Thanks to outgoing president of the SC Association of County Attorneys D’Anne Haydel for the kind invitation to appear at her group’s 2008 CLE. What a turnout! It was fabulous to see all those faces, as anxious as I know they were for the infamous reception to begin! Thanks for having me.
The documents mentioned in the presentation are available, as promised, on this website. Just visit our Resources page and download there.
Sheryl | 
Civil Rights, Constitutional Issues for the Municipal Lawyer | 
06 11th, 2008| 
No Comments »Senate Bill 642 affects public finance investments and should be reviewed. It will be codified at sections 6-5-10, 6-5-15, 11-14-110, and 11-13-60 in the SC Code of Laws.
This bill became law without the signature of the Governor on May 22, 2008.
I’ve been invited to present at the South Carolina County Attorneys’ annual two-day continuing legal education seminar this year at Hilton Head Island. I’ll be presenting Friday morning on the topic of indemnification provisions from the government attorney’s perspective.
Other tentatively-planned topics include:
Anyone interested in joining the SCACA can contact D’Anne Haydel, the current president of the group. If you’d like more information, drop me a line and I’ll connect you with D’Anne; I don’t want to drop her email into a public website without her prior knowledge!
A bill sponsored by Senator Chip Campsen (Isle of Palms) is making its way to the House, and would have significant implications for the governing bodies of SC political subdivisions who offer (or want to offer) prayers before public meetings, as most do.
The bill is S. 638; I’ve uploaded a PDF of the text to this post (see “Further Reading” below).
The bill’s preamble goes over the constitutional judicial history of what is known as ceremonial deism — invocations and mentions of religion by government entities in a ceremonial (and hence First Amendment-friendly) way. Some of these cases are also set forth below as PDFs in “Further Reading.”
The bill would add section 6-1-160 to the codification of laws as the “South Carolina Public Invocation Act.” Subsection (A) covers certain definitions necessary to an understanding of the Act — public invocation and deliberative public body.
The definition of the latter term — deliberative public body — is rather broad, and includes governing bodies of counties and cities, and any branches thereof (probably to include boards, commissions, and agencies, as it also includes special purpose and public service district bodies as well.
Public entities can comply with the section’s “guidance” by adopting one of three proffered policies. First, the duties of offering invocations can be rotated among all members of the entity. Second, an official chaplain may be elected by entity members.
The third option is the most interesting, as it permits rotating the invocational duties among members of the public who are “religious leaders” (undefined in the Act). The invitation for these leaders to offer their services must be sent annually, must be culled from public resources (telephone books, etc.), and must include the following statement:
A religious leader is free to offer an invocation according to the dictates of his own conscience, but, in order to comply with applicable constitutional law, the [name of deliberative public body issuing the invitation] requests that the public invocation opportunity not be exploited to proselytize or advance any one, or to disparage any other, faith or belief’.
Myrtle Beach Sun News — “Bill suggests to local governments how to hold legal prayers”
Marsh v. Chambers, 463 U.S. 783, 786 (1983)
Simpson v. Chesterfield County 404 F.3d 276 (4th Cir. 2004), cert. denied
Wynne v. Town of Great Falls, 376 F.3d 292, 298 (4th Cir. 2004), cert. denied
Sheryl | Local Government & Bankruptcy, Resources for the Local Government Lawyer | 05 10th, 2008| No Comments »City leaders in Vallejo, California voted this week to resolve its worsening financial crisis by filing for protection under federal bankruptcy laws. In so doing, Vallejo will become the largest California municipality to file for bankruptcy.
The vote taken was unanimous, reflecting the reality of a $16 million budget deficit many in the area apparently blame on “overly generous” pay to firefighters and law enforcement officers, following two years of ultimately fruitless negotiations with those groups’ unions.
Bankruptcy for municipalities is governed by Chapter 9 of Title 11, in which is codified the Bankruptcy Code, as amended most recently by 2005’s Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). Section 101(40) defines municipality to include any political subdivision or agency of a state; South Carolina counties would also fall within the ambit of this chapter.
Source: Chicago Sun-Times — “Vallejo to become largest California city to file for bankruptcy” (accessed May 7, 2008)
Date of Opinion: April 23, 2008
Court: 4th Circuit
Case Number: 07-1348
Published: Yes
Link: Piney Run Preservation Association v. County Commissioners of Carroll County MD (PDF file)
Piney Run Stream in Maryland is allegedly being polluted by discharge of effluent (treated wastewater) by Carroll County in violation of the terms of the County’s NPDES permit. The National Pollutant Discharge Elimination System helps monitor compliance with the Clean Water Act by a system of permitting that allows for strict limitations on activities that impact the nation’s waters.
The Preservation Association (hereafter PA, or appellant) brought suit for the second time against the County under the Clean Water Act, alleging the violation of thermal limitations in the permit. The District Court dismissed the suit, finding that the Maryland Department of the Environment was “diligently pursuing” its own CWA suit against the County on these grounds, thus bringing the PA’s suit within the ambit of 33 USC §1365(b)(1)(B) which “provides that a citizen suit may not be maintained if the government enforcement agency “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.”
The issue is whether the MDE actions in the matter constituted diligence within the meaning ascribed to the term in §1365(b)(1)(B).
The Fourth Circuit affirms the dismissal, holding that the MDE actions in regard to the County’s permit constitute diligent enforcement and thus the PA isn’t entitled to maintain its own suit.
The NPDES system allows for the placement of limitations and restrictions on discharges such as the one in question in this case and monitoring/enforcement by appropriate state or federal agencies. MDE is the enforcement agency in Maryland; although citizens are also permitted to bring suit, the regulatory system put in place at the federal level encourages and favors enforcement by federal and local agencies over citizen suits. This is the legislative purpose underpinning §1365(b)(1)(B).
As a result, the court finds it necessary to review a somewhat convoluted history of regulatory action and litigation between MDE and the county relevant to this NPDES permit. Those facts are briefly summarized below.
The County’s NPDES permit goes back to 1975, in various iterations, the most recent being granted in 1990. MDE decided to modify the permit in 2000, to heighten restrictions and include a thermal limitation on the County’s effluent.
The County sought judicial review of this decision and moved to stay enforcement of the modified permit pending the outcome. In response, MDE filed a complaint seeking an injunction and civil penalties for, among other things, a violation of the thermal restriction.
The petition for review was denied, but the court did agree to stay enforcement until a final decision was rendered, or until November 20, 2005, whichever first occurred. On November 20, 2005, the stay expired, and the permit was again in effect. Thereafter, the final decision on modification was affirmed by judicial decision
A consent order was entered into by the County and MDE in 2006. It is this order that PA, the appellant, complained of in its suit, alleging that the order did not constitute “diligent enforcement” under the meaning ascribed to that term in §1365(b)(1)(B).
The consent order, entered by the district court into the record and thus transformed into a judgment, calls for future achievement of compliance with the termal limitations, and a civil penalty of $500 for each day that a violation occurred. The Judgment also provides stipulated civil penalties in the event the County does not comply with the thermal limitation, meet any requirement or complete any required work, or adhere to any specified milestone date or schedule.
A few months after the Consent Judgment was finalized, the PA’s legal counsel notified the County and MDE of the Association’s intent to seek enforcement of the thermal restriction via a citizen suit. The present case was filed in November 2006.
The plaintiff alleged that the MDE enforcement action was not diligent because it resulted in a benefit to the County, as the alleged violator, and “failed to ensure that violations would not continue” (from PA’s brief). The Fourth Circuit points out that the standard for diligence is “capable of requiring compliance and calculated in good faith to do so.
Further, “diligence is presumed,” which makes for a high standard for citizens wishing to bring suit in these circumstances. A prospective enforcement order entered into by the consent of both parties (the state agency and the alleged violator) will not per se be deemed a lack of diligence.
As the Supreme Court pointed out in the Gwaltney case: “If citizens could file suit . . . in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987)
One of my other blogs, arguably the most popular one, is The Inspired Solo. From time to time, I’ll cross-post items of interest that I’ve published at one blog that might be of interest to readers of another. When I do, I’ll preface the subject as I’ve done here: “At [name of other blog].”
Today’s cross-post is to the first item in a series I’m planning on RSS — the technology that allows content to be syndicated and shared across the web in an easily-reproduced and -read format. The post was inspired by friend and blog designer par excellence Cory Miller (who designed the TIS blog) who introduced me to RSSDay.
Interestingly enough, Cory’s introduction came in the form of a Twitter “tweet” — a short (140 character) message that’s the hallmark of Twitter, usually answering the question “What are you doing?” That’s interesting because, if you’ll look to the right on this page, in the sidebar you’ll note something that looks like a pad of paper on which are written words comprising a “tweet” of my own. That’s because Twitter allows users to syndicate their own tweets into their blogs using — tada! — RSS.
“RSS Day is May 1st: Can You Read the Signs?” — The Inspired Solo
I wonder how many county and city attorneys in South Carolina have heard about this one yet from their finance directors …
I heard about S. 1144 initially through a news alert that led me to this editorial at the Charleston Post & Courier’s website from state Comptroller General Richard Eckstrom. From Mr. Eckstrom’s article, which appeared in print on April 3, 2008:
Agency compliance with any additional online data posting required by the proposed legislation could be implemented in most cases without costing the taxpayers a dime. Yet a recently released “fiscal impact statement” obtained by the General Assembly dramatically overstates the cost of implementing this proposal. Misinformed or biased “number crunching” only confuses lawmakers and gives governments an excuse not to make their spending available to the public.
Fair enough. But then Mr. Eckstrom goes on to state, by way of supporting his statement that most state agencies are already in compliance with this proposed legislation without being aware of it:
The majority of state agencies already report their finances to my office for me to process their check payments and in turn I summarize and electronically post their spending information on the state Web site. The entire program costs taxpayers nothing.
I respect Mr. Eckstrom’s position on accountability and openness in public finance, but I can’t agree with the statement that his actions “cost taxpayers nothing.” Every employee and official of the state and its political subdivisions has a job description, assigned tasks, and a finite amount of time in which to do those tasks. Adding a function — any function, regardless of how good an idea it is — within that finite amount of time costs the taxpayers something, be it overtime or the opportunity cost for whatever task was set aside to make room for the new task.
I also cannot agree with the implication that this is “simple” legislation that can be easily implemented. Certainly, scanning and rendering a simple 10-page document into a PDF is a simple enough administrative task — but most of the larger county and city statements that would be affected by this legislation would be much larger than 10 pages.
Additionally, uploading it to the web could be a difficult task, depending on the way the county’s IT department has the county’s website setup. Most IT departments restrict the people who have access to the site’s code, for one thing, which means only a handful of people at most would be expected to post all the documents for the entire county or city. Even if that restriction were not in place, uploading the documents to the web isn’t necessarily an easy thing to do. It’s easy enough for me, using WordPress, to upload the full text of the bill (for example — here, in PDF), but WordPress has a one-click solution for such tasks, and not many county websites are powered by WordPress! Most have interfaces that would require some measure of technical skill — which means training, which means more opportunity and fiscal cost.
That, however, isn’t my main objection to the bill. I haven’t looked at the numbers Mr. Eckstrom references, but I do believe the costs would exceed what we’d call de minimis. For one thing, the sheer number of pages for some counties’ checking account transactions would be mindboggling.
Think of Horry County with its 1500-plus employees, each paid by check every other week (two sets of transactions). Then add the credit card transactions — a busy fleet of police cars, public works vehicles, code enforcement vehicles, all using county credit cards to purchase gas. Add the bank cards for council members and administrative staff for necessary travel. Add, too, all the transactions Procurement engages in to maintain stores of widely and frequently used items.
Now, imagine scanning each and every one of them. That would be a time-consuming task that could conceivably require additional personnel. And the resulting PDFs would be enormous — possibly technically unfeasible; the impact on the county’s website bandwidth could be significant as well.
I can’t argue with the impulse to make public expenditures publicly accessible. I think it’s a laudable goal. I simply question how much thought went into this legislation, and how much of that input came from government employees in a position to know the true costs of compliance.
In the first post in our “Organizing Your State’s County Bar” series, we took a look at four different kinds of tools that attorneys can use to organize a state’s county and/or municipal attorneys as a group: Google Groups (and its Yahoo! counterpart, Yahoo! Groups), Basecamp, blogs, and wikis. Here we’re going to discuss email management — how to tame the dreaded inbox beast.
In the last several months, I’ve experienced a couple of attempts of attorney groups to get organized along the lines discussed in the prior post. I admit I was surprised at some of the responses. While most lawyers saw the value in the lists/groups, more than a few emailed back with requests to be removed from the list.
It confused me, until I realized what was behind the response: overwhelm. In an age where well-known lawyers & journalists and even tech bloggers are declaring email bankruptcy, it should come as no surprise, really, that attorneys (who also deal with incoming notices from CM/ECF if they practice in federal court) are also feeling the pinch of overloaded email inboxes.
I believe it’s at least partially due to two main factors: (1) failure to proactively manage email, and (2) inability to divorce one’s self from a feeling of moral obligation with respect to email. A few words about each:
In far too many cases, we’re letting our inboxes manage us, instead of the other way around. Email, whether at a desktop computer or via the ubiquitous Blackberry or smart phone, simply “is” — much like many things in our work lives. We don’t question it, or how we approach it either individually or organizationally. We simply let it exist as is, and we conform ourselves around its (seeming) demands.
The second, and in my book far more insidious, factor behind email overwhelm is the sense of moral obligation it evokes in many. It’s the same impulse that’s behind our strange decision to answer the telephone during dinner, or our mad rush to get to the door before whoever is ringing the bell gets away. We feel compelled to pay attention right then and to respond right there — not necessarily for any intrinsic value that the communication’s underlying meaning holds for us, but simply because someone else picked up the phone and called.
These steps are designed to address both of those factors — to help you implement proactive management processes and to help quell any residual sense of moral obligation, or at least to put it in its proper perspective.
You certainly don’t need to try them all at once, but do give each a thorough test, and keep an open mind. These steps help create a whole new way of looking at email for many, and to that extent it might feel weird, alien, or just plain rude. But my experience has been overwhelmingly positive in my own implementation of these steps.
Here’s a quick listing of each rule, then below, I’ll discuss each in more detail.
This includes mail from all lists and groups (like those Google groups we’re setting up), as well as those mass group emails from social and charitable organizations we belong to, our kids’ teachers and schools, bar associations and professional groups — everything, in short, that isn’t from a court, a client, or an opposing counsel. Email from those folks, you want funneled into an offline client such as Outlook (for Windows) or Entourage or Mail (for Mac).
The benefits of Gmail are many: more storage space than you’ll ever need, free, ability to have numerous accounts, easily-set-up filters that direct mail where you want it to go, and tracking email in “conversations” rather than separate threads (which makes reading the entire history of an email exchange much easier). But the best and most underused feature of Gmail: the search function. Built on Google’s search algorithm, it will be your life saver if you let it.
The single best thing you can do to organize your email is use those labels (in Gmail) or folders (in Outlook — in Mail.app, it’s mailboxes) zealously and well. Make the labels/folder names appropriately descriptive and non-cryptic; you should be able to tell at a glance what goes where. Create an architecture for your folders that isn’t too byzantine; I’d go no further than 2 deep (i.e., I’d create a “Clients” folder and then a folder for each named client within “Clients,” but I wouldn’t go further and create a “Correspondence” and “Opposing Counsel” folder within the named-client folders; if you want to do that, skip the “Clients” folder).
Stop worrying over “where that email went” — download them to your hard drive. In Gmail, simply archive them. Don’t delete emails. First, you never know when you’ll get that subpoena or FOIA request. Second, you’ll never have to wonder where it is. You’ll KNOW it’s here somewhere! Paired with robust search technology for your computer’s hard drive (and here’s where I really love my Macs and the Spotlight search), you’ll be able to find anything. The trick is to keep them out of your inbox. (See tip #9.)
If you do nothing else, do this one: turn off the little “ding” noises or bells or other sounds that play to alert you that “You’ve got mail!” What you want: total, blessed silence, and absolutely nothing popping up on your screen. No distractions whatsoever. In conjunction with the next rule, this alone will save you countless hours over the course of a year.
Pick two times each day — mine are first thing in the morning, and again at 3:30 PM — to go over your email accounts and process your messages. Don’t check email at any other time. Now, obviously, this is not always possible. You’ll have to reconsider this rule when you’re trying to hash out an agreement via email at the last minute before a county council meeting at 6 PM. But by and large, those times should be rare exceptions. Keep this rule, and the one right before it, and you’ll be amazed how much more in control you feel.
I belong to a group called Solosez, with over 3,000 members. In any given day, hundreds of messages come in to that particular Gmail account, just from this list. Not a single one goes into my inbox, though, because I’ve set up a filter (the equivalent of Outlook’s rules) that directs all incoming mail with a “To:” field including the Solosez list address to the archives. This reduces the number of messages in my email inbox by huge degrees, and nearly eliminates the possibility I’ll miss something important due to visual clutter.
Be diligent and fastidious in this rule; just make sure you’ve got the right logic specified or you could miss important messages. Make certain, for instance, that if you’re setting up a rule directing mail “From:” a particular email address that ALL email from that address is non-urgent. Use conjunctive logic if you need to in order to finesse your rules and filters (i.e., FROM: and keyword fields used together as parameters for the rule/filter).
Here we further address our sense of moral obligation. At one point during the day (or even less often for some lists — I check Solosez mail maybe three times a week on occasion), you’ll either read the message, or mark it read. That’s right — you don’t actually have to read every single email that comes into your inbox! This is a radical thought for many, I realize.
But here’s the perspective that can change your life for the better: Stop thinking of emails as personal visits or telephone calls. They’re not, at least not anymore, if they ever were. Now, they’re like cocktail party chatter — lots of conversations going on at once, and you’re free to flit amongst the groups, drop in, drop out, tune them all out if you need to go attend to something else. This is especially true of listserv emails.
Even if the email is urgent, you can also make use of this step. If you need to take action on the email, set your tasks or calendar reminders right then — don’t delay, which is the digital equivalent of letting your junk mail pile up on the kitchen table.
Remember the Golden Rule: treat others the way you’d have them treat you. Some specific suggestions on bringing the niceties back to email:
Strive to keep that inbox completely empty, by moving emails to the appropriate folders for action or archival, and by downloading them off the server into your hard drive. The beauty of a clean inbox, if you’ve never experienced it, will truly inspire you! For more information about this concept, I highly recommend David Allen’s excellent book on productivity, Getting Things Done, without reservation. Not so much another time management system as a definitive and practical guide to true productivity, “GTD” as it’s known by loyal adherents will truly revolutionize the way you approach the subject of — well, getting things done.
I think I just collectively heard a massive scoffing sound coming from the halls of large law firms everywhere… I don’t mean lose it, literally. I mean “divorce it from your hands.” Relegate it back to its true role: a tool, not a lifeline. Which, come to think of it, isn’t bad advice for email generally.
