From Your Administrative Law Section Chair

By Brandon W. Leebrick

Dear Members of the Administrative Law Section,
I am honored and excited to be serving as the Chair of the Administrative Law Section for the 2019-2020 bar year. The section’s leadership (listed here) is prepared for a productive year full of quality CLE, social activities, and learning opportunities to make your administrative law practice better.

We encourage you to make the most of your NCBA and Administrative Law Section membership and participate in the many activities we will have this year. Additionally, we invite you to become active with our many committees as you will gain invaluable experience and develop lifelong friendships; please sign up here or contact me or anyone in leadership about becoming a committee member.

Read more

S.L. 2019-201 (S 230) NC Military and Veteran Act of 2019

By Nicholas “Nick” Dowgul

S.L. 2019-201 (S 230) NC Military and Veteran Act of 2019

North Carolina is home to the highest number of active and inactive military members in the entire Union. The legislature has taken steps to make sure that members of the military and veterans are not negatively influenced by their service to our country. The changes under the NC Military and Veteran Act may also help service members decide to stay in NC or help position NC to keep its bases when the next BRAC base closure commission acts. In August of 2019, the General Assembly enacted changes to numerous military and veteran related statutes. S.L. 2019-201 (S 230) is called the “NC Military and Veteran Act of 2019”. The statutory changes concern the State Board of Education, occupational licensing, social service investigations, as well as in-state tuition residency requirements.

Children of military members and providing for excused absences from school

Prior to the below additions to North Carolina General Statute 115C-379(b)(2), the State Board of Education was only authorized by the state legislature to adopt rules that excused absences of a temporary nature for a student with a physical or mental inability to attend school as well as circumstances whereby a student may be excused for nonattendance to do farm work or work at home. In an effort to ensure that children of military members do not receive unexcused absences because of a military member’s change in deployment status, part 1 of the Military and Veteran Act of 2019 directs the State Board of Education to enact rules providing for specified excused absences from school for children of members of the armed forces of the United States.

Read more

Items of Interest: African Hair Braiding, Notice and Sanctions, the Regulatory State

By Administrative Law Section

Members of the Administrative Law Section found the following recent third party articles to be of potential interest to the Section:

Should Licensing Reformers Still Be Talking About African Hair Braiding?, August 12, 2019, by Matt Shafer

Proper Notice is Key to a Proper Sanction: New Opinions July 19, 2019, by Ann Anderson

New Blog Feature: Petition Tracker | NCAPB.com, June 2, 2019, By Troy Shelton          

Legal Interpretation Is Not Like Reading Poetry: How to Let Go of Ordinary Reading and Interpret the Legal Framework of the Regulatory State | Business Law Today from ABA, July 24, 2019, Margaret E. Tahyar  (Subscription may be required)

Write For Your Administrative Law Section Blog

By Ann B. Wall

As the new NCBA year is underway, we invite you to submit articles for the Administrative Law Section Blog. Send proposed articles to this year’s Communications Committee Chair, Ann Wall, at awall@sosnc.gov. And, please consider joining the committee.

Our readers may be new to the Section or to administrative law.  Or they may be long-time and expert practitioners.  In addition, our blog posts will be available to attorneys who are members of other sections of the NCBA. Read more

Put It On Your Calendar Now: ‘Riding the Waves of Change: 2019 Legislative Review’

,

By Christina Cress

The Administrative Law Section is joining forces with the Government & Public Sector, Juvenile Justice & Children’s Rights, and Environment, Energy & Natural Resources Law Sections to bring you a 6.0 credit hour CLE this fall, titled “Riding the Waves of Change: 2019 Legislative Review.”

The CLE will take place at the NC Bar Center in Cary from 8:15 a.m. to 4:30 p.m. on Friday, Nov. 8, 2019.

While it will be available by webcast and on-demand, we encourage you to attend live to enjoy the networking that is sure to occur during the breakfast and lunch, both of which will be provided.

The four co-planning Sections will combine their expertise to provide updates and answers regarding the 2019 legislative actions.

Learn what the North Carolina General Assembly has (or has not) changed and the practical effects of those changes. Brush up on your legislative procedure knowledge and skills. Hear about the most debated and followed bills of the current legislative session.

 

Administrative Law Section Honors Nichols

By Brad Williams

Jack Nichols, director and attorney at Nichols, Choi & Lee, PLLC in Raleigh, N.C., is the 2018 recipient of the Administrative Law Award for Excellence, an annual award given by the Administrative Law Section of the North Carolina Bar Association.

Nichols received the Administrative Law Award for Excellence on Friday, April 20, at the section’s annual meeting and CLE at the N.C. Bar Center.  He chaired the Administrative Law Section in 1994-1995.

Read more

Recent Guidance On the ‘State Supervision’ Requirement

By Frank Trainor

Ever since the United States Supreme Court handed down its decision in North Carolina State Board of Dental Examiners v. FTC, 1235 S. Ct. 1101 (2015), occupational licensing boards have struggled to discern what constitutes adequate “state supervision” over their activities in order to retain state action immunity.  The Supreme Court did not provide much guidance on what is expected of that supervisor or what that supervisor should look like.  However, it did state that “the supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it [and] the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy … however, the adequacy of supervision otherwise will depend on all the circumstances of a case.”

Read more

Board-Led Prayer: Reasons to Beware

By Allison Cooper

Legislative prayer[1] is under attack and the challenges appear far from over. Our Fourth Circuit’s Lund v. Rowan County[2] decision, on rehearing en banc, declaring Rowan County’s[3] prayer practices unconstitutional is a perfect illustration. Despite years of protracted litigation, Lund‘s appellate history and that of its sister cases[4] represent the fundamental difficulty our courts have in evaluating the constitutionality of legislative prayer. Each case requires a fact intensive analysis considering whether the prayer practice is in fitting with historical practices; our nation’s Establishment Clause jurisprudence does not prescribe a particular test.[5]

Read more

Join Us For the Upcoming CLE: Forecast: Cloudy With a Chance Of Reform

By Brandon Leebrick and Fred Moreno

“It is best to read the weather forecast before we pray for rain.”

                           – Mark Twain, “More Maxims of Mark” by Merle Johnson (1927)

Administrative lawyers should hesitate before relying too much on any legal forecasting that is so largely tied to ever-changing political and economic climates. Nevertheless, there is value in understanding what may lie ahead so necessary preparations can be made for possible changes.

The upcoming CLE and Annual Meeting,  Friday, April 20 at the NC Bar Center in Cary (Credit: 6.0 hours, including 1.0 hour Ethics/Professional Responsibility) presents an invaluable opportunity to learn from leading administrative lawyers about recent and future legal developments in the following areas:

  • Interstate Compacts
    An introduction to the history and purpose of interstate compacts for occupational licensing governance, including a discussion of the primary features of compacts and notable licensing compacts used by states.
  • Records Retention Schedules and Procedures
    An informative presentation about the requirements for maintaining and storing certain public records, including practical points for administrative lawyers and particularly those representing agencies and boards.
  • Employee Classification Changes and State Personnel Act Cases
    An update of state personnel case law that has developed since changes were made in 2013 to the North Carolina Human Resources Act, including a discussion of the impact of recent appellate decisions on OAH’s authority in personnel cases.
  • Legislative and Regulatory Reform Updates
    A review of 2017 APA-related legislation during the General Assembly’s long session, and a preview of the upcoming 2018 short session.
  • The Shifting Roles of the Ethical Administrative Lawyer
    A discussion of the unique ethical challenges administrative lawyers encounter.
  • Administrative Case Law, Office of Administrative Hearings, and Rules Review Commission Updates
    Presentations providing overviews of significant developments over the past year and previews of impending changes.

In addition to the opportunity to learn about these timely topics, there will be time to catch up with fellow colleagues and attend the Administrative Law Section’s Annual Meeting, which will include a presentation of this year’s Administrative Law Award for Excellence. Last year Senior Administrative Law Judge Fred Morrison received the award, and we look forward to bestowing this accolade to another deserving individual this year.

We hope you will join us for this CLE opportunity and look forward to seeing you then!

Register here.

 

 

 

 

 

Phyllis Pickett: A Woman for All Seasons

By Bain Jones

Phyllis Pickett

Having grown up in the Burgaw area of North Carolina, Phyllis Pickett saw a very diverse profile of North Carolina in the early years of her life. She recognized the strengths and weaknesses of a community of farmers, small town businesses, military individuals from nearby installations and the struggles of a small Eastern North Carolina town during the latter part of the 20th century. Phyllis was drawn to helping shed light on difficult challenges and giving individuals without a voice the opportunity to be heard. Phyllis developed her intellect, consensus building skills and persuasive talents while helping many people in the Burgaw area.

Read more