When the NC Hearing Aid Dealers and Fitters Board issues a 'private reprimand' to a licensee, is that reprimand a public record under Chapter 132? And what happens to the record when the licensee refuses the reprimand?
Plain-English summary
The NC Hearing Aid Dealers and Fitters Board (now part of NC's professional licensing apparatus) is authorized by § 93D-13 to discipline licensees for rule violations. The statute identifies three disciplinary tools: "private reprimand, suspension of license for a fixed period or revocation of license." The Board's rule 21 NCAC 22L .0001 fills in the procedures.
The Board's regulatory issues chair asked the AG three questions about the rule.
Question 1: What is a "private reprimand" and is it a public record?
The AG's answer: a private reprimand issued under § 93D-13 is a public record. The reasoning has several layers.
- The phrase "private reprimand" is not defined anywhere in NC statutes, the Board's rules, or the general definitions chapter. The word "private" by itself does not establish confidentiality.
- NC's public records law has been around since 1935 and the 1995 amendments did not significantly narrow the definition of "public record" or carve out occupational disciplinary records. § 132-1 broadly defines public records as documents made or received in the transaction of public business.
- NC courts are reluctant to read exceptions into Chapter 132 without express legislative language (News and Observer Publishing Company v. Poole (1992)).
- The historical comparison the AG drew: when § 93D-13 was enacted in 1969, the State Bar's rules already used "private reprimand" in a context where the reprimand was delivered personally to the disciplined attorney (rather than published like a suspension or disbarment), but the Bar still entered the reprimand in its formal minutes. "Private" meant personal-delivery, not secrecy. The General Assembly is presumed to have used the term the same way.
- McIntyre v. Clarkson (1961) confirms that "private" in NC legal usage often means "applying to a limited number of persons" rather than secret. (A "private act" in legislative usage was an act affecting only a few persons.)
- § 93D-3 separately required the Board to distribute an annual list of licensees, which would naturally include disciplinary status, reinforcing that the Board's discipline was intended to be visible.
Putting these threads together: a private reprimand is a real disciplinary record. It is delivered to the licensee personally rather than broadcast publicly through formal court filings. But it is not confidential, and a member of the public who asks for it is entitled to inspect it under Chapter 132.
Question 2: What happens when a licensee refuses a private reprimand under paragraph (i)?
The rule lets the licensee refuse the reprimand within 20 days. If refused, the Board may then file a Notice of Hearing and litigate the underlying charge. The AG's answer: a refused private reprimand is effectively a settlement offer that did not get accepted. It has no disciplinary effect. It should be treated like any other failed settlement offer in the litigation file (retained as part of the proceedings record but not as an active disciplinary record). The Board cannot leave it on the licensee's file as if it were imposed discipline.
Question 3: Must the Board publish what counts as "acceptable practice" under paragraph (k)?
The AG read this question as somewhat unclear. The basic answer: standards of acceptable professional practice must be found in either the Board's statutes (§ 93D series) or the Board's rules (21 NCAC 22L et seq.). Both are published by the state (statutes through § 164-10's publication scheme; rules through § 150B-21.18). The Board does not have to produce a separate publication. If the question was about standards that exist only in unwritten Board practice (not statutes or rules), the AG asked the Board to provide specific examples for further analysis.
The opinion's underlying message: occupational licensing boards in NC operate in a sunlight default. Discipline is visible, standards must be either statutory or rule-based, and ad-hoc internal norms cannot fill the gap.
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
NC's occupational licensing landscape has evolved. The Hearing Aid Dealers and Fitters Board may have been restructured or merged into a broader board. The general public records framework in Chapter 132 has been amended several times. Anyone advising a current occupational licensing board on the disclosure of private reprimands must work from current law, including any later case law (Pope v. State and related cases) on public records exceptions for personnel and disciplinary records.
Common questions
Q: Why use a "private" reprimand at all if it is going to be a public record?
A: Because "private" in this context historically meant personal-delivery as opposed to formal publication. A suspension or revocation gets a formal hearing record, formal findings, and distribution to other licensing bodies. A private reprimand is a lower-profile sanction: it goes into the licensee's file, can be inspected by the public who asks, but doesn't get actively publicized by the Board. The label "private" relates to the Board's delivery method, not the licensee's privacy interest.
Q: Can the public records request actually get the reprimand?
A: Yes. Any member of the public can ask the Board for the reprimand and the Board must produce it. The Board may redact personal-identifying information that is independently protected by statute (Social Security numbers, dates of birth, etc.), but the substance of the reprimand itself is open.
Q: What happens if the Board treats a refused reprimand as an active disciplinary record by mistake?
A: The licensee has a strong claim to require the Board to clear the record. Treating a refused settlement offer as discipline would be a substantive due process problem and possibly defamation if the Board distributes the false discipline information.
Q: Why does it matter whether standards are in statutes/rules vs. unwritten Board practice?
A: Because licensees have due process rights to know what they are being charged with. Discipline based on unwritten standards is hard to defend constitutionally. The Board has to either codify its expectations in rules or rely on statutory text. Internal Board norms that aren't written down anywhere can't be the basis for discipline.
Q: Are private reprimands still used in NC occupational boards?
A: Many NC boards have moved away from the "private reprimand" terminology in favor of "letter of caution," "letter of concern," or similar non-disciplinary correspondence that does not carry the public-record implication. The AG's 1996 analysis essentially pushed boards in that direction by clarifying that true disciplinary "reprimands," even when labeled private, are public records.
Background and statutory framework
The 1969 enactment of Chapter 93D created the Hearing Aid Dealers and Fitters Board. § 93D-13 provided the disciplinary toolkit. The Board's rule 21 NCAC 22L .0001 implemented an investigation and probable-cause procedure with private reprimand as the lowest-step sanction.
NC's public records law (Chapter 132) traces to 1935. § 132-1's current definition of public record was adopted in 1975 and broadened the original 1935 definition. The 1995 amendments (1995 N.C. Sess. Laws 388) added the partial-disclosure rule: an agency cannot refuse to produce a record because it contains both confidential and nonconfidential information; the agency must produce a redacted version. News and Observer v. Poole (1992) confirms the strong presumption of openness.
Citations
- N.C. Gen. Stat. § 93D-13 (Hearing Aid Board disciplinary powers: private reprimand, suspension, revocation)
- N.C. Gen. Stat. § 132-1 (definition of public record)
- N.C. Gen. Stat. § 132-6 (right of inspection; partial-disclosure obligation)
- N.C. Gen. Stat. § 93D-3 (annual licensee list distribution)
- N.C. Gen. Stat. § 93B-3 (occupational licensing boards generally)
- N.C. Gen. Stat. § 150B-21.18 (publication of administrative rules)
- N.C. Gen. Stat. § 164-10 (publication of General Statutes)
- 21 NCAC 22L .0001 (Hearing Aid Board investigation procedure)
Source
Original opinion text
September 17, 1996
Wren Gay Davis, Regulatory Issues Chairman
North Carolina Hearing Aid Dealers & Fitters Board
401 Oberlin Road, Suite 111
Raleigh, North Carolina 27605
RE: Advisory opinion; North Carolina Hearing Aid Dealers & Fitters Board; N.C.Gen.Stat. §§ 93D-13, 132-1, and 132-6; 21 NCAC 22L .001
Dear Ms. Davis:
The following is submitted in response to your letter asking for an opinion on three questions relating to the North Carolina State Hearing Aid Dealers and Fitters Board's Committee on Investigations rule, 21 NCAC 22L .001.
You ask first what is a private reprimand and whether it conflicts with the "new" public records law. Before reaching that question, however, one point should be clarified. In actual fact, the public records law of this State is not new. It was enacted in 1935, and the original act both defined the term "public records" and gave the public a right to inspect anything that was a public record. See 1935 N.C. Sess. Laws 265 § 1. The public records law is generally codified as Chapter 132 of the General Statutes. See N.C.Gen.Stat. §§ 132-1 et seq. (1995). The chapter was amended during the 1995 legislative session, but these amendments dealt primarily with procedural and related issues. See 1995 N.C. Sess. Laws 388. The amendments neither changed the definition of the term "public record" nor, with one possible exception, made any record subject to inspection that was not previously available. The possible exception clarified that an agency cannot refuse to permit inspection of a record that would otherwise be subject to inspection on the grounds that it contains both confidential and nonconfidential information. The agency must provide a version with the confidential information removed. See 1995 N.C. Sess. Laws 388 § 2 (codified at N.C.Gen.Stat. § 132-6 (1995)).
N.C.Gen.Stat. § 93D-13 permits the Board "in its discretion [to] administer the punishment of private reprimand, suspension of license for a fixed period or revocation of license as the case may warrant in their [sic] judgment" for a violation of the Board's rules or for any of a list of other causes set out in that section. N.C.Gen.Stat. § 93D-13 (1991). The quoted portion of the statute has not been changed since it was enacted in 1969. The term "private reprimand" is not, and apparently never has been, defined in Chapter 93D or any other statute that might reasonably apply to the Board (for example, Chapter 12 (which contains definitions applicable throughout the General Statutes), Chapter 93B (on occupational licensing boards generally), or Chapter 150B (the Administrative Procedures Act) of the General Statutes). The Board's rules contain no definition. The term presumably means a reproof or censure that is used as a form of licensee discipline ("punishment") and is "private." Other than the mere use of the adjective "private," however, Chapter 93D contains no provision specifying whether such a reprimand is or is not a public record available for inspection, which appears to be the actual concern behind your question.
The term "public record" has been defined since 1975 as all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.
N.C.Gen.Stat. § 132-1 (1995). Prior to 1975, the definition of "public record" was "all written or printed books, papers, letters, documents and maps made and received in pursuance of law by the public offices of the State and its counties, municipalities and other subdivisions of government in the transaction of business." 1935 N.C. Sess. Laws 265 § 1. A written reprimand issued by the Board pursuant to its statutory authority would apparently always have been a public record subject to inspection by the public unless the use of the term "private" creates an exception to the public's right to inspect.
The courts of this State have been reluctant to find exceptions to the public records law in the absence of an express enactment by the General Assembly. E.g., News and Observer Publishing Company v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Although "private" can certainly mean "confidential" or "secret," it has other meanings. For example, a "private" act enacted by the legislature was one that affected only a limited number of persons, see McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961); it was not a secret or confidential act. Although there do not appear to be any other references to "private reprimand" in the statutes today, those for two other occupational licensing boards contained a reference to the term in 1969 when Chapter 93D was enacted. These were the North Carolina State Board of Examiners in Optometry and the North Carolina State Bar. The term "private reprimand" was not defined in their statutes either.
The State Bar, however, had rules on the issuance and publication of its forms of discipline, including the private reprimand. The Bar not only kept its own record of suspensions and disbarments, it also transmitted them to both the Superior Court and the Supreme Court of North Carolina. In contrast, private reprimands were not broadcasted, or publicized, in that fashion but were delivered personally and read to the recipient. Nevertheless, the private reprimand was apparently not truly confidential; the rules specifically required the Secretary to "spread upon his minutes as a final judgment of the Council, the order of private reprimand, the name of the member of the Council to deliver the same, and the time and place therefor." Rules of the State Bar, Art. VI § 5 (1961) and Art. IX § 2 (1962) (reprinted in 4A General Statutes of North Carolina (1955 and Supp. 1969)).
Although the State Bar is sufficiently different from other licensing boards that its rules and practices are not always a useful precedent for them, it is nevertheless one of the oldest, largest, and most visible occupational licensing agencies in North Carolina and has long been available as a model. When the General Assembly used a term already found in the Bar's statutes when it created a new board, in the same context, without qualifying or otherwise defining the term, it seems reasonable to conclude that it intended the same meaning in both places. If a "private" reprimand was not the same as a "secret" reprimand in one place, the General Assembly is not likely to have intended that meaning in the other. This conclusion is also supported by the fact that at the same time, the General Assembly also required the Board to distribute annually to certain designated public officials a list of licensees, which would necessarily reflect current suspensions and revocations and so "publicize" them in a manner similar to the State Bar's treatment of suspensions and disbarments. See N.C.Gen.Stat. § 93D-3 (1991); see also N.C.Gen.Stat. § 93B-3 (1993). Moreover, where the General Assembly intends to exempt a record from inspection, it generally uses very specific language. E.g., N.C.Gen.Stat. §§ 7A-675 (1995), 20-7 (1993 and Supp. 1995), 48-9-102 (1995), 126-24 (1995), 130A-131.17 (1995). Given the reluctance of the courts to find exceptions to the public records law, the fact that the term "private reprimand" apparently did not mean "secret" in at least one other context at the time the Board's statutes were enacted, and the extremely clear language found in other statutory exemptions from the public records law, it appears that a private reprimand issued by the Board would be subject to inspection on request by the public.
Your second question is what happens when, pursuant to paragraph (i) of your rule, a private reprimand is refused and whether it is removed from the licensee's official record at that point. The provision in question, 21 NCAC 22L .0001(i), states:
If probable cause is found, but it is determined that a disciplinary hearing is not warranted, the Board may issue a private reprimand to the accused party. A statement of such reprimand shall be mailed to the accused party. Within 20 days after receipt of the reprimand, the accused party may refuse the reprimand. Such refusal shall be addressed to the Committee and filed with the Secretary for the Board. The legal counsel for the Board may thereafter prepare, file, and serve a Notice of Hearing as necessary. If the letter or reprimand is accepted, a record of the reprimand shall be maintained in the office of the Board.
21 NCAC 22L .0001 (April 1996). A private reprimand issued under this paragraph is in effect a settlement offer to the licensee. If it is accepted, it is effective as a disciplinary measure against the licensee and both the Board and the licensee avoid the expense of litigating a contested case. If the licensee refuses the offer (the private reprimand), however, it has the same status as any other settlement offer that is refused. It is not effective. If the Board wishes to proceed to impose some sort of discipline in that event, it must take further action. A private reprimand issued and refused under this provision could be retained to the same extent as any failed settlement offer as part of the documents connected with the particular litigation, but it should not be treated as an effective private reprimand.
Your third question is whether the Board must publish and update what is acceptable practice as that term is used in 21 NCAC 22L .0001(k). This question is not completely clear. Standards of "acceptable professional practice" are certainly found in the Board's statutes and rules. The basis for any discipline needs to be found in one of those two places. The State, however, causes both the statutes and the rules of administrative agencies to be published; the Board is not required to produce a separate publication. See N.C.Gen.Stat. §§ 150B-21.18 (1995) and 164-10 (1993). If the question refers to matters of professional practice that are not found in the Board's statutes or rules, please provide specific examples.
If this office can be of further assistance in this matter, please do not hesitate to contact us.
Ann Reed
Senior Deputy Attorney General
P. Bly Hall
Assistant Attorney General