requires no set form of words. Illustrations would be authorizing purchase of property and authorizing agreements and contracts. The Mayor will introduce an ordinance or resolution by merely reading the title as it appears on the agenda. Thereafter, it will require a motion for adoption and a second to that motion and then the roll call vote after discussion. The City Council may reconsider any matter previously acted upon by it no later than the day of the 2nd regular meeting following the meeting at which such matter was previously considered. In the

discretion of the City Council, either at the same meeting in which the matter was favorably reconsidered or any meeting thereafter, the City Council shall finally dispose of the matter by taking another vote thereon. Finally, any ordinance which receives less than six affirmative votes upon first reading shall automatically be carried over until the next regular meeting of the City Council and subject to another vote.

CDW/jgs

References :

Resolution Parliamentary Procedure 09.17.13 N.C. Gen. Stat. §160A-81 N.C. Gen. Stat. §160A-81.1 N.C. Gen. Stat. §143-318.17

N.C. Gen. Stat. §14-132 N.C. Gen. Stat. §14-288.4

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Political Speech at City Council Meetings

When campaign season is underway, it is important to clarify the rules for political speech at City Council meetings. Pursuant to NCGS 160A-81 and City Charter 3.22(b), City Council may set the rules of order for its meetings, including regulating the number of people who speak, the length of time, and the authority to maintain order. By Resolution, dated September 17, 2013, and attached for your reference, City Council has adopted certain procedures and has determined that at all times respectful discourse and decorum are required. The Public Comment Period, often referred to as “Speakers from the Floor,” is required by statute to occur at least once per month as long as there is a meeting of Council, and in Greensboro the established scheduling is that it occurs during the first meeting of the month. The period lasts for 30 minutes, and the Mayor may set a time limit for each speaker. The City Council chamber is considered a public forum, and as such, there is robust protection for political speech during the Public Comment Period. The Public Comment Period is designated as a time to hear viewpoints from any speaker wishing to address the Council on any matter. So long as a speaker engages in respectful discourse and remains within the bounds of decorum, he should be allowed to speak freely during his allotted time. During the General Business Agenda, Public Hearing Agenda, and Supplemental Agenda, it is entirely proper for the Council to require the speakers to remain on topic. A speaker may introduce himself as a candidate for office, just as any other speaker would introduce himself by identifying his affiliation with a particular business or organization, but beyond that introduction, the speaker should remain on topic. In accordance with item #3 and item #9 of the September 17, 2013, Resolution, it is proper for the Mayor to remind the speaker to remain on topic and observe the standards of courtesy and decorum. The above guidelines comport with 1 st Amendment jurisprudence. Constitutionally protected speech may be subjected to certain time and manner restrictions and certain content restrictions, and the rules adopted by the City Council are validly in keeping with such limitations. CDW/jgs

DATE: TO: FROM:

August 11, 2022 Mayor and City Council Ch uck Watts, City Attorney

SUBJECT: Agenda Items

Delegation of Powers on an Administrative Level; Review and Analysis of Council

I. MATTERS PREVIOUSLY DELEGATED ON AN ADMINISTRATIVE LEVEL

Over the years the City Council, either through state enabling legislation, policy or city ordinance, has delegated certain functions to be handled on an administrative level. Some of the matters which have been delegated are listed as follows:

1. Adoption and implementation of traffic regulations. 2. Approval of bids and awarding of contracts for purchases.

3. Approval of bids and awarding contracts for construction up to $300,000.00. 4. Approval of bids and awarding service contracts up to and including $300,000.00. 5. Administration of contracts and notices to terminate. 6. Ordinances authorizing repair, closing or demolition of substandard structures (delegated to Housing Commission). 7. Revoking of certificates of convenience and necessity (taxicabs). 8. Refunds and rebates for erroneous taxes, assessments and utility charges under $20,000.00 11. Approval of change orders and extensions in construction contracts not exceeding $20,000.00. 12. Sale of surplus personal property provided that advertisement and solicitation for bids have been duly sought. 13. Approval of beer and wine applications. 14. Lease of city-owned real property for a period not exceeding seven years. 15. Settlement of claims in favor of the City for injury to personal property in an amount not exceeding $300,000.00; settlement of claims against the City of personal injury and property damages not exceeding amounts. 16. Blanket policy authorizing correction of erroneous accounts contained in resolutions. 17. Blanket policy authorizing automatic advertising for sale of city owned real estate where offers are received. 9. Permits for: soliciting, parades and street preaching. 10. Approval of subdivision plats (Planning Board).

II.

PUBLIC HEARINGS REQUIRED AND ACTED ON BY CITY COUNCIL

In reviewing the subjects upon which the City Council must take official action, those requiring public hearings are as follows: 1. Ordinances rezoning property. 2. Resolutions approving financing agreements involving real property. 3. Resolutions ordering public improvements with costs assessed to benefitted properties (roadway, water main, sanitary sewer, storm sewer, sidewalk). 4. Resolution adopting preliminary assessment rolls. 7. Resolutions establishing city parking authorities. 8. Ordinances establishing municipal service districts 9. Ordinances regulating or prohibiting business activity on Sundays. 10. Ordinances regulating ambulance services. 11. Ordinances amending the text of the zoning and subdivision regulations. 12. Annexation proceedings. 13. Resolutions approving new Redevelopment projects or amendments to existing Redevelopment projects. 14. Municipal bond proceedings. 15. Proceedings for adopting a new budget. 16. Proceedings for changing form of City Government. 17. Granting utility franchises. 18. Designation of Historic Properties. III. MATTERS ACTED ON BY CITY COUNCIL WHICH DO NOT REQUIRE PUBLIC HEARING 1. Adoption of various programs of the City (planning and development, etc.) 2. Ordinances amending the budget from time to time. 3. Ordinances amending various chapters of the Greensboro Code of Ordinances. 4. Approval of construction contract change orders and extensions over $20,000.00 5. Approval of contracts and award of bids for construction and demolition projects over $300,000.00. 6. Approval of purchases of various interests in real estate. 7. Approval of sale of city-owned real estate, 8. Authorize the City Attorney to institute condemnation proceedings. 9. Approval of agreements with railroads concerning improvements at grade crossings. 10. Formal approval of agreements with State Highway Commission, other public agencies and the Federal government. 11. Construction of City facilities. 5. Resolutions confirming assessment rolls. 6. Resolutions authorizing closing of streets.

12. Formal approval of various applications submitted in connection with Federal grants. 13. Approval of sale and authorizing bid and purchase contracts for properties in Redevelopment areas. 13. Authorization for Tax Collector to sell liens on property for delinquent taxes.

CDW/jgs

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Explanation of the Open Meetings Law

I.

Definition of Official Meetings.

It is the public policy of North Carolina that the hearings, deliberations and actions of public bodies be conducted openly. Therefore, except as provided by the exemptions hereinafter set forth, each "official meeting" of the City Council shall be open to the public. These provisions are also applicable to the various boards and commissions established by the City Council. An "official meeting" must first be a meeting or gathering together at any time or place (or the simultaneous communications by conference telephone or other electronic means) of a majority of the members of the City Council. It then becomes an “official meeting” when the gathering is for the purpose of transacting the business of the City. However, a social meeting or other informal gathering does not constitute an official meeting unless called or held to evade the spirit and purposes of this law. Of course, the problem with a social gathering of a majority of the board is that it may be difficult to prove whether it is for the purpose of conducting City business unless there are a number of other people there or it can be easily viewed by others. The City Council may hold a closed session only where permitted by N.C.G.S. § 143-318.11 and upon a motion duly made and adopted at an open meeting. The motion shall state the purpose set out in the statute that permits the closed session, but need not reference the statute itself. In addition, a motion to close the session to discuss an existing lawsuit must identify the parties to the lawsuit. If the purpose is to discuss some matter that is confidential by law, the motion must cite the law that makes the matters confidential. Minutes and a general account are required to be taken at a closed session. They may be withheld from public inspection so long as the public inspection would frustrate the purpose of the closed session. Thereafter, the minutes and general account must be made public. Minutes typically constitute a statement of actions taken and enough context so that the actions taken can be understood. The requirement for a general account of closed meetings is there because many closed sessions involve no action and, thus, would have opaque minutes. So, the general account describes what happened in the meeting so that a reasonable person would understand what went on without being anything close to a transcript. II. Calling a Closed Session; Minutes of the Meeting.

III.

Permitted Purposes For which a Closed Session May Be Held.

The City Council may hold a closed session and exclude the general public only under the following circumstances: (1) To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes. (2) To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award. (3) To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded. (4) To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of negotiations. The action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session. (5) To establish, or to instruct the public body's staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract. (6) To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective. public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting. (7) To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct. (8) To formulate plans by a local board of education relating to emergency response to incidents of school violence. (9) To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to

such activity. (10) To view body worn camera footage. IV. Notice of Official Meetings.

In regard to regular meetings, a current copy of the time and place of the regular meetings must be placed on file with the City Clerk. In regard to "Special Meetings," written notice must be posted either on the principal bulletin board or at the door of the Council Chamber and also mailed or delivered to each party on the "sunshine list" at least 48 hours before the meeting. The "sunshine list" for special meetings is any person who files a request for such notice. The notice shall include the time and place of the meeting and state its purpose. The City Council may charge persons other than the media $10.00 annually for inclusion on the list. The rules applying to special meetings do not apply to adjourned or recessed meetings or emergency meetings. The remedy against the City for a violation of Open Meetings is in the nature of an injunction. Any injunction awarded must be specific and may address itself to threatened violations as well as the recurrence of past violations. The act authorizes, but does not require, the assessment of attorney's fees against the losing party in an Open Meetings lawsuit. The court is further authorized to order that attorney's fees be paid personally by any individual member of the public body who knowingly or intentionally committed a violation of the law. However, such personal payment cannot be ordered if the public body or the individual member in question sought and followed that advice of the attorney. Any person may institute suit to declare null and void any action taken by a public body in violation of the Open Meetings Law. So, our assiduous attention to and compliance with these rules is done to protect the members of the public body and to insure that actions taken by the body are not voided by such a law suit. CDW/jgs References: N.C. Gen. Stat. §143-318.9 and §143-318.17 V. Remedies and Personal Liability.

DATE:

September 1, 2015

TO:

Mr. John Doe, Assistant City Manager

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Conflicts of Interest

This memorandum is under review and will be updated as expeditiously as feasible. CDW/sds References:

N.C. Gen. Stat. §14-234 N.C. Gen. Stat. §160A-75 City of Greensboro Charter, Sec. 4.131

PO Box 3136

Greensboro, NC 27402-3136

www.greensboro-nc.gov

336-373-CITY (2489)

TTY # 333-6930

DATE: TO: FROM: SUBJECT:

August 11, 2022 Mayor and City Council Ch uck Watts , City Attorney Law Prohibiting the Receiving of Gifts and Favors

BACKGROUND In 1981 the General Assembly enacted a law which was later amended in 1987, 1993 and 1994, concerning bid rigging and the prohibition of gifts and favors. While the purpose of the lawwas to prohibit activities that would encourage bid rigging and favoritism with contractors, the law was passed with broad generalities applicable to all public officers, employees and elected officials as well as for any government contractor or potential government contractor. In essence, it is unlawful for a contractor, subcontractor or supplier to give and for any person in local or state government who is charged with the duty of preparing plans, specifications or estimates, or who is charged with awarding or administering public contracts or inspecting construction to receive or accept any gifts or favors. The law does not define "gift"; however, it does state that the receipt of honorariums for participating in meetings and receiving advertising items or souvenirs of nominal value and for eating meals furnished at banquets would not be a violation of the law. In addition, a customary gift between local officials and their friends and relatives, where it is clear that the personal relationship is the basis for the gift and it is not charged to business, would be permissible. However, all such gifts knowingly from friends and relatives made or received are required to be reported by the donor to the agency head if the gifts are made by a contractor, subcontractor or supplier. A contractor includes any person or company which provides construction or sells good or equipment as well as any person who has performed under such a contract within the past year or who anticipates bidding on such a contract in the future. See: N.C.G.S. §133-32. GENERAL PROHIBITIONS

CDW/jgs

Reference : C ode of Ethics, Gift Policy, and Disclosure Requirements for the Mayor and City Council of the City of Greensboro, North Carolina City of Greensboro Personnel Policy Manuał, Gifts

DATE:

September 1, 2015

TO:

Mr. John Doe, Assistant City Manager

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Chuck Watts, City Attorney

SUBJECT:

Ethical Responsibilities

The North Carolina Constitution, Article I, Section 35, discusses the recurrence to fundamental principles. North Carolina General Statute § 160A-86 requires local governing boards to adopt a code of ethics. CDW/sds Resource: Code of Ethics, Gift Policy, and Disclosure Requirements for the Mayor and City Council of the City of Greensboro, North Carolina

PO Box 3136

Greensboro, NC 27402-3136

www.greensboro-nc.gov

336-373-CITY (2489)

TTY # 333-6930

DATE: TO: FROM:

August 11, 2022 Mayor and City Council Ch uck Watts , City Attorney

SUBJECT:

Impact of State Government Ethics Act on Activities of City Officials and Employees

Under the State Government Ethics Act, Council members and other City officials and employees, may lobby legislators, legislative employees and members of the executive branch of state government on behalf of the City without being subject to any requirement imposed by the Act. "Lobbying" is broadly interpreted and is defined to cover influencing or any attempt to influence legislative or executive action, either directly or indirectly by just establishing and maintaining good relationships with any legislative and executive personnel. Council members and City officials and employees may also answer questions and respond to inquiries from state legislative and executive officials/employees without running afoul of the law. The City, as an organization or unit of local government, is also permitted to engage in the same activities cited above without being subject to the requirements of the Ethics Act. (See NCGS 210C-700(3) and NCGS Chapter 138A). However, depending on the situation, there may be limitations on the use of public funds on any gifts (including lunch, honoraria or souvenirs) to legislators, legislative employees or public officials in the executive branch of state government, including, among others, officials of state and community colleges and universities. When the City can provide these types of "gifts", the City may be subject to mandatory reporting requirements that carry penalties and civil fines for failure to comply. In 2017, the City hired McGuire Woods Consulting as a lobbyist to represent the City ’ s interests in Raleigh. Because the City hired a lobbyist, the City is considered a “ lobbyist principal ” and is subject to all the requirements and restrictions of the Ethics Act and lobbying laws like any other lobbyist principal. The City registers as a lobbyist principal with the Secretary of State’s Office, reports its lobbying expenditures, and becomes subject to prohibitions such as the gift ban. Under the gift ban, the local government cannot give gifts to state officials and employees covered under the Ethics Act unless the item is either not a gift as defined under the Ethics Act or falls under one of the Act’s narrow exemptions to the gift ban. Any Council member, city official or employee who has questions about activities that are and are not permitted under the State Ethics Act, should contact the City Attorney at 373-2320 for advice and counsel.

CDW/jgs

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Charles D. Watts, Jr., City Attorney

Analysis of Potential City Council Member Liability

SUBJECT:

As a general rule, “city council members . . . are entitled to absolute legislative immunity for all actions taken in the sphere of legitimate legislative activity.” Northfield Dev. Co. v. City of Burlington , 136 N.C. App. 272 (2000) Furthermore, city council members, when sued in their individual capacities for a violation of constitutional or statutory rights, are entitled to qualified immunity, which provides that they are shielded from personal liability so long as their conduct did not violate a “clearly established” right. Toomer v. Garrett , 155 N.C. App. 462 (2002). Despite these two immunities, courts have made clear that city council members “are personally liable to the government when they unlawfully disburse public funds, and the funds can be reclaimed either by the local government or a taxpayer suing on its behalf.” Sandra M. Stevenson, 5-77 Antieau on Local Government Law , Second Edition § 77.01 The North Carolina Constitution provides that “[t]he power of taxation shall be exercised in a just and equitable manner, for public purposes only[.]” N.C. Const. art. V, § 2(1). This constitutional mandate extends to all local government expenditures of public funds. Our courts have defined public purpose as “within the frame of governmental and proprietary power given to the particular municipality, to be exercised for the benefit, welfare and protection of its inhabitants and others coming within the municipal care.” Greensboro-High Point Airport Auth. v. Johnson , 226 N.C. 1 (1946). This definition is meant to expand to accommodate unique factual circumstances and changing societal conditions, and therefore “is not to be narrowly construed.” Madison Cablevision, Inc. v. Morganton , 325 N.C. 634 (1989). The “traditional test” for whether a particular expenditure satisfies the public-purpose definition turns on whether the expenditure (1) “involves a reasonable connection with the convenience and necessity of the particular municipality,” and (2) “benefits the public generally, as opposed to special interests or persons.” Id. Importantly, “[i]t is not necessary that a particular use benefit every citizen in the community to be labeled a public purpose[,]” id. , and payment to only select individuals does “not affect [an expenditure’s] public character”—“the test is not . . . who receives the money, but the character of the purpose for which it is to be expended.” Green v. Kitchin , 229 N.C. 450 (1948). Accordingly, Courts have found expenditures to be in furtherance of a public purpose in a wide variety of circumstances as permitted by statute and case law. CDW/jgs

DATE:

August 11, 2022

TO:

Mayor and City Council

FROM:

Charles D. Watts, Jr., City Attorney

SUBJECT:

Defamation Suits by Public Officials

The United States Supreme Court has balanced the interest that public officials have in preserving their reputation against the public's interest in freedom of expression in the arena of political discourse. The First Amendment to the United States Constitution protects open and robust debate on public issues. Public officials have voluntarily assumed a position in the public eye and must therefore endure sometimes unpleasant criticism and attacks. In order for a public official to recover damages for a defamatory statement he or she must prove: · the defendant by writing, printing or speaking made a defamatory statement about the public official; · the defendant published the defamatory statement; · at the time of publication the defendant knew the statement was false or published the statement in reckless disregard of whether the statement was false; and · the publication of the defamatory statement caused the public official's reputation to be damaged. CDW/jgs

DATE: TO: FROM: SUBJECT:

August 11, 2022 Mayor and City Council Ch uck Watts , City Attorney Liability of City Members under Civil Rights Act (Commonly Referred to as Section 1983)

PURPOSE AND ELEMENTS OF SECTION 1983

Section 1983 provides that every person who "under color of any statute, ordinance, regulation, custom, or usage" of any state or territory deprives anyone of "rights, privileges, or immunities" secured by the U.S. Constitution is liable to the injured party. While these types of liability suits originate under both state and federal law. Most are federal court actions for alleged civil rights violations. (Civil Rights Act of 1971 — 42 U.S. Code, Section 1983.) To recover payment of damages under Section 1983, the plaintiff must prove that the defendant deprived him or her of a right secured by the U.S. Constitution or laws, as well as show that the right was deprived by acts committed under color of a statute, ordinance, regulation, custom, or usage of a state or local government. City Council members may be subject to civil liability under this Section and can be sued in their official capacities as well as in their individual capacities. OFFICIAL CAPACITY Only those lawsuits filed against council members in their official capacities are construed to be against the City itself, thus protecting individual council members from personal liability. The City can only act through its officials and employees and hence the acts of City officials are the acts of the City. Since the City has no qualified immunity from damages liability, likewise City officials sued in their official capacities have no qualified immunity because the suit against them is the same as a suit against the City. Brandon v. Holt, 105 S.Ct. 873 (1985). General or compensatory damages recovered against City officials sued in their official capacities will be paid from public funds, not personal funds of individual council members. Municipalities and City officials sued in their official capacities are immune from punitive damages. As distinguished from general or compensatory damages, punitive damages are damages over and above the amount which will compensate plaintiffs for their actual losses. Punitive damages are intended to punish defendants for their wrongdoing and to serve as a deterrent to other potential wrongdoers.

INDIVIDUAL CAPACITY When council members are sued in their individual capacities, in addition to being subject to injunctive and declaratory relief, they are also subject to paying damages and attorney's fees from personal funds. Council members acting in their legislative roles, i.e., the role of policymaker, have absolute immunity and therefore a suit filed against council members because of his or her legislative actions cannot prevail. However, in taking executive, ministerial, or administrative actions (defined as actions which are non policymaking and which affect one or more specific individuals), council members only have a qualified immunity from damages. For example, the zoning or rezoning of an area of land would be a legislative act while the awarding of a contract would be a ministerial or administrative action. Under qualified immunity, a defendant has to show that he or she is entitled to immunity by demonstrating that his or her actions were taken in good faith and were within the scope of his or her authority as conferred by applicable law. The test of good faith is an objective one. A good faith action is one taken by a person who has a reasonable belief that his or her action is lawful. An action is not taken in good faith if the person knew or reasonably should have known that his or her action violated the lawful rights of another. At least four (4) objective measures of good faith are often employed by the federal courts: 1. Knowledge of prior law; 2. A reasonable factual basis for action as judged from the official's perspective; 3. Prior approval of a given course of action by a superior government agency; 4. Adherence to prior, established practices. If the evidence shows that a council member took action in good faith and within the scope of his or her authority, he or she is entitled to immunity from all damages but still may be subject to injunctive relief. LIABILITY FOR THE ACTIONS OF OTHERS Council members cannot be held liable for the actions of subordinates because there is no employer employee relationship between council members and city employees. The employer-employee relationship is a prerequisite of vicarious liability, which is liability for the acts of another. Claims which allege council members are liable for deliberate breach of basic duties to properly train, supervise, investigate and discipline their subordinates are actually claims for direct liability. Such claims would place focus on whether council members had done something or had failed to do something which they ought to have done, thereby depriving plaintiff of constitutional rights. Nevertheless, council members sued in their individual capacities can claim entitlement to qualified good faith immunity. Spell v. McDaniel, 591 F.Supp. 1090; Santi a go v. City of Philadelphia, 435 F.Supp. 136.

SUMMARY Good faith is an essential element in pleading immunity from damages. Some very important guidelines are as follows: 1. When council members discharge their legislative responsibilities in good faith, they maximize their defenses and minimize their potential liability. 2. When council members discharge their official non-legislative responsibilities in good faith, they will still have defenses and a qualified immunity under federal law. 3. When council members stray into the administrative responsibilities conferred by charter, statute, or ordinance on other government officials, they minimize their defenses and maximize their potential liability. Because of so many suits being filed against governments in recent years under Section 1983, the purpose of this memorandum is to give you an overview of the purpose and elements of this constitutional provision and a general analysis of the importance of using sound judgment and proper good faith guidelines in performing duties as members of the City Council. CDW/jgs

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August 11, 2022 Mayor and City Council Ch uck Watts, City Attorney Defamation Suits by Public Officials

The United States Supreme Court has balanced the interest that public officials have in preserving their reputation against the public's interest in freedom of expression in the arena of political discourse. The First Amendment to the United States Constitution protects open and robust debate on public issues. Public officials have voluntarily assumed a position in the public eye and must therefore endure sometimes unpleasant criticism and attacks. In order for a public official to recover damages for a defamatory statement he or she must prove: · the defendant by writing, printing or speaking made a defamatory statement about the public official; · the defendant published the defamatory statement; · at the time of publication the defendant knew the statement was false or published the statement in reckless disregard of whether the statement was false; and · the publication of the defamatory statement caused the public official's reputation to be damaged. CDW/jgs

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August 11, 2022 Mayor and City Council Ch uck Watts, City Attorney Analysis of Potential City Council Member Liability

As a general rule, “city council members . . . are entitled to absolute legislative immunity for all actions taken in the sphere of legitimate legislative activity.” Northfield Dev. Co. v. City of Burlington , 136 N.C. App. 272 (2000) Furthermore, city council members, when sued in their individual capacities for a violation of constitutional or statutory rights, are entitled to qualified immunity, which provides that they are shielded from personal liability so long as their conduct did not violate a “clearly established” right. Toomer v. Garrett , 155 N.C. App. 462 (2002). Despite these two immunities, courts have made clear that city council members “are personally liable to the government when they unlawfully disburse public funds, and the funds can be reclaimed either by the local government or a taxpayer suing on its behalf.” Sandra M. Stevenson, 5-77 Antieau on Local Government Law , Second Edition § 77.01 The North Carolina Constitution provides that “[t]he power of taxation shall be exercised in a just and equitable manner, for public purposes only[.]” N.C. Const. art. V, § 2(1). This constitutional mandate extends to all local government expenditures of public funds. Our courts have defined public purpose as “within the frame of governmental and proprietary power given to the particular municipality, to be exercised for the benefit, welfare and protection of its inhabitants and others coming within the municipal care.” Greensboro-High Point Airport Auth. v. Johnson , 226 N.C. 1 (1946). This definition is meant to expand to accommodate unique factual circumstances and changing societal conditions, and therefore “is not to be narrowly construed.” Madison Cablevision, Inc. v. Morganton , 325 N.C. 634 (1989). The “traditional test” for whether a particular expenditure satisfies the public-purpose definition turns on whether the expenditure (1) “involves a reasonable connection with the convenience and necessity of the particular municipality,” and (2) “benefits the public generally, as opposed to special interests or persons.” Id. Importantly, “[i]t is not necessary that a particular use benefit every citizen in the community to be labeled a public purpose[,]” id. , and payment to only select individuals does “not affect [an expenditure’s] public character”—“the test is not . . . who receives the money, but the character of the purpose for which it is to be expended.” Green v. Kitchin , 229 N.C. 450 (1948). Accordingly, Courts have found expenditures to be in furtherance of a public purpose in a wide variety of circumstances as permitted by statute and case law. CDW/jgs

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September 1, 2015

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Mr. John Doe, Assistant City Manager

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August 11, 2022 Mayor and City Council Ch uck Watts, City Attorney Public Records Law

What is a Public Record? Chapter 132 of the North Carolina General Statutes has been deemed the Public Records chapter. Section 132-1(a) defines “Public records” as: [A]ll documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government. Additionally, Section 132-1(b) indicates that “ public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, "minimal cost" shall mean the actual cost of reproducing the public record or public information.” Framework for Understanding how the City Answers Public Records Requests The public records law creates a right of access to government records, which must be provided unless an exceptions applies. The questions in this framework focus on key issues that help determine how a public agency should respond to requests for access to public records. 1. Does a record exist that corresponds to the request? If not, no disclosure is required. If so, continue to question 2. As it pertains to question 1, we are looking to see if a record actually exists that corresponds to the request. Sometimes public agencies receive requests for information, which may be found in various records, or which is known but not made part of any record. The obligation under the law is to provide access to or copies of records that exist, and the statute specifically says that a public agency is not required to respond to records requests by “creating or compiling a record that does not exist.” G.S. 132-6.2(e).

2. Is the record “made or received in the transaction of public business?” If not, no disclosure is required. If so, continue to question 3. Most of the records that a public agency has do relate to the business of the agency. Records that are personal, however, are not related to the work of the agency and are not subject to disclosure under the public records law. This can describe a great many records, including personal emails created by public employees or officials. 3. Is there an exception that applies? If not, the requested access must be provided. If so, continue to question 4. There are numerous exceptions to the public records law. These exceptions include, but are not limited to: • Attorney – Client privilege for confidential communications by legal counsel to the public board or agency (NCGS 132-1.1); • State and local tax information , except as allowed by law (NCGS 160A-208.1); • Confidential information such as trade secrets or account numbers for electronic payment (NCGS 132- 1.2); • Settlement documents regarding medical malpractice against a hospital facility (all other settlements are public record) (NCGS 132-1.3); • Records of criminal investigations by public law enforcement agencies (except as set forth in the statute regarding the name, age, sex, address, etc. of accused and witnesses which are public records) (NCGS 132-1.4); • 911 calls over 30 days old and the 911 database (NCGS 132-1.4 and 132-1.5); * • Qualified exception for GIS database (NCGS 132-10); • Personnel and medical records (NCGS 160A-168, 8-53, 131E-97);

• Trial preparation materials (NCGS 132-1.9); • Social security numbers (NCGS 132-1.10); • Public enterprise billing information (NCGS 132-1.1); • Economic development records (NCGS 132-6(d) and 132-1.11); • Public assistance records (NCGS 108A-80); • Public security plans and information (NCGS 132-1.7); and • Personal information from motor vehicle records (18 USC 2721).

4. Does the exception apply to the entire record, or only to certain information, and does it prohibit disclosure or does it deny the right of access? If a prohibition applies to the entire record, do not disclose; if it applies only to certain information, redact and disclose. If there is no right of access to some or all of the information, but release is not prohibited, determine whether or not to release the entire or a redacted record. If an exception applies, the public agency may be allowed or even required to deny access to the entire record. In many cases, however, a particular record may contain a mix of public and nonpublic information. Depending upon the wording of the particular exception, the public agency may be required to redact or separate confidential information from other information that is public. Although the public records law applies to records, not information, it also provides that a request for access to a record cannot be denied on the grounds that confidential information is commingled with non-confidential information. Indeed, the law requires the public agency to bear the cost of separating the information in order to comply with the request. If an exception specifically prohibits disclosure of an entire record, redaction is not required.