SEPTEMBER 13, 2002 * ISSUE NO. 15 * 2002 Short Session The Legislative Bulletin is published weekly by NCCBI exclusively for its members Index of stories below: A few surprises keep primaries interesting… Conferees still knotted over budget resolution… Medical malpractice reform faces Supreme Court test… DOT awards $55 million in highway contracts… More schools achieving academic success... Durham’s economy surges… EPA says air quality 25 percent better… OSHA unveils new ergonomics guidelines… Phil Kirk re-elected chairman of State Board of Education… Rocky Mount is next stop on area meeting tour... The current and past issues of the Bulletin going back to 1998 can be downloaded from the NCCBI web site at http://www.nccbi.org/Legislative_Bulletin/index.htm

Top Story
28 retired House members voted against session limits 
Members of the state House who are retired, and thus more dependent on their legislative salaries, voted against session limits in much higher numbers than did members who have real jobs, according to an analysis performed by NCCBI after last week's historic vote. Nineteen legislators who are retired or who describe themselves as full-time legislators voted for session limits while 28 voted against NCCBI's top legislative priority. If all of those legislators had voted for session limits, the constitutional amendment would have gotten 84 votes, 10 more than the three-fifths necessary for passage by the House. Instead, the measure failed 54-59.

Twenty-seven business people voted for session limits while 20 of those who list their occupations as business voted against. Several of those are only part-time business people, even when not in session. Five lawyers voted for session limits while six were opposed. In the "other category (ministers, teachers, etc.) three voted yes and five were opposed. Seven did not vote or has excused absences. Two of those are retired, two are from business, one is an attorney and one is in the "other" category.

Some of the arguments against session limits were based on unusual rationale, according to NCCBI's lobbyists. One legislator claimed that young people with children should not be serving in the legislature. The same legislator earlier expressed her opposition to the constitutional amendment with the reason that they did nothing the first month or two they are in session and this would cause a rush at the end. Proponents would counter that this is the very reason for adopting session limits.

Unbelievably, a number of legislators said session limits would require them to be in session more than the three days a week they are typically in session now. They are paid $104 per diem seven days a week. Others claimed the staff would gain too much control -- a fact not proven in the 38 states with limits. Some said they did not want to tamper with the Constitution and implied they should not have time constraints because the governor, courts and department heads do not.

"The citizens of our state are the real losers in this campaign to bring reasonable session limits to the General Assembly," said NCCBI President Phil Kirk. He explained that strategy for continuing the effort to pass session limits legislation will be discussed after the exact make-up of the House is determined in the November election. "The Senate has indicated it will pass session limits for the sixth time so the issue is not dead. Based on the reaction we have received from our members, this will again be a top priority for NCCBI because the problems will get worse, not better, without some kind of limit. Just as North Carolina took more than 200 years to become the last state to finally adopt the veto for the Governor and one of the last states to allow a governor to seek re-election, North Carolina will some day join the 2lst century by passing session limits," Kirk added. 


Election Results
Most incumbents fare well, but primaries produce some surprises
Voter turnout of about 20 percent was slightly better than expected in Tuesday's primaries, a fact that appeared to help legislative incumbents. Practically all members of the House and Senate who had primaries won even though they had limited time to campaign and didn't have much to brag about on the stump. Only two House Democrats who had primaries lost and only one of the 15 House Republicans with primaries lost. On the Senate side, three of six Democratic senators  and eight of 10 Republicans in primaries won, most by comfortable margins. A complete list of winners and losers in legislative, judicial and congressional races is at the end of this newsletter.

Erskine Bowles garnered 44 percent of the Democratic vote for U.S. Senate to defeat two other high-profile candidates, Secretary of State Elaine Marshall and former House Speaker Dan Blue. He will face Republican Elizabeth Dole in November for Sen. Jesse Helms' seat. Dole, who polled an impressive 81 percent of the primary vote, became the first woman to win the Democratic or Republican nomination for the Senate from North Carolina. She made headlines in her acceptance speech by proposing that she and Bowles forgo paid political advertising in lieu of a series of TV and radio debates, with each candidate putting up $2 million to pay for the events. Bowles declined the no-TV-ads offer but said he welcomed the idea of public debates. Expect Bowles and Dole to wage expensive, high-profile campaigns, given that there's only eight weeks until the Nov. 5 general election.

In the state's new 13th Congressional District, state Sen. Brad Miller of Raleigh won handily over five other candidates. He garnered 40 percent of the vote to 25 percent for former congressman Robin Britt, 15 percent for state Sen. Bill Martin of Greensboro and 12 percent for attorney Lawrence Davis. The GOP primary was extremely close, with business woman Carolyn Grant of Raleigh apparently edging out tobacco industry executive Graham Boyd. Only about 200 votes separated Grant and Boyd out of nearly 25,000 cast. Paul Smith came in third with 24 percent of the vote.

While most legislative primaries were ho-hum affairs, a few races pitting incumbent against incumbent generated some nail-biting attention:

A recount was underway to resolve the squeaker between Democratic Sens. Ellie Kinnaird and Howard Lee, two Democrats who have served together in a two-seat district but who were forced to compete for the same seat in the redrawn Senate 23rd District in Chatham and Orange counties. Kinnaird led by fewer than 200 votes out of more than 24,000 cast. Lee, a co-chair of the Appropriations Committee and vice chair of the Education Committee, is by far the more pro-business candidate.

It wasn't quite that close in the new Senate District 26 covering Rockingham and part of Guilford counties, where two Republican senators were pitted against each other. Sen. Phil Berger edged out Sen. Bob Shaw  53 percent to 47 percent. It was closer than it looked; Berger's winning margin was less than 100 votes. No Democrat filed in the district, so Berger can coast to re-election.

Four-term Sen. Virginia Foxx (R-Watauga) easily beat three-term Sen. Ken Moore (R-Caldwell), 71 percent to 29 percent in the redrawn Senate 45th District in Alleghany, Ashe, Caldwell, Watauga and part of Wilkes county. Foxx should easily prevail over her Democratic opponent in the heavily-Republican district.

State Rep. Edd Nye (D-Bladen) beat Rep. Nurham Warrick (D-Sampson), 54 percent to 46 percent, in the redrawn House 22nd District in Bladen and Sampson counties. Nye is in his 13th term in the House; Warrick in his third. 

Two Republican House members looking to move to the Senate won their primaries. Rep. Fern Shubert, in her third term in the House, polled 49 percent of the vote in beating four other candidates in the Senate 35th District covering Union and part of Mecklenburg counties. Five-term Rep. Gregg Thompson polled 42 percent of the vote to overcome three other Republican candidates in the Senate 47th District 47 covering Avery, Madison, McDowell, Mitchell, Yancey and part of Haywood counties.

Among the very few incumbents who were flat-out defeated, Republican Rep. Monroe Buchanan, who had been banned from the House Republican Caucus for voting with the Democrats, lost his primary race to Phillip Frye, 57 percent to 43 percent, in the redrawn House 84th District covering Avery, Mitchell and part of Caldwell counties. No Democrat filed in the heavily-Republican district, so Frye can coast.

Fayetteville lawyer Edward Brady upset Ralph Walker in the Republican primary for a seat on the state Supreme Court. He will face incumbent Democratic Justice G.K. Butterfield in the Nov. 5 general election. Most other judicial races went as expected. State Court of Appeals Judge Bob Hunter of Marion beat Rutherfordton lawyer Bradley Greenway to win the Democratic nomination and the right to challenge Supreme Court Justice Bob Orr, a Republican, in November. 

In Court of Appeals races, Wake District Court Judge Ann Marie Calabria beat Nate Pendley to win the Republican nomination and the right to challenge Democratic incumbent Wanda Bryant. Raleigh lawyer Martha Geer defeated Lumberton attorney Marcus Williams for the Democratic nomination for the seat held by retiring Judge Albert Thomas. Geer will face Bill Constangy, a Mecklenburg District Court judge who was unopposed for the GOP nomination. Greensboro lawyer Rick Elmore beat Mecklenburg District Court Judge Fritz Mercer in a GOP primary to fill the seat being vacated by Judge Ralph Walker, who is running for the Supreme Court. Elmore will face Raleigh lawyer George Barrett, who beat Chapel Hill administrative law judge Beecher Gray in the Democratic primary. In another Republican primary, Mecklenburg District Court Judge Eric Levinson beat Lorrie Dollar, a deputy commissioner with the North Carolina Industrial Commission. Levinson will face Democratic incumbent Hugh Campbell Jr.

In other congressional races, State Sen. Frank Ballance defeated three other Democrats hoping  to succeed retiring Cong. Eva Clayton, the state's first black woman elected to Congress. Ballance will face Republican Greg Dority of Washington for the 1st Congressional District seat. Incumbent Cong. Mel Watt easily defeated his nominal opponent to  win the Democratic nomination for the 12th Congressional District. He will face Republican Jeff Kish, a Charlotte building contractor. In the 8th District, Charlotte attorney Chris Kouri won the Democratic primary and the right to challenge incumbent Cong. Robin Hayes, who had no primary opposition. In the 7th Congressional District, engineer James Adams won the GOP nomination to face incumbent Democratic Cong. Mike McIntyre.


Conferees still unable to resolve budget differences
There was no resolution -- again -- on the state budget as House and Senate conferees continued working behind closed doors to put a spending plan in place for the fiscal year that began 10 weeks ago. The latest work is that they want to restore most of the cuts made by one chamber or the other in education and human services programs, but they can't find the revenue to offset the increased spending.  News reports indicate the conferees proposed restoring more than $35 million in funding for the UNC System, $35 million for public schools and $7 million for community colleges. Conferees also were considering restoring other expensive cuts in mental health services, nursing home care and services for the deaf and blind. Rep. David Redwine, (D-Brunswick), a co-chairman of the House Appropriations Committee, said budget negotiators had dropped a proposal to offer longtime state workers an early retirement incentive for those with at least 25 years' experience. He said the proposal to provide state employees two extra weeks of vacation remained in the budget. House Speaker Jim Black said he hopes to present a compromise budget to members early next week.

Legislative Actions

The House on Monday concurred with Senate amendments to H. 1490 Secure Local Revenues (Pryor Gibson, 73 others) and the measure was enrolled. The bill states that it is the intent of the General Assembly that revenue collected by the state on behalf of local governments is money that rightfully belongs to local governments. It says that the governor may impound the money only as a last resort to balance the state budget during a financial emergency. The legislation was prompted by Gov. Mike Easley's seizure this year of $114 million in utility franchise, natural gas and beer and wine taxes that the state collects on behalf of cities. The House bill originally stated that the governor would need legislative approval before impounding local revenues collected by the state, but the Senate struck that provision and the House accepted the change. The measure also bars cities from impose their own utility franchise taxes if the state impounds that tax revenue, as at least two dozen cities have done this year.

The House on Monday failed to concur with Senate amendments to H. 1508 Public Health Bioterrorism Preparedness (Zeno Edwards), a measure that would give the state health director expanded powers to respond to chemical and biological terror attacks, including quarantine powers. Appointed as House conferees to resolve differences between the chambers on the legislation were Rep. Edwards (D-Beaufort) as chair, with Reps. Philip Baddour (D-Wayne) and Art Pope (R-Wake) as members.

NCCBI is monitoring a proposal by Rep. Wayne Goodwin (D-Richmond) to increase in the amount of money awarded in workers' compensation cases when a job causes permanent facial or body scarring or the loss of a bodily organ. The proposal stems from the long-running battle in the N.C. Industrial Commission over claims for asbestos-related illnesses. The proposal has not yet been introduced as a bill but apparently has the support of several legislators. Under current law, the schedule of benefits for the loss of body parts has an automatic inflation adjustment except for the provisions except for those relating to asbestos-related illnesses. Those payments have not changed since 1987. Goodwin is an attorney who specializes in workers' comp cases.  NCCBI and other groups contend the issue merits extensive study, a review not possible in the dwindling days of the current legislative session.

Legal Beat
NCCBI-backed medical malpractice reform faces Supreme Court test
The N.C. Supreme Court heard oral arguments Tuesday in a suit (Anderson v Assimos, #621A01) testing one of the key medical malpractice reforms that NCCBI helped enact in 1995 -- the rule that a person filing a malpractice lawsuit must first get an expert to agree that the case has some merit. The law, known as Rule 9(j), was passed to prevent frivolous medical malpractice claims, which injure the reputations of doctors and hospitals and inflate the cost of medical care. Opponents of the law complain that it creates a higher barrier to the courts for those alleging medical malpractice than other types of legal actions.

The plaintiff in the case is a Greensboro woman, Margaret Wrenn Anderson, who alleges that the drug gentamicin her doctor prescribed for her in 1996 for an unrelated infection destroyed her inner ears' sense of balance, leaving her dizzy and nauseous. Three years later Anderson sued doctors Dean George Assimos, R. Lawrence Kroovard and Mark R. Hess and Wake Forest University's Baptist Medical Center, alleging they failed to properly warn her about the antibiotic's side effects. A Guilford County Superior Court judge dismissed the lawsuit because Anderson, 74, had not first found an expert who would corroborate her allegation. Anderson took the case to the N.C. Court of Appeals. In an opinion issued last Oct. 2, a divided Court of Appeals ruled that the 1995 law was unconstitutional because it denies some people access to the courts and it applies only to medical suits. The opinion was written by Judge K. Edward Greene, with Judge Linda M. McGee concurring and Judge hugh Campbell concurring in part and dissenting in part. For more background, see the Oct. 31, 2001, Legislative Bulletin. The appeals court sent the case back for trial but the hospital and doctors appealed the case to the Supreme Court.

In remanding the case for trail, Judge Greene wrote, "In this case, the interest asserted by Defendants is that Rule 9(j) prevents frivolous lawsuits. There is nothing in this record to support the claim that frivolous lawsuits were a problem in medical malpractice cases before the enactment of Rule 9(j). Even if we assume it is a problem, there is nothing in this record to support the claim that Rule 9(j) alleviates that problem or that the problem is not also present in the context of non-medical practice actions. In any event, assuming there is such a problem unique to medical malpractice actions, Rule 9(j) is not the least restrictive method for solving the problem. Many states addressing this issue have adopted medical review panels which simply require the claim be reviewed prior to the filing of a medical malpractice action."

In his dissent, Judge Campbell wrote, "Although I wholeheartedly concur with the majority that the courts of this State should be open to all and that the General Assembly is forbidden from impairing the rights guaranteed by article I, section 18 of the North Carolina Constitution ... our General Assembly is nevertheless permitted, under the 'due course of law' language of article I, section 18, to 'define the circumstances under which a remedy is legally cognizable and those under which it is not.' Further, it is well- established that there is a presumption in favor of the constitutionality of any legislative enactment and that reasonable doubts must be resolved in favor of sustaining legislative acts. Application of these principles to the instant case leads me to conclude that Rule 9(j) does not unconstitutionally restrict plaintiff's access to the courts in violation of article I, section 18."

The N.C. Academy of Trial Lawyers, the state chapter of the American Civil Liberties Union and the Association of Trial Lawyers of America have filed amicus briefs on the plaintiff's side. NCCBI filed a friend of the court brief on the side of the doctors, as did the N.C. Medical Society, the N.C. Hospital Association and more than two dozen other business and medical organizations. The N.C. Supreme Court isn't expected to issue its decision for several weeks.

State Government
DOT board awards $55 million in highway contracts
The N.C. Board of Transportation awarded $51.1 million in contracts for transportation projects in 20 counties during its Sept. 5 meeting in Raleigh. Included are contracts to:

Build a ferry vessel to transport passengers and vehicles across Hatteras Inlet between Hatteras Island in Dare County and Ocracoke Island in Hyde County. Steiner Shipyard Inc. of Bayou La Batre, Ala., was awarded the $5.3 million contract. Work begins this month with completion scheduled in September 2003. The board voted to name the vessel the M/V Croatoan to honor the Croatoan Indians who were residents of the area before the first English settlers arrived in the late 1500s.

Realign the intersection of U.S. 158 and N.C. 168 south of Barco in Currituck County. Barnhill Contracting Co. of Tarboro was awarded the $1.8 million contract. Work on the project begins Sept. 30 with completion scheduled in May 2003.

Mill, resurface and replace drainage pipes on 16.1 miles of U.S. 158 from the Wright Memorial Bridge in Southern Shores to U.S. 64/264 in Nags Head in Dare County. Barnhill Contracting Co. of Tarboro was awarded the $6.3 million. Work begins Sept. 30 with completion scheduled in May 2003.

Install overhead message signs on I-40 and I-77 near Statesville in Iredell County, on I-40 and I-95 near Benson in Johnston County and on U.S. 17 and U.S. 17,74,76 in Brunswick County and U.S. 421 and N.C. 132 in New Hanover County. Traffic Control Devices Inc. of Altamonte Springs, Fla., was awarded the $2.1 million contract. Work begins Sept. 30 with completion scheduled in February 2004;

Resurface 18.9 miles of U.S. 64 in Nash and Franklin counties. Barnhill Contracting Inc. of Tarboro was awarded the $6.4 million contract. Work begins Sept. 30 with completion scheduled in August 2003.

Resurface and rebuild shoulders on 22.6 miles of U.S. 117 from the Duplin County line to U.S. 13 in Wayne County. Barrus Construction Co. of Kinston was awarded the $2.8 million contract. Work begins Oct. 3 with completion scheduled for October 2003.

Widen 3.2 miles of N.C. 55 from southeast of Wake Chapel Road in Fuquay Varina to northwest of Ralph Stephens Road south of Holly Springs in Wake County to a four-lane highway divided by a 16-foot raised median. The contract also includes installing curbs and gutters and building sidewalks on both sides of the highway. Thompson Contracting Co. Inc. of Raleigh was awarded the $9.5 million contract. Work begins Sept. 30 with completion scheduled in October of 2005;

Resurface 6.7 miles of Silas Creek Parkway from I-40 Business/U.S. 421 to the entrance of Wake Forest University in Winston-Salem in Forsyth County. Yadkin Valley Paving Inc. of Winston-Salem was awarded the $1 million contract. Work begins Sept. 30 with completion scheduled in November.

Install median guardrail on 34.8 miles of U.S. 321 from N.C. 275 in Gaston County through Lincoln County to 13th Street SW north of Hickory in Catawba County. Reynolds Fence & Guardrail Inc. of Indian Trail was awarded the $939,814 contract. Work will begin between Sept. 30 and Dec. 1 with completion scheduled 270 days thereafter.

Install median guardrail and guiderail on 7.3 miles of U.S. 74 in Cleveland County. Bagwell Fence Co. Inc. of Spartanburg, S.C., was awarded the $467,398 contract. Work will begin between Sept. 30 and Dec. 1 with completion scheduled 270 days thereafter.

Resurface 8.9 miles of N.C. 16 from N.C. 90 west of Taylorsville in Alexander County to the Wilkes County line. The contract also includes rebuilding shoulders on both sides of the highway. Carl Rose & Sons Inc. of Elkin was awarded the $1.5 million contract. Work begins Oct. 1 with completion scheduled in July 2003;

Resurface 4.6 miles of U.S. 74 from N.C. 226 west of Shelby to Pleasant Ridge Road south of Latimore in Cleveland County. The contract also includes rebuilding shoulders on both sides of the highway.

Resurface 7.3 miles of N.C. 901 from N.C. 115 to I-77 east of Union Grove in Iredell County. The contract also includes rebuilding shoulders on both sides of the highway. Carl Rose & Sons Inc. of Elkin was awarded the $1.1 million contract. Work begins Sept. 30 with completion scheduled in June 2003;

Widen 2.1 miles of Sugar Hill Road from I-40 to the Marion Bypass (U.S. 221/N.C. 226) in McDowell County to five lanes. Paving Enterprises Inc. of Arden was awarded the $5.9 million contract. Work begins Sept. 30 with completion scheduled in December 2004; and

Widen 1 mile of the U.S. 25/70/N.C. 213 Marshall Bypass from School Bus Garage Road to 500 feet southeast of Smith Hollow Road in Madison County to three lanes. Taylor & Murphy Construction Co. Inc. of Asheville was awarded the $1.4 million contract. Work begins Sept. 30 with completion scheduled in December 2003.
 
The board rejected a contract to resurface 8.2 miles of I-95 from south of Micro in Johnston County to the Wilson County line because the bids were too high.
 

Meetings will assess state's land and water conservation needs
Local government officials and conservation groups are among the participants expected to participate in a round of meetings across the state to discuss “One North Carolina Naturally,” a new statewide land and water protection initiative established to guide North Carolina’s future conservation efforts. See a list of the upcoming meetings below. The “One North Carolina Naturally” initiative, developed by the N.C. Department of Environment and Natural Resources, has been established to lead the development and implementation of a comprehensive statewide conservation plan, involving government agencies, private organizations, landowners and the public. “The plan will focus on maintaining functional ecosystems, biological diversity and working landscapes through the stewardship of land and water resources as North Carolina continues to grow,” Richard Rogers, DENR’s director of Conservation and Community Affairs, said. “It will help us conserve and restore the state’s natural heritage and sustain a healthy quality of life for North Carolinians and our guests.” Additional information is available at DENR's web site at www.enr.state.nc.us/officeofconservation/index.html.

State directs environmental message at Hispanics
Using Environmental Protection Agency grant money, the state has begun running radio spots in Spanish informing listeners of the ecological dangers of pouring pollutants into rivers and streams. It is the first time that the state has directed such messages at the Hispanic community. The spots are running on several radio stations in the Piedmont. "North Carolinians, including those in the large and growing Hispanic community, need to understand the role we each can play in preventing stormwater pollution," said DENR Secretary Bill Ross. The spot centers around a conversation between two men, one of whom is changing the motor oil in his car. The man’s friend informs him that motor oil poured onto the ground could end up polluting streams and rivers.

Major conference next month on workers' comp issues
The N.C. Industrial Commission and the International Workers' Compensation Foundation are jointly sponsoring the seventh annual Workers' Compensation Educational Conference on Oct. 1-3 at the Sheraton Imperial Hotel and Convention Center in RTP. The goal of this conference is to educate those who participate in the North Carolina workers' compensation system regarding current rules, procedures, policies and forms and to provide an opportunity for dialogue among these participants. The presenters include commissioners, deputy commissioners and section heads of the Industrial Commission; plaintiff's and defense attorneys; physicians; chiropractors; physical therapists; insurance adjusters; medical and vocational rehabilitation specialists and mediators. Participants also may be eligible for continuing education credits. Complete details about individual break out sessions are available at the Industrial Commission's web site.

Cary insurance agent gets active prison term for fraud
A Cary resident will spend at least five years in jail for insurance fraud after pleading guilty to pocketing more than a half million dollars in insurance premiums. Sally J. Bruns, past president of Benefit Design Associates in Morrisville, was sentenced to a minimum of 60 months and a maximum of 81 months incarceration and was ordered to pay court appointed attorney's fees. Benefit Design Associates contracted with the U.S. Lacrosse Association and U.S.A. Gymnastics to provide medical, liability, disability and life insurance coverage for over 50,000 members through The Hartford Insurance Company. An investigation determined that Bruns failed to remit $141,200 in premiums from the U.S. Lacrosse Association and $434,375 from U.S.A. Gymnastics.

Feds certify state's new computer system for collecting child support payments
North Carolina has received final approval from federal officials to use its new Automated Collections and Tracking System (ACTS) to manage all child support case management data for 430,000 families. ACTS tells child support agents, who each handle hundreds of cases, what actions are required to help children get the support they deserve. North Carolina was the fifteenth state in the nation and the first state in the Southeast to obtain full system certification. In fiscal 1996, the year before ACTS first went online, total child support collections were $281 million. Collections have steadily increased, rising to $497 million in 2002.

West Nile Virus confirmed in 18 counties
The West Nile Virus has now been confirmed in dead birds found in 18 counties, the State Laboratory of Public Health and the Public Health Pest Management Section said Tuesday. New counties added to the list include Buncombe, Orange, Currituck, Jackson, and Warren counties. Earlier this summer the virus had been found in birds from Alamance, Alexander, Burke, Cabarrus, Catawba, Durham, Gaston, Gates, Guilford, Lincoln, Mecklenburg, Surry, and Wake counties. State Health Director Leah Devlin says people need to be diligent in protecting themselves against mosquito bites.


Education
Students at rising number of schools meeting higher academic standards
North Carolina had more high-performing schools than ever before last school year and a dwindling number of low-performing schools, according to an annual accountability report from the state Department of Public Instruction. More than 43 percent of schools rated as Schools of Excellence, meaning at least 90 percent of students tested at or above grade level, or as Schools of Distinction, where at least 80 percent of students tested at or above grade level.

This was the seventh year that students’ academic achievements have been measured by end-of-grade tests required the ABCs of Education law. In the first year of the ABCs, only 12 schools qualified as Schools of Excellence and only 158 were Schools of Distinction. This year, 299 achieved Schools of Excellence status and 648 were Schools of Distinction.

The number of low-performing schools in North Carolina continued to decline in 2001-02 and is down to 18, compared to 31 the previous year. Low-performing schools are identified when a school does not meet academic growth goals and has less than 50 percent of its students’ scores at or above grade level. The State Board of Education assigned State Assistance Teams to five of the low-performing schools, all of which are high schools.

Of special interest this year is the fact that most of the Schools of Excellence met the standard for "High Growth," roughly 10 percent above the standard for expected growth in academic achievement. Some educators have voiced concerns that schools with a significant number of students at grade level or better might have more difficulty meeting rigorous growth goals. The numbers and analyses done on the ABCs throughout its history have not supported this idea.

In addition to the ABCs report, the State Board also received a report showing the preliminary state level data for the testing program which showed a growing percentage of students overall who performed at or above grade level in both reading and mathematics. In 2001-02, 74.7 percent of third through eighth graders were proficient in both basic subjects. This is up from 61.7 percent in 1996-97, the first year of the ABCs.

This report showed that the achievement gap between white and black students narrowed slightly. The data show that 56.6 percent of black students scored at or above grade level in reading and math in 2001-02, up from 52 percent. White students’ performance also improved to 84.4 percent at or above grade level, a 2.4 point gain over 2000-01. Overall, 74.7 percent of all students are now testing at or above grade level, a three point gain from the previous year.

The data show that 62.1 percent of Hispanic students scored at or above grade level in reading and math, up from 58.7 percent in 2000-01. For American Indian students, 62.7 performed at grade level in 2001-02, up from 60 percent in the previous year.

State Superintendent Mike Ward said that the ABCs results put North Carolina in a good position to perform well under the requirements of No Child Left Behind, the sweeping federal education legislation signed into law in January.
 
In 2001-02, a total of 648 schools (29.6 percent of all schools) were Schools of Distinction. Schools of Progress (at least 60 percent of students at grade level) made up another 23.8 percent of schools (521), while 465 (21.2 percent) schools received No Recognition designations. Six percent (131) of all schools were classified as Priority Schools.

Incentive bonuses of about $101 million are expected to be awarded to staff in schools that attained expected or high growth targets. The entire ABCs report, including the recognition categories and a list of schools by recognition category or by school district, is available online at http://www.ncpublicschools.org/abcs.



Economic Development
Durham enjoys robust economic growth in first half of year
Durham County leads the state in new job announcements in the first half of the year and is second in capital investment by new and expanding businesses, according to state Commerce Department data. During the period Durham recorded expansions by AW North Carolina, Eisai Inc., EMD Pharmaceuticals, Cormetech, Valcor, ETRS Inc., Roma Foods, Serenex and Integrated Labs, among others.

Eye on Washington
EPA report concludes air quality is 25 percent better than in 1970
Air quality continues to steadily improve in the United States, according to a new report by the Environmental Protection Administration. The agency's 2001 annual summary report of National Air Quality Trends, released Sept. 4, concludes that since 1970 aggregate emissions of six principal pollutants have been cut by 25 percent. The EPA said this was notable because during the same period U.S. gross domestic product increased 161 percent, energy consumption increased 42 percent and vehicle miles traveled increased 149 percent.

Despite the strides made to improve air quality, however, more than 130 million people today live in areas where air is unhealthy at times because of high levels of air pollutants -- primarily ozone and fine particles, the EPA report said. Moreovers, over 170 million tons of pollution are emitted into the air each year in the United States

The agency has taken several steps in recent years to improve air quality by implementing more stringent National Ambient Air Quality Standards, as well as new requirements to reduce emissions from industrial and on-road transportation sources. EPA has also submitted to Congress legislation that, if enacted, would mandate reductions of ozone- and particle-forming compounds from power plants by 70 percent from current levels through a nationwide cap and trade program. EPA also expects to propose regulations that would reduce emissions that form ozone and fine particles from off-road vehicles, such as bulldozers and other large construction equipment. 

The EPA report said that since 1970:
-- Emissions of volatile organic compounds are down 38 percent;
-- Nitrogen oxide emissions are up 15 percent;
-- Sulfur dioxide emissions are down 44 percent;
-- Particulate matter emissions are down 76 percent;
-- Carbon monoxide emissions are down 19 percent; and
-- Lead emissions are down 98 percent.

The report, "Latest Findings on National Air Quality - 2001 Status and Trends," is available at: www.epa.gov/airtrends.


OSHA unveils ergonomics guidelines for nursing homes
The Occupational Safety and Health Administration is accepting public comment on the agency's first set of industry-specific ergonomic guidelines, for nursing homes, and has begun the process of developing workplace rules for two other industries -- retail food stores and the poultry processing industry. OSHA's proposed ergonomic rules for nursing homes can be read and downloaded from OSHA's website at www.osha.gov/ergonomics (select "Draft Guidelines for Nursing Homes").

"These guidelines are the result of an extensive and cooperative process involving a wide-ranging, inclusive review of both scientific information and existing ergonomic practices and programs in the nursing home," said OSHA Administrator John Henshaw. "We also conducted one-on-one meetings with major stakeholder groups to gather information on best practices that have been successfully used in the nursing home industry to ensure we are recommending practical solutions that will work in the real world."

The guidelines are intended to provide practical solutions for reducing ergonomic-related injuries and illnesses in nursing homes. They will not be used for enforcement purposes. Interested parties must submit written comments by Sept. 30. Written comments (10 pages or fewer) and intent to participate can be faxed to OSHA's Docket Office at (202) 693-1648 or sent electronically to http://ecomments.osha.gov.

Grocery stores and poultry processing will be the focus of the next two sets of industry-specific guidelines to reduce ergonomic-related injuries, Henshaw said. Representatives from both industries will work with OSHA to develop the guidelines. "The number of ergonomic-related injuries suffered by workers in the retail grocery store industry continues to rank near the top of the list," Henshaw explained. "While the rates in poultry processing aren't as high, workers still suffer from too many upper extremity disorders, such as tendinitis and carpal tunnel syndrome.

"Several stakeholders within the retail grocery and poultry processing industries have committed to working with us in developing the guidelines," Henshaw said. "Furthermore, many employers in both industries have already begun identifying and addressing ergonomic hazards. We applaud them for stepping forward and taking a proactive stance for their workers."

Draft guidelines for each of these industries are expected to be ready for public comment later this year.

Jobless rate falls but job growth remains weak
The U.S. jobless rate fell to 5.7 percent in August, its lowest level in five months, but overall payroll employment edged up just 39,000, which "reflects an economy in the doldrums,” said Jerry Jasinowski, president of the National Association of Manufacturers. “While the economic fundamentals are solid enough to avert a double-dip recession, we face a jobless recovery until we get the growth rate up,” he said. Since April, only 162,000 new jobs have been created. Manufacturing employment fell by 68,000 in August. “We will likely see manufacturing employment hold steady in the near term and begin to edge up in the first half of next year,” Jasinowski said.

Issues Briefing
Provided by the National Association of Manufacturers

FSC/ETI: The long-awaited World Trade Organization sanctions report in the foreign sales corporations/extraterritorial income (FSC/ETI) case was released on 8/30.The report was a complete victory for the European Union. It authorized the full amount of trade sanctions they had requested (about $4 billion) rather than the smaller $1 billion argued for by the U.S. While, as a practical matter, the EU cannot impose anywhere near that amount without incurring severe economic consequences of their own, they could still cause serious damage to the U.S. economy with lesser amounts if targeted strategically. The NAM and the German Industry Association (BDI) on 8/30 urged the EU to hold off given the interdependence of the EU and U.S. economies.

Pension Reform: With the Senate still reportedly on track to debate pension reform after completing work on a Department of Homeland Security bill, the type of pension reform legislation that the Senate will debate is still under negotiation. Majority Leader Daschle (D-SD) continues to insist that the Senate will take up a pension reform bill that is a combination of the two committee-passed bills. Sen. Kennedy’s (D-MA) pension bill, S. 1992, has diversification, liability, employer-employee joint plan trusteeship and other provisions that most businesses find unacceptable. It has failed to attract bipartisan support. The Baucus (D-MT) pension bill, S. 1971, has the attraction of bipartisan support. Sen. Daschle said 9/5 that negotiations are continuing on the two bills and that he still expects a “common vehicle” to be ready when the Senate turns to the issue.

Off-Road Machinery Tax: A proposed IRS rule, if finalized, could result in a tax increase for businesses that use mobile machinery equipment. These industries include: oil drilling, water drilling, utilities, commercial construction, timber, tower erectors, equipment leasing and mining. Currently, mobile equipment that is not a highway vehicle is exempt from the highway excise taxes—the fuel tax on gasoline (18.4/gallon) and diesel fuel (24.4/gallon), the tire tax, the retail tax on heavy vehicles (trucks and trailers; 12 percent tax on the purchase price), and the annual heavy vehicle use tax (based on weight capped at $550/year). On 6/6, the IRS proposed a rule that would end the mobile machinery vehicles exemption for any non-farm equipment that can be used on the roads. Thus, equipment like mobile drilling units, digger derricks, concrete pumpers, mobile cranes, and aerial lift trucks would be taxed at purchase, at the fuel pump, at the tire dealer and annually on weight. Under the proposed rule, non-licensed equipment will not be subject to these taxes under the proposed rule change. The deadline for comments to the IRS is 12/4/02.

Ergonomics: Despite best efforts by lawyers representing the Association of Washington Business, the NAM and other groups, a trial judge in Washington State on 7/12 ruled against our suit challenging that state’s new ergonomics regulation. The suit challenged the state regulations based on flawed cost/benefit analysis, timeliness, statutory authority, the validity of the evidence supporting the rule, and the sufficiency of the implementation plan. The ruling is being appealed.

Corporate Inversions: The Senate 9/5 approved an amendment to Homeland Security bill H.R. 5005 that would deny federal contracts issued by the future Cabinet-level Homeland Security Dept. to companies that have undergone a corporate inversion overseas. The amendment, offered by Sen. Paul Wellstone (D-MN), was approved by unanimous voice vote. Sen. Phil Gramm (R-TX) suggested that the amendment could be stripped out during a House-Senate conference committee on the legislation. A similar amendment is included in the version the House passed in late July.

Energy: Rep. Billy Tauzin (R-LA), chair of the House-Senate conference on energy legislation, says he wants to wrap up work on the conference report to H.R. 4 before the October adjournment. All major and many minor issues remain unresolved, including onerous Senate titles on climate change and renewable portfolio standards. Meanwhile, key senators have promised to torpedo the legislation if it includes House-passed provisions permitting limited, environmentally sound oil/gas exploration in ANWR.

Baby UI Regulation: A federal district court has dismissed a business lawsuit challenging DOL’s “baby UI” regulation—so-called because the regulation permits states to vastly expand their unemployment eligibility requirements to include parents on leave for the birth or adoption of a child. The court determined that business had failed to show that it was injured by the rule because no state has implemented the scheme. Should one do so, the suit could be filed again. UI funds need to be reserved for their original purpose: assisting the unemployed.


NCCBI News
Phil Kirk re-elected chairman of the State Board of Education
NCCBI President Phil Kirk was re-elected Thursday to a fourth two-year term as chairman of the State Board of Education. Dr. Jane Norwood, professor of education at Appalachian State University. was re-elected vice chairman. "North Carolina's public schools lead the nation inprogress, and I am honored to be selected to lead the State Board of Education for another term," Kirk said. "We have many challenges to meet and goals to achieve as we continue our drive to being First in America by 2010," he added. Kirk was named to the board by Gov. Jim Hunt in 1997 to succeed the late Dr. Jay Robinson. Board members elected Kirk to serve the rest of Robinson's term as chairman in 1998, and in 2000 and 2002 re-elected him to full two-year terms as chairman. His re-election makes him the second-longest serving chairman of the State Board of Education, behind only Dallas Herring. 

Committees review positions on legislative issues
NCCBI policy committees are meeting to review existing legislative position statements and make recommendations in preparation for the 2003 long session.

The Legal Issues and Workplace Policies Committee met Monday, Aug. 19, and discussed ways to draft meaningful legislation that will lead to tort reform and class action reform in North Carolina. Ann Spragens, senior vice president for public policy development and general counsel for the Alliance of American Insurers, told the committee that tort reform and class action reform efforts are taking place nationwide and specific legislative language is often more effective than broad reform concepts. Robert Glaser, president of the N.C. Automobile Dealers Association, told the committee that the cost of workers compensation claims for the automobile dealers has skyrocketed. The committee will meet again on Oct. 9 and Nov. 7 to continue work on legislative position statements.

Linwood Jones, general counsel with the N.C. Hospital Association, presented information to the Legal Issues/Workplace Policies and the Health Care committees regarding the increasing cost of medical malpractice insurance for hospitals. The total premium paid by North Carolina hospitals for medical malpractice insurance has more than doubled during the past year and is now more than three times greater than the 1999 premium. The two NCCBI committees will work together on tort reform efforts in the area of medical malpractice. The Health Care Committee, which met Wednesday, Aug. 28, will meet again Oct. 3 to continue reviewing the position statements.

The NCCBI Economic Development Committee met Monday, Sept. 9, and discussed the N.C. Economic Stimulus and Job Creation Act, which is currently pending before the Senate Finance Committee. Don Hobart, general counsel and legislative liaison with the N.C. Department of Commerce, explained how the incentives bill would make North Carolina more competitive in recruiting new industries. Valeria Lee, president of the Golden Leaf Foundation, presented information to the committee regarding the foundation’s economic stimulus package aimed at improving North Carolina’s economy and making the state a leader in the biosciences industry.

Chris Beacham, director of research for the N.C. Rural Center, provided an update on initiatives currently underway at the center. He stressed that the state’s 85 rural counties are facing long-time economic challenges, along with the numerous job layoffs and business closings over the last two years. The Economic Development Committee will meet again Oct. 8 to continue review of the position statements for economic development.

The NCCBI master calendar of meetings and events

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