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Winter 1993 Volume 58, Number 3 



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In this issue 



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...puterized records 
Contract bidding guideline 
Budgeting for local agencies 
Community service for offenders 



Institute of Government 

The University of North Carolina at Chapel Hill 

The Institute of Government of 
The University of North Carolina at Chapel Hill 
is devoted to teaching, research, and consultation 
in state and local government. 

Since 1931 the Institute has conducted schools 
and short courses for city, county, and state offi- 
cials. Through monographs, guidebooks, bulletins, 
and periodicals, the research findings of the Insti- 
tute are made available to public officials through- 
out the state. 

Each day that the General Assembly is in session, 
the Institute's Daily Bulletin reports on the 
Assembly's activities for members of the legisla- 
ture and other state and local officials who need to 
follow the course of legislation. 

Over the years the Institute has served as the 
research agency for numerous study commissions 
of the state and local governments. 



Faculty 




Popular Government 

Editor Robert P. Joyce 
Managing Editor Carol Often 
Associate Editor Elma Longlev 
Editorial Board A. Fleming Bell. II, 
William A. Campbell, Stevens H. Clarke. 
Jeffrey S. Koeze. Charles D. Liner, lanet Mason 
Art Director Michael Brad> 
Design Staff Daniel Soileau 
Editorial Intern Melissa Dewev 



Michael R. Smith, DIRECTOR 

William A. Campbell. ASSOCIATE DIRECTOR 



Stephen AUred 

A. Fleming Bell. II 

Frayda S. Bluestein 

Mark F. Botts 

Joan G. Brannon 

Margaret S. Carlson 

Stevens H. Clarke 

Anne M. Dellinger 

James C. Drennan (on leave) 

Richard D. Ducker 

Robert L. Farb 

Joseph S. Ferrell 

S. Grady Fullerton 

Milton S. Heath, Jr. 

Cheryl D. Howell 

Joseph E. Hunt 

Kurt J. Jenne 

Robert P. Joyce 

Jeffrey S. Koeze 

Patricia A. Langelier 

David M. Lawrence 

Charles D. Liner 

Ben F. Loeb, Jr. 

lanet Mason 

Richard R. McMahon 

Laurie L. Mesibov 

Dav id \V. Owens 

John Rubin 

John L. Sanders 

John L. Saxon 

Roger M. Schvvarz 

Thomas H. Thomburg 

A. lohn Yogt 




Ibpular 
Governmenl 




Page : 




Page 17 




Winter 1993 Volume 58, Number 3 

Feature Articles 

2 Private Initiatives in Land Conservation: A Grassroots Movement 
Charles E. Roe 

1 1 "The Widest Possible Access": Wake County's Approach to 
Computerized Records, Open Government, and Privacy 
Sherry L. Horton 

17 Do We Have to Bid This? 
Fraxda S. Bluestein 

25 How North Carolina's Cities and Counties Budget for 
Community Agencies 
Charles K. Coe and A. John Vogt 

30 North Carolina's Community Service Program: Putting Criminal 
Offenders to Work for the Public Good 
Anita L. Harrison 



At the Institute 

39 Principals' Executive Program Graduates 

40 Municipal and County Administration Alumni Form Association 
40 Heath Is Honored by Soil and Water Conservation Group 



Page 30 



Popular 
Government 




Popular Government (ISSN 0032-4515) is published four times a year (summer, fall, winter, spring) by the Institute of Government, CB# 
3350 Knapp Building, UNC-CH, Chapel Hill, NC 27599-3330. Subscription: S12.00 per year. Second-class postage paid at Chapel Hill, NC, 
and additional mailing offices. POSTMASTER; Please send change of address to Institute of Government, CB# 3330 Knapp Building, UNC- 
CH, Chapel Hill, NC 27599-3330. The material printed herein may be quoted provided that proper credit is given to Popular Government. 
- 1993. Institute of Government, The University of North Carolina at Chapel Hill. © This publication is printed on permanent, acid-free 
paper in compliance with the North Carolina General Statutes. Printed in the United States of America. 

Popular Government is distributed without charge to city and county officials as one of the services provided by the Institute of Govern- 
ment in consideration of membership dues. The Institute of Government of The University of North Carolina at Chapel Hill has printed a 
total of 8,000 copies of this public document at a cost of 59,303.00, or SI. 16 per copy. These figures include only the direct cost of reproduc- 
tion. They do not include preparation, handling, or distribution costs. 
® Printed on recycled paper with soy-based ink 

On the COVer The Eno River Preservation Association has successfully championed the creation of a state park to preserve the river corridor 
west and north of Durham. Photograph by Duncan Heron. 




: 



Private 
Initiatives in 
Land 

Conservation: 
A Grassroots 

Movement 

- 

Charles E. Roe 




While global environmental problems are at last 
attracting widespread public attention, an- 
other environmental movement is quietly, 
but effectively, taking place on a very different scale. 
Across North Carolina, as in the rest of America, people 
are organizing community and regional land trusts to 
save undeveloped lands that are important to their com- 
munities. The land trust movement allows private citi- 
zens to seize conservation opportunities and enables 
local governments to preserve natural resources that 
might otherwise be lost. 

Land trusts have strictly grassroots origins. The one 
million volunteers in land trusts nationwide realize that 
governmental agencies alone are not always able or will- 
ing to preserve environmentally significant lands, many 
of which are in danger of development or damage. Land 
trusts protect land permanently and directly: they accept 
donations of properties, buy land, assist public agencies 
in acquiring land, or help landowners establish legal re- 
strictions that limit harmful use or development. Some 
preserve a variety of lands, while others focus on a par- 
ticular area or type of resource. By forming land trusts, 
private citizens protect land as nature preserves and 
wildlife habitats, recreational parks and greenways, wa- 
tersheds, stream corridors, farmland in areas with en- 
croaching urban development, community gardens and 
waterfronts, archaeological sites, and historic or scenic 
landscapes. 

Land trusts are private, nonprofit, tax-exempt corpor- 
ations. They may be local, regional, or statewide. They 
are not "trusts" in the legal sense, and, in fact, many pre- 
fer to call themselves conservancies, foundations, or as- 
sociations. Some have hired professional staff. Some land 
trusts own and manage lands, while others simply moni- 
tor development restrictions they helped establish. They 
voluntarily follow protocols and standards of practices 
established by a national association of land trusts. 1 

Phenomenal Growth of 
Private Land Trusts 

Nearly one thousand land trusts have been incorpor- 
ated throughout the United States. On an average, one 
new land trust is formed every week. In North Carolina 
nearly twenty community and regional land trusts have 
formed, the vast majority in the last ten years. (See 
"Statewide Network of Land Trusts" on page 6.) Local 

The author is the executive director of the Conservation Trust 
for North Carolina. 



Popular Government Winter J 993 3 



land trusts have been organized in the Research Tri- 
angle, the Piedmont Triad, the Charlotte area, the 
Sandhills region, the Blue Ridge mountains, and along 
the coast. Others groups either have acquired properties 
or have professed the intent to acquire lands for conser- 
vation: the Botanical Garden Foundation, Friends of 
Hatteras Island, Friends of Roanoke Island, Lumber 
River Conservancy, Northwest Environmental & His- 
toric Preservation Association, Pender Watch and Con- 
servancy, and Trust for Appalachian Trail Lands. 

Over the years — before the surge in North Carolina 
land trusts and right up to today — national and state con- 
servation groups have led in protecting many of the ex- 
ceptional natural areas and endangered species habitats 
in the state. The Nature Conservancy (a private, inter- 
national organization) and the Natural Heritage Program 
(a North Carolina state government program) have been 
especially active. 2 

But the challenge of saving favorite community land- 
scapes, streamways, natural habitats, open spaces, and 
trailways is open to all community citizen groups, indi- 
vidual landowners, and local governments. Local land 
trusts are a quickly developing innovation in this effort. 



Conservation Trust for North Carolina 

The growth in land trusts has generated the need for 
technical assistance. The newly organized Conservation 
Trust for North Carolina (CTNC) meets that need. 
CTNC is a private, nonprofit corporation administered 
by a board of directors composed primarily of individu- 
als experienced in techniques of land conservation. It is 
a member of the newly created national advisory coun- 
cil to the Land Trust Alliance, a national association of 
private land trusts. In turn, a North Carolina land trusts 
council is being organized to advise CTNC in the design 
of its service programs. Those programs are varied: 

• CTNC offers seminars and workshops for new and 
forming land trusts and community groups and 
professional associations with interest in land con- 
servation. 

• CTNC offers training workshops, in partnership 
with the Institute of Government, for members of 
existing land trusts and for staff and officials of 
local governmental agencies. 

• CTNC is preparing a reference manual about or- 
ganizing and operating land trusts, as well as book- 
lets with guidelines about land-protection options. 

• CTNC acts as a clearinghouse for technical and 
informational sen ices for land trusts. 



In addition, CTNC takes an active role in property 
acquisition and maintenance. It has accepted responsi- 
bility for conservation easements, a creative way to guar- 
antee long-term stewardship of land in private ownership 
(see below, Options for Private Owners) in several prop- 
erties, a responsibility it will transfer to local land trusts 
when they are organized. It recently transferred, for ex- 
ample, conservation easements on two tracts totaling 
eighty-five acres near Southern Pines to the new Sand- 
hills Area Land Trust. CTNC also acquires important 
lands where no local land trust exists or is likely to form 
soon. 

CTNC provides matchmaker services between land 
trusts and conservation-minded property owners or other 
citizens. It recently has provided such services for an 
island owner on the coast, a longleaf woodlands owner 
near Southern Pines, and a farm owner near Greensboro. 
All worked with new local land trusts to arrange land- 
protection agreements. 

CTNC is helping a number of counties to compile 
resource inventories and to plan for protection of special 
natural areas. 

Using Creative and 

Nonconfrontational 

Conservation Methods 

Most land trusts avoid taking controversial and stri- 
dent stands. They prefer quiet nonconfrontational 
approaches in working out cooperative conservation ar- 
rangements with landowners, in buying land from will- 
ing sellers, and in using tax laws to encourage donations. 
They aim to build partnerships with public agencies and 
community organizations and with the private corporate 
sector. They encourage harmonious combinations of lim- 
ited and well-designed development projects that incor- 
porate conservation of natural and recreational lands. 

Land trusts can acquire environmentally significant 
lands by purchase or donation. Increasingly they are re- 
ceiving partial interests in property through conservation 
easements. Some trusts are recipients of lands reserved 
to mitigate or offset unavoidable destruction of natural 
lands elsewhere. 

Many are building community awareness and partici- 
pation in land conservation efforts. For example, the 
Triangle Land Conservancy — serving the Research Tri- 
angle region — has organized countywide inventories of 
special natural areas in its region, with cosponsorship or 
funding assistance from local and state agencies. These 
surveys and the conservancy's county protection plan- 
ning committees have produced interagency cooperation 



4 Popular Government Winter 1993 



on several projects, such as the current effort to protect 
the New Hope Creek corridor m Durham County. 

The Catawba Land Conservancy — serving the greater 
Charlotte region — helped promote Mecklenburg's suc- 
cessful bond issue in 1991 for parkland acquisition, which 
has already added nearly 1,000 acres to the county park 
on Mountain Island Lake. 

The Society for the Preservation of Masonboro Island 
(in New Hanover County) built public support for the 
acquisition of privately held lands on the barrier island 
for creation of a state-owned estuarine reserve. It has 
negotiated with private landowners on behalf of the state 
acquisition project and has acquired purchase options for 
transfer to the state Division of Coastal Management. 

Nationally, land trusts also work with landowners and 
real estate developers to encourage incorporation of open 
space and conservation lands into private and public 
land-development plans. Many development projects 
transfer to land trusts tracts that are dedicated to pre- 
serve attractive and sensitive natural areas. Some land 
trusts actually are joining with developers to cosponsor 
designs for limited development that permanently 
reserve these natural areas. Land trusts and conservation- 
sensitive developers can benefit mutually from coopera- 
tive arrangements that improve development designs. 
Local governments may increasingly require developers 
to reserve sensitive environmental lands permanently 
through transfer to private land trusts. The potential is 
greater than the early record of such arrangements be- 
tween North Carolina land trusts and land developers. 

Early North Carolina examples of cooperation with 
developers, however, include donations of land to 
Triangle Land Conservancy (TLC) by subdivision devel- 
opers along Morgan Creek in Chapel Hill; donations 
of money to TLC for land acquisition on bluffs along 
Swift Creek in Cary; transfer of wetlands on Howe Creek 
near Wilmington by a residential developer as part of a 
required settlement for damages to other wetlands; and 
formation of a limited partnership by the National 
Committee for the New River and a landowner in Alle- 
ghany County to guarantee the preservation of scenic 
bottomlands along the New River. 

Responding to Changing 
Land Patterns and Attitudes 

Changes in landownership patterns and in public atti- 
tudes about land uses are creating both urgency and op- 
portunity for land conservation. The state is experiencing 
urban and suburban development at the same time that 
demands for open spaces and outdoor recreational lands 



are increasing. Many property owners want to manage 
and maintain the natural, scenic, or agricultural character 
of their properties but need management assistance or 
advice for estate planning. Many corporations and real 
estate developers recognize that reserving sections of 
natural land makes good business sense. Tax laws provide 
incentives for land conservation. Scientific knowledge is 
improving about the locations of critical natural habitats 
and rare species — the state Natural Heritage Program's 
inventory, for example, has grown to more than 11,000 
known sites of rare species habitats and exemplary natu- 
ral ecosystems. People generally are becoming more 
aware and concerned about saving environmental re- 
sources, scenic vistas, and outdoor recreational amenities. 
Land trusts across the state and nation are respond- 
ing to these concerns and opportunities, working hand- 
in-hand with both private and public landowners. 

Options for Private Property Owners 

Many individual landowners are devoted to maintain- 
ing the natural resources and beauty of their properties. 
But economic and tax pressures, social demands, and 
surrounding land development often combine to 
threaten the ability of owners to preserve land even 
when they want to do so. Land trusts can offer advice 
and assistance to enable owners to be the best possible 
stewards of their properties and to help them understand 
the full range of conservation and preservation options 
available to them. 3 

Donating or Selling the Land 

Landowners may give property to a land trust by out- 
right donation or through a will, or they may give the 
land but reserve the right to use all or part of the land 
during their lifetimes or the lifetimes of other members 
of their immediate family. Alternatively, a landowner 
may sell land to a land trust at fair market value — in 
which case the land trust acts just as any other buyer in 
the market would — or the landowner may make a bar- 
gain sale to the land trust, giving the landowner some 
money but still allowing a charitable deduction for in- 
come tax purposes. 

Creating a Conservation Easement 

A conservation easement is an option for a landowner 
who wishes to conserve the land but not give up title 
entirely. It is a legal means by which a landowner can set 

Continued on page 9 



Popular Government Winter 1993 5 



The new- 
Sandhills Area 
Land Trust 
is arranging 
conservation 
easements with 
private land- 
owners to protect 
longleaf pine 
forests in the 
Southern Pines- 
Pinehurst area. 




Triangle Land Conservancy volunteers lead 
weekend public hikes in its preserves in the 
Research Triangle area. Here a hike leader 
describes the White Pines Nature Preserve. 



MXWiml 



< j r 'i 

UI _L_i£LLilJ 



r rj 

I maK 




f the nearly twenty private groups serving as local 
or regional land trusts in North Carolina, fourteen 
are featured here for their progress and ambitions: 

Catawba Lands Conservancy 

Founded in 1991 for the protection of natural and 
open land resources in the Catawba River basin. Worked 
for passage of the 1991 Mecklenburg County bond issue, 
which included $7.5 million for acquisition of public 
parklands and wildlife reserves near Mountain Island 
Lake and elsewhere in the Catawba basin. Cosponsored 
Big Sweep cleanups of three lakes for several years. Cur- 
rently involved in public education projects, wildlife habi- 
tat enhancement, and initiating a natural lands 
inventory. 

Catawba Lands Conservancy, 1614 Fountain View, 
Charlotte, NC 28203; (704) 332-3814. 

Conservation Trust for North Carolina (CTNC) 

Founded in 1983 as the Natural Heritage Foundation 
and reorganized in 1992 as a statewide land trust to help 
communities, local land trusts, landowners, and public 
agencies conserve and protect natural and open lands. 
Provides a variety of advisory and contractual services. 



6 Popular Government Winter 1993 



Holds easements and other interests 
in conservation lands until they can 
be transferred to local land trusts 
or public agencies. Coordinates the 
state council of land trusts. Cospon- 
sors instructional workshops with 
the Institute of Government and 
other professional associations. 

Conservation Trust for North 
Carolina, P.O. Box 33333, Raleigh, 
NC 27636; (919) 828-4199. 

Eno River Association 

Founded in 1966 as advocate for 
the preservation of the Eno River 
corridor west and north of Durham. 
Has championed and assisted with 
parkland acquisition of more than 
2,200 acres along thirteen miles of 
the river and has acquired conservation easements or 
title to another 120 acres. Built public support and appre- 
ciation for the natural and cultural heritage of the river 
valley. Focuses on improving water-quality protection 
and land-use controls in the urban area. Sponsors an 
annual folk festival that attracts more than 35,000 people 
and dedicates proceeds to acquire more parkland. Serves 
as model for newer citizen groups attempting to protect 
other river corridors in the*"state. 

Association for the Preservation of the Eno River 
Valley, 4015 Cole Mill Road, Durham, NC 27705; (919) 
383-6837. 

Highlands Land Trust 

Founded in 1903 to protect exceptional natural areas 
near the town of Highlands in Macon County. Owns 
three sites managed as public parks. Intends to serve 
more completely as a local land trust. 

Highlands Land Trust, P.O. Box 1703, Highlands, NC 
28741; (704) 526-3259. 

National Committee for the New River 

Founded in 1974, dedicated to conservation and wise 
use of natural and cultural resources of the New River 
valley watershed in North Carolina, Virginia, and West 
Virginia. Primarily oriented to land-use planning and 
water-quality protection. Working on several conserva- 
tion easement projects in North Carolina, which will pro- 
tect more than 500 acres and nearly two miles of river 



The Rocky River cascades by the White Pines Nature Preserve, 
an acquisition project of the Triangle Land Conservancy. 




Roan Mountain — a high-elevation ridge on the North Carolina-Tennessee state 
line — has been a joint protection project of the Southern Appalachian Highlands 
Conservancy and the United States Forest Service. 




frontage along the nationally and state-designated scenic 
river. Involved in a partnership project that will limit resi- 
dential subdivision development and preserve the steep 
slopes and scenic views along the river. 

National Committee for the New River, P.O. Box 
1107, Jefferson, NC 2S640; (919) 982-9090. 

North Carolina Coastal Land Trust 

Founded in 1992 to preserve and protect important 
natural lands in more than twenty coastal counties from 
the South Carolina to Virginia state lines. Will acquire 
lands — especially coastal wetlands and other ecologically 
important areas — through donations, mitigation, and 
purchase. Currently organizing administrative board and 
will soon launch membership development and conser- 
vation land acquisition. 

N.C. Coastal Land Trust, The Cotton Exchange, 321 
N. Front Street, Wilmington, NC 28401; (919) 763-0332. 

Northeast New Hanover Conservancy 

Founded in 1982 to preserve and enhance natural 
resources of Figure Eight Island and the coastal main- 
land between Howe and Futch creeks. Successfully 
achieved designation of Middle Sound and Howe Creek 
as state-regulated "outstanding resource waters." Owns 
about 1,000 acres of marsh and is receiving additional 
conservation easements over wetlands. Focus on land- 
use planning and water-quality control. Sponsors scien- 
tific research on maintaining natural ecosystems of the 
region, through financial support for and agreements 
with the University of North Carolina at Wilmington and 
North Carolina State University. 

Northeast New Hanover Conservancy, 126 Beach 
Road South, Wilmington, NC 28405; (919) 686-0362. 

Ocracoke Preservation Society 

Founded in 1983 by local residents to preserve areas of 
environmental and cultural values on Ocracoke Island, a 
coastal barrier island. Helped designate the village of Ocra- 
coke a historic district and sponsors community activities 
to build public appreciation of the island's natural and 



cultural heritage. Will operate a public visitor center near 
the ferry landing. Has more members than total residents 
of the island. 

Ocracoke Preservation Society, P.O. Box 491, Ocra- 
coke, NC 27960; (919) 928-7375. 

Pacolet Area Conservancy 

Founded in 1989 for the conservation, wise use, and 
preservation of the natural and historic resources of the 
Pacolet and Green River watersheds, primarily in Polk 
County. Has sponsored an inventor}' of special natural 
areas and acquired conservation easements over seventy- 
five acres in four tracts. Works to protect scenic vistas 
and water quality along the Blue Ridge Mountains es- 
carpment and its streams. 

Pacolet Area Conservancy, P.O. Box 310, Columbus, 
NC 28722; (704) 894-3018. 

Piedmont Land Conservancy 

Founded in 1991 to protect natural, open, scenic, and 
rural lands in the state's Piedmont in the Greensboro- 
High Point-Winston-Salem-Burlington metropolitan re- 
gion. Organizing programs for natural areas acquisition, 
support for local government parkland and greenway 
programs, public education, and natural lands inventory 
and protection planning. 

Piedmont Land Conservancy, P.O. Box 4025, Greens- 
boro, NC 27404; (919) 299-2651. 

Sandhills Area Land Trust 

Founded in 1992 to preserve remnants of the longleaf 
pine ecosystem, historic sites, and farmlands in the 
Sandhills region of south-central North Carolina. Orga- 
nizing for a full range of land conservation programs. 

Sandhills Area Land Trust, P.O. Box 1032, Southern 
Pines, NC 28388; (919) 281-5271 or 695-1077. 

Society for Masonboro Island 

Founded in 1983 to help the state acquire title and 
conservation agreements to protect the 500 acres of 



8 Popular Government Winter 1993 



uplands on a much larger barrier island and wet- 
lands complex near Wilmington. Assists with public re- 
lations and ownership investigations and negotiations. 
Acquires purchase options on tracts for transfer to state 
ownership. Most of the island is now in public owner- 
ship as a unit of the National Estuarine Research 
Reserve system. 

Society for Masonboro Island, P.O. Box 855, Wrights- 
ville Beach, NC 2S4S0; (919) 256-5777. 

Southern Appalachian Highlands Conservancy 

Founded in 1974 to preserve critical areas of the re- 
gion, and has focused on the protection of more than 
30,000 acres of Roan Mountain (a nationally recognized 
natural area of extraordinary ecological diversity and 
scenic beauty, with expanses of rhododendron and sev- 
enteen miles of the Appalachian Trail). Currently ex- 
panding its programs to be truly a regional land trust 
with intention to undertake protection prefects and as- 
sist conservation-minded landowners throughout at least 
a bistate section of the Southern Appalachian region. 

Southern Appalachian Highlands Conservancy, Pub- 
lic Service Center, 34 Wall Street, Suite 802, Asheville, 
NC 28801; (704) 253-0095. 

Triangle Land Conservancy 

Founded in 1983 with support from the Triangle J 
Council of Governments to identify and protect natural 
and scenic areas in the six counties of the Raleigh- 
Durham-Chapel Hill metropolitan region. Has com- 
pleted thirteen acquisition projects, with ownership of 
nearly 350 acres and conservation easements over an- 
other 190 acres. Currently working to complete inventor- 
ies of natural areas in the region and to protect the New 
Hope Creek corridor between Eno River State Park in 
Durham and the Jordan Reservoir, the Richland Creek 
corridor between Umstead State Park and Schenck 
NCSU Forest, and the Neuse River corridor east of Ra- 
leigh. Increasingly involved with local governments in 
open space and greenway planning and preservation. 

Triangle Land Conservancy, P.O. Box 13031, Re- 
search Triangle Park, NC 27709; (919) 833-3662. 



Continued from page 5. 

permanent limitations on the future use of the land. 
The owner may continue to use the land in any way 
that is not barred by the easement. But the land trust 
is granted the right to prevent — or to allow — certain 
uses of the land indefinitely, even if the property sub- 
sequently is sold to new private owners. Those new 
owners take the property subject to the restrictions. 

Partnerships with 
Local Governments 

Working as informed advocates, land trusts supple- 
ment and stimulate efforts by governmental agencies 
and are becoming increasingly effective partners in 
local public programs to conserve sensitive natural 
resources. Land trusts are helping state and local gov- 
ernmental agencies to acquire parklands and nature 
preserves by advocating and designing projects, rais- 
ing private funds, building public support, campaign- 
ing for local park bond issues and appropriations, and 
informing and negotiating with private property own- 
ers. As North Carolina continues to grow — particu- 
larly on the fringes of metropolitan areas and in the 
coastal and mountain regions — more counties and 
cities will move to manage growth. Citizen land trusts 
can help urban and rural communities reach public 
consensus and adopt planning goals that balance their 
future growth with protection of natural resources 
and open lands. 

There is high potential for forming partnerships 
among land trusts and local government agencies, 
such as soil and water conservation districts, to aid 
landowners and design conservation programs, to 
strengthen land-use policies and regulations, create 
and leverage public-private matching funding, and to 
improve private land stewardship and rural environ- 
mental planning. 

Conclusion 

Land trusts can make significant contributions to 
their communities. While they do not pay income tax 
and often qualify for exemptions from local property 
taxes, they can use a variety of techniques to protect 
valuable public parks, open space, historic sites, and 
natural areas at little or no public cost. Often they can 
succeed where no public agency has the resources, au- 
thority, or incentive to act. Even where a public- 
agency can act, a private land trust may save money 
by providing an alternative to expensive wrangling or 



Popular Government Winter 1995 



litigation. A trust's ability to move quickly and to offer 
inducements for bargain sales and donations produces 
faster results and reduces controversy. Places protected 
by land trusts become amenities for the entire commu- 
nity. They enhance the quality of life for people who live 
and work near the protected sites. 

Land trusts are created and operated by energetic 
volunteers who generally do not consider themselves 
"activists" but are personally willing to contribute quietly 
to make their communities better places to live. Their 
rewards come from being stewards of our common 
natural heritage and builders of a better future for our 
communities. 4 

Land trusts cannot meet all conservation needs, but 
they can accomplish goals not achievable by other agen- 
cies, public or private. They offer a unique means for 
participation and cooperation by people of all social and 
economic classes and political philosophies. They have 



adopted a strategy based on cooperative voluntary action, 
thus offering an alternative to conflicts and contentions 
over private property rights and regulations. Land trusts 
are a unique grassroots movement, meeting the chal- 
lenge of creating livable communities in balance with the 
natural environment ♦ 

Notes 

1. Statement of Land Trust Standards & Practices, 1989, 
published by the Land Trust Alliance, Washington, D. C. 

2. For descriptions of The Nature Conservancy and the 
Natural Heritage Program, see Charles E. Roe, "Safeguarding 
North Carolina's Natural Heritage," Popular Government 49 
(Spring 1984): 21-31. 

3. Charles E. Roe, "Strategies for Protecting North Caro- 
lina's Natural Areas," Popular Government 51 (Winter 19S6): 
15-24. 

4. David H. Bland, "The Local Land Trust: Formation and 
Operation," Popular Government 52 (Summer 1986): 1 1-16, 47. 



10 Popular Government Winter 1993 



i<# The Widest Possible Access": 

Wake County's Approach to Computerized 

Records, Open Government, and Privacy 



Sherry L. Horton 



Wake County is caught in a dilemma. To provide 
its wide array of services — many of them re- 
quired by law —the county collects huge volumes of in- 
formation about its residents. The law says most of that 
information is public. Many citizens, however, believe in- 
formation about themselves and others should be pri- 
vate. To make the issue even more complex, technology 
is making it ever easier to get to and disseminate stored 
information. 

Wake is not alone. All local governments collect and 
maintain data about their residents simply for the pur- 
pose of providing services. Yet, once governments have 
the data, they may be called upon to make it available for 
commercial purposes, to analyze it in painstaking ways, 
or otherwise to invest time and effort in preparing it for 
somebody else's purposes. Who is to have access to the 
information storehouses of local governments, how eas- 
ily, how cheaply, and for what purposes? 

Though Wake is not alone in the dilemma, it is in the 
lead in the solution. This article looks first at North Car- 
olina's Public Records Act, then at the issues it poses, 
and finally at Wake County's new policy on public access 
to computerized information. 

The Law 

The North Carolina Public Records Act 1 is broad and 
sweeping. 

Its whole thrust is to make government information 
available to the public, except for particular kinds of 



The author has been on the staff of the Wake Cowitx Manager's 
Office since December, 1991. 



information that the law specifically makes private, such 
as elements of county employees' personnel files. A 1992 
decision of the state supreme court 2 emphasized the 
scope of the Public Records Act by expressly holding that 
all records in the hands of the state or local government 
are public unless a specific provision of law provides 
otherwise. 

Further, the act includes information of just about 
every kind, regardless of the form in which it is recorded. 
The law covers "all documents, papers, letters, maps, 
books, photographs, films, sound recordings, magnetic or 
other tapes, electronic data processing records, artifacts 
or other documentary material, regardless of physical 
form or characteristics, made or received pursuant to law 
or ordinance in connection with the transaction of pub- 
lic business by any agency of North Carolina or its sub- 
divisions." 5 A 1981 North Carolina Court of Appeals 
decision makes clear that records that are to be public 
include not only those that the government is required 
by law to keep, but also those "kept in carrying out law- 
ful duties," even if not strictly required."* 

The law's direction is unmistakable. Information that 
the government collects belongs to the public and is 
available for the public to see, copy, and use. 1 

The Huge Volume of Information: 
An Example 

Wake, like all local governments, collects information 
for many different purposes. The tax assessor alone, for 
example, collects and maintains a mass of information 
in carrying out his duties. Each piece of property in 
the county is identified by its address, legal descrip- 
tion, owner's name, and owner's address. All this data 



Popular Government Winter J 993 11 



is maintained simply for the purpose of identifying who 
is responsible for the taxes on the property. In addition, 
information regarding property acreage and buildings is 
maintained in order to assess their worth. Information 
about a building includes details regarding design and 
style, exterior walls, roof type, floor and wall finishes, 
heating and air-conditioning systems, plumbing fixtures, 
and even the types of kitchen appliances inside. All 
of these details aid the assessor's office in determining 
the proper tax value to place on the property. And. be- 
cause this information is all obtained and maintained in 
carrying out the tax assessor's lawful duties and is not 
specifically exempted by statute, it is, by law, public- 
information. 

More information is added to the public record as the 
revenue collector maintains files on the amount of taxes 
paid, due, or past due on each piece of property; on 
foreclosure proceedings; and on liens. These are all rec- 
ords "kept in carrying out lawful duties," and are public 
information. 

The Geographic Information Services Department 
adds another layer to the record by maintaining maps of 
the entire county. This department maintains maps of 
property lines, administrative districts, voting precincts, 
townships, and topography, among others. 

Then the register of deeds' information can be added 
to the total. Clearly, \\ ake County maintains a mam- 
moth amount of tax and property information — just as 
do other local governments throughout North Carolina 
and the United States. 

Concerning such information, the North Carolina 
Public Records Act requires the following: "Every person 
having custody of public records shall permit them to be 
inspected and examined at reasonable times and under 
his supervision by any person and he shall furnish certi- 
fied copies thereof on payment of fees as prescribed by 
law." 6 

The Issues 

Does easy public access threaten privacy? Not so 
long ago, prior to the information age, the tasks of col- 
lecting and maintaining these volumes of data were la- 
borious and time consuming. However, the advent and 
wide use of computers within government agencies have 
made the job of collection and maintenance much more 
manageable. Also not so long ago, retrieving any particu- 
lar piece of information could be equal])' laborious and 
time consuming. But now computers have made such 
retrieval easier than before and have made possible the 
analysis of information at a level impossible in earlier 



times. In short, computers have created an easy and effi- 
cient way to provide data to the public. 

In its early stages, however, the computerization of 
public records could have been seen as a legitimate bar- 
rier to access. From the late 1960s, when such comput- 
erization was begun, through the late 1970s, when 
public-access terminals were first made available in Wake 
County, most people had little or no experience with the 
new technology and were hesitant to use it. 

Now, however, computerized records can be made 
easier for the public to reach. Increasing numbers of 
people have had some degree of exposure to computers 
through their work or leisure activities and are more 
adept at using them. Many counties — including Meck- 
lenburg, Catawba, and New Hanover — now allow the 
public to view computerized records in terminals in the 
county offices. Some new software packages allow users 
of these public terminals to quickly sort and analyze data 
on their own. Additionally, some counties — Mecklen- 
burg and New Hanover among them — now have dial-in 
services which allow citizens in their homes or businesses 
to get access to the public information stored in govern- 
ment computers. 

In fact so many people have personal computers, or 
access to them, that some groups worn that the mere 
existence of government data bases poses a threat to citi- 
zens' privacy. The North Carolina Technological Infor- 
mation Study commissioned by Governor Martin, 
which was released in June of 1992, concluded that com- 
puter access to government data bases is quickly becom- 
ing a threat to privacy in North Carolina." The study 
suggested enacting a Right to Privacy Law to expand and 
more clearly define the kinds of government records that 
are to be exempted from the Public Records Act and to 
establish a state commission to settle disputes over what 
is public and what is not. 

Wake Count}" Information Services Director Russ 
Goff says that codifying the laws relating to public- 
records and individual privacy would be helpful. Citing 
statutory provisions which preserve the confidentiality of 
medical records, mental health records, and other records 
such as those relating to government employees, Goff 
says, "The law is generally clear regarding which govern- 
ment-collected and -maintained information is and is not 
available to the public. The problem is that the exemp- 
tions are currently spread throughout the statutes." 

Does easy interagency sharing of information 
threaten privacy? Privacy concerns also come into play 
when various agencies share information. Often the in- 
formation that agencies share may be necessary to their 
work, but it may not qualify as a public record. For 



12 Popular Government Winter 1993 



example, revenue collectors often try to obtain access to 
any data bases available to locate the assets of delinquent 
taxpayers, such as Employment Security Commission 
(ESC) records where they may find a trail to wages that 
can be garnished. Much of the information that the rev- 
enue collectors find in these ways, such as a citizen's 
place of employment and daytime phone number, is not 
in a strict sense relevant to records maintained regarding 
the amount of taxes paid or owed on a piece or property. 
But the revenue collectors obtain this information from 
the ESC and use it for the purpose of collecting taxes. 
So is it public or private? 

How much should the government charge for 
access? Once it is determined whether information is 
public or private, there is the issue of cost. Should gov- 
ernments provide information to the general public free 
of charge, or should they charge a fee? What about busi- 
nesses that use the information to make a profit? If there 
are fees, should they be based on the cost of disseminat- 
ing the information or on the cost of collecting and 
maintaining the data base? 

Many governments have discouraged public access to 
computerized information either through limited facili- 
ties that prevent access or through prohibitive user fees. 
For example, Guilford County is currently being sued for 
attempting to charge the Greensboro News and Record 
five cents per record for property tax listings. This 
amounts to $8,200 for the entire data base. 

Other counties, however, have been proactive in 
structuring themselves to handle information requests as 
part of their daily routines. No matter which approach 
a government uses, the issue of public access to comput- 
erized public information can no longer be ignored. 

One County's Response 

Public Access 

Wake County began providing free public-use com- 
puter terminals with access through the mainframe to 
data bases in the tax assessor's office and the revenue 
collector's office in the 1970s, and to data bases in the 
register of deeds' office in the early 1980s. However, even 
with these provisions, requests for public records in- 
creased at a rate that strained existing staff and resources. 

As a result the director of Information Sen ices, the 
director of Geographic Information Services, the tax as- 
sessor, and an assistant county manager began looking for 
ways to improve service delivery. In addition to relieving 
the stress on staff and resources, the group wanted to 
move beyond a basic level of service and actively promote 



Waive County's Statement of Direction 
Regarding Public Access to 
Computerized Information 

Hie following statement of direction is adopted by the 
Wake County Board of Commissioners to provide plan- 
ning guidelines for future automation development and 
to assure full public access to public information retained 
or processed by computer within the County. 

Wake County is desirous of providing the widest pos- 
sible access to public records and information stored in 
computers and on magnetic media to a wide spectrum 
of the general public, regardless of the purpose or end 
use. Consistent with the principle of first providing re- 
source support to those agencies and interests for whom 
electronic data is captured and maintained, and for 
whom annual operating budgets have been appropriated; 
and consistent with the provisions of the public record 
laws of North Carolina as well as personal privacy issues; 
it is the intention of Wake County to: 

• Facilitate public access to public records contained on, 
or processed by, computers to the maximum extent 
possible, within the limits of annual operating budgets. 

• N lake available magnetic copies of public information 
contained in County computers at cost of copy, not to 
include recovery of development or acquisition costs. 

• Proliferate, share, coordinate and support computer- 
ized data files, resources and interests among and be- 
tween the municipal, local and state government 
agencies and functions within Wake County. 

• Provide special information research, consultation, 
and programming on a cost recovery basis, without 
impact to normal service delivery to authorized 
County functions. 

• Assure equal access and use of computerized informa- 
tion to both special interests, capable of paying for the 
additional costs associated with "customized" handling 
of informational requests, and the general citizenry of 
the County. 

• Assure the confidentiality of client records, personnel 
records and other records mandated by state or fed- 
eral law to be so protected. 

Adopted by the Wake County Board of Commission- 
ers December 16, 1991. 



Popular Government Winter 1993 13 



Figure 1 

Dial-in Access to the Mainframe 

Wake County's Usage July 1991-February 1993 



1991 



KiK 

August 

September 

October 

November 

December 



1992 


Januarv 




Februan 




March 




April 


: 


May 


it 


June 




July 



August 
September 
October 
November 
December 
1993 January 
I cliruar- 




5 10 

Monthly calls, in thousands 




access to county records. In the process, it wanted to cre- 
ate a decisive policy so that all departments would be clear 
on how to handle requests for information. 

In December of 1991, prompted by this staff work. 
the Wake County Board of Commissioners approved a 
Statement of Direction Regarding Public Access to 
Computerized Information (see page 13). This policy in- 
cludes provisions for facilitating access, assuring equal 
access, sharing information within the county and with 
other governmental agencies, and providing copies of in- 
formation at the cost of printing it. The policy also in- 
cludes provisions for ensuring the confidentiality of 
clients, personnel, and other records as mandated by 
state or federal law. 

Most notably, the Wake policy encourages providing 
access to information "regardless of the purpose or end 
use" intended bv the user. 

Since the appro\ al of the policy, several programs 
have been implemented to facilitate access to and shar- 
ing of information. The most expansive aspect moves 
the county beyond providing public-access terminals in 
count\" offices to providing dial-in access to the county's 
mainframe, available to an}' caller from any location. 
Currently, Wake has four dial-in lines so that anyone 
with a computer, a modem, and compatible software can 
access the mainframe twenty-four hours a day. Two ad- 
ditional general-access dial-in lines can be easily added 
should they be needed, and the county is looking at ways 



to provide access to the mainframe to more than six 
users at once. 

Using these phone lines, people are able to get access 
to either the county's public data bases or the county's 
electronic mail and bulletin-board system. The data bases 
so far include the records of the tax assessor, the tax col- 
lector, and the register of deeds. They do not include in- 
formation about the clients of the county's social services 
or public health departments, or about personnel. 

To date the dial-in sen ice has been provided on re- 
quest but not actively promoted. The count} currently 
is upgrading its computer hardware and software to en- 
sure that demands for public information will not disrupt 
the daily work of count}' employees. In late 1993, once 
the count} is prepared to handle an even larger load of 
requests, a campaign will publicize the kinds of informa- 
tion available and the various ways and costs of getting 
access to it. 

Usage of the county's dial-in lines increased signifi- 
cant!} between late 1991 and late 1992 (see Figure 1). Goff 
expects the usage to increase significantly again in mid- 
1993, when the register of deeds' records from 1974 to 
1990 are added to the data base. A new Geographic Infor- 
mation Services property-identification system should 
also increase the number of citizens interested in using 
the public-access terminals and dial-in sen ices. 

Dial-in lines allow people to get access to public 
information when it is convenient for them to do so. It 



H Popular Goyernmeni Winter 1993 



eliminates the need for them to come to downtown 
Raleigh, pay to park, and wait to be served. It also re- 
lieves some of the demand on county employees who 
would have to wait on these citizens or provide the in- 
formation to them over the telephone. 

To illustrate: the Wake County Tax Assessor's office 
fields about 3,000 informational requests by phone each 
month. That number has held steady for the last several 
months, though dial-in mainframe usage has increased 
over the period. Had those dial-in users been calling the 
assessor's staff rather than the mainframe, there may 
have been a need for more phones and additional staff. 

In an effort to provide the media with more timely 
knowledge of meetings and other important county 
news, the county invited representatives of all area me- 
dia outlets to obtain passwords and take a class in order 
to get access to the county's electronic mail system. The 
service and the class are offered at no cost to the user, 
other than the cost of his or her own computer equip- 
ment and any phone charges. 

Dial-in lines also facilitate data-sharing among Wake 
County departments, as well as among the county depart- 
ments and agencies of other government units. Sharing 
data allows governments to reduce duplication of data 
collection, thereby reducing costs. It also facilitates joint 
planning and better relations among local governments. 

Special Requests 

As progressive as Wake's policy is, the county is still 
wrestling with the issue of special-sen ice requests. A citi- 
zen (or a business) may ask the county staff to manipu- 
late county records in order to generate information that 
the county itself has no need for, but that the citizen or 
business wants to use, perhaps for commercial purposes. 
It is clear that the Public Records Act does not require 
the county to create documents or compile information 
in this way — the law merely requires access to docu- 
ments and compilations of information that already exist. 
The county, in keeping with the spirit of the Statement 
of Direction Regarding Public Access to Computerized 
Information, wants the information in its computer stor- 
age to be as useful to the public as possible, "regardless 
of the purpose or end use." 

Still, with budgets getting tighter and the proviso in 
the Statement of Direction that these services fall 
"within the limits of annual operating budgets," it is dif- 
ficult for the county to provide a high level of service in 
this area without compromising day-to-day operations. 

The solution has been for county employees to con- 
duct special searches on a time-available, first-come, first- 



served basis. But if the special request requires extensive 
time, or if the staff is fully engaged in pressing county 
business that cannot be laid aside, the person making the 
request is offered two choices. He or she may purchase 
a copy of the entire data base at just the cost of the mag- 
netic tapes — S20.00 each for the five-tape set. Or he may 
be given the names of several commercial enterprises 
that have themselves purchased the entire data base and 
will manipulate it, for a fee, as the customer wants. 

For the searches the county staff itself handles, the 
customer pays only for the materials — the paper, the 
computer ribbon, diskettes, etc. Q The Wake County 
Board of Commissioners and County Manager Richard 
Stevens have chosen not to try to recover the costs of 
data collection, hardware, or software necessary to cre- 
ate or maintain the data bases. In the words of Stevens, 
"That data is public information. It belongs to the pub- 
lic, and they have a right to use it." 

Data Sharing 

An interconnected computer system for county mu- 
nicipalities is currently being implemented to facilitate 
the sharing of information advocated in the county 
policy. Raleigh and Cary already have direct leased-line 
connections to the county's mainframe through which 
they share much information with Geographic Informa- 
tion Services. The towns of Zebulon, Knightdale, and 
Fuquay-Varina have recently gained switched-dial access 
to the mainframe. They will use this to obtain up-to-date 
information on the status of building inspections in their 
jurisdictions. Additionally, the county recently gained 
access to the State Information Processing System 
(SIPS). The main benefit of this sharing is timelier, more 
efficient access to information by all parties. However, 
sharing this information is also saving untold amounts of 
money by preventing governments from collecting and 
maintaining data bases for information that other enti- 
ties already possess. 

Comparison with Other 

North Carolina Local Governments 

Although open records are mandated by North Caro- 
lina law, few governing bodies actually have been willing 
to facilitate the flow of information from the government 
to the citizens. In fact, Wake County may be the only 
North Carolina local government with a formal policy of 
providing as much information as possible to its citizens. 

"I think it is an excellent policy, very well thought out," 
says Hugh Stevens, an attorney who often represents 



Popular Government Winter J 995 15 



the North Carolina Press Association in public access 
cases. "I have commended it as a model to others studying 
the issue and trying to formulate their own policies. I have 
also had occasion to send copies of it to publishers in other 
states who are fighting to gain access to records which 
should be open to the public." 

Debra Henzey, Director of Communication for the 
North Carolina Association of County Commissioners, 
also sees Wake's policy as progressive: "Wake County is 
the only county in North Carolina that has provided 
open access to this extent," she says. "I am not aware of 
any other policies that go this far." 

Summary 

Wake County's policy is bold in that it meets the is- 
sue of access head on. While taking into consideration 
issues both of the law and of ethics, the policy takes a 
proactive stance on making public information available 
to all citizens, regardless of their motives or ability to pay. 
It also attempts to promote efficiency within govern- 
ment. Wake County's leaders believe that this is the best 
approach, because providing citizens with proper access 
to information is the most important step toward having 
an informed, effective democracy. ♦ 



Notes 

1. N. C. Gen. Stat. (G.S.) Chapter 132. 

2. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 
412 S.E.2d 7 (1992). 



3. G.S. 132-1. A bill introduced in the General Assembly 
February 10. 1992 (H 121, sponsored by Rep. George Miller, 
D-Durham), would add provisions to G.S. Chapter 132 speci- 
fying, among other things, that public records stored on com- 
puters must be made accessible through development of a 
register clearly explaining what information is in the computer 
storage and how it may be accessed; that it is the responsibil- 
ity of the governmental custodian of the record to provide it 
in any form that the custodian is capable of producing, even 
if the custodian would prefer another form; and that no pub- 
lic agency may purchase or lease computer equipment that 
impairs its ability to permit access to public records. The bill 
would also limit the fees that could be charged for access to 
computerized information. 

4. News & Observer Publishing Co. v. Wake Countv Hosp. 
Sys., 55 N.C. App. 1, 284 S.E.2d 542 (1981), cert, denied, 305 
N.C. 302, 291 S.E.2d 151. cert, denied, 459 U.S. 803 (1982). 

5. "Every person having custody of public records shall 
permit them to be inspected and examined at reasonable times 
and under his supervision by any person, and he shall furnish 
certified copies thereof on payment of fees as prescribed by 
law." G.S. 132-6. 

6. G.S. 132-6. 

7. Earl R. Mac Cormac and M. Jane Bolin, North Carolina 
Technological Information Study (State of North Carolina, June 
1992). Prepared at the request of Governor James G. Martin. 

8. "Most of us are only vaguely aware of the implications 
arising by our names appearing on mailing lists and dossiers 
being maintained by private companies and our government. 
The social cost of the loss of our individual privacy strikes at 
the very base of the freedom envisioned by our founding fa- 
thers." Mac Cormac and Bolin, N. C. Information Study, 1. 

9. The fee schedule now used covers paper ($0.01 per page), 
3.5-inch (1.44 MB) diskettes (Sl.OO each), 5.25-inch (1.2 MB) 
diskettes ($1.00 each), labels (SO. 01 per label), nine-track tapes 
(S20.00 each), and microfiche (SI. 60 per fiche and S0.20 per 
duplicate). 



16 Popular Governmi n i Winter 1993 




.P7 / WQf "" 



Do We Have to Bid 
This? 

Fravda S. Bliiestein 



The first question local government officials should 
ask once they have identified a need to contract for 
a service or purchase an item of equipment is: Do we 
have to bid this? State law requires competitive bidding 
for certain types of public contracts. 1 Many contracts, 
however, are not covered by the competitive bidding 
statutes, either because they are outside the scope of the 
statutes or because the statutes specifically exempt them. 

The author is an Institute of Government faculty member who 
specializes in local government law, particularly issues relating 
to governmental purchasing. 



Where required, bidding is essential to the validity of 
a contract. If a contract is challenged and the court finds 
that the state bidding statutes apply but were not fol- 
lowed, the court will declare the contract void and it will 
be unenforceable. : 

This article focuses on two types of contracts that are 
not subject to the competitive bidding procedures: con- 
tracts for services and contracts made under emergency 
circumstances. (A summary of other kinds of contracts 
that do not require competitive bidding is on page 20.) 
Finally, the article discusses how the bidding statutes 
apply to contracts involving "sole sources." 



Pol'L IAK GoYKRMII-.M Winter J 993 17 



General Rule: 
Err on the Side of Bidding 

The North Carolina courts have been conservative in 
interpreting exceptions to the bidding statutes. A local 
government claiming that an exception applies to a par- 
ticular contract has the burden of proving that the con- 
tract comes within the exception.' The purposes of the 
bidding laws, according to the North Carolina Supreme 
Court, are to promote competition and prevent fraud, 
thereby "guaranteeing] fair play and reasonable prices."' 1 
The fact that bidding is standard practice even in the pri- 
vate sector, where it is not required by law , underscores 
its value. Thus, if it is unclear whether a particular con- 
tract falls within an exception to the bidding statutes, it 
is better to comply with the bidding procedures — and 
secure the benefits the bidding system is designed to 
promote — than to risk a challenge to the legality of the 
contract or to the integrity of the process. 

Of course, in situations where a legitimate argument 
can be made that an exception applies, substantial sav- 
ings may be realized through negotiating rather than 
soliciting formal bids on a contract. If a local government 
wishes to take advantage of these situations, it should 
first carefully analyze the anticipated benefits of avoid- 
ing bidding and the legal arguments supporting the ex- 
ception with the unit's attorney and the employees 
responsible for purchasing and contracting. 

Purchase Contracts vs. 
Service Contracts 

The bidding statutes apply to contracts for construc- 
tion or repair, and for purchase of apparatus, supplies, 
materials, and equipment,' but they do not apply to 
contracts for services other than construction or repair 
sen ices. Sometimes it is difficult to determine what con- 
stitutes a service as opposed to a purchase contract; con- 
tracts may involve elements of both. To resolve questions 
about whether a particular contract requires bidding, it 
is helpful first to examine what kinds of purchase con- 
tracts are covered by the statute and then to identify 
some key characteristics that separate service contracts 
from purchase contracts. 

What Is a Purchase Contract? 

The terms apparatus, supplies, materials, and equip- 
ment, which describe the purchase contracts requiring 
bidding, are not defined in the statutes, but in most cases 
it is easy to determine whether a particular contract falls 



within the scope of the statutes. Indeed, the courts in- 
terpret these terms very broadly to cover just about any- 
tangible item that can be bought. 

The North Carolina Supreme Court has held that the 
terms "apparatus, materials and equipment," as used in 
the bidding statutes, "denote particular types of tangible 
personal property." 6 But it noted that the term "supplies" 
could be read more broadly to encompass "the quantity 
or amount of a commodity at hand, needed or desired," 
and that the terms must be interpreted in light of the 
legislative intent underlying the statute. 

The court's characterization of the bidding statutes 
as covering tangible personal property, or commodities 
bought and sold in an open market, suggests several 
analogies to other statutes that may be useful in under- 
standing the scope of the bidding laws. For example, 
Article 2 of the Uniform Commercial Code (UCC), 
adopted in North Carolina as Chapter 25 of the Gen- 
eral Statutes, applies to transactions in "goods."^ The 
definition of "goods" under the code includes "all things 
(including specially manufactured goods) which are mov- 
able at the time of identification to the contract for 
sale."" This definition encompasses essentially the same 
types of property as are covered by the bidding statutes. 

The definition of tangible personal property in the 
state sales tax law is also useful as further guidance in 
understanding what kinds of contracts must be competi- 
tively bid. Property that is subject to sales tax "includes 
personal property which may be seen, weighed, mea- 
sured, felt or touched, or is in any other manner percep- 
tible to the senses. "- 

It is hard to imagine a type of apparatus, supplies, 
materials, or equipment that would not fit within these 
definitions of personal property. 

What Is a Service Contract? 

In contrast to contracts involving tangible property, 
service contracts, which are not covered by the bidding 
statutes, generally call for personal performance of work. 
State and Local Government Purchasing, a publication 
summarizing public purchasing procedures across the 
country, defines sen ice as "work performed to meet a 
demand, especially work that is not connected with 
manufacturing a product."' ' A senice contract is "[a] con- 
tract that calls for a contractor's time and effort rather 
than for a concrete end product." 1 - The Model Procure- 
ment Code defines senices as "the furnishing of labor, 
time or effort by a contractor, not involving the delivery 
of a specific end product other than reports which are 
incidental to the required performance."" 



IS Popular Government Winter 1993 



Examples of common service contracts include insur- 
ance, janitorial services, solid waste collection, legal serv- 
ices, accounting, auditing, and appraisal services. These 
are all contracts that do not require bidding under North 
Carolina's bidding laws. Certain services are governed by 
other statutes. For example, special rules govern pro- 
curement of architectural, engineering, and surveying 
services. 14 

It is perhaps the unique performance of the individual 
contractor, and the lack of comparable concrete end 
product, that causes services typically to be excluded 
from competitive bidding statutes. Even though some 
services can be compared on objective factors, and some 
equipment and materials are not so easily compared, the 
North Carolina statutes nonetheless draw a line that 
leaves services outside of the bidding requirements. b 

Mixed Purchase and Service Contracts: 
The Predominant-Aspect Approach 

What happens when a contract involves both an item 
of tangible property and a service? For example, consider 
a contract for aerial mapping that involves aerial photog- 
raphy (a service) but has a tangible result (a map); a con- 
tract with a lawyer to prepare a written agreement, a 
contract to replace and rebuild the engine of a major 
piece of equipment (a service) where much of the cost 
is for parts, or a computer consulting contract that in- 
cludes the development and installation of computer 
software. The North Carolina bidding statutes do not 
specifically address these types of contracts. 

How can you tell which of these contracts require bid- 
ding? Based on cases from other jurisdictions and analo- 
gies to the tax laws and the UCC, the best approach is 
to try to determine which is the predominant aspect of 
the contract. This inquiry is sometimes stated in slightly 
different ways: Are the services merely "incidental" to the 
purchase of supplies or equipment? Is the tangible item 
just the end product of a service? lb 

A North Carolina case involving disposal rather than 
acquisition of public property used this "predominance" 
approach. In Plant Food Co. v. Charlotte, 1 the city con- 
tracted for the removal of sludge from its waste treatment 
system. A lawsuit challenging the contract raised the ques- 
tion of whether the sale of sludge was subject to the public- 
auction requirement for disposal of public property — the 
flip side of bidding. The court held that "[i]n the contract 
between these parties the removal of the sludge is the 
prevailing consideration and is sufficiently predominant 
to characterize the contract as one of service, not of sale." 1 s 
The court's notion of "prevailing consideration" appears 



to focus on the value to the city, that is, what the city is 
primarily paying for. 

The courts have used a similar approach in determin- 
ing who is considered a "merchant" dealing in the sale of 
"goods" under the UCC. For instance, is a physician who 
prescribes drugs a merchant under the UCC? To answer 
this question, the North Carolina Court of Appeals fo- 
cused on the "essence" of the transaction between the 
parties. The court concluded that with a physician and 
her patient, it is the professional services, not the sale of 
goods, that is the essence of the relationship and for 
which the physician is paid. Therefore, the court held 
that the physician's contract involves a service rather 
than a sale of goods. 1 " 

Obviously, determining the predominant aspect of a 
contract is a case-by-case process and there may be no 
clearly correct answer. A contract for legal services, like 
the contract for medical services, is predominantly a ser- 
vice contract, even though it may have a tangible end 
product. Similarly, with aerial mapping it would seem 
that the predominant expense derives from the service 
aspect of the contract and that the map is the end prod- 
uct of that effort. For the reasons noted above, however, 
even when a contract can arguably be considered a ser- 
vice contract outside the mandatory bidding require- 
ments, it may be beneficial to solicit competition. 

Examples of contracts that have been held to be service 
contracts and thus not subject to competitive bidding stat- 
utes in other states include contracts for solid waste collec- 
tion, 1 " banking and insurance, 21 preparation of tax maps, 22 
job testing, and telephone-line monitoring. 2. 

Computers and software: a special case. The tax law 
definition of tangible personal property, summarized 
above, is particularly useful in analyzing contracts involv- 
ing computers and computer software. Clearly, com- 
puter hardware is equipment and thus is subject to the 
bidding laws. As for computer software, the tax law in- 
cludes "canned or prewritten" computer programs within 
the definition of tangible personal property for tax pur- 
poses but excludes "custom computer programs." The 
tax statute further defines custom computer program as 
"a computer program prepared to the special order of the 
customer," including situations in which the vendor pro- 
vides analysis of particular program needs or adaptation 
to particular equipment. 24 

Again, applying the predominance rule and drawing 
from the tax law definition, a computer program that 
already has been developed and merely is to be installed 
can be characterized as materials or supplies, with instal- 
lation being incidental to the purchase of an already ex- 
isting product. However, if the unit is paying primarily 



Popular Government Winter 1995 19 



Other Exceptions and 
Exclusions 

Contracts below the Minimum Dollar Amount The com- 
petitive bidding statutes come into play only where contracts 
involve the expenditure of S5,000 or more of public funds. 
Contracts for less than that amount may be let in any man- 
ner the governing body chooses. Many local governments 
have adopted policies that establish procedures for small 
contracts. 

Contracts may not be divided for the purpose of evading 
the competitive bidding requirements (G.S. 143-133). There 
may be valid reasons to divide contracts — for example, to 
spread costs over the budget year, to reduce inventor,' costs, 
to minimize disruption caused by construction on facilities 
in use, or to meet an immediate need. The fact that division 
of contracts has the effect of reducing the amounts to below 
the threshold requiring bidding does not invalidate the con- 
tract unless there is no valid purpose supporting the division. 

Leases The competitive bidding requirements apply to pur- 
chase and lease-purchase contracts (G.S. 160A-19, 153A-165). 
Pure lease contracts are not subject to the competitive bid- 
ding requirements. Even an option to purchase, no matter 
how it may be described or where in the term of the contract 
it may fall, will bring a contract within the scope of the bid- 
ding statutes. Specific limitations on and procedures for lease- 
purchase contracts are contained in G.S. 160A-20. [See 
"Installment Financing under G.S. 160A-20: New Opportu- 
nities and Procedures," A. Fleming Bell, II, Popular Govern- 
ment 56 (Summer 1990): 16-21.] 

State Contracts Under state law, the Department of Ad- 
ministration is authorized to let cities, counties, and other 
local government agencies (as well as certain nonprofit corpor- 
ations) purchase under state contracts awarded by the depart- 
ment's Division of Purchase and Contract [G.S. 143-49(6)]. 
Before receiving bids for state contracts, the division sends out 
to local governments a list of items to be included in the con- 
tract and gi\es them an opportunity, in advance of receiving 
bids, to become a party to the contract. Although there is no 
explicit exception in the bidding statutes for state contract 
purchases by local governments, the statute that authorizes 
the state to allow local governments to participate in state con- 
tracts presumably authorizes local governments to participate 
in those contracts and must be read as an implicit exemption 
from local government bidding requirements. The bidding 
process undertaken by the division replaces the bidding that 
the local government otherwise would undertake itself. 



Once a contract is awarded by the division, a local gov- 
ernment that became a party to that contract is obligated to 
purchase all items covered by that contract from the contrac- 
tor to whom the state awards the contract (G.S. 143-55). A 
contract entered into in violation of this requirement is void, 
and the executive officer responsible for the contract is per- 
sonally liable for any costs incurred by the invalid transac- 
tion (G.S. 143-58). 

A local government is exempted from bidding items cov- 
ered by a state contract only if it is a party to that contract. 
Sometimes a supplier to whom a state contract has been 
awarded will offer to sell to a local government at the state 
contract price, suggesting that the unit need not follow the 
applicable bidding requirements because the supplier is on 
state contract. But if the unit is not a party to that state con- 
tract, it cannot purchase directly from that supplier without 
following the applicable local government bidding require- 
ments. If the supplier wishes to submit the state contract 
price as a bid (or quote, if informal bidding is required) to the 
local unit and comply with the applicable bidding procedure, 
the unit can accept the bid as it would any other bid as part 
of the normal bidding process. 

Force Account Work Another exception to the bidding 
requirement is a statute that allows, or, more accurately, 
limits the amount of, work done with the unit's own 
forces. Work can be done "in-house" without bidding only 
where the total amount of the project does not exceed 
$75,000 (G.S. 143-133). 

The statute requires that in computing the amount of the 
project, the unit must include all direct and indirect costs of 
labor, services, materials, supplies, and equipment. In addi- 
tion, the labor must consist of qualified, permanent employ- 
ees of the unit invoking the exception. Complete and 
accurate documentation of the cost of the work must be 
maintained and retained for the general public upon comple- 
tion of the project. Finally, projects cannot be divided for the 
sole purpose of bringing them below the S75,000 limit estab- 
lished in the force account statute. A unit of government 
using its own forces still must comply with all applicable bid- 
ding requirements for the purchase of materials and supplies 
to be used in the project. 

Intergovernmental Contracts Local gov ernments do not 
have to comply with the bidding statutes when they contract 
for the purchase of any apparatus, supplies, materials, or 
equipment from any federal agency or any other governmen- 
tal unit within the United States (G.S. 143-129). G.S. 160A- 
274 specifically authorizes the sale, lease, and exchange of 
property between state and local governmental units. 



20 Popular Government Winter 1993 



for the skill and expertise of a computer expert to de- 
velop a program tailored to a specific need, the contract 
is properly characterized as calling for a service. 

Courts in other jurisdictions facing this question un- 
der similar purchasing statutes have used the "predomi- 
nance" approach in distinguishing between service 
contracts and contracts for the purchase of computer 
equipment.-" Indeed, in one such case the court, having 
concluded that the service component was insufficient 
to bring the contract outside of the bidding laws, sug- 
gested that the contract could be divided so that bids 
could be received on the equipment, and the service 
component could be handled as a separate contract. Zb 
Where neither component clearly predominates, and if 
it is practical to separate the equipment and service com- 
ponents, this may be the best approach. 

Certainly the line between a service and a purchase 
can be blurry. If in doubt, it is best to attempt to com- 
ply with the bidding laws. On the other hand, if a spe- 
cific need is so unique that it is impossible to develop 
specifications for proposals that can be compared fairly 
and objectively, this may be good evidence that the con- 
tract is properly characterized as involving a service. 

What Is a Construction and Repair Contract? 

Finally, remember that there is one large category of 
service contracts that is covered by the bidding statutes: 
contracts for construction or repair work. Although the 
terms construction and repair are not defined, their mean- 
ing is so generally accepted that there are few close ques- 
tions. Clearly, construction includes both construction of 
buildings (or "vertical" construction) and "horizontal" 
construction, such as roads, underground lines, grading, 
and other types of construction activity that do not in- 
volve buildings. : 

But even within the realm of construction work, there 
are a few types of contracts that arguably fall outside the 
scope of the bidding requirements. Contracts calling for 
demolition only, under a strict reading of the bidding 
statutes, are neither construction nor repair and there- 
fore do not require competitive bidding. (Of course, 
demolition may be included in a construction contract, 
especially where it is part of the site preparation for new 
construction.) 

It also can be argued that maintenance work is differ- 
ent from construction or repair work and therefore is not 
within the scope of the bidding statutes. For example, 
while painting a newly constructed building is clearly part 
of the construction project, the repainting of rooms 
within an existing building or periodic repainting of a 



structure like a water tower could be considered part of 
the structure's regular maintenance. Under this argu- 
ment, "repair" work, within the meaning of the 
competitive bidding statutes, would cover only repair of 
discrete damage rather than regular maintenance. 
Although this argument has some merit, the distinction 
between "repair" and "maintenance" is difficult to define 
and apply, and there is no North Carolina case that sheds 
light on it. The better route is to follow the bidding stat- 
utes on maintenance work, especially if some repair may 
be involved. This avoids the risk of having the contract in- 
validated for failure to comply with bidding requirements. 

A Special Bidding Exemption: 
Emergencies 

The basic bidding statute (G.S. 143-129) provides that 
bidding is not required "in cases of special emergency 
involving the health and safety of the people or their 
property. " :s The North Carolina Supreme Court has in- 
terpreted this exception very narrowly, so the exception 
will be available legitimately only in rare circumstances. 

That narrow interpretation came in Raynor v. Town 
of Louisburg. 29 The town contracted without receiving 
bids for installation and repair of equipment in its power 
plant. A major part of the contract also included the 
purchase of several new diesel engines. The contract was 
clearly within the scope of the bidding statute. When 
challenged, the town relied on the emergency exception 
to justify its failure to bid the contract. The court sum- 
marized the town's explanation this way: 

The town was operating its water, sewage and power 
system with four engines, some of which were old and 
needed replacement. . . . Some of this machinery was 
said to have passed the age at which replacements are 
ordinarily made. . . . [T]he town was growing . . . de- 
mands upon the power plant would increase. . . . [I]f 
there should be a breakdown of one or more engines in 
the plant, sufficient protection would not be afforded 
the citizens in the furnishing of water for consumption 
and sewage and against fires. . . . [BJecause of the na- 
tional emergency existing with respect to the public- 
defense, not only were these conditions accentuated, 
but it was becoming, and would become more difficult 
to secure proper machinery or material for repair and 
replacement. " ; " 

The court held that these facts did not add up to a 
sufficient "emergency" to justify the failure to comply 
with the bidding procedures. The court established sev- 
eral essential elements of an emergency within the mean- 
ing of the statute. The emergency must be present, 
immediate, and existing. It may not be a condition that 



Popular Government Winter 1993 21 



is merely anticipated and may never actually occur. If the 
condition can be foreseen in time to take action to pre- 
vent harm to the public (or if the required bidding pro- 
cedure can be completed before any harm would occur), 
the emergency exception cannot be invoked. The court 
noted that the advertisement for bids would have re- 
quired only one week and the contractor could have 
been required to "proceed with dispatch in making the 
desired replacements." This suggests that if harm to the 
public can be averted through temporary measures while 
proper bidding is being conducted, the emergency excep- 
tion cannot be used to avoid bidding. 

The court emphasized that the failure to take proper 
precautions to prevent the need for an expedited con- 
tract will not be accepted as a justification for exemption 
from the bidding requirements. The court's hostility to 
such a situation is demonstrated in the following quota- 
tion from the Louisburg case: 

It is not to be supposed that [the legislature] intended 
to make it possible for municipal officers to avoid adver- 
tising for bids for public work by merely delaying to take 
action to meet conditions which they can foresee until 
danger to public health and safety has become so great 
that the slight further delay caused by advertising will 
entail public calamity.' 1 

Under this interpretation, the emergency exception is 
most likely to apply only in situations of natural disaster 
or other sudden and unforeseeable damage to property. 
Where an emergency does exist, the governing board 
should pass a resolution setting out the facts constituting 
the emergency. As the court made clear in the Louisburg 
case, however, the board's resolution is not binding on 
a court. The court can review all of the information avail- 
able about the situation (not just the facts in the board's 
resolution) and determine if, in the view of the court, the 
emergency exception legitimately justifies the failure to 
comply with the bidding requirements. 

Do We Have to Bid "Sole Sources"? 

Occasionally it may be argued that the bidding proce- 
dures should be ignored because a particular product can 
be obtained from only one source, usually a manufacturer. 
This is often described as a "sole source" purchase. Except 
for hospitals, 5 - there is no specific exemption in the local 
government bidding statutes for sole-source purchases. 
Although one type of contract (electricity) has been 
judged by the North Carolina Supreme Court to be out- 
side the scope of the bidding statute in part because there 
is only one provider, the courts are unlikely to extend this 
ruling to more common "sole source" situations. 



In Mullen v. Town of Louisburg,"- the North Carolina 
Supreme Court held that the purchase of electricity is 
not subject to the competitive bidding statutes because 
government regulation of utilities prohibits competition 
in the sale of electricity. There is language in the case 
that could apply to other situations in which there is no 
competition, including sole-source purchases. The court 
states: 

Where in the very nature of things competition would be 
impossible, it could not be supposed with any degree of 
justification that the legislative purpose was to compel 
the municipality to go through the useless form of letting 
to the lowest bidder when in fact there could be but one 
bidder who could name only the rate or price fixed by an 
agency of the very government that prescribed the pro- 
cedure. ... It does not apply when competition would be 
impossible or unavailing, or as to a monopoly. 34 

Although this language describes the sole-source situa- 
tion and would seem to suggest that the bidding statutes 
do not apply, the result in the Mullen case may have 
been most influenced by the fact that suppliers of elec- 
tricity "do not have the right to name the price for which 
they are willing to furnish [the supplies]," due to govern- 
ment control of utility prices." It is not clear whether the 
court would expand this ruling and apply the rationale 
to a situation in which there is free competition in pric- 
ing but only one source for the supply. 

In considering whether the legislature intended to ex- 
clude sole-source purchases from the bidding require- 
ments, it is instructive to note that there is an explicit 
exemption for hospitals (noted earlier) and for materials 
used in public construction contracts."* If the legislature 
intended to exempt purchase contracts for which there 
is no competition, it could have enacted a comparable 
provision covering all purchase contracts. Furthermore, 
since there is no minimum number of bids required for 
purchase contracts (the three-bid requirement applies to 
construction and repair contracts over $50,000),' the 
competitive bidding requirements can be satisfied and a 
contract can be awarded even if there is only one bidder. 
Indeed, even the possibility of competition may elicit a 
more reasonable price from a sole source. Thus, seeking 
competition on a contract for which there is only one 
known source is not a futile act. 

The most important issue in a purported sole-source 
situation is whether there truly is only one source. Speci- 
fications should be prepared as broadly as possible to pro- 
mote competition. Sometimes specifications w ill suggest 
a sole source when, in fact, there are other sources of 
competition that simply have been excluded by narrowly 
drawn specifications. Furthermore, even if a particular 



22 Popular Government Winter 1993 



brand is specified, there may be more than one supplier 
of that brand. 

It is better to comply with the bidding requirements 
than rely on the possibility that a court will recognize an 
exception to the bidding requirements in a particular 
case. By announcing the items to be purchased and so- 
liciting competition, the unit may uncover additional 
sources of supply and obtain more reasonable prices. 
Assuming that specifications are not unreasonably nar- 
row, complying with the bidding requirements in a sole- 
source purchase also preserves the integrity of the 
process and protects the local government from possible 
criticism of favoritism. 

Conclusion 

The bidding statutes are designed to promote two 
sometimes competing goals: allowing fair competition 
for public contracts and conserving public funds. 
These goals apply equally to many kinds of contracts 
that do not require bidding, and local governments of- 
ten solicit competition on contracts, as do private busi- 
nesses, even when not required to do so by law. The 
public often expects that all public contracts must be 
let following some sort of competitive procedure. The 
first question to be asked is: "Do we have to bid this?" 
If the answer is "no," the next question may be: 
"Should we bid it anvway?" ♦ 



Notes 

1. For more information on the laws that govern public 
contracts in North Carolina, see, Warren Jake Wicker, An 
Outline ofStatuton Provisions Controlling Purchasing, Decem- 
ber 1990 ed. (Chapel Hill, N.C.: Institute of Government, The 
University of North Carolina at Chapel Hill, 1991); A. Fleming 
Bell, II, Construction Contracts with North Carolina Local 
Governments, 2d ed. (Chapel Hill, N.C.: Institute of Govern- 
ment, The University of North Carolina at Chapel Hill, 1991); 
and, Frayda S. Bluestein, "North Carolina's 'Lowest Respon- 
sible Bidder' Standard for Awarding Public Contracts," Popu- 
lar Government 57 (Winter 1992): 10-16. 

2. Raynor v. Town of Louisburg, 220 N.C. 348, 17 S.E.2d 
495 (1941). 

3. Moore v. Lambeth, 207 N.C. 23, 26 175 S.E. 714 (1934). 

4. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E. 2d 
484(1945). 

5. N.C. Gen. Stat, (hereinafter G.S) § 143-129, 131. 

6. Mullen, 225 N.C. at 58, 33 S.E.2d at 487. 

7. The court concluded that electricity is not within the 
scope of the statute, because the statute is intended to apply 
only to commodities for which bidders are free to name the 
price, and prices of utilities are set through governmental regu- 
lation, not in an open marketplace. 



8. G.S. 25-2-102. 

9. G.S. 25-2-105. The code excludes from the definition 
of goods the money in which the price is paid, investment se- 
curities and things in action, and also distinguishes between 
goods and "future" goods; that is, goods that are not both ex- 
isting and identified. 

10. G.S. 105-164.3(20). 

11. The Council of State Governments, State and Local 
Government Purchasing, 3d ed. (Lexington, Ky.: CSG, 1988), 
app. D, 15. 

12. Council of State Governments, State and Local Govern- 
ment Purchasing, app. D, 15. 

13. The Model Procurement Code for State and Local 
Governments, American Bar Association (1979), § 1-301 
(19). 

14. G.S. 143-64.31-34 (Article 3D of Chapter 143) establish 
a procedure for procuring architectural, engineering, and sur- 
veying services that does not involve traditional bidding. In- 
stead, proposals are evaluated on the basis of "demonstrated 
competence and qualification for the type of professional serv- 
ices required" and the fee is negotiated with the best-qualified 
firm. Units of local government may in writing exempt them- 
selves from this procedure and may then use traditional bid- 
ding or any other procedure, including individual negotiation, 
to procure these services. 

15. Some competitive bidding statutes in other states spe- 
cifically exempt contracts for services or for "professional" serv- 
ices. See McCloud v. Cadiz, 548 S.W.2d 158 (Ky. Ct. App. 
1977); Autotote Ltd. v. N.J. Sports & Exposition Authority, 427 
A.2d 55 (N.J. 1981). In other cases, courts have implied such 
an exception. See 15 A.L.R. 3d 733, J 2. 

16. Arizona Security Center, Inc. v. State, 689 P.2d 185 
(Ariz. Ct. App. 1984) (court held that maintenance of security 
system equipment was incidental to lease of equipment and 
did not make the contract one for services). 

17. Plant Food Co. v. Charlotte, 214 N.C. 518, 199 S.E. 
712 (1938). 

18. Plant Food, 214 N.C. at 522, 199 S.E. at 715. 

19. Batiste v. American Home Products Corporation, 
32 N.C. App. 1, 6, 231 S.E.2d 269, 272, disc. rev. denied, 292 
N.C. 466, 233 S.E.2d 921 (1977). 

20. SCA Services of Georgia, Inc. v. Fulton County, 231 
S.E.2d 774 (Ga. 1977); American Waste and Pollution Control 
Company v. Madison Parish Police Jury, 488 So. 2d 940 (La. 
1986). 

21. McCloud v. Cadiz, 548 S.W.2d 158 (Ky. Ct. App. 
1977). 

22. Andover Consultants, Inc. v. Citv of Lawrence, 406 
N.E.2d 711 (Mass. App. Ct. 1980). 

23. In re 1983 Audit Report of Beharry, 544 A.2d 514 (Pa. 
Commw. Ct. 1988). 

24. G.S. 105-164.3(20)(c). 

25. Compare Datatrol Inc. v. State Purchasing Agent et ak, 
400 N.E.2d 1218 (Mass. 1980) (Contract for computer equip- 
ment, software, operation, and maintenance not exempt from 
bidding since operation and maintenance were considered 
incidental to purchase of equipment), and Autotote Ltd. v. N.J. 
Sports & Exposition Authority, 427 A.2d 55 (N.J. 1981) (Con- 
tract for "totalisator" system for Meadowlands racetrack in- 
cluded staff of technicians, operators, and on-call backup 



Popular Government Winter J 993 23 



engineers considered essential to contract and within "profes- 
sional services" exception to bidding statute). 

26. Datatrol, Inc., 400 N.E.2d at 1227-1228, n. 14. 

27. Note that, in addition to bidding requirements, build- 
ings costing more than $100,000 are governed by a number of 
separate requirements as set forth in G.S. 143-128 and other 
statutes. See Bell, Construction Contracts with North Carolina 
Local Governments, note 1. 

28. There is no comparable exception in the informal bid- 
ding statute, G.S. 143-131, although that statute can be easily- 
complied with even in the case of emergency, because it re- 
quires no advertisement or formal action on the part of the 
governing body, no minimum number of bids, and no waiting 
period before a contract can be awarded. 

20. Ravnor v. Town of Louisburg, 220 N.C. 348, 17 S.E.2d 
403(1941). 

30. Rdvnor, 220 N.C. at 353, 17 S.E.2d at 409. 

31. Raynor, 220 N.C. at 354, 17 S.E.2d at 499 [quoting 
Safford v. City of Lowell, 151 N.E. Ill (Mass. 1926)]. 



32. G.S. 143-129 provides that bidding is not required for 
"purchases of apparatus, supplies, materials, or equipment by 
hospitals when performance or price competition for a prod- 
uct are not available; when a needed product is available from 
only one source of supply; when standardization or compat- 
ibility is the overriding consideration" and lists a number of 
other similar grounds for purchasing particular items without 
competitive bidding. 

33. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 
4S4(1945). 

34. Mullen, 225 N.C. at 59, 33 S.E.2d at 488 (citing 2 Dillon, 
Municipal Corporations (5th), 1 199) (emphasis added). 

35. Mullen, 225 N.C. at 59, 33 S.E.2d at 488. 

36. According to G.S. 133-3, specifications for public 
works must include "at least three items of equal design or 
their equivalent design." The statute provides that if three 
items cannot be specified due to lack of competition, the 
specifications may contain as manv items as are available. 

37. G.S. 143-132. 



Corning 

this 

summer! 



For the first time, 
the Institute of Government 
will offer Arrest Search 
and Investigation in North 
Carolina in a limited hard- 
cover edition as well as in 
paperback. Although 
prices have not yet been 
determined, you may call 
the Publications Office at 
(9191966-41 19 to re- 
serve a copy of this book. 

93.06 

ISBN 1-56011-221-2 

(paperback) 

ISBN 1-56011-222-0 

(hardback) 



Arrest, 
Search, 
Investig 

in 

North 

Carolina 

Second Edition 1 992 
by Robert L. Farb 



and 
tion 



Arrest Search and Investiga- 
tion in North Carolina discusses 
( 1 ) federal constitutional law 
and North Carolina statutory 
law that affect the authority to 
arrest, search, obtain confes- 
sions, and conduct lineups: 
and (2) how to prepare and 
execute search warrants, 
nontestimomal identification 
orders, and administrative 
inspection warrants. 

The second edition replaces 
the original book published in 
1986 as well as the 1989 
supplement. 



Much of the material has 
been modified, and new 
material has been added 
reflecting changes in statutes 
and case law since 1 986. 

The new edition also includes 
a new chapter on the rules 
of evidence in criminal cases. 
The topically arranged Case 
Summaries section remains 
as a valuable research 
reference. Arrest Search 
and Investigation in North 
Carolina is helpful for law 
enforcement officers, court 
officials, and lawyers. 



24 Popular Government Winter 1993 



How North Carolina's Cities and Counties 
Budget for Community Agencies 



Charles K. Coe and A. Jolm Yo<rt 



Cities and counties seldom provide all of the local 
public services that their communities want or 
need. A great variety of private service agencies — such 
as the downtown soup kitchen or the historical society — 
serve people in ways that the city or county might, but 
doesn't. These community service agencies, almost al- 
ways nonprofit, look for funding from businesses, foun- 
dations, individuals, the United Way, fees for services, 
and any other source. When they look to government for 
funding, they are in effect asking government to help pay 
for sen ices or levels of sen ice that government itself, for 
whatever reason, has chosen not to provide. This article 
looks at how cities and counties go about making deci- 
sions on providing funds to private community agencies. 

The Difficult Fiscal \Yorld of 
Community Sen ice Agencies 

In some jurisdictions there are sharp philosophical 
differences among city and county governing board 
members about whether local governments should pro- 
vide funds for social programs administered by commu- 
nity agencies. Some board members argue that such 
funding is not the responsibility of local gov eminent, 
and that state governments, the federal government, and 
private sources should carry this load. Other board 
members believe that local government support is nec- 
essary to address local social problems and, further, that 



Charles K. Coe is an associate professor in the Department of 
Political Science and Public Administration at North Carolina 
State University. A. John Vogt is an Institute of Government 
faculty member who specializes in public budgeting and finance. 



community agency programs are likely to be more cost 
effective than governmental ones. 

Such philosophical differences aside, it is clear that 
with the federal government's reductions in spending for 
domestic programs, community agencies are being called 
on increasingly to help deal with some of our most severe 
social problems. One such problem is the need for addi- 
tional and special health-care arrangements for persons 
afflicted with AIDs. Another is homelessness, which has 
grow n progressively worse in many communities. While 
the demands on community agencies are growing, re- 
sources to meet the demands are not. Current economic 
conditions are causing many local governments to cut or 
hold the line on funding for community agencies. 

For the agencies, then, acquiring resources in the local 
government budget process can be a zero-sum game. 
That is, a relatively fixed amount of money may be avail- 
able, and the dollars one agency receiv es from a city or 
county are dollars that another agency does not receive. 
Thus competition among community agencies can be 
intense, and many of them try to gain an edge in securing 
funding. Some, for example, place influential community 
leaders on their boards of directors. Such leaders are often 
persuasive in lobbying county commissioners and city or 
town governing board members for funds. Other agencies 
bypass the city's or county's normal budget process and 
appeal for funds directly to the governing board. 

A Survey of Budget Requests by 
Community Service Agencies 

To understand how North Carolina cities and coun- 
ties go about making their decisions about providing 
funds for sen ices of community agencies, the authors 



Popular Government Winter J 993 25 



Table 1 

Bucket Requests from Community Agencies to Selected North Carolina Cities and Counties 

1 QUO- 1991 







Units Recei\ 


ing Requests 


Procedures in Making Rec 


uests 


Selected Units 


from Community Agencies 




(percentage 4 *) 












Average* 


Average* 


On 


At same 


Reviewed 


Reviewed 










number 


S total 


forms 


time 


by 


b\ citizen 










of 


of 


prescribed 


as city 


manager 


or staff 




Total 


Number 


% 


requests 


requests 


by 


or county 


or 


advisory 


number 


receh ing 


receiving 


per 


per 


city or 


depart- 


budget 


I >! pi illcV 


Population in 


survey 


requests 


requests 


unit 


unit 


count) 


ments 


staff 


committee 


Cities 




















Less than 1,000 


10 


4 


40 


■) 


1.400 





25 


25 





1.(1110 to 4.999 


16 


8 


50 


3 


15,800 


2s 


3S 


50 


38 


3,000 to 9.999 


16 


16 


[00 


5 


26,100 


14 


56 


56 


19 


10,000 to 24,999 


11 


9 


82 


9 


127,000 


22 


66 


56 


11 


25, to 49,999 


11 


9 


s: 


13 


178,500 


33 


78 


S9 


33 


50,000 to 99,999 


5 


5 


mo 


14 


706,900 


hn 


40 


60 


40 


1(10.000 or more 


5 


5 


100 


29 


1,494.000 


100 


40 


100 


40 


Counties 




















Less than 25,000 


S 


7 


ss 


10 


143,100 


14 


57 


86 


43 


25,000 to 49,999 


10 


7 


70 


u 


192,000 


14 


"1 


"1 


14 


50.000 to 99,999 


14 


14 


10(1 





646,800 


43 


79 


71 


43 


100,000 to 199,99 


1(1 


10 


10(1 


26 


"04.500 


40 


70 


70 


50 


More than 200,000 


5 


100 


32 


2.022,600 


1,1, 


80 


80 


40 


All cities and 




















counties 


121 


qg 


s: 


14 S 


421,700 


34 


62 


68 


31 



These averages reflect only the data from units that received requests. 

The percentages are calculated in terms of the number of units receiving requests (not the number surveyed) in each category. 



conducted a survey in late 1990. A total of seventy-four 
cities and forty-seven counties responded, 73 percent and 
ST" percent, respectively, of those contacted (see Table 1). 
The survey asked about the number and size of funding 
requests from community agencies, about whether the 
agencies follow" the request procedures the city's or 
county's departments must follow , and about efforts to 
ensure that the money given to community agencies is 
spent for approved purposes. 

Ov erall, 99 of the 121 cities and counties received bud- 
get requests from private community agencies; these 99 
received an average of fourteen requests each. All the 
counties but four receh ed requests, as did all but four of 
the forty-eight cities with populations greater than 5,000. 
The smallest units were least likely to receive requests. 
Relatively more community agencies asked for funds from 
counties than from cities. The cities with populations of 
more than 100,000 received about as many requests as 
did the counties with populations of more than 200,000. 

Not surprisingly, both the average number of requests 
and their average total dollar amount rose with the 



population category of a city or county. In those towns 
with fewer than 1,000 people that received requests from 
community agencies, the average total of requests from 
the agencies was SI, 400. In counties with more than 
200.000 people, the average total was $2,022,600. 

In general, community agencies do not seem to look 
to governments for funding for major capital expendi- 
tures. Of the fifty-one cities and counties surveyed that 
were found to have capital improvement programs 
(CIPs) to plan future building and other major capital 
needs, only eight reported receiv ing capital requests for 
their CIPs from community agencies. 

Adherence to City or County 
Budget Process 

The 1990 survey also examined the procedures that 
cities and counties used in allocating funds to commu- 
nity agencies, comparing these procedures to those that 
they used in budgeting for their own city and county 
departments. A city or county might, for good reasons, 



26 Popular Government Winter 1991 



require all budget requests, regardless of their sources, to 
go through the same budget process. One good reason 
is to maintain a perception of fairness; each request can 
be treated formally and on the same basis. Another good 
reason is to require all requests to be reviewed for con- 
sistency, merit, and legality. A third reason relates to the 
wise allocation of resources: the requests can be reviewed 
from the perspective of total budget requirements. To 
what extent are community service agencies in North 
Carolina required to go through the same budget pro- 
cesses as the city's or county's own departments? 

Use of Forms 

When a county's or city's own departments submit 
budget requests, they typically must do so on standard 
request forms. The cities with populations of 100,000 or 
more and the counties with populations of 200,000 or 
more all required community agencies to submit re- 
quests for funds via standard forms. The use of such 
forms dropped off dramatically in smaller jurisdictions. 
For example, in counties with fewer than 50,000 people, 
only H percent of the units receiving requests from com- 
munity agencies required the agencies to use the 
county's standard forms. 

Adherence to Budget Timetable 

Counties on the whole were more apt than cities to 
require community agencies to submit budget requests 
at or about the same time that the units' own depart- 
ments submitted their budget requests. In twenty-six of 
thirty-four cities and counties where budget requests 
from community agencies were not submitted according 
to the department timetable, the agencv requests gener- 
ally came in after the departmental requests. 

The cities with fewer than 5,000 people and those 
with more than 50,000 were least inclined to require the 
community agencies to follow the unit's usual timetable 
for budget requests. No doubt there are not many com- 
munity agencies in most of the smaller towns; moreover, 
budget procedures there tend to be informal. 

Why larger cities were less inclined to have com- 
munity agencies follow the normal timetable is more 
puzzling. Perhaps a delay in submitting requests does 
not create a problem. That is, if requests are only a little 
delayed, they can still be incorporated into the bud- 
get the city or county manager recommends to the 
governing board. On the other hand, if high-priority re- 
quests are delayed so that they must be added to an al- 
ready balanced budget, the board members might look 



to unappropriated fund balance or to cuts in other pro- 
grams. 

Manager or Staff Review 

A city or county manager or budget staff typically re- 
views budget requests from the government's own de- 
partments before passing them or revised versions of 
them to the governing board. Sometimes the manager or 
staff also reviews budget requests from community agen- 
cies; this can signal that decisions about those requests 
reflect an assessment of such things as measurable ben- 
efits and costs, the likelihood of a program's success, and 
alternative ways of providing the program. 

Sometimes, however, requests from community agen- 
cies are not subject to executive or staff review, a prac- 
tice that may indicate that decisions about the requests 
are based more on political than other criteria. In the 
funding game, bypassing such review can give an edge 
to the more politically powerful community agencies. 

In North Carolina cities with populations greater than 
100,000, all requests from community agencies did un- 
dergo formal review by the manager or the budget staff. 
In 68 percent of all cities and counties receiving requests, 
the manager or budget staff reviewed the requests before 
they went to the governing board. In three of four towns 
with fewer than 1,000 people, all requests went directly 
to the board. Many of these units do not have managers 
or administrators. 

Review by Advisory Committees 

Local governments often have advisory committees or 
boards that participate in certain public decision-making 
processes. Such groups may consist of public officials 
only, or of both public officials and other citizens, or of 
only citizens who are not public officials. Such commit- 
tees or boards are formed to broaden public participation 
in decisions, to secure expert advice about complex is- 
sues or decisions, to deflect criticism when tough deci- 
sions must be made, to mobilize public opinion for a 
particular outcome, and for other reasons. Some of these 
advisory committees or boards become very influential 
in their own right, making it difficult for a unit's govern- 
ing board to go against advice they give. 

State statutes give county boards of health, mental 
health, and social services a formal role in the prepara- 
tion of their agencies' budget requests. In cities, how- 
ever, the role of advisory or policy committees in 
budgeting is defined by local practice and exists much 
more informally. Therefore, it is somewhat surprising 



Popular Government Winter 1993 27 



Table 2 

Monitoring Cih or County Funds Allocated to Communih Agencies 



Population 



Received 

requests 

from 

community 

agencies 



Received 

audited 

financial 

statements 

covering 

expenditure 

of units' 

funds 

(%) 



Preapproved 

general 

expenditure 

plans for 

units' 

funds 

(%) 



Received 

unaudited 

year-end 

reports of 

expenditure 

of units' 

funds 

(%) 



Exercised 

no specific 

controls over 

expenditure 

of units' 

funds 

(%) 



Preaudited 

specific 

expenditures 

of units' 

funds 

(%) 



Cities 














Less than 1,000 


4 





50 








23 


1,000 to 4,999 


8 


13 


13 


25 


13 


3S 


-jinn to 9,999 


16 


19 


25 





7 


38 


1 n.iii in to 24,999 


9 


44 




14 


:; 


33 


25,000 to 49,999 


9 


56 


•- 


14 


11 


33 


50,000 to 99,999 


5 


100 


4(1 


60 


20 





100,000 or more 


5 


60 





40 


2" 


11 


Counties 














Less than 25,000 


- 


14 


4; 


'1 


11 


14 


25,000 to 49,999 


— 


45 


71 








4 


50,000 to 99,999 


14 


"9 


36 


36 


11 


7 


100,000 to 199,999 


10 


60 


50 




n 





More than 200,000 


5 


30 


hi j 


60 





20 


All cities and counties 


99 


47 


36 


27 


7 


2ii 



Note: Eight units receiving requests from communih' agencies did not respond on this variable. 



that cities used such advisory or policy committees to 
review requests from community agencies almost as 
much as did counties. Of the thirty -one units that had 
such committee reviews, fourteen were cities and sev- 
enteen were counties. 

Monitoring Communih Agency Spending of 
City or Count} Funds 

Contributions made by North Carolina's cities and 
counties to community agencies or to any outside orga- 
nization or person may be spent only for public purposes 
that the cities or counties themselves may undertake. To 
what extent do cities and counties that fund or help fund 
community agencies make sure that the public contribu- 
tions are spent only for the appropriate public purposes? 

North Carolina cities and counties can use a variety 
of techniques to monitor and control the expenditure of 
funds they contribute to community agencies (see Table 
2). They can require the agencies to submit audited state- 
ments of how the agencies spent funds, including funds 
contributed by the city or county; they can receive 
unaudited financial statements of how citv or countv 



contributions were spent; they can preapprove the agen- 
cies' general plans for spending city or county contribu- 
tions, before any such expenditures are made; and they 
can preapprove or preaudit specific expenditures of 
funds. Of course, cities and counties may choose to ex- 
ercise no formal controls over expenditure of their con- 
tributions to community agencies. The North Carolina 
Supreme Court decision in Dennis v. Raleigh, 253 NO 
400 (1960), however, suggests that cities and counties 
maintain some controls or monitoring of the use of pub- 
lic funds by private agencies. 

Most commonly, North Carolina cities and counties 
require an audited financial statement from community 
agencies receiving city or county money; 47 percent of 
the units allocating funds to community agencies re- 
quired audited statements from at least some agencies. 
Larger cities and counties were most likely to require 
these statements. Next in frequency as a monitoring 
technique was city or county preapproval of the agen- 
cies' general expenditure pi, 1 1 r- ; 36 percent ol the units 
allocating funds to community agencies used this con- 
trol technique for at least some of the agencies. There 
was no correlation between this sort of monitoring 



28 Popular Government Winter 1993 



and a city's or county's size. Twenty-seven percent of 
the units, mostly larger ones, received unaudited state- 
ments of how community agencies spent city or county 
money. Only 7 percent of the units preapproved or 
preaudited specific spending of the units' funds. Twenty 
percent of the cities and counties exercised no formal 
controls over expenditures of their moneys by commu- 
nity agencies. 

Summary 

While most city and county revenues are raised to 
support sen ices provided by a city's or county's own 
departments, some local revenues support programs 
provided by private community agencies. The authors' 
survey found that most North Carolina cities and coun- 
ties receive budget requests from such agencies; that 
the state's largest cities and counties receive requests 
from numerous such agencies and for substantial 
amounts of money; and that in only a few cities and 
counties do community agencies make capital project or 



acquisition requests in the units' capital improvement 
programs. 

The survey also found that many North Carolina cit- 
ies and counties use different procedures when consid- 
ering budget requests from community agencies than 
they use when considering requests from their own de- 
partments. Many do not require private agencies to use 
standard budget request forms, to adhere to the regular 
timetable for submitting budget requests, or to submit 
requests for review by the manager or budget staff. Some 
cities and counties have advisory committees composed 
of public officials and/or citizens that review and make 
recommendations about budget requests from commu- 
nity agencies. 

Finally, the survey found that North Carolina's cities 
and counties use a variety of formal methods to moni- 
tor the spending of public contributions to community 
service agencies. The most common method is to re- 
quire the agencies to submit audited financial state- 
ments encompassing expenditures of city and county 
contributions. ♦ 



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Published for the first time in 1966, the Institute of Government's fire 
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Recent editions have been designed for private citizens as well as gov- 
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Popular Government Winter J 993 29 



North Carolina's 
Community Service 
Program: Putting 
Criminal Offenders 
to Work for the 
Public Good 



Aiiita L. Harrison 



This year more than a third of a million North Caro- 
linians are expected to be doing unpaid work for 
public and nonprofit community agencies, not from the 
goodness of their hearts, but to stay out — or get out — of 
prison or jail. These unpaid workers include individuals 
convicted and placed on probation or released from 
prison on parole and those who avoid conviction by hav- 
ing their prosecution deferred — with the condition that 
they perform community sen ice. This article looks at the 
history of the program that puts them to work for the 
public good, at the program's purposes and structure, 
and at its effectiveness. 

In North Carolina's community service program, 
offenders are assigned to perform a specified number of 
hours of unpaid work for a striking variety of agencies 
such as the American Red Cross, the Animal Protection 
Society, Hanging Rock State Park, Head Start, Goodwill 
Industries, Dorothea Dix Hospital, the American 
Children's Home, and many others. In fiscal 1990-91, 
participants in the program, supervised by state commu- 
nity sen ice case coordinators, performed 2.5 million 



The author is now a project manager at the Comprehensive 
Cancer Center at Wake Forest University. The article is based 
on a master\ lli,M« m the Department of Political Science. The 
University ofSorth Carolina at Chapel Hill. 



a ■ ■ . 7- rift! 




\ teenage offender performs his regular work assignment at the ( frange 

Count) \nimal Shelter. operated l>\ the \nimal Protection Society, in 
Chape] Mill. \.C. On any given day. as many as lour Community Ser- 
vice \^ ork Program participant- can lie found at the shelter, prowding 



hours of work and contributed S4.33 million in fees to 
the North Carolina General Fund. 1 

History of the Program 

For a century North Carolina courts probably have had 
the inherent authority to require criminal offenders to 
perform work that benefits the public,- but specific statu- 
torv authoritv was granted onlv recentlv. In 197" the first 



30 Popular Government Winter 1993 




On the Job 



essential services: cleaning cap's, bathing the 
animals, sometimes working at the computer. 
"It really helps us stretch our budget," says 
shelter manager Barbara Long. 



The first task is the worst: scour- 
ing the dog cages. The cat 
cages are next and better since cats 
are neater. Sweeping and mopping 
the floors follows. The work is hard 
and much of it is unpleasant, but it 
is essential to the operation of the 
Orange County Animal Shelter. At 

On the Monday after her court 
date and her conviction for 
driving while impaired, a young 
woman shows up at the Chatham 
County Council on Aging. After the 
staff assesses her skills, she is as- 
signed to the front desk. It seems at 
first that the clerical duties she has 
been given can be completed 
quickly. But that's before the first of 
the day's string of inquisitive and 
talkative elderly folks arrives. Before 
long the reception area is filled with 

On a humid morning in August, 
the |ordan Lake Park Ranger 
passes the clipboard around the 
group of men waiting for their as- 
signments. He detects the unmistak- 
able odor of alcohol. He singles out 
the guilty party, who has not had 
anything to drink since the night 
before but still has enough alcohol in 
his body to be impaired; the ranger 
instructs him to call for a ride home. 
The remaining men are divided into 
small groups, some to keep the 



the end of the day, the young man 
leaves, his last stint in the Commu- 
nity Service Work Program over. He 
promises to return to the shelter as a 
volunteer. What began as a punish- 
ment has evolved into a positive 
interaction with a community orga- 
nization, and everyone has gained. 

elderly people of all backgrounds. 
This is their gathering place, and 
the Community Service Work Pro- 
gram worker begins to get a feel for 
what the council on aging is all 
about. For twenty-four hours of 
community service, she has become 
a part of the team that will do its 
best to meet the diverse needs of 
this growing segment of the popula- 
tion. By five o'clock Wednesday she 
has completed her punishment, and 
she too has benefited. 



garbarge cans empty on this busy 
summer day, some to clean the rest 
rooms and bath houses, others to 
pick up litter. One man is a building 
contractor. Before the day is over, he- 
has made significant repairs to one 
shelter and installed a sink in the 
park office. Placed by the Commu- 
nity Service Work Program, none of 
these men is there voluntarily, but all 
make the park a better place for 
weekend visitors. 

— Shelton Edmondson 



community service statute authorized courts to impose 
"reparation" — defined as "the performing of community 
services, volunteer work, or doing such other acts or things 
as shall aid the defendant in his rehabilitation"' — as a 
condition of probation. 4 Later the courts were empow- 
ered to make community service also a condition of de- 
ferred prosecution or a "prayer for judgment continued" 
(PJC). Deferred prosecution is a disposition for a defend- 
ant charged with (not convicted of) a criminal offense. It 



involves an agreement between the defendant and the 
prosecution, approved by the court, "for the purpose of 
allowing the defendant to demonstrate his good con- 
duct" — for example, by performing community service or 
participating in treatment; if the defendant successfully 
discharges his or her obligation, the charges are dis- 
missed. " A PJC is a suspended imposition of a sentence — 
not a conviction — which may be accompanied by 
conditions such as performing community service. 6 



Pol'l 1AR Go\i;r\\II:\I Winter 1993 31 



The first big push for use of community sen ice as a 
substitute for other punishment came in the 1980s, 
when state supervision became available, beginning in 
19S1 with fixe local programs supported by federal 
grants. In 1983 the Safe Roads Act provided the next 
impetus. It made community sen ice work an alternative 
to incarceration for impaired drivers and required the 
Department of Crime Control and Public Safety 
(hereinafter the Department of Crime Control) to con- 
duct a program for such offenders. Two more steps 
followed in 1984. First, legislation established the Com- 
munity Sen ice Work Program supenised by the Depart- 
ment of Crime Control without limiting it to impaired 
drivers. s And second, the General Assembly established 
community service parole, in which parolees exchange 
such work hours for reductions in their prison time,' 1 
which became part of the department's program. 

Community service parole was used little for the first 
few years after its enactment. But prison "cap" legislation 
in 1987, requiring quicker parole when the prison popu- 
lation reaches the legislatively set "cap" (limit), increased 
the use of community senice parole, as did amendments 
that removed some of the original restrictions on eligibil- 
ity. This form of parole is now allowed for nearly all of- 
fenders, although the Parole Commission has tended to 
favor less serious offenders. 10 

Structure of the Program 

There are several ways in which a person may be re- 
quired to perform community sen ice: a court may make 
it a condition of probation, deferred prosecution, or a PJC; 
or the Parole Commission may make it a condition of 
parole. In any case, the senice is supenised by case coor- 
dinators, who are state employees in the \ ictim and Jus- 
tice Services (Y IS) Division of the Department of Crime 
Control. The case coordinators place program partici- 
pants in both governmental and private nonprofit agen- 
cies, monitor the participants' performance, and report 
any violations of community sen ice orders to the courts 
or Parole Commission. Each coordinator is responsible for 
a sizable number of participants. In the 1990-91 fiscal 
year, 104 case coordinators handled an average total 
caseload of 28,083: 270 participants per coordinator. 

In addition to the case coordinator, a probation or 
parole officer also supenises the community senice par- 
ticipant if he or she is on parole, on supervised proba- 
tion, 1 ' or on deferred prosecution or a PJC and the court 
has ordered supervision by a probation officer. These 
officers concentrate on enforcing conditions of probation 
or parole other than community service. 



The community sen ice program generates a substan- 
tial part of its own operating costs, with each offender 
paying a mandatory fee of SI 00 to participate in the pro- 
gram. The clerk of court collects the fee and deposits it 
in the state's General Fund.' : 

Objectives of the Program 

The three objectives commonly cited for the commu- 
nity service program are compensation, rehabilitation, 
and punishment. 

The program compensates society for the harm done 
by crime in that it provides unpaid service for a public 
purpose. 1. The program rehabilitates offenders, some ad- 
vocates of the program believe, in that it helps them to 
refrain from committing crimes by giving them a satis- 
fying work experience and teaching them new work hab- 
its. (Recent research in North Carolina lends support to 
this view, as will be explained later in this article.) Finally, 
community service punishes offenders, or at least it is 
intended to do so. How punitive it is depends on the 
offender's point of v ievv . Probationers may consider it 
more punitive than regular probation supervision, be- 
cause it involves more work than simply complying with 
regular conditions of probation. Parolees, on the other 
hand, may see community service as less punitive than 
continued imprisonment. 

Participants: Their Offenses and 
Correctional Status 

For purposes of this article, community sen ice parti- 
cipants will be divided into six groups according to their 
correctional status: 

1. Parolees 

2. Impaired drivers (DWI) on probation 

3. Supervised probationers (excluding impaired 
drivers) 

4. Participants on deferred prosecution 
3. Participants on a PJC 

6. Other participants (primarily on unsupervised 
probation) 

To analyze the contribution to the program of the 
various groups of participants, \ JS data were used on 
43,948 offenders who began participation in the program 
in 1989. H Almost half (49.3 percent) of these participants 
were on probation for impaired driving; this reflects the 
fact that the state-supervised program initially was for 
impaired drivers only (see Figure 1). Another 18.3 percent 
were on supervised probation (not counting impaired 



Pi ipular Government Winter 1993 



drivers), 8.5 percent were on deferred prosecution, and 
1.9 percent had received PJCs. Only 2.1 percent of those 
who began the program in 1989 were parolees. (Parolees 
constitute a much greater proportion of the current ac- 
tive caseload of the program, as will be explained later in 
this article.) The other 19.7 percent not counted in the 
previous categories were for the most part on unsuper- 
vised probation. 

Besides impaired driving, the current offense b of 
participants placed in the program in 1989 were as fol- 
lows. (The following data exclude participants sentenced 
for DWI, sentenced to unsupervised probation, or given 
deferred prosecution or a PJC.) Of 7,871 supervised pro- 
bationers (excluding impaired drivers) placed on the 
program in 1989, 66 percent had been convicted of mis- 
demeanors, mostly misdemeanors against property, such 
as larceny or shoplifting. Thirty-four percent had been 
convicted of felonies, mostly crimes against property and 
drug offenses. Of 1 ,890 parolees placed in the program in 
1989, almost all (99 percent) had been convicted of felo- 
nies, primarily felonies against property, such as larceny 
and breaking or entering, or felonies invoking drugs. 

Participants Who Began the Program 

in 1989: Work Assigned and 

Work Performed 

For the 43,948 offenders who began the program in 
1989, the number of assigned hours of community ser- 
vice ranged from 1 to 4,064; the average number of as- 
signed hours was 58, and the median, that is, the value 
above and below which half of the hours fell, was 24. The 
average number of hours assigned per person varied 
among types of participants (see Figure 2). Parolees had 
by far the most, with an average of 556 hours assigned. 
Supervised probationers (not including impaired drivers) 
had an average of 74 hours, participants on deferred pros- 
ecution had 75 hours, those on a PJC 47 hours, impaired 
drivers 37 hours, and others 35 hours. 1 ' 

How many hours actually were worked? Of the 43,948 
participants who began the program in 1989, 23,932 com- 
pleted the program by August 1991, when VJS provided 
the data used in this article. 1 These 23,952 actually per- 
formed an overall average of 42.5 hours each, according to 
VJS records. This was two-thirds (66 percent) of the aver- 
age hours assigned to members of the group. ls The aver- 
age percentage performed (computed by averaging the 
percentages performed for each of the participants) was 
84 percent, reflecting the fact that most participants were 
assigned relatively few hours but managed to perform 
most of them. Completing the program means that VJS 



Figure 1 

Community Service: Percentage of Persons, Hours 

Assigned, and Performed, by Type of Participant 



Inn 



- 

& 50 



Other 

Supervised 
Probation 
not DWI) 




(Probation) 
Parolees 



Number of Hours Hours 

Participants Assigned* Performed* 

Note: Figures refer to the 43.948 participants who began program in 

1989. 

"Hours assigned and performed do not total 100% because of a 0.1% 
round-off error. 



Figure 2 

Average Community Service Hours Assigned by Person, 

by Type of Participant 





Parolees 

DWI 

(Probation) 

Deferred 
Prosecution 

PJC 

Supervised 
Probation 
(not DWI) 

Other 




556 


- 


3 






j~ 




, 3 




% 




-t" 










74 






> 




1 1 



100 200 300 400 500 600 700 

Average Hours Assigned 
Note: Figures refer to the 43,948 participants who began program in 1989. 

considered their cases closed, either because, as was usu- 
ally the case, they had successfully completed probation, 
parole, deferred prosecution, or a PJC; or because their 
probation, parole, or other correctional status was revoked 
because they violated conditions. 

The principle of diminishing returns may apply here: 
as the number of assigned hours increases, the percentage 
performed decreases, whether the participant is on parole, 
PJC, or deferred prosecution. Figure 3 shows the relation- 
ship between hours assigned and hours performed 



Popular Government Winter 1993 33 



•J 



Figure 3 

Percentage of Hours Completed by Level of Hours 
Assigned, for Impaired Drivers, Supervised Probationers, 
and Parolees 



Low Hours 
Assigned 

Medium Hours 
Assigned 

High Hours 
Assigned 




DWI 

(Impaired 

Drivers) 



Supervised 
Probation 
(not DWI) 



Parolees 



Level of Hours Assigned: DWI: low 1-24, medium 25-4S, high 
49 + : Supervised Probation: low 1-4S, medium 49-72, high ~3 + : 
Parolees: low 1-400, medium 401-550, high 551 +. 

Sote: Figures refer to the 45.94S participants who began program in 
1989. 



separately for impaired drivers, supervised probationers 
(excluding impaired drivers), and parolees. In each of the 
graphs, the groups have been divided roughly into thirds/" 
creating "low," "medium," and "high" levels of hours as- 
signed relative to each group.- 1 For impaired drivers, the 
average percentage of assigned hours performed was 92 
for low hours, 84 for medium, and ~~ for high hours. For 
supervised probationers (excluding impaired drivers), the 
average percentage performed was SI for low hours, 75 for 
medium, and 65 for high hours. For parolees, the average 
percentage performed was 54 for low hours, 4S for me- 
dium, and 2~ for high hours. In each group, some parti- 
cipants performed very few hours or none at all.- 1 

W hat constitutes "success" in the program? \ JS con- 
siders participants successful simply if they complete 
probation, parole, deferred prosecution, or PJC without 
having their correctional statuses revoked; and if they 
pay their fees for participation in the program. Success 
does not necessarily mean that all hours were completed. 
In any particular case, the courts or the Parole Commis- 
sion may reduce the number of assigned hours or decide 
not to revoke despite failure to perform hours. Con- 
versely, failure from VJS's point of view could be the 
result of revocation on grounds other than failure to per- 
form assigned hours. :: 

The overall success rate was 81 percent for the 23,952 
participants who began the program in 1989 and 



completed it by August 1991. Parolees had the lowest 
success rate, with 42 percent; impaired drivers, 86 per- 
cent; supervised probationers (excluding impaired driv- 
ers), 70 percent; participants on deferred prosecution, 85 
percent; participants with a PJC, 91 percent; and other 
participants, 82 percent. 

The Special Case of Parolees 

Primarily because of pressure to control the growth in 
the prison population due to the 1987 prison "cap" law, 
and also because of legislation liberalizing the require- 
ments for community service parole,-' both the number 
of parolees assigned to the community service program 
and the number of hours assigned have increased in re- 
cent years. The average number of parolees participat- 
ing in the program each month has increased nearly- 
tenfold in three years: from 5 54 in 1988-89 to 4,554 in 
1991-92. Bv December 1992 parolees constituted 20.7 
percent of the active caseload. (Their contribution to the 
active caseload is considerably greater than their contri- 
bution to the number who begin the program each year, 
because they remain under supervision by the program 
longer than other groups of participants due to their 
larger numbers of assigned hours.) 

Parolees did not do as well as other groups in the com- 
munity service program in two respects: their perfor- 
mance of assigned hours was considerably lower, and so 
was their success rate. Why? The following are some 
possible explanations for parolees' lower work-perfor- 
mance rate and lower success rate: 

1. Parolees were assigned large numbers of work 
hours compared to other program participants; 

2. The Parole Commission may not have strictly en- 
forced the performance of hours, either to grant in- 
centives for partial performance or to comply with 
pressure to control the prison population; 

3. It may have been more difficult for program staff 
to find work placements for parolees than for other 
program participants; 

4. Parolees as a group may be inherently less reliable 
or responsible than other participants; 

5. Parolees as a group may be inherently more likely 
than other participants to become recidivists (be 
rearrested for a new crime after release) — and thus 
have their parole revoked and complete the pro- 
gram unsuccessfully. 

The inverse relationship noted earlier between the 
number of work hours assigned and the proportion com- 
pleted holds true for all participants in the program. 



34 Popular Government Winter 1993 



Thus, one obvious reason why parolees' performance 
rate was lower than that of other participants was that 
they were assigned man}' more hours. But this may not 
be the only reason. Even when YJS considered parolees 
to have completed the program successfully, their aver- 
age percentage of hours performed was lower than that 
of other participants (73 percent, compared with almost 
100 percent for successful participants in the other five 
groups); this probably reflects the Parole Commission's 
reducing initially assigned hours in some cases or excus- 
ing failure to perform them. The Parole Commission has 
sought to offer incentives for partial completion of parol- 
ees' community service. Since December 1991 the 
commission's policy has been that if parolees successfullv 
complete half of their assigned hours in the first year, the 
commission will cut the remaining hours by 50 to 100 
percent. 24 

There is reason to believe that the average number of 
hours assigned to community service parolees has been 
increasing. Offenders currently being placed on commu- 
nity service parole probably are receiving a greater per- 
centage reduction in their sentences than was received by 
offenders placed on the program in the past. : " Greater 
sentence reduction means increased hours assigned, 
which may reduce the work-performance rate still further. 

Conversations with some program staff suggest that it 
is sometimes difficult to find placements so that parolees 
can perform their assigned hours. Potential work recipi- 
ents sometimes are more reluctant to accept parolees than 
other offenders who are not coming out of prison. This 
helps to explain parolees' low work-performance rate. 

Another factor in parolees' low success rate may be 
failure to comply with conditions of parole other than 
the community service requirement. Parolees as a group 
simply may be more likely than other participants to 
commit new crimes or otherwise violate parole than 
other program participants are to commit new crimes or 
violate other conditions of supervision.-" 

Some things can be said in defense of parolees' par- 
ticipation in the community service program. Despite 
their lower performance percentage, community service 
parolees who began the program in 19S9 and finished by 
August 1991 did much more work individually than 
other groups of participants did, and contributed sub- 
stantially to the total hours performed by all participants. 
Although parolees constituted only 2.1 percent of the 
43,948 participants who began the program in 1989, they 
accounted for 20.4 percent of the total assigned hours, 
and contributed 17.1 percent of the total hours actually 
worked by the 23,952 participants who completed the 
program by August 1991. Thus, parolees as a group 



contributed almost as many hours assigned and per- 
formed as did supervised probationers (excluding im- 
paired drivers) and contributed more hours than the 
"other" participants (primarily unsupervised proba- 
tioners). Impaired drivers, although they amounted to 
half the participants, contributed only about a third of 
the hours. 

Another important point in favor of parolees' partici- 
pation is that the program may reduce their recidivism as 
much as it reduces probationers' recidivism. A recent study 
of recidivism (discussed below) suggests that participation 
in the program lowers the probability of rearrest for new 
crimes, regardless of whether the participant is a parolee 
or a supervised probationer. 

Costs of the 
Community Service Program 

Community service work actually performed in 1990- 
91 had a direct cost of S .71 per hour. (This cost is ob- 
tained by dividing a net direct cost of 51,776,338 by 
2,504,867 hours of work performed.) The direct cost of 
the program is the cost of the state supervision, includ- 
ing the salaries and travel expenses of case coordinators, 
which was S6.10 million in 1990-91." Subtracting the 
S4.33 million in fees :s collected from participants in that 
year yields a net cost of SI. 78 million. :g This figure does 
not include the time spent by work-site supervisors, 
which in effect is donated to the program, although it 
benefits the recipient agencies. It also does not reflect the 
time spent by probation and parole officers who super- 
vise community sen ice participants. These officers' time 
is not included for two reasons. First, where probation is 
concerned, approximately the same amount of time 
would be required to handle the caseloads if community 
service were not involved. And second, where parole is 
concerned, more parole officers' time is required when 
offenders are released early from prison on community 
service parole, but this cost is more than offset by reduc- 
tion in prison costs. 

There also may be indirect costs connected with the 
community service program. One is the costs of crimes 
that could have been prev ented if the Parole Commis- 
sion had kept offenders in prison longer instead of giv- 
ing them community service parole, or the courts had 
incarcerated them instead of granting probation with 
community service as a condition. This cost obviously 
is difficult to quantify. The number of preventable 
crimes depends on how frequently community service 
is used in lieu of prison, the rate of recidivism, and how- 
much prison time would have been served without the 



Popular Government Winter 1993 35 



community service program. A recent study discusses 
evidence that the Parole Commission favors low-risk 
offenders in granting this form of early release, 5 " which 
suggests that it may have little effect on crime. Also, the 
effect of releasing offenders early may be offset partly 
by the reduction of the damaging effects of imprison- 
ment. Another recent study suggests that keeping of- 
fenders in prison longer does not reduce their likelihood 
of becoming recidivists; in fact, it may increase their 
probability of committing new offenses against property, 
such as larceny or burglary. 31 Finally, keep in mind that 
in the program's average caseload, only about a fifth of 
the participants are parolees. 

Benefits of the Program 

The mam benefit of the community service program is 
the service provided to the community. This is best mea- 
sured by calculating the number of hours of community 
service worked by these participants during 1990-91 and 
multiplying it by a dollar value. Putting a precise dollar 
value on this labor is difficult, because it is performed 
outside of a free market. However, it is fair to estimate 
that its value is no lower than the minimum wage. At 
$4.25 an hour, the minimum wage at the time, the dol- 
lar value of the work performed during fiscal year 1990— 
91 by community service participants was SI 0.70 million. 

A second benefit is cost savings to the state. A criminal 
offender doing community sen ice costs the state less 
than one doing prison or jail time. Savings occur when 
the Parole Commission shortens prison stays and places 
parolees in the considerably cheaper community' service 
program," 1 - and savings occur when courts impose proba- 
tion or deferred prosecution with community service in 
lieu of imprisonment. Avoiding prison costs is a real con- 
cern at present when the prisons' population exceeds 
their capacity and a substantial expansion is under way. 
If the growth of the inmate population can be reduced, 
less new space will need to be built and operated. 

A third benefit is that the program may reduce offend- 
ers' probability of being rearrested for a new crime. Re- 
search published recently in this magazine indicates that 
participation in the program is associated with a modest 
reduction in the likelihood of recidivism, regardless of 
whether the offender is a probationer or parolee, and 
regardless of the offender's criminal history, type of cur- 
rent offense, or other characteristics. 33 This finding sug- 
gests that community sen ice has a rehabilitative effect 
on offenders, perhaps by giving them what may be their 
first positi\ e experience with socially desirable work. 
Also, the program may reduce recidivism by shortening 



prison time — for example, when it is used to parole of- 
fenders early. The recent recidivism study argues that 
prolonging imprisonment may increase the probabiJitv of 
recidivism, especially of offenses against property, such 
as larceny or burglary . 



Conclusion 

The data reviewed here indicate that the community 
service program provides a public service at seventy-one 
cents an hour, reduces imprisonment and related costs, 
and may help to rehabilitate offenders. These results are 
encouraging; they suggest that the program has greater 
potential than is currently being realized. Perhaps the 
program could be even more effective if more attention 
were given to its goals and its effectiveness were carefully 
evaluated. 

The following recommendations may help to improve 
the program: 

• Develop a clear statement of the goals of the com- 
munity service program and their relative impor- 
tance. This will help to determine the future direction 
of the program. For example: if getting a certain num- 
ber of hours of work done is seen as less important 
than rehabilitating offenders, it may be possible to 
supervise a larger number of offenders with the same 
budget and have a greater rehabilitative impact. Or, 
if getting the assigned hours done is the primary pur- 
pose, it may be advisable to reassign case coordinators 
to concentrate on participants with the most hours, 
especially parolees, or to find other incentives for 
completion of work. 

• Define and describe the various groups of offend- 
ers to be included in the program, and relate the 
program goals to these groups. It may well be that 
different goals or priorities will pertain to different 
types of offenders. For example, rehabilitation may be 
more important with parolees than it is with regard to 
other offenders. 

• "Know the customer" — study the recipients of com- 
munity service, their assessment of the program, 
and their needs. There are many anecdotal examples, 
of course, of the gratitude of recipients for the 
community service they receive. But perhaps a sys- 
tematic, objective survey is needed of recipients across 
the state to determine who they are, what services 
they need, and how well they think the program is 
working. 

• Evaluate the program more rigorously. The recent 
recidivism study suggests that the community sen'ice 



36 Popular Government Winter 1993 



program has a modest effect on recidivism, but the 
program needs an evaluation designed to determine 
which arrangements yield the best performance and 
quality of service in terms of the recipients' needs. ♦ 

Notes 

1. Arthur C. Zeidman, Community Senice Work Program 
Statistical Report to the North Carolina General Assembly, 1992 
Session (Raleigh, N.C.: Division of Victim and (ustice Sen-ices, 
Dept. of Crime Control and Public Safety, 1992). The average 
caseload is the average end-of-the-month number of partici- 
pants who have not yet completed the program. This is not 
the same as the number of offenders newly placed on the pro- 
gram that year, uhii.li was f-n, - ld 

2. See Stevens H. Clarke, Law of Sentencing, Probation, 
and Parole in North Carolina (Chapel Hill, N.C.: Institute of 
Government, The Universitv of North Carolina at Chapel Hill, 
1991), 1 andn. 1. 

3. X.C. Gen. Stat, (hereinafter G.S.) J 15A-1343(d). 

4. Probation is a sentence for a criminal conviction involv- 
ing a prison or jail term that is suspended on conditions set by 
the court. G.S. 15 A- 1341 through ISA- 1347. 

5. G.S. 15A-1 341(a). 

6. See Clarke, Law of Sentencing, 2-3 and n. 9. 

7. G.S. 20-179, 20-179.4. The minimum amounts of com- 
munity sen ice required for impaired drivers as an alternative 
to imprisonment are 24 hours for Level Five offenders, 48 for 
Level Four, and 72 for Level Three. The alternative is not 
available for Level One and Two impaired drivers; they may 
be given community sendee after they complete their manda- 
tory imprisonment, but the amount and time limit of service 
is left to the judge's discretion. 

S. 19S3 N.C. Sess. Laws, 1984 Reg. Sess., ch. 1034, § 102, 
codified in G.S. 143B-475.1. 

9. For eligible offenders, the Parole Commission may re- 
quire that up to 32 hours of community senice be performed 
for each 30 days' reduction in prison time. G.S. 15A-1 380.2(h), 
15A-1 371(h). A prisoner is eligible for community senice pa- 
role if (1) his/her sentence is at least six months; (2) he/she was 
not convicted of a sex offense, kidnapping, abduction of chil- 
dren, felonious restraint, or drug trafficking; (3) the Parole 
Commission believes that he/she will refrain from committing 
a new crime; (4) he/she agrees to complete the remaining por- 
tion of the sentence by performing the required community 
sendee in a specified time; and (5) he/she already has served 
the amount of prison time required by the statute. This 
amount of time may be as little as one-eighth of the sentence 
for an eligible felon. 

10. Regarding the cap, see Stevens H. Clarke, "North Car- 
olina's Prison Population Cap: How Has It Affected Prisons 
and Crime Rates?" Popular Government 58 (Fall 1992): 11-22. 

1 1. Supervised probation involves supervision by a proba- 
tion officer, while unsupen ised probation does not. 

12. G.S. 143B-475.1(b), 20-179.4(c). If an impaired driver is 
ordered to attend an Alcohol and Drug Education Traffic 
School, the fee for community sen ice is only §50.00; G.S. 20- 
179(c). Judges, at the request of case coordinators, sometimes 
reduce or waive the fee for offenders who have difficulty 



paving, although the statutes do not specifically authorize 
them to do so. 

13. Community service can be compared with restitution, 
another frequently used sanction: restitution involves payment 
of money to the individual crime victim, while community 
sen ice benefits society as a whole. 

14. This is the number of offenders, according to VJS, who 
began participating in the community service program in 19S9 
and for whom VJS records showed at least one hour of work 
assigned. 

13. The current offense is the one for which the offender 
either received a probation sentence in 1989 or received a 
prison sentence from which he/she was released in 1989. The 
data presented here concerning current offenses for commu- 
nity senice participants on supervised probation and parole 
were taken from records of the Department of Correction 
(DOC) rather than VJS, because DOC data were more reli- 
able. If there was more than one current offense, the "princi- 
pal offense" — the one with the longest prison term (suspended 
or active) — was chosen. 

16. For these same groups, the median hours assigned was 
as follows: parolees, 480; supervised probationers (excluding 
impaired drivers), 50; deferred prosecution, 50; PJC, 32; im- 
paired drivers, 24; and others, 24. 

17. In effect, these 23,952 participants were followed from 
sometime in 1989 until August 1991, or for an average of more 
than two years (about 25 months). Were the 23,952 participants 
who began the program in 1989 and completed it by 1991 dif- 
ferent from the rest, who began in 1989 but did not finish by 
1991? In terms of assigned hours, they were not substantially 
different. The entire group of 43,948, as explained earlier, aver- 
aged 58 assigned hours; the 23,952 who completed the program 
by August 1991 averaged 64 hours. However, a longer follow- 
up of the entire 43.94S until all had completed the program 
might show different results from those reported here. 

18. For the participants who had completed the program, 
the average number of hours assigned was 64.1. 

19. This was not possible in the case of impaired drivers, 
because so many (about 40 percent) were assigned 24 hours 
(due to the fact that 24 hours of community sen ice is a popu- 
lar alternative to imprisonment for Level Five of DWI). The 
impaired drivers group was divided approximated in the ratio 
40:30:30. 

20. For impaired drivers, "low" denotes 1 to 24 assigned 
hours; "medium," 25 to 48; and "high," 49 and over. For super- 
vised probationers, 'low" denotes 1 to 48 hours; "medium," 49 
to 72; and "high," 73 and over. For parolees, 'low" denotes 1 
to 400 hours; "medium," 401 to 550; and "high," 551 and over. 

21. The following are the percentages of participants in 
each group who performed no more than six hours' work: pa- 
rolees, 18 percent; impaired drivers, 11 percent; supervised 
probationers (excluding impaired drivers), 21 percent; partici- 
pants on deferred prosecution, 10 percent; participants on a 
PJC, 6 percent; and other participants (primarily on unsuper- 
vised probation), 14 percent. These data are limited to cases 
considered "completed" by VJS for which VJS records indicate 
at least one hour was assigned. 

22. The average percentage of assigned hours performed 
was 99 percent for 19,356 participants who completed the pro- 
gram successfully, and 17 percent for 4,596 who completed 



Popular Government Winter 1993 37 



it unsuccessfully. For the various groups of participants, 
the average percentages performed for the successful and un- 
successful, respectively, are parolees, 73 and 21; impaired driv- 
ers, 99 and 1 5; supervised probationers (excluding impaired 
drivers), 100 and 16; participants on deferred prosecution, 
101 and 22 (evidently a few participants worked more hours 



Recent Publications 

of theAlnstitute of Government 



County Salaries in North Carolina 1993 

Compiled by Carol S Burgess 62 pages. [92 17] ISBN 1-5601 1- 
223-9. $12.50 plus 6% tax for North Carolina residents. 

Form of Government of North Carolina 
Counties. 1992 Edition 

Compiled by Joseph S Ferrell. 1992. 13 pages. [92.14] ISBN 
1-56011-220-4. $6.50 plus 6% tax for North Carolina residents. 

Property Tax Collection in North Carolina 
1992 Supplement 

William A. Campbell. 48 pages. [88.10A] ISBN 1-56011-212-13. 
$5.50 plus 6% tax for North Carolina residents ($16.50 plus tax 
for the 1988 book together with the 1992 supplement). 

Batson v. Kentucky's Impact on Peremptory 
Challenges in North Carolina Courts 

Thomas H. Thornburg. 39 pages. Special Series No. 7. ISBN 
1-5601 1-203-4. $9.00 plus 6% tax for North Carolina residents. 

Carolina County, North Carolina 
Comprehensive Annual Financial Report 

Revised Edition 

Prepared by the Fiscal Management Section of the Department of 

State Treasurer and S. Grady Fullerton. 152 pages. 

[CARO] ISBN 1-5601 1-192-5. $35.00 plus 6% tax for North 

Carolina residents. 

Replacement pages only [91. 03A] ISBN 1-5601 1-213-1 $10.00. 

Recidivism of Criminal Offenders Assigned to 
Community Correctional Programs or Released 
from Prison in North Carolina in 1989 

Stevens H. Clarke and Anita L. Harrison. 56 pages. [92.02] 
ISBN 1-5601 1-204-2. $1 1 .00 plus 6% tax for North Carolina 
residents. 

Orders and inquiries should be sent to the Publications Office. Insti- 
tute of Government, CB# 3330 Knapp Building, UNC-CH, Chapel Hill, 
NC 27599-3330. A complete publications catalog is available from 
the Publications Office on request. For a copy, call (919) 966-4119. 



than they were assigned); participants on a PJC, 100 and 17; 
and other participants (primarilv unsupervised probationers), 
101 and 19. 

23. See Clarke, "North Carolina's Prison Population Cap." 

24. Telephone interview with Sam Boyd, executive direc- 
tor, X.C. Parole Commission, February 23, 1993. 

25. For example, according to unpublished data provided 
by Kenneth L. Parker of the N. C. Department of Correction, 
the average percentage of the sentence served for offenders 
released each year, which ranged from 39 to 42 percent in the 
years 1980-86, declined steadily after 1986 to reach 22 percent 
in 1991. (These data exclude time served by offenders admit- 
ted for a probation revocation and time served after revocation 
of parole.) 

26. For example, community service parolees, on average, 
have a higher risk of becoming recidivists (being rearrested 
for a new crime) than do probationers on the community 
sen ice program. This is shown by their number of prior fin- 
gerprinted arrests (one of the best predictors of recidivism). 
For 1,890 offenders given community service parole in 1989, 
the average number of prior fingerprinted arrests was 4.0; for 
7,871 supervised probationers on the program (excluding 
impaired drivers), the average was only 1.6. Stevens H. Clarke 
and Anita L. Harrison, Recidivism of Criminal Offenders 
Assigned to Community Correctional Programs or Released 
from Prison in North Carolina in 1989 (Chapel Hill, N.C.: 
Institute of Government, The University of North Carolina 
at Chapel Hill, 1992), 49-50. 

27. This cost was obtained from the Department of Crime 
Control and Public Safety and verified by a telephone conver- 
sation with Theresa Morris, deputy director of the Victim and 
Justice Services Division, February 23, 1993. 

28. Zeldman, Community Service Work Program Statistical 
Report. 

29. The sum of 4.33 and 1.78 is slightly more than 6.10 due 
to round-off error. More precisely, the net cost was S1,776,33S 
as mentioned. 

30. Clarke, "North Carolina's Prison Population Cap." 

31. Stevens H Clarke and Anita L. Harrison, "Criminal 
Recidiv ism: How Is It Affected by Community Correctional 
Programs and Imprisonment?" Popular Government 58 (Sum- 
mer 1992): 19-28. 

32. According to the staff of the General Assembly's Gov- 
ernment Performance Audit Committee (GPAC), the av erage 
annual operating cost of prison space per inmate is S20,000. 
Compared with this, community sanctions are much cheaper; 
the GPAC staff estimates annual operating costs per offender 
at S600 for parole, S400 for probation, and 53,200 for intensive 
superv ision (probation or parole) and electronically monitored 
house arrest. State of North Carolina, Gov eminent Perform- 
ance Audit Committee, Retreat Presentation: Criminal Justice. 
Corrections (Raleigh, N.C., Oct. 1992, unpublished). 

33. Clarke and Harrison, "Criminal Recidivism: How Is It 
Affected by Community Correctional Programs?" For ex- 
ample, for 7,895 supervised probationers and parolees at a 
moderate level of recidivism risk, as predicted from prior ar- 
rests, current offense, age, race, and sex, those on the program 
had a rearrest rate of 24.2 percent, compared to 29.8 percent 
for those not on the program. The same kind of relationship 
is see-^ when parolees are considered separately. 



38 Popular Government Winter 1991 



At the Institute 




The staff and faculty of the Principals' Executive Program at their regular Tuesday staff 
meeting. Program director Robert Phav is seated fifth from the left. 



Principals'* Executive 
Program Graduates 

From the first, it was imagined that 
the Principals' Executive Program (PEP), 
meeting the needs of the state's 2,000 
school principals and hundreds of other 
administrators, would outgrow the Insti- 
tute of Government. That time would 
come, the 1984 planning document an- 
ticipated, "if this program is to grow to 
the scale projected for it." Now the time 
has come. Effective January 1993 PEP 
has become a separate unit of The Uni- 
versity of North Carolina at Chapel Hill, 
no longer a part of the Institute. 

When C. D. Spangler became chair- 
man of the State Board of Education in 
1982, he was concerned that new princi- 
pals, and teachers on their way to 
becoming principals, received no man- 
agement training. 

"So," Spangler, now president of The 
University of North Carolina, later re- 
called, "I modeled the Principals' Execu- 
tive Program on the Harvard Business 
School program called the Advanced 
Management Institute, where vice-presi- 
dents for marketing or vice-presidents 
for finance, and so on, who may not see 
the big picture clearly, can get an over- 
all view, suiting them for senior manage- 



ment. That's what we needed to do for 
school teachers who become principals." 

Spangler told William C. Friday, then 
UNC president, that he wanted the 
university to do this training, initially 
through the Institute of Government. 

During PEP's nine years with the 
Institute, 1,200 principals and super- 
intendents, from all of the state's 132 
school units, have graduated from PEP 
and its companion Superintendents' 
Executive Program. In late 1992 PEP 



launched a new initiative to train assis- 
tant principals, in classrooms in Asheville 
and Wilmington. 

"I am proud of the role of the Insti- 
tute of Government in developing this 
magnificent program," said Michael R. 
Smith, director of the Institute. "And I 
am pleased that Robert Phay will con- 
tinue to lead PEP in this new era. He 
stepped forward from our faculty all 
those years ago to take on w : hat was sure 
to be — and has been — a monumental 
task. His drive and enthusiasm have 
largely shaped the rigorous training pro- 
gram we see today. I am confident the 
program he leads will provide manage- 
ment training of the highest level as it 
has done here at the Institute. The pro- 
gram leaves with our best wishes and a 
pledge of continued cooperation." 

Faculty members from the Institute 
of Government will continue to teach in 
PEP, students in PEP will continue their 
residency in the Institute's dormitory, 
and PEP classes will continue to be held 
at the Institute for a couple of years. Pro- 
fessor Phay says he is hopeful that PEP 
will eventually have a facility designed 
specifically for its needs. 

— Editors 



Upcoming in 



Popular 
(government 

Zoning Hearings 



Should Prosecutors Control the Court Calendar? 



Affirmative Action in Employment 



Popular Government Winter 1993 39 



Municipal and County 
Administration Aluiimi 
Form Association 

For the first time, Institute of Govern- 
ment course graduates have formed an 
official alumni association. Graduates of 
the Institute's Municipal and County- 
Administration courses, after nine years 
of informal alumni sessions, decided to 
become official at the March 1992 semi- 
nar meeting and recently held their sec- 
ond official seminar February 24 to 26, 
1993. 

The informal sessions were coordi- 
nated by 1982 course graduate Sylvia 
Buttenvorth, finance director for the city 
of Southport, until the group decided 
that the high interest level merited form- 
ing an official alumni association. 

The association elected Buttenvorth 
as its first president when it was char- 
tered at the March 1992 meeting. 

Buttenvorth, together with Institute 
faculty members A. John Vogt and \\ . 
lake Wicker, established a program com- 
mittee to plan the early seminars; they 
covered a variety of subjects pertaining to 



local government, including budgeting, 
new management approaches, down- 
town redevelopment, law enforcement 
and police accreditation, human sen-ices, 
health issues, and media relations. 

Approximately 135 graduates from 
the class of 1982 to the present attended 
the yearly seminars. Since the associa- 
tion's chartering, earlier course graduates 
have been recruited, and the group's 
membership has grown to include ap- 
proximately 450 course graduates. The 
Municipal and County Administration 
courses have been functioning since 
1954 and 1964, respectively; together 
they have graduated more than 2,200 
participants. 

Mary Ann Hinshaw, a 19S9 course 
graduate from Guilford County and sec- 
ond vice-president, said that both the 
group and the Institute benefit from the 
formation of the alumni association. 
Members will keep current about local 
problems, and the Institute will have 
some feedback from the seminars on 
what types of programming Municipal 
and County Administration graduates 
need. 

— Melissa Dewey 



Members of section I of the 1982 Municipal Administration M 
course. Alumni association president Sylvia Butterworth is fourth tJ 
from the left in the second row . 




Warren Jake Wicker 





A. John Vogt 



Heath is Honored 
By Soil and ^ ater 
Conservation Group 

Institute of Government faculty- 
member Milton S. Heath, Jr., was hon- 
ored recently with the Distinguished 
Senice Award for outstanding work with 
the N.C. Association of Soil and Water 
Conservation Supervisors. 

Heath was given one of only three 
such awards this year at the annual asso- 
ciation meeting in Asheville in January. 
The award honors Heath's Jong involve- 
ment with the group. 

Heath began advising the district su- 
pervisors on environmental legislation in 
1959, and he has been working with the 
group ever since. In 1984 he helped es- 
tablish an annual two-day training ses- 
sion for district supenisors. The training 
session is designed to give both legal and 
management training to district supeni- 
sors on legal powers, responsibilities, and 
obligations of the districts as units of lo- 
cal government. The training session 
also provides an opportunity for the par- 
ticipants to learn about current environ- 
mental issues. 

This year's training session, again co- 
ordinated by Heath, was held at the In- 
stitute March 1 and 2. —Melissa Dewey 



40 Popular Government Winfer J 993 




Ull II liilii 




Mediation of Interpersonal Disputes: 

An Evaluation of North Carolina's Programs 

Stevens H. Clarke, Ernest Valente, Jr., and Robyn R. Mace 

The Institute of Government has just completed a study of the effects of North 
Carolina's mediation programs (dispute settlement centers) on interpersonal disputes 
referred from district criminal court. The study focuses on programs in three coun- 
ties — Durham. Henderson, and Iredell — evaluating their intake systems, their influence 
on court dispositions, their effects on disputants' satisfaction, and the stability of 
mediated arguments. Now the Institute announces publication of the results of this 
important study. 
92.05 ISBN 1-5601 1-208-5 $15.00 plus 6% tax for North Carolina residents. 



Punishment 
Chart 

for 

Motor 

Vehicle 

Offenses 

in North Carolina 

Revised 

1993 



Ben F. Loeb. Jr. 
James C. Drenmin 



Institute ol Government 



Punishment Chart for Motor Vehicle Offenses 
in North Carolina Revised 1993 

Ben F. Loeb, Jr., and James C. Drennan 

The 1993 edition of the Punishment Chart for Motor Vehicle Offenses in North Caro- 
lina is now available. Designed as a quick reference on statutory punishments for 
motor vehicle offenses, the chart covers three categories of offenses: 
1. 



Offenses that occur frequently, as indicated by the records of the Division of Mo- 
tor Vehicles in Raleigh; 

Serious offenses that must be heard by a district or superior court judge (manda- 
tory appearances are required in approximately twenty types of offenses, and most 
of these are included in this chart); 

New offenses (like violations of the commercial driver license law) and offenses 
with unusually severe or lenient punishments (like Hit-and-Run). 
The up-to-date Punishment Chart for Motor Vehicle Offenses in North Carolina is a handy tool for attorneys, law enforce- 
ment officers, court officials, and others who work in the area of motor vehicle law. 
92.20 ISBN 1-5601 1-252-2 $6.00 plus 6% tax for North Carolina residents. 

Double Jeopardy and Civil Penalties: The Impact of United 
States v. Halper, Special Series No. 8 

James Dickens and Thomas H. Thornburg 

In United States v. Halper, 490 U.S. 435 (1989), the United States Supreme Court held for the first time that a civil pen- 
alty could be so excessive that it constituted a criminal punishment within the meaning of the double jeopardy clause 
of the Fifth Amendment. Since civil penalties had never before been prohibited by the double jeopardy clause, this rul- 
ing was certain to affect how they were imposed. 

The Institute of Government has just published a Special Series monograph explaining the Halper ruling and measur- 
ing its impact so far on civil penalties. The article also explores the meaning and history of the double jeopardy clause 
of the Fifth Amendment, as background for the Halper discussion. 
ISBN 1-5061 1-21 4-X $5.50 plus 6% tax for North Carolina residents. 



To order Orders and inquiries should be sent to the Publications Office, Institute of Government, CB# 3330 Knapp Building, 
UNC-CH, Chapel Hill, NC 27599-3330. Please include a check or purchase order for the amount of the order plus 6 percent 
sales tax. A complete publications catalog is available from the Publications Office on request. For a copy, call (919) 966-41 19.