TO:                  Mayor and Town Council


FROM:            W. Calvin Horton, Town Manager

                        Ralph D. Karpinos, Town Attorney


SUBJECT       Potential Legislative Requests


DATE:            May 8, 2006



The attached resolution would establish the Council’s Legislative Program for the 2006 Session of the North Carolina General Assembly.




Each calendar year the Town Council goes through a process to develop a list of policy positions and requests to submit to the Town’s Legislative Delegation at the beginning of the annual session of the North Carolina General Assembly.


So far this year the Council has:


  1. Discussed possible legislative requests at its annual retreat on January 12, 2006.
  2. Received public input on potential legislative requests at its January 25, 2006, initial budget forum.
  3. Considered a list of potential legislative requests and, on March 27, 2006, called a public hearing to receive public input.
  4. Held a public hearing, on April 10, 2006, to receive citizen input on potential legislative initiatives for 2006.
  5. Met with Senator Ellie Kinnaird and Representatives Joe Hackney and Verla Insko, on April 24, 2006, to discuss potential legislative issues of interest to the Town.




1.  Issues Discussed with Delegation.


The issues reviewed by the Council with the Local Delegation on April 24, 2006, include:


1.      Statewide Legislation:

a.       Legislation that could reduce or eliminate local authority to franchise cable television companies.

b.      Legislation to authorize a statewide bond referendum to fund the purchase of land for conservation.

c.       Improved funding for communications systems for emergency responders.

d.      Legislation to raise the minimum wage.

e.       Changes to the method of distributing the sales tax.

f.       Increased support for substance-abuse treatment facilities and for the hiring of Alcohol Law Enforcement Officers.


2.      Local Legislation:

a.       A local bill to authorize the Town to accept payments from developers for public transportation capital improvements in lieu of physical improvements to the transportation infrastructure.

b.      A local bill to annex a small portion of right of way along the Durham-Chapel Hill annexation boundary.


Attachment 1 is a copy of the draft minutes from the Council’s April 24, 2006, meeting with the Legislative Delegation, reflecting the issues discussed with them.


Based on the Council’s conversation with our Legislative Delegation, the public transportation capital proposal has been drafted to provide that the Council may accept payments from a developer which are voluntarily offered when the developer and Town believe that improved public transit services is preferable to infrastructure improvements such as wider roads. 


As noted previously, the annexation bill simply adds to the Town a small portion of right of way that was overlooked when other lands were annexed legislatively a few years ago.  


2.  Additional Local Bill Recommended.


In addition to these two local bills which have been discussed with the Council and with the members of the Town’s Legislative Delegation, the Town Attorney recommends a third local bill to revise the Town’s Charter to delete a provision establishing term limits for the office of Mayor.


Section 2.1(c) of the Town Charter includes the following provision: 


“No person shall be eligible to be elected to mayor for more than four (4) successive two-year terms.”


During the course of reviewing another matter recently, the Town Attorney had an opportunity to review this language.  This language was added to the Town’s Charter in 1981 by Section 6 of Chapter 911 of the 1981 Session Laws. 


The Attorney believes this term limitation is in conflict with the Constitution of North Carolina and recommends that we request its repeal.  


Section 6 of Article VI of the Constitution of North Carolina provides:


“Every qualified voter in North Carolina who is 21 years of age, except as in this Constitution disqualified, shall be eligible for election by the people to office.”


This provision of the Constitution of North Carolina, in 1992, was the basis for the State Supreme Court determining unconstitutional the State’s “resign to run” statute, enacted in 1991.  The “resign to run” required a person holding any current elective office to resign in order to be a candidate for another elective office.  The Court said of this statute: 


We conclude that N.C.G.S. § 163-125, the "resign to run" statute, is contrary to the express terms of Article VI, Section 6, of the North Carolina Constitution. Plaintiffs are qualified voters in North Carolina, who are not disqualified from elective office by any provision of our Constitution. Hence, they are "eligible for election by the people to office" under the express language of Article VI, Section 6. The legislative attempt to require the resignation of those having plaintiffs' status as holders of "another elective office" imposes an additional qualification for elective office, not provided by our Constitution; thus, it fails to pass constitutional muster.


Moore v. Knightdale Board of Elections, 331 N.C. 1, 12 (1992).


(Following the Court’s decision the General Assembly, in 1995, repealed the “resign to run” legislation..)


The Town’s Charter provision, like the “resign to run” statute, imposes an additional qualification for the elective office of Mayor, not provided by the State Constitution, that qualification being that the person not have already served for four terms as Mayor.


Additional support for the opinion that this Charter provision is unconstitutional can be found by reviewing the General Assembly’s track record for considering proposals to establish term limits for state and local elective office.  A number of bills were introduced in the 1990s to establish term limits.  Although none of them was successful, the bills proposed to establish term limits through amendment to the North Carolina Constitution.   See, for example, Senate Bill 37, as introduced in the 1995 Session of the General Assembly.  This demonstrates that the drafters of this proposed legislation believed that such term limits could not have been established by statute.


Inasmuch as this recent case law and legislative history supports a conclusion that this particular provision of the Town’s Charter is inconsistent with the State Constitution, the Town Attorney recommends the Council seek a local bill to repeal it.


Attachment 2 includes copies of the proposed local legislation.


3.  Next Steps.


The 2006 Session of the 2005 N.C. General Assembly is designated the “Short Session” and is scheduled to convene May 9, 2006.  The General Assembly limits the measures it will consider during the Short Session primarily to:  budgetary matters; certain legislation carried over from the 2005 “Long Session”; legislation proposed by study commissions; and bills introduced in 2005 and which passed one chamber and were received in the other chamber by the established deadline.


Local bills certified by the primary sponsor as non-controversial and approved for introduction by each member of the local delegation may also be considered.  Local bills need to be submitted to the Bill Drafting Division of the Legislative Services Office by May 17 and introduced in the House of Representatives or filed for introduction in the Senate by May 24.


Based on the Council’s discussion with the Delegation on April 24, as reflected in the attached draft minutes, we believe that the attached resolution establishes a reasonable and workable legislative program for consideration in the 2006 Short Session of the N.C. General Assembly.




We recommend that the Council adopt the attached Resolution, establishing a legislative program for 2006.




1.      Draft minutes of Council’s discussion with Legislative Delegation (p. 6).

2.      Copies of draft local legislation (p. 8).