Ordinance Report Requirement – Round Two

Published for Coates' Canons on August 30, 2019.

Last year the General Assembly enacted Session Law 2018-69 (An Act to Assist the Criminal Law Recodification Working Group).  The Act directed the State’s counties, municipalities, and metropolitan sewerage districts to submit lists of their criminally enforceable ordinances to two joint legislative committees by 1 December 2018. It further directed every reporting jurisdiction to include a description of the conduct prohibited by each ordinance.  I wrote about the Act in the blog post available here.

Earlier this month the General Assembly enacted legislation that (1) extends the ordinance list deadline to 1 November 2019 and (2) exempts some counties and municipalities from the reporting requirement.  S.L. 2019-198.  The legislation also imposes a consequence on non-exempt local government units that fail to meet the new deadline.

This blog post answers questions raised by the legislation amending the Act.

Why has the General Assembly extended the ordinance list deadline?

Twenty-eight of the state’s 100 counties and 316 of the state’s 552 municipalities didn’t submit the ordinance lists specified by G.S. 2018-69.  (The lists that were submitted have been posted here.)  It’s possible – albeit unlikely – that some of those jurisdictions have no criminally enforceable ordinances.  The obvious inference, however, is that many jurisdictions that should have submitted ordinance lists failed to do so.  The extended deadline is one indication that the legislature still wants the missing data.  Another indication of the legislature’s interest is the new consequence – see below – that will apply to any covered unit that misses the 1 November 2019 deadline.

Which ordinances should appear on a local government unit’s ordinance list?

I addressed this issue at length in my first blog post on the Act.  In brief, any violation of an ordinance adopted by a county, municipality, or metropolitan sewerage district (MSD) constitutes a misdemeanor under G.S. 14-4 unless (1) the local governing board has provided otherwise or (2) the ordinance regulates the operation or parking of vehicles.  G.S. 153A-123(b); 160A-175(b).  Put differently, an ordinance that doesn’t regulate the operation or parking of vehicles is criminally enforceable unless the relevant local governing board has taken action to decriminalize the ordinance.  A covered unit must include all of its criminally enforceable ordinances on the list submitted pursuant to the Act.

Which local government units must submit ordinance lists by the 1 November 2019 deadline?

The Act originally applied to all counties, municipalities, and MSDs in North Carolina.  With the 2019 changes, the Act now exempts counties with fewer than 20,000 residents and municipalities with fewer than 1,000 residents, as determined by the 2010 federal census.  The requirement that all MSDs provide lists of their criminally enforceable ordinances remains unchanged.

What happens if a covered unit fails to meet the 1 November 2019 deadline?

In its original form, the Act didn’t impose any legal consequence on noncompliant units.  The legislation amending the Act puts some teeth into the extended deadline.  If a covered unit fails to submit its ordinance list, complete with descriptions, by 1 November 2019, “[n]o ordinance adopted [by the unit] on or after January 1, 2020, and before January 1, 2022 . . . shall be subject to the criminal penalty provided by G.S. 14-4[.]”  In other words, noncompliant units will lose their ability for two years to adopt ordinances that are criminally enforceable.  Note that ordinances adopted prior to 1 January 2020 will continue to be criminally enforceable.  Moreover, noncompliant units will still be able to use the civil remedies discussed in the blog post found here to enforce ordinances adopted during the two-year period.

What if a unit that misses the 1 November 2019 deadline amends an older ordinance between 1 January 2020 and 1 January 2022?  Suppose, for example, that such a unit adds overgrown vegetation to its nuisance ordinance during that two-year period.  The result might be that, unlike the rest of the ordinance, the overgrown vegetation provision won’t be criminally enforceable.

If a covered local government unit previously submitted its ordinance list, must the unit resubmit the list by 1 November 2019?

No.  The amendments to the Act don’t create a second reporting requirement; rather, they extend the initial deadline for submitting ordinance lists.  It plainly wasn’t the legislature’s intent to require units to submit the same ordinance lists twice.  But if a covered unit has adopted any criminally enforceable ordinances since the original 1 December 2018 deadline, it will need to submit an updated list by 1 November 2019.

How detailed do the descriptions of prohibited conduct need to be?

A unit’s list must describe the conduct that each ordinance criminalizes.  My earlier blog post considers the level of detail that units should provide.  It even contains a sample description based on my hometown’s noise ordinance.

Where should units send their ordinance lists?

As amended, the Act directs covered units to send their ordinance lists to the Joint Legislative Administrative Procedure Oversight Committee.  (It originally instructed units to send their ordinance lists to the Joint Legislative Oversight Committee on Justice and Public Safety as well.)  As a practical matter, this means that units should send their lists to the committee’s co-chairs, whose contact information can be accessed through the committee’s website.  To help ensure that nothing slips through the cracks, Susan Sitze, a staff attorney at the General Assembly, has asked that units copy her at susan.sitze@ncleg.net.

When should units send their ordinance lists?

The amended Act instructs units to submit their lists “no later than November 1, 2019.”  It’s not clear whether this means that the committee must receive the lists by 1 November 2019 or that units must send them by 1 November 2019.  If a unit submits its list by e-mail, the difference is largely irrelevant.  Because units that miss the deadline will temporarily lose their power to adopt criminally enforceable ordinances, the prudent course is to submit the lists in plenty of time for them to reach the committee by 1 November 2019.

Should units submit their lists by mail or e-mail?

The Act doesn’t specify whether units should send their ordinance lists by mail or electronically.  Although this apparently leaves each unit free to use whatever written medium it prefers, I have been told that electronic reports are preferable.

What will the State do with the ordinance lists?

The title of the Act indicates that the ordinance lists will be used by “the Criminal Law Recodification Working Group.”  To the best of my knowledge, the General Assembly hasn’t taken steps to confer formal status on that entity.

The legislation amending the Act directs the General Statutes Commission (GSC) to study the ordinance lists.  (The GSC is an appointed body that, among other things, identifies technical, conforming, and other changes that need to be made to the General Statutes.)  Based on its review of the lists, the GSC will make recommendations concerning whether any conduct currently criminalized by local ordinances “should have criminal penalties provided by a generally applicable State law.”  (The GSC must do the same with respect to conduct criminalized by the North Carolina Administrative Code.)  The GSC’s recommendations are due to the General Assembly and to the Joint Oversight Committee on General Government by 1 May 2020.

Local governments can’t prohibit the same conduct that’s illegal under state (or federal) law.  G.S. 160A-174(b)(6) (city ordinance preempted if elements of offense defined by ordinance are identical to elements of offense defined by state or federal law); Craig v. Cnty. of Chatham, 356 N.C. 40, 45 (2002) (preemption provisions in G.S. 160A-174 govern county ordinances).  If the GSC’s recommendations prompt the General Assembly to outlaw some conduct that’s currently prohibited only in certain counties or municipalities, the effect will be to preempt the local ordinances forbidding that conduct.

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