A BILL TO BE ENTITLED
AN ACT TO ALLOW CRIMINAL JUSTICE OFFICERS AND JUSTICE OFFICERS THE RIGHT TO APPEAL GIGLIO DISCLOSURE NOTIFICATIONS.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 17C‑16 reads as rewritten:
"§ 17C‑16.  Requirement to report material relevant to testimony.
(a)	Definitions. – The following definitions apply in this section:
(1)	Notification. – A notification issued pursuant to subsection (b) of this section to any person who is certified by the Commission or has received a conditional offer of employment.
(2)	Notifying Authority. – A superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person's agency head.
(b)	Notification Required to be Reported. – Any person who is certified by the Commission or has received a conditional offer of employment and who has been notified that the person may not be called to testify at trial based on bias, interest, or lack of credibility shall report and provide a copy of that notification to the Criminal Justice Standards Division within 30 days of receiving the notification, except as provided in subsections (h) and (i) of this section. This requirement shall only apply if the person is notified by one of the following methods:
(1)	In writing by a superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person's agency head.
(2)	In open court by a superior court judge, district court judge, or federal judge, and documented in a written order.
(c)	Preliminary Notice Required to be Issued by a Notifying Authority. – A Notifying Authority shall provide any person the Notifying Authority is considering sending a Notification at least 30 days' written preliminary notice before sending the Notification to that person, the Division, or the person's agency head. If the Notifying Authority cannot reasonably provide the written preliminary notice identified in this subsection before making a disclosure at a trial, in reference to the person's bias, interest, or lack of credibility, the Notifying Authority shall not send the Notification to any party or entity until the person has received written preliminary notice pursuant to this subsection and the opportunity to be heard pursuant to subsection (e) of this section.
(d)	Contents of Preliminary Notice Issued by a Notifying Authority. – The written preliminary notice identified in subsection (c) of this section shall inform the person of the following information:
(1)	That the Notifying Authority is considering writing a Notification on the basis that the person's conduct may disqualify the person from serving as a witness at a criminal trial on the basis of bias, interest, or lack of credibility.
(2)	What evidence is being considered by the Notifying Authority in anticipation of making the determination.
(3)	That the person has the right to be heard and present material in the person's defense.
(4)	The date, time, and location that the person may be heard and present material in the person's defense.
(e)	Informal Review and Discussion of Notifying Authority Notification Decision. – Before a Notification is sent to any party or entity, the Notifying Authority shall provide the person who is the subject of the potential Notification a meaningful opportunity to be heard and present evidence in the person's defense no sooner than 30 days after providing the person the written preliminary notice identified in subsection (c) of this section. A Notifying Authority shall not deny the person who is the subject of the potential Notification the opportunity to be accompanied by counsel at any meeting conducted pursuant to this subsection.
(f)	Notifying Authority Must Issue Notification and Notice of Right to Appeal. – If, after providing the person an opportunity to be heard, a Notifying Authority determines that a Notification is warranted, the Notifying Authority shall, within 30 days of providing the person an opportunity to be heard pursuant to subsection (e) of this section, notify the person in writing that the person may not be called at a trial due to bias, interest, or lack of credibility. This written notice shall inform the person:
(1)	That the person has a right to file an appeal in superior court within 30 days of receiving the Notification. The person receiving the Notification must provide the Notifying Authority written notice of the person's intention to appeal the Notification within 30 days of receiving the Notification.
(2)	If the person receiving the Notification does not appeal, the Notifying Authority will report the Notification to the Division and the person's agency head after 30 days.
(g)	Right to Appeal Notification Made by a Notifying Authority. – Any person who receives a Notification from a Notifying Authority has a right to appeal the Notification to superior court within 30 days of the date the person received the Notification pursuant to subsection (h) of this section. Any person who receives the written notice identified in subsection (c) of this section has a right to contest the adequacy of that notice pursuant to subsection (i) of this section within 30 days of the date the person received the written notice. If the person chooses to appeal a Notification or contest the adequacy of the written notice provided pursuant to subsection (c) of this section, the person has no obligation to report the Notification to the Division or the person's agency head until completion of the appeals process provided by subsections (h) and (i) of this section and the Notifying Authority shall not report the Notification to the Division or the person's agency head until the conclusion of the appeals process. If the Notifying Authority does not comply with the appeals process described in this section, including the meeting required by subsection (e) of this section, then the Notifying Authority shall not report the Notification to the Division.
(h)	Right to Appeal Notification to Superior Court. – To commence an appeal of a Notification issued by a Notifying Authority, the person must file a Notice of Hearing form jointly developed by the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Education and Training Standards Commission with the clerk of court for the superior court of the county where the person is domiciled or in the county encompassing the person's employer within 30 days of receiving the Notification. The Notice of Hearing form must be served upon the Notifying Authority who authored the Notification and the Division in any manner prescribed by Rule 4 of the North Carolina Rules of Civil Procedure within 30 days of filing the Notice of Hearing with the clerk of court.
(1)	On appeal pursuant to subsection (h) of this section, the court shall determine whether a preponderance of evidence establishes that if the petitioner were called to testify in a criminal court case, applicable law would require that the petitioner's bias, interest, or lack of credibility be disclosed to the defense. The court may conduct any evidentiary hearings necessary to make its determination. The petitioner and the Notifying Authority shall have a right to be heard at any hearings. The court shall make findings of fact and conclusions of law in support of its determination.
(2)	If the superior court finds by a preponderance of the evidence that applicable law would require disclosure of the petitioner's conduct to the defense in criminal court, the petitioner shall comply with the terms of subsection (b) of this section and the Notifying Authority shall, within 30 days, notify the Division and the petitioner's agency head of the Notification and shall include a copy of the findings of fact and conclusions of law prepared by the superior court. If the superior court does not find by a preponderance of the evidence that applicable law would require disclosure of the petitioner's bias, interest, or lack of credibility to a criminal defendant, the Notification shall be rescinded and the terms of subsections (b), (j), and (k) of this section do not apply.
(3)	If the Notifying Authority who issued the Notification was a superior court judge, a different superior court judge shall conduct all hearings pursuant to this subsection.
(i)	Right to Appeal the Sufficiency of a Notification. – Any person who receives a Notification or the written notice identified in subsection (c) of this section from a Notifying Authority may apply for a hearing in superior court for a judicial determination of whether the person received written notice pursuant to subsection (c) of this section and whether the notice complied with the terms of subsection (d) of this section. A person may commence a hearing by filing the Notice of Hearing identified in subsection (h) of this section with the clerk of court for the superior court of the county where the person is domiciled or in any county encompassing the person's employer within 30 days of receiving the written notice or Disclosure Notification. The Notice of Hearing form must be served upon the Notifying Authority who provided the notice or Notification and the Division in any manner prescribed by Rule 4 of the North Carolina Rules of Civil Procedure within 30 days of filing the Notice of Hearing with the clerk of court. This hearing is limited to reviewing whether:
(1)	The person who received the Notification is a person who is certified by the Commission or has received a conditional offer of employment.
(2)	The person has been notified in writing by a Notifying Authority.
(3)	The Notification states that the person may not be called to testify at trial based on bias, interest, or lack of credibility.
(4)	The Notification identifies what evidence is being considered in anticipation of a potential Notification.
(5)	The Notification states that the person has a right to be heard and present material in his or her defense.
(6)	The Notification states the date, time, and location that the person may be heard and present material in the person's defense.
The superior court shall make findings of fact and conclusions of law in support of its determination. If the superior court finds by a preponderance of the evidence that the written notice complied with the terms of subsection (d) of this section, the petitioner shall have a right to be heard by the Notifying Authority pursuant to subsection (e) of this section at a time and date specified by the Notifying Authority but no sooner than seven days after the conclusion of the hearing identified in this subsection. If the superior court does not so find, the Notifying Authority shall provide the written notice identified in subsection (c) of this section within 30 days of the conclusion of the hearing identified in this subsection.
(j)	Duty for the notified party to report a Notification to the Division. – All reports to the Division and a person's agency head shall be in writing and shall state who notified the person that the person may not be called to testify at trial. Except as provided in subsections (g), (h), and (i) of this section, a person required to report to the Division under subsection (b) of this section shall make the same report to the person's agency head within 30 days of receiving a Notification. An agency head who receives a report that a person in the agency has received a Notification shall also report the notification to the Division in writing within 30 days of the agency head's receipt of that report.
(k)	Duty for the Notifying Party to Report a Notification to the Division. – A superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, or assistant United States attorney who notifies a person that they may not be called to testify at trial as provided in subsection (b) of this section shall report that notification to the Division and provide a copy of the written document or order within 30 days of notifying the person that they may not be called to testify at trial. Except as provided in subsections (g), (h), and (i) of this section, a Notifying Authority who prepares a Notification as provided in subsection (b) of this section shall report that Notification to the Division and the person's agency head within 30 days of sending the Notification to the person who is the subject of the Notification.
(l)	Procedure if a Notified Party Transfers to Another Agency. – If the Division transfers to another agency the certification of any person required to report to the Division pursuant to subsection (b) of this section, the Division shall provide written notification to both the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial. If the new agency receiving notification pursuant to this subsection is a State agency, the Division shall notify the elected district attorney in every prosecutorial district of the State.
(m)	Removal of a Notification by the Party Who Issued the Notification. – The Notifying Authority who has issued a Notification may, upon receipt of additional supporting or corroborating information, or a change in factual circumstances, or for any other reason, at any time, reverse, rescind, or otherwise remove a Notification. If the issuing party reverses, rescinds, or otherwise removes a Notification, the party shall notify the person, the person's agency head, and the Division in writing. If any person required to report to the Division pursuant to subsection (b) of this section is subsequently informed in writing that the Notification has been rescinded, the person shall provide the Division a copy of that document. The provisions of subsection (l) of this section do not apply if the person required to report pursuant to subsection (b) of this section is subsequently informed in writing that the notification has been rescinded.
(n)	Request to Not Have Notification Transferred to Another Agency. – Any person whose Notification is reported to the Division may, one year after the Division is notified, petition the Division to be exempt from the Division's reporting requirements identified in subsection (l) of this section by serving upon the Division a Notice of Petition jointly developed by the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Education and Training Standards Commission. A person's petition shall be granted if additional supporting or corroborating information or a change in factual circumstances establishes by a preponderance of the evidence that applicable law would not require that the petitioner's bias, interest, or lack of credibility be disclosed to the defense.
	
(o)	Notifications and Related Reports Not Public Record. – The reports and notifications received by the Division, a person, or the person's agency head pursuant to this section shall not be public record.
	
(p)	Constitutional Obligations of Prosecutors and Judges. – Nothing in this section shall be construed to limit the constitutional obligations of prosecutors or judges to make disclosures relating to a person's bias, interest, or credibility to criminal defendants.
(q)	Employer Use of a Notification. – An employer may not use a Disclosure Notification as the sole reason for taking or denying any of the following employment actions against any person:
(1)	Demotion.
(2)	Suspension.
(3)	Termination.
(4)	Any other disciplinary action.
Employers are not to be restricted in using the underlying facts that were the basis for the Notification for taking a disciplinary action, including termination, against the law enforcement officer in accordance with the law enforcement agency's adopted procedures and governing law.
(r)	Retroactive Review of Notifications Allowed in Superior Court. – Any person who received a Notification at any time prior to the enactment of this section from a Notifying Authority may apply for a hearing in superior court pursuant to subsection (h) of this section. If a superior court does not find by a preponderance of the evidence that applicable law would require disclosure of the petitioner's conduct to the defense in criminal court, the person shall not be subject to the Division's notification requirements identified in subsection (l) of this section and the Notification shall be rescinded.
(s)	Annual Report. – No later than March 15 of each year, the Commission shall report to the Joint Legislative Oversight Committee on Justice and Public Safety regarding the number of individuals for whom the Division received a report required by subsection (b) of this section during the previous calendar year. The report shall include information for each case on whether a final agency decision has been entered pursuant to Chapter 150B of the General Statutes and what action, if any, has been taken against each certification. The report shall not include the name or any other identifying information of any person required to report pursuant to subsection (b) of this section."
SECTION 2.  G.S. 17E‑16 reads as rewritten:
"§ 17E‑16.  Requirement to report material relevant to testimony.
(a)	Definitions. – The following definitions apply in this section:
(1)	Notification. – A notification issued pursuant to subsection (b) of this section to any person who is certified by the Commission or has received a conditional offer of employment.
(2)	Notifying Authority. – A superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person's agency head.
(b)	Notification Required to be Reported. – Any person who is certified by the Commission or has received a conditional offer of employment and who has been notified that the person may not be called to testify at trial based on bias, interest, or lack of credibility shall report and provide a copy of that notification to the Justice Officers' Standards Division within 30 days of receiving the notification, except as provided in subsections (h) and (i) of this section. This requirement shall only apply if the person is notified by one of the following methods:
(1)	In writing by a superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person's agency head.
(2)	In open court by a superior court judge, district court judge, or federal judge, and documented in a written order.
(c)	Preliminary Notice Required to be Issued by a Notifying Authority. – A Notifying Authority shall provide any person the Notifying Authority is considering sending a Notification at least 30 days' written preliminary notice before sending the Notification to that person, the Division, or the person's agency head. If the Notifying Authority cannot reasonably provide the written preliminary notice identified in this subsection before making a disclosure at a trial, in reference to the person's bias, interest, or lack of credibility, the Notifying Authority shall not send the Notification to any party or entity until the person has received written preliminary notice pursuant to this subsection and the opportunity to be heard pursuant to subsection (e) of this section.
(d)	Contents of Preliminary Notice Issued by a Notifying Authority. – The written preliminary notice identified in subsection (c) of this section shall inform the person of the following information:
(1)	That the Notifying Authority is considering writing a Notification on the basis that the person's conduct may disqualify the person from serving as a witness at a criminal trial on the basis of bias, interest, or lack of credibility.
(2)	What evidence is being considered by the Notifying Authority in anticipation of making the determination.
(3)	That the person has the right to be heard and present material in the person's defense.
(4)	The date, time, and location that the person may be heard and present material in the person's defense.
(e)	Informal Review and Discussion of Notifying Authority Notification Decision. – Before a Notification is sent to any party or entity, the Notifying Authority shall provide the person who is the subject of the potential Notification a meaningful opportunity to be heard and present evidence in the person's defense no sooner than 30 days after providing the person the written preliminary notice identified in subsection (c) of this section. A Notifying Authority shall not deny the person who is the subject of the potential Notification the opportunity to be accompanied by counsel at any meeting conducted pursuant to this subsection.
(f)	Notifying Authority Must Issue Notification and Notice of Right to Appeal. – If, after providing the person an opportunity to be heard, a Notifying Authority determines that a Notification is warranted, the Notifying Authority shall, within 30 days of providing the person an opportunity to be heard pursuant to subsection (e) of this section, notify the person in writing that the person may not be called at a trial due to bias, interest, or lack of credibility. This written notice shall inform the person:
(1)	That the person has a right to file an appeal in superior court within 30 days of receiving the Notification. The person receiving the Notification must provide the Notifying Authority written notice of the person's intention to appeal the Notification within 30 days of receiving the Notification.
(2)	If the person receiving the Notification does not appeal, the Notifying Authority will report the Notification to the Division and the person's agency head after 30 days.
(g)	Right to Appeal Notification Made by a Notifying Authority. – Any person who receives a Notification from a Notifying Authority has a right to appeal the Notification to superior court within 30 days of the date the person received the Notification pursuant to subsection (h) of this section. Any person who receives the written notice identified in subsection (c) of this section has a right to contest the adequacy of that notice pursuant to subsection (i) of this section within 30 days of the date the person received the written notice. If the person chooses to appeal a Notification or contest the adequacy of the written notice provided pursuant to subsection (c) of this section, the person has no obligation to report the Notification to the Division or the person's agency head until completion of the appeals process provided by subsections (h) and (i) of this section and the Notifying Authority shall not report the Notification to the Division or the person's agency head until the conclusion of the appeals process. If the Notifying Authority does not comply with the appeals process described in this section, including the meeting required by subsection (e), then the Notifying Authority shall not report the Notification to the Division.
(h)	Right to Appeal Notification to Superior Court. – To commence an appeal of a Notification issued by a Notifying Authority, the person must file a Notice of Hearing form jointly developed by the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Education and Training Standards Commission with the clerk of court for the superior court of the county where the person is domiciled or in the county encompassing the person's employer within 30 days of receiving the Notification. The Notice of Hearing form must be served upon the Notifying Authority who authored the Notification and the Division in any manner prescribed by Rule 4 of the North Carolina Rules of Civil Procedure within 30 days of filing the Notice of Hearing with the clerk of court.
(1)	On appeal pursuant to subsection (h) of this section, the court shall determine whether a preponderance of evidence establishes that if petitioner were called to testify in a criminal court case, applicable law would require that the petitioner's bias, interest, or lack of credibility be disclosed to the defense. The court may conduct any evidentiary hearings necessary to make its determination. The petitioner and the Notifying Authority shall have a right to be heard at any hearings. The court shall make findings of fact and conclusions of law in support of its determination.
(2)	If the superior court finds by a preponderance of the evidence that applicable law would require disclosure of the petitioner's conduct to the defense in criminal court, the petitioner shall comply with the terms of subsection (b) of this section and the Notifying Authority shall, within 30 days, notify the Division and the petitioner's agency head of the Notification and shall include a copy of the findings of fact and conclusions of law prepared by the superior court. If the superior court does not find by a preponderance of the evidence that applicable law would require disclosure of the petitioner's bias, interest, or lack of credibility to a criminal defendant, the Notification shall be rescinded and the terms of subsection (b), (j), and (k) of this section do not apply.
(3)	If the Notifying Authority who issued the Notification was a superior court judge, a different superior court judge shall conduct all hearings pursuant to this subsection.
(i)	Right to Appeal the Sufficiency of a Notification. – Any person who receives a Notification or the written notice identified in subsection (c) of this section from a Notifying Authority may apply for a hearing in superior court for a judicial determination of whether the person received written notice pursuant to subsection (c) of this section and whether the notice complied with the terms of subsection (d) of this section. A person may commence a hearing by filing the Notice of Hearing identified in subsection (h) of this section with the clerk of court for the superior court of the county where the person is domiciled or in any county encompassing the person's employer within 30 days of receiving the written notice or Disclosure Notification. The Notice of Hearing form must be served upon the Notifying Authority who provided the notice or Notification and the Division in any manner prescribed by Rule 4 of the North Carolina Rules of Civil Procedure within 30 days of filing the Notice of Hearing with the clerk of court. This hearing is limited to reviewing whether:
(1)	The person who received the Notification is a person who is certified by the Commission or has received a conditional offer of employment.
(2)	The person has been notified in writing by a Notifying Authority.
(3)	The Notification states that the person may not be called to testify at trial based on bias, interest, or lack of credibility.
(4)	The Notification identifies what evidence is being considered in anticipation of a potential Notification.
(5)	The Notification states that the person has a right to be heard and present material in his or her defense.
(6)	The Notification states the date, time, and location that the person may be heard and present material in the person's defense.
The superior court shall make findings of fact and conclusions of law in support of its determination. If the superior court finds by a preponderance of the evidence that the written notice complied with the terms of subsection (d) of this section, the petitioner shall have a right to be heard by the Notifying Authority pursuant to subsection (e) of this section at a time and date specified by the Notifying Authority but no sooner than seven days after the conclusion of the hearing identified in this subsection. If the superior court does not so find, the Notifying Authority shall provide the written notice identified in subsection (c) of this section within 30 days of the conclusion of the hearing identified in this subsection.
(j)	Duty for the Notified Party to Report a Notification to the Division. – All reports to the Division and a person's agency head shall be in writing and shall state who notified the person that the person may not be called to testify at trial. Except as provided in subsections (g), (h), and (i) of this section a person required to report to the Division under subsection (b) of this section shall make the same report to the person's agency head within 30 days of receiving a Notification. An agency head who receives a report that a person in the agency has received a Notification shall also report the notification to the Division in writing within 30 days of the agency head's receipt of that report.
(k)	Duty for the Notifying Party to Report a Notification to the Division. – A superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, or assistant United States attorney who notifies a person that they may not be called to testify at trial as provided in subsection (b) of this section shall report that notification to the Division and provide a copy of the written document or order within 30 days of notifying the person that they may not be called to testify at trial. Except as provided in subsections (g), (h), and (i) of this section, a Notifying Authority who prepares a Notification as provided in subsection (b) of this section shall report that Notification to the Division and the person's agency head within 30 days of sending the Notification to the person who is the subject of the Notification.
(l)	Procedure if a Notified Party Transfers to Another Agency. – If the Division transfers to another agency the certification of any person required to report to the Division pursuant to subsection (b) of this section, the Division shall provide written notification to both the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial. If the new agency receiving notification pursuant to this subsection is a State agency, the Division shall notify the elected district attorney in every prosecutorial district of the State.
(m)	Removal of a Notification by the Party Who Issued the Notification. – The Notifying Authority who has issued a Notification may, upon receipt of additional supporting or corroborating information, or a change in factual circumstances, or for any other reason, at any time, reverse, rescind, or otherwise remove a Notification. If the issuing party reverses, rescinds, or otherwise removes a Notification, the party shall notify the person, the person's agency head, and the Division in writing. If any person required to report to the Division pursuant to subsection (a) of this section is subsequently informed in writing that the Notification has been rescinded, the person shall provide the Division a copy of that document. The provisions of subsection (d) of this section do not apply if the person required to report pursuant to subsection (a) of this section is subsequently informed in writing that the notification has been rescinded.
(n)	Request to Not Have Notification Transferred to Another Agency. – Any person whose Notification is reported to the Division may, one year after the Division is notified, petition the Division to be exempt from the Division's reporting requirements identified in subsection (l) of this section by serving upon the Division a Notice of Petition jointly developed by the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Education and Training Standards Commission. A person's petition shall be granted if additional supporting or corroborating information or a change in factual circumstances establishes by a preponderance of the evidence that applicable law would not require that the petitioner's bias, interest, or lack of credibility be disclosed to the defense.
	
(o)	Notifications and Related Reports Not Public Record. – The reports and notifications received by the Division, a person, or the person's agency head pursuant to this section shall not be public record.
	
(p)	Constitutional Obligations of Prosecutors and Judges. – Nothing in this section shall be construed to limit the constitutional obligations of prosecutors or judges to make disclosures relating to a person's bias, interest, or credibility to criminal defendants.
(q)	Employer Use of a Notification. – An employer may not use a Disclosure Notification as the sole reason for taking or denying any of the following employment actions against any person:
(1)	Demotion.
(2)	Suspension.
(3)	Termination.
(4)	Any other disciplinary action.
Employers are not to be restricted in using the underlying facts that were the basis for the Notification for taking a disciplinary action, including termination, against the law enforcement officer in accordance with the law enforcement agency's adopted procedures and governing law.
(r)	Retroactive Review of Notifications Allowed in Superior Court. – Any person who received a Notification at any time prior to the enactment of this section from a Notifying Authority may apply for a hearing in superior court pursuant to subsection (h) of this section. If a superior court does not find by a preponderance of the evidence that applicable law would require disclosure of the petitioner's conduct to the defense in criminal court, the person shall not be subject to the Division's notification requirements identified in subsection (l) of this section and the Notification shall be rescinded.
(s)	Annual Report. – No later than March 15 of each year, the Commission shall report to the Joint Legislative Oversight Committee on Justice and Public Safety regarding the number of individuals for whom the Division received a report required by subsection (b) of this section during the previous calendar year. The report shall include information for each case on whether a final agency decision has been entered pursuant to Chapter 150B of the General Statutes and what action, if any, has been taken against each certification. The report shall not include the name or any other identifying information of any person required to report pursuant to subsection (b) of this section."
SECTION 3.  This act is effective when it becomes law.