GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	2 

SENATE BILL 799
Judiciary Committee Substitute Adopted 4/30/97

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, 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 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 employment application 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 military records.  Letters of recommendation 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.
(c)	Records related to serious disciplinary actions imposed on a public employee are public records.  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 such personnel records 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."
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), and 162A-6.1 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.  This act becomes effective January 1, 1998.