“Pull out a writing instrument and some paper, and take a couple of minutes to write down why you ran for office.”
Almost 100 elected officials — most new, some not — from across North Carolina took pens to paper. Old problems, old mistakes, new eyes, new voices, they wrote.
Carl Stenburg, the man who posed the provocative question, is the James E. Holshouser Jr. Distinguished Professor of Public Administration and Government at the University of North Carolina’s School of Government in Chapel Hill.
Stenburg, along with a host of other local government experts from the SOG, was in Asheville Feb. 22-23 to teach those elected officials about things like transparency, accountability and conducting local government business for the common good in a complex, litigious and ever-changing hierarchical ecosystem.
“Keep those,” Stenberg said, referring to the paper upon which the goals and dreams of dozens of towns had been written, “for when you go back home and leave a particularly bad council meeting.”
Back to school
Since 1972, Gallup polls have consistently shown that presented the choice between federal, state and local governments, Americans overwhelmingly say that the most honest and most efficient governments are local.
Given that local government elections in North Carolina take place every two or four years in more than 600 different jurisdictions, a significant portion of those so elected have never held public office before.
Even those who’ve been reelected — retention rates nationally swing between 55 and 95 percent since 1964 — must devote considerable effort to staying up on the ever-changing whims of a General Assembly that after more than a century of domination by one political party is no longer a knobby-kneed fawn under the other.
It’s for those reasons that the SOG exists.
“Our job is to help you move forward in meeting those goals,” Stenburg told the group assembled in Asheville for the SOG’s two-day Essentials of Municipal Government seminar.
Since 1931, the University of North Carolina’s Institute (now, School) of Government has been a nonpartisan, policy-neutral, responsive resource in carrying out its mission to improve the lives of North Carolinians by helping public officials understand and improve state and local government through teaching, publishing and advising.
The SOG’s mission is unusual in that it focuses almost solely on the State of North Carolina, whereas similar schools in other states focus on the country, or the world.
Helping public officials, to SOG, means shortening the learning curve; by a show of hands, the overwhelming majority in attendance at the conference was newly-elected, but the conference is also valuable in providing continuing education for veteran elected officials as well as administrators.
“Most managers come with their elected officials to hear the training, especially for newly elected officials, when you can tell them how the town does certain things that instructors are going over,” said Sylva Town Manager Paige Dowling, who with Mayor Lynda Sossamon attended the conference. “I think that when both the elected officials and the managers are trained and attend trainings and talks by the School of Government or the League of Municipalities it enables them to better serve their citizens.”
Sossamon, currently in her second term as Sylva’s mayor, was pleased that her entire board had joined her and Dowling at the conference.
“It helps because we had four members of our board here today and they know some of the things that we should and shouldn’t do, or how we should conduct business,” Sossamon said. “I think that definitely helps the residents of Sylva.”
Teaching, publishing and advising are achieved through campus lectures, blogs like the authoritative Coates’ Canons and generous access for both media and municipalities to subject matter experts in a wide variety of government-related fields.
Today, fulfilling that mission is as important than ever.
“People just don’t seem to have confidence in government anymore,” said Michael R. Smith, dean of the SOG, during the conference. Despite being an alum of the University of Michigan, Dean Smith of course made a joke about Dean Smith.
“I don’t get any better basketball tickets,” he laughed.
His work, though, is no laughing matter.
Smith’s been with the largest university-based governmental advisory, research and training organization in the United States since 1978, and has served as its dean since 2001. Currently, dozens of SOG professors hold expertise in almost 250 separate fields, from abuse to zoning.
“Our faculty in all of these fields are available to you and all appointed officials for advising,” Smith said. “We receive literally thousands of calls and emails a year.”
Many of those are to professors like Stenburg, who spent the first two hours of the conference explaining a concept that today describes the framework of municipal government: you don’t govern alone.
Imagine an inverted triangle. At the bottom, the tiniest sliver, lies the humble alderman — or councilmember, as gender-neutral titles become more the norm.
Above that point sits the municipal government itself; above that, other local governments like counties or regional organizations; above that, state agencies, the state legislature, the governor, federal agencies, Congress and the President — all balanced atop that one humble public servant.
“You’re going to need to look at the world inter-governmentally,” Stenburg said. “You’re going to be spending your time navigating boundaries.”
The most immediate boundary for local governments was birthed by Iowa judge John Forrest Dillon, who in the 1868 case Clinton v. Cedar Rapids hewed out a robust argument for the supremacy of states over municipalities.
Almost all states use some form of the so-called Dillon’s Rule, which means that municipalities, generally, can do only what the state legislature has told them they can do. North Carolina is a Dillon’s rule state.
But 10 other states operate on the Cooley Doctrine, named after Michigan Judge John McIntyre Cooley, who in the 1871 case People v. Hurlbut presumed the right of self-determination, or home rule, at the most local of government levels.
Tired of bailing out cities over and over again, federal and state governments have embraced the new trend of what Stenburg said has been called “fend-for-yourself localism,” including using for-profit and non-profit entities to perform what was once the work of government.
Within this framework, elected officials must balance the often-conflicting principles of liberty and equality, or prosperity and community. For example, what do you do when a new asphalt plant bringing jobs to a poor community wants to locate near a stream and a historic neighborhood?
“Government is complicated,” said Franklin Mayor Bob Scott, a former law enforcement officer and journalist.
Scott also serves as vice chairman of the N.C. Mayors Association, an affiliate of the N.C. League of Municipalities, on whose board he serves. Both organizations were present at the conference, where Scott briefed attendees on the roles and responsibilities of governing boards.
“The only purpose we serve is conducting the public’s business,” he said. “The more we know about business as far as government agencies or units are concerned, the better we can serve the public.”
Transparency and accountability
The ability of governing boards to deal with competing interests in a moral way is one thing, but dealing with them in a legal manner is something else entirely, especially as private citizens become public servants.
“It’s a pretty big part of the transition into your new role,” said Frayda Bluestein, the David M. Lawrence Distinguished Professor of Public Law and Government at the SOG.
Bluestein, along with Chief Counsel for the N.C. League of Municipalities Kim Hibbard, took the crowd through two transparency-related topics that trip up even the most seasoned public officials — conducting open meetings and providing public records.
North Carolina has a “robust” public records statute that is also very broad, according to Bluestein; any record made or received in the transaction of public business is subject to public access, unless one of several small exceptions applies.
Public records can take any form, including texts and emails, and it doesn’t really matter what email or text account is used, or who owns the devices — it’s the content that determines what is and is not a public record.
One doesn’t have to be a resident of the city, the county, the state or even the United States to request public records from a public body in North Carolina.
Accordingly, public bodies can’t even ask why the documents are being requested; theirs is but to deliver, so long as the records don’t contain sensitive personnel information, legal consultations, trade secrets or other information deemed private by statute and by courts.
“I know many of you seem to get really large requests meant only to harass,” said Bluestein. “There really is nothing you can do about that, except in cases that are really broad you can ask them to narrow focus, but that’s about it.”
Statute outlines no set time in which a body must produce requested records.
“If somebody comes and says, ‘I would like a copy of tonight’s agenda,’ that’s gonna take five minutes,” Bluestein said. “If somebody says, ‘I want copies of all the emails between the mayor and manager over this project that’s lasted three years,’ that’s going to take some time.”
Bluestein’s advice is “to have a rule about how soon you respond, and that gives you the opportunity to go back and figure out what this will mean, and perhaps how much it will cost.”
Public bodies can charge for copies, but can’t generally charge for the staff time required to fulfill those requests.
There can, however, be special service charges assessed the requestor if the request involves extensive use of information technology resources and clerical or supervisory assistance, such as in the case of someone wanting to peruse a database.
People who have been denied access to records they feel are public are the only ones who have standing to sue, unlike when governments violate open meetings laws, in which case almost anyone can bring a complaint to the courts.
Although public notice requirements for official public meetings set out in statute are relatively straightforward, that doesn’t stop them from being violated, or in some rare cases completely ignored for nefarious purposes.
But perhaps the most misunderstandings occur in trying to determine what, exactly, constitutes an “official public meeting” and a “public body.”
A public body has two or more members, has to be intentionally created or appointed, is governmental in nature and exercises either legislative, policymaking, quasi-judicial, administrative or advisory functions.
An official meeting consists of a majority of the members of that board gathering simultaneously to deliberate, conduct a hearing or public business, or vote.
So if two board members of a five-member board happen to be at a neighborhood restaurant and a third randomly shows up, the common misconception that one must leave is just that — a misconception. However, an ongoing email dialogue occurring more or less simultaneously with a majority of board members could possibly constitute an illegal meeting.
Even more misconceptions arise out of further concepts covered by Bluestein and Norma Houston, a lecturer in public law and government at SOG since 2006, during the two hours of mandatory ethics training all local government officials must receive within 12 months of each election or reelection to office.
Accepting gifts or favors and engaging in conflicts of interest are probably the easiest ways to run afoul of the law as an elected official.
“Most of these involve using your office for personal gain,” Houston said.
An elected official (or their spouse) who receives from a contract a direct benefit — defined as receiving income or commission, acquiring property or owning 10 percent of the contracted company — is guilty of a Class 1 misdemeanor.
Unlike other financial conflicts, excusing oneself from voting on the contract does not absolve an elected official of responsibility. In fact, excusing oneself from a vote is complicated, too.
“The topic that was most interesting to me was to get a better understanding on when we should or should not be voting for something,” said Kristina Smith, a newly elected Canton alderwoman attending for the first time. “That was a huge eye-opener for me. One of the things I like to pride myself on is being a person of integrity, and I understand that being in this role sometimes those boundaries on when to vote and when not to vote can feel very hazy.”
A duty to vote is presumed unless an elected official has a direct, substantial, easily identifiable financial interest in zoning matters, a general “too close for comfort” relationship to certain quasi-judicial hearings like special use permits or a contract that delivers a direct benefit to the official or their spouse.
Public officials and employees are likewise prohibited from accepting gifts and favors from contractors, no matter the cost of the gift, except for honoraria, souvenirs like lanyards, meals at banquets, or small items from professional organizations like the League of Municipalities. This prohibition, however, does not extend to campaign contributions, or customary gifts from pre-existing family and friends.
On the subject of accepting a gift, when in doubt, Houston said, “do without.”
Financially, local governments across the state usually operate between two extremes — hawking over every cent that’s spent or thinking about money only once a year, during budget time.
“You’ll have to find a place somewhere in the middle,” said Kara Millonzi, a specialist in local government finance law with SOG since 2006.
The Local Government Budget and Fiscal Control Act is a complex and sometimes confusing 31-page document that serves as the particular piece of legislation containing fiscal requirements local officials must follow regarding management and budgeting.
“The amount of vagueness in the way some of these statutes are written really makes it kind of scary when you’re trying to deal with, trying to understand the legalities of things like budgeting,” said James Markey, a newly elected alderman in the town of Canton who was in attendance at the conference. “Whenever you’re dealing with money it gets very tricky, just making sure we’re not putting ourselves inadvertently on the wrong side of the statutes, which sometimes are hard to understand.”
In conjunction with a balanced budget requirement, the yearly budget timeline culminates with a July 1 adoption and locks in a property tax rate for the budget year.
Property taxes are usually the largest sole source of revenue for local governments, which then use the money for general fund expenditures like law enforcement, land use planning, payroll and economic development.
Aside from general fund expenditures, public enterprise funds — typically, fee for service arrangements like water, sewer and solid waste treatments — should be self-sufficient, but aren’t always and may require contributions from the general fund to keep them afloat.
Whatever a governing board chooses to stash away — for purposes of cash flow, or emergencies — is called fund balance. Currently, there are no established maximums, but there are established minimums, and governments that fall below those levels face preemption by the Local Government Commission.
“You need to respond when there’s red flags,” Millonzi said. “You need to continue to educate yourselves as board members as to the law, and what’s going on in your unit. Hopefully I’ve sufficiently scared you, but in a good way. You now have the tools, so good luck.”
Stenburg offered a similar closing to attendees, who’d just been through a dizzying array of topics that didn’t seem to dampen their enthusiasm for public service, but did serve as an important reality check.
“Remember those things you wrote down,” he said. “Remember why you ran.”
Local government pop quiz!
Two full days of instruction at the UNC School of Government would be nothing without a pop quiz at the end, right? Try to answer these five questions designed to test your knowledge of local government law.
1. Mayors of several local municipalities meet informally and privately once a month over lunch to discuss recent trends in government, obviously without providing advance notice to the public. Is this an illegal meeting?
No. Although the gathering is of two or more public officials, the gathering was not intentionally created or appointed by a governing authority.
2. You’re an elected councilmember, and your father owns a business that stands to benefit from a matter before your board. Can you abstain from the vote?
No. There is no direct benefit to you or your spouse.
3. A citizen makes a public records requests from a local government unit. Can the government charge the citizen for the clerk’s time in fulfilling the requests?
No. The requestor can be charged only for copies, unless the requests involve special technical components.
4. Board members are always personally liable for the decisions they make.
No. Generally, board members are only liable for actions they take in defiance of the board’s attorney.
5. If the General Assembly hasn’t specifically prohibited a power to the state’s municipalities, municipalities may choose to exercise that power.
No. Municipalities in North Carolina operate by Dillon’s rule, and can only exercise powers specifically granted them by the General Assembly.