GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	3 

SENATE BILL 799
Judiciary Committee Substitute Adopted 4/30/97
Third Edition Engrossed 5/1/97

Short Title:  Discipline Disclosure Act.	(Public)

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Sponsors:

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Referred to: 

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April 10, 1997

A BILL TO BE ENTITLED
AN ACT TO BRING MORE OPENNESS TO THE PERFORMANCE OF PUBLIC EMPLOYEES BY PROVIDING GREATER ACCESS TO PERSONNEL RECORDS.
The General Assembly of North Carolina enacts:
Section 1.  Article 1 of Chapter 132 of the General Statutes is amended by adding a new section to read:
"§ 132-1.5.  Public employee's personnel records.
(a)	Each department, agency, institution, commission, bureau of the State of North Carolina, The University of North Carolina and its constituent institutions, public hospital, county, municipality, local board of education and area mental health authority shall maintain a record of each of its employees, showing the following information with respect to each such public employee:  name, age, date of original employment or appointment to the service, current position, title, current salary, date and amount of most recent increase or decrease in salary, date of most recent promotion, demotion, transfer, suspension, separation, or other change in position classification, and the office or station to which the public employee is currently assigned.  Such information is a public record.
(b)	Information contained in a public employee's personnel record that demonstrates the employee's qualifications for the position held by a public employee is a public record.  Such information includes, but is not limited to, educational degrees, previous employment experience, and the dates the public employee held previous relevant employment and dates of military service and highest rank attained.  Letters of recommendation written on or after January 1, 1998, are public records so long as the person who writes the recommendation does not object in writing to public disclosure of the letter of recommendation.  The use of the word 'confidential' on a letter of recommendation will suffice to keep said letter confidential.
(c)	Records related to serious disciplinary actions imposed on a public employee are public records after the disciplinary determination by the public employer is final and all rights to administrative appeal by the public employee have been exhausted or waived.  As used in this Article, serious disciplinary actions are dismissal, demotion, or suspension.  At a minimum, every supervisor shall place in the public employee's personnel record a written summary of the serious disciplinary action imposed on the public employee, including the circumstances that led to the disciplinary action, the nature of the disciplinary action taken, and the effective dates of the disciplinary action.
(d)	Information identifying the public employee who provides information confidentially to persons investigating whether to bring a disciplinary action against another public employee is not a public record.
(e)	All records related to official commendations or awards bestowed upon public employees are public records; provided, however, that such records may be withheld from public inspection until the commendation or award has been received by or bestowed upon the public employee.
(f)	Once two serious disciplinary actions have been imposed on a public employee within a three-year period, all records of that public employee's performance, including evaluations or appraisals, are public records.
(g)	Subject only to rules and regulations for the safekeeping of the records, adopted by the appropriate oversight body, every person having custody of personnel records that are public records under this section shall permit them to be inspected and examined during regular business hours.  Any person who is denied access to any such record for the purpose of inspecting, examining, or copying the same shall have a right to compel compliance with the provisions of this section by application to a court of competent jurisdiction for a writ of mandamus or other appropriate relief.
(h)	Any person employed by a public agency acting in good faith to comply with the disclosure requirements of this section is not subject to liability.
(i)	Any public employee may waive the confidentiality of the employee's personnel file by making a written request that the information in the file, or the records obtained as a result of an investigation of the employee, be made public.
(j)	For purposes of this section, 'public employee' shall mean any employee, former employee, or applicant for employment by any department, agency, institution, commission, or bureau of the State of North Carolina, any employee of The University of North Carolina or its constituent institutions, any public hospital employee, or any employee of any county or municipality, local board of education, or area mental health authority.  For the purposes of this section 'public employer' shall mean any governmental entity employing a public employee."
Section 2. G.S. 115C-319, 115C-320, 115D-27, 115D-28, 122C-158(a), 122C-158(b), 126-23, 153A-98(a), 153A-98(b), 160A-168(a), 160A-168(b), 162A-6.1(a) and 162A-6.1(b) are repealed.
Section 3.  G.S. 115C-321 reads as rewritten:
"§ 115C-321.  Confidential information in personnel files; access to information.
All information contained in a personnel file, except as otherwise provided in G.S. 132-1.5 or in this Chapter, is confidential and shall not be open for inspection and examination except to the following persons:
(1)	The employee, applicant for employment, former employee, or his properly authorized agent, who may examine his own personnel file at all reasonable times in its entirety except for letters of reference solicited prior to employment;
(2)	The superintendent and other supervisory personnel;
(3)	Members of the local board of education and the board's attorney;
(4)	A party by authority of a subpoena or proper court order may inspect and examine a particular confidential portion of an employee's personnel file.
Notwithstanding any other provision of this Chapter, any superintendent may, in his discretion, or shall at the direction of the Board of Education, inform any person or corporation of any promotion, demotion, suspension, reinstatement, transfer, separation, dismissal, employment or nonemployment of any applicant, employee or former employee employed by or assigned to the local board of education or whose personnel file is maintained by the board and the reasons therefor and may allow the personnel file of the person or any portion to be inspected and examined by any person or corporation provided that the board has determined that the release of the information or the inspection and examination of the file or any portion is essential to maintaining the integrity of the board or to maintaining the level or quality of services provided by the board;  provided, that prior to releasing the information or making the file or any portion available as provided herein, the superintendent shall prepare a memorandum setting forth the circumstances which he and the board deem to require the disclosure and the information to be disclosed.  The memorandum shall be retained in the files of the superintendent and shall be a public record."
Section 4.  G.S. 115C-325(b) reads as rewritten:
"(b)	Personnel Files. – The superintendent shall maintain in his office a personnel file for each teacher that contains any complaint, commendation, or suggestion for correction or improvement about the teacher's professional conduct, except that the superintendent may elect not to place in a teacher's file (i) a letter of complaint that contains invalid, irrelevant, outdated, or false information or (ii) a letter of complaint when there is no documentation of an attempt to resolve the issue. The complaint, commendation, or suggestion shall be signed by the person who makes it and shall be placed in the teacher's file only after five days' notice to the teacher. Any denial or explanation relating to such complaint, commendation, or suggestion that the teacher desires to make shall be placed in the file. Any teacher may petition the local board of education to remove any information from his personnel file that he deems invalid, irrelevant, or outdated. The board may order the superintendent to remove said information if it finds the information is invalid, irrelevant, or outdated.
The personnel file shall be open for the teacher's inspection at all reasonable times but shall be open to the public only as provided for in G.S. 132-1.5."
Section 5.  G.S. 17C-7(c) reads as rewritten:
"(c)	Any papers, documents, or other records which become the property of the Commission that are placed in the criminal justice officer's personnel file maintained by the Commission shall be subject to the same disclosure requirements as set forth in G.S. 132-1.5 regarding the privacy of personnel records."
Section 6.  G.S. 74E-5(b) reads as rewritten:
"(b)	Any papers, documents, or other records that become the property of the Company Police Program and are placed in a company police officer's personnel file maintained by the Attorney General are subject to the same restrictions concerning disclosure as set forth in G.S. 132-1.5 for other personnel records."
Section 7.  G.S. 115D-29 reads as rewritten:
"§ 115D-29.  Confidential information in personnel files; access to information.
All information contained in a personnel file, except as otherwise provided in this Article or in G.S. 132-1.5, is confidential and shall not be open for inspection and examination except to the following persons:
(1)	The employee, applicant for employment, former employee, or his properly authorized agent, who may examine his own personnel file at all reasonable times in its entirety except for letters of reference solicited prior to employment;
(2)	The president and other supervisory personnel;
(3)	Members of the board of trustees and the board's attorney;
(4)	A party by authority of a subpoena or proper court order may inspect and examine a particular confidential portion of an employee's personnel file; and
(5)	An official of an agency of the federal government, State government or any political subdivision thereof.  Such an official may inspect any personnel records when such inspection is deemed by the college of the employee, applicant, or former employee whose record is to be inspected as necessary and essential to the pursuance of a proper function of said agency; provided, however, that such information shall not be divulged for purposes of assisting in a criminal prosecution, nor for purposes of assisting in a tax investigation.
Notwithstanding any other provision of this Article, any president may, in his discretion, or shall at the direction of the board of trustees, inform any person or corporation of any promotion, demotion, suspension, reinstatement, transfer, separation, dismissal, employment or nonemployment of any applicant, employee or former employee employed by or assigned to the board of trustees or whose personnel file is maintained by the board and the reasons therefor and may allow the personnel file of the person or any portion to be inspected and examined by any person or corporation provided that the board has determined that the release of the information or the inspection and examination of the file or any portion is essential to maintaining the integrity of the board or to maintaining the level or quality of services provided by the board; provided, that prior to releasing the information or making the file or any portion available as provided herein, the president shall prepare a memorandum setting forth the circumstances which he and the board deem to require the disclosure and the information to be disclosed.  The memorandum shall be retained in the files of the president and shall be a public record."
Section 8.  G.S. 122C-158(c) reads as rewritten:
"(c)	All information contained in an employee's personnel file, other than the information made public by G.S. 132-1.5, is confidential and is open to inspection only in the following instances:
(1)	The employee or an authorized agent may examine portions of his personnel file except (i) letters of reference solicited before employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to a patient.
(2)	A licensed physician designated in writing by the employee may examine the employee's medical record.
(3)	An area authority employee having supervisory authority over the employee may examine all material in the employee's personnel file.
(4)	By order of a court of competent jurisdiction, any person may examine the part of an employee's personnel file that is ordered by the court.
(5)	An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any part of a personnel file pursuant to G.S. 122C-25(b) or G.S. 122C-192(a) or when the inspection is considered by the official having custody of the records to be inspected to be  necessary and essential to the pursuance of a proper function of the inspecting agency.  No information may be divulged for the purpose of assisting in a criminal prosecution of the employee or for the purpose of assisting in an investigation of the employee's tax liability.  However, the official having custody of the records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
(6)	An employee may sign a written release, to be placed with the employee's personnel file, that permits the person with custody of the file to provide, either in person, by telephone or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
(7)	The area authority may tell any person of the employment or nonemployment, promotion, demotion, suspension, or other disciplinary action, reinstatement, transfer, or termination of an employee and the reasons for that personnel action.  Before releasing the information, the area authority shall determine in writing that the release is essential to maintaining public confidence in the administration of services or to maintaining the level and quality of services.  This written determination shall be retained as a record for public inspection and shall become part of the employee's personnel file."
Section 9.  G.S. 126-24 reads as rewritten:
"§ 126-24. Confidential information in personnel files; access to such information.
All other information contained in a personnel file, except as provided in G.S. 132-1.5, is confidential and shall not be open for inspection and examination except to the following persons:
(1)	The employee, applicant for employment, former employee, or his properly authorized agent, who may examine his own personnel file in its entirety except for (i) letters of reference solicited prior to employment, or (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to a patient. An employee's medical record may be disclosed to a licensed physician designated in writing by the employee;
(2)	The supervisor of the employee;
(3)	Members of the General Assembly who may inspect and examine personnel records under the authority of G.S. 120-19;
(4)	A party by authority of a proper court order may inspect and  examine a particular confidential portion of a State employee's personnel file; and
(5)	An official of an agency of the federal government, State government or any political subdivision thereof. Such an official may inspect any personnel records when such inspection is deemed by the department head of the employee whose record is to be inspected or, in the case of an applicant for employment or a former employee, by the department head of the agency in which the record is maintained as necessary and essential to the pursuance of a proper function of said agency; provided, however, that such information shall not be divulged for purposes of assisting in a criminal prosecution, nor for purposes of assisting in a tax investigation.
Notwithstanding any other provision of this Chapter, any department head may, in his discretion, inform any person or corporation of any promotion, demotion, suspension, reinstatement, transfer, separation, dismissal, employment or nonemployment of any applicant, employee or former employee employed by or assigned to his department or whose personnel file is maintained in his department and the reasons therefor and may allow the personnel file of such person or any portion thereof to be inspected and examined by any person or corporation when such department head shall determine that the release of such information or the inspection and examination of such file or portion thereof is essential to maintaining the integrity of such department or to maintaining the level or quality of services provided by such department; provided that prior to releasing such information or making such file or portion thereof available as provided herein, such department head shall prepare a memorandum setting forth the circumstances which the department head deems to require such disclosure and the information to be disclosed. The memorandum shall be retained in the files of said department head and shall be a public record."
Section 10.  G.S. 153A-98(c) reads as rewritten:
"(c)	All information contained in a county employee's personnel file, other than the information made public by G.S. 132-1.5, is confidential and shall be open to inspection only in the following instances:
(1)	The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.
(2)	A licensed physician designated in writing by the employee may examine the employee's medical record.
(3)	A county employee having supervisory authority over the employee may examine all material in the employee's personnel file.
(4)	By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court.
(5)	An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution of the employee, or for the purpose of assisting in an investigation of the employee's tax liability.  However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
(6)	An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
(7)	The county manager, with concurrence of the board of county commissioners, or, in counties not having a manager, the board of county commissioners may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a county employee and the reasons for that personnel action.  Before releasing the information, the manager or board shall determine in writing that the release is essential to maintaining public confidence in the administration of county services or to maintaining the level and quality of county services.  This written determination shall be retained in the office of the manager or the county clerk, is a record available for public inspection and shall become part of the employee's personnel file."
Section 11.  G.S. 160A-168(c) reads as rewritten:
"(c)	All information contained in a city employee's personnel file, other than the information made public by G.S. 132-1.5, is confidential and shall be open to inspection only in the following instances:
(1)	The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.
(2)	A licensed physician designated in writing by the employee may examine the employee's medical record.
(3)	A city employee having supervisory authority over the employee may examine all material in the employee's personnel file.
(4)	By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court.
(5)	An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution (of the employee), or for the purpose of assisting in an investigation of (the employee's) tax liability.  However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
(6)	An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
(7)	The city manager, with concurrence of the council, or, in cities not having a manager, the council may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a city employee and the reasons for that personnel action.  Before releasing the information, the manager or council shall determine in writing that the release is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services.  This written determination shall be retained in the office of the manager or the city clerk, and is a record available for public inspection and shall become part of the employee's personnel file."
Section 12.  G.S. 162A-6.1(c) reads as rewritten:
"(c)	All information contained in an authority employee's personnel file, other than the information made public by G.S. 132-1.5, is confidential and shall be open to inspection only in the following instances:
(1)	The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.
(2)	A licensed physician designated in writing by the employee may examine the employee's medical record.
(3)	An authority employee having supervisory authority over the employee may examine all material in the employee's personnel file.
(4)	By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court.
(5)	An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution (of the employee), or for the purpose of assisting in an investigation of (the employee's) tax liability.  However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
(6)	An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
(7)	The chief administrative officer, with concurrence of the authority, may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of an authority employee and the reasons for that personnel action.  Before releasing the information, the chief administrative officer or authority shall determine in writing that the release is essential to maintaining public confidence in the administration of authority services or to maintaining the level and quality of authority services.  This written determination shall be retained in the office of the chief administrative officer or the secretary of the authority, and is a record available for public inspection and shall become part of the employee's personnel file."
Section 13.  This act becomes effective January 1, 1998.