If a North Carolina sheriff settles an Equal Employment Opportunity Commission discrimination charge through a Conciliation Agreement, and county money pays the settlement, is the agreement a public record that the county must disclose?

Plain-English summary

In November 1994, an individual filed an EEOC charge against Hertford County Sheriff Winfred Hardy, Jr., alleging conduct that, if true, would violate the Civil Rights Act of 1964. After EEOC investigation but before any lawsuit was filed, the parties entered into a Conciliation Agreement. The agreement contained a confidentiality clause: the only public statement allowed beyond what NC public records law required was "the case had been settled."

The settlement required appropriation of county money. The Hertford County Board of Commissioners voted on the appropriation publicly and entered a careful statement into its January 21, 1997 minutes:

• November 1994: charge filed with EEOC.
• September 1996: Board appropriated $21,166.66 to settle the claims, before any lawsuit.
• Sheriff Hardy reimbursed $5,000 of that appropriation.
• The County's insurance carrier paid an additional $27,333.34.
• Total settlement: $48,500.
• Net cost to Hertford County: $16,166.66.
• The Board added: "No further comment can be made at this time, pending a ruling to be sought from the North Carolina Attorney General on what, if any, additional settlement details may lawfully be disclosed."

Assistant Hertford County Attorney Charles L. Revelle, III asked the AG that question. Was the Conciliation Agreement a public record that had to be disclosed under NC Chapter 132?

The AG's answer: yes.

The relevant statute is N.C.G.S. § 132-1.3, "Settlements made by or on behalf of Public Agencies, Public Officials, or Public Employees; Public Records." It provides that public records include "all settlement documents in any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government or its subdivisions, as defined in G.S. § 132-1, in connection with or arising out of such agency's official actions, duties or responsibilities."

NC Gen. Stat. § 132-1 defines "agency of North Carolina government or its subdivisions" broadly to "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."

The sheriff is a public officer. Borders v. Cline, 212 N.C. 472 (1937), establishes that a NC sheriff is a public officer of the state. The sheriff therefore meets the § 132-1 definition.

EEOC investigations are administrative proceedings. The Conciliation Agreement arose out of an EEOC investigation into alleged conduct by the sheriff in his official capacity. That is an administrative proceeding "instituted against" a NC public officer in connection with his official duties.

Public funds were used to settle. Hertford County appropriated $21,166.66 from public funds. The settlement is exactly the kind of public-money-spent-on-employer-conduct that § 132-1.3 was enacted to expose.

The confidentiality clause cannot displace the statute. The AG did not need to spell this out in detail because the statutory analysis was conclusive. The parties to a settlement of a covered claim cannot contract around the public records law. A confidentiality clause in such a settlement is null as to documents § 132-1.3 designates public.

The other questions need not be reached. Mr. Revelle had asked several follow-up questions about the Conciliation Agreement. The AG noted that the answer to the first question (it is a public record) made the others unnecessary.

Currency note

This opinion was issued in 1998. 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 public records statute Chapter 132 has been amended several times since 1998, including changes to § 132-1.3 to address specific carve-outs and procedural details. The core principle that government settlement agreements paid with public money are public records remains. Anyone advising on a current settlement should check the current text of § 132-1.3 and any subsequent AG opinions on specific settlement types (mediation, insurance-only payments, multi-party agreements).

Common questions

Q: What is a Conciliation Agreement at the EEOC?
A: A formal pre-litigation settlement reached during the EEOC's investigation and conciliation process. The EEOC investigates discrimination charges and, if it finds reasonable cause, attempts conciliation between the parties before either suing or issuing a right-to-sue letter. A Conciliation Agreement memorializes the settlement.

Q: Can a government entity ever keep a settlement confidential under NC law?
A: There are narrow exceptions. The statute has carve-outs for certain types of confidential information (Social Security numbers, juvenile records, etc.). And a settlement that does not involve "the agency's official actions, duties or responsibilities" might fall outside § 132-1.3. But settlements of employment-discrimination claims paid with public money fall squarely within the statute.

Q: What about the privacy of the charging party?
A: The charging party's identity and specifics of their claim might be redactable in some circumstances under § 132-6 or other privacy provisions. But the AG opinion concludes that the agreement itself is a public record. The county must produce the document; redaction (if any) is a separate question.

Q: Does the sheriff's $5,000 reimbursement to the county affect the analysis?
A: No. The fact that the sheriff personally reimbursed part of the settlement does not change the public-record status of the document. The trigger is that the settlement was paid (at least in part) with public money and arose from the sheriff's official duties.

Q: What about the insurance carrier's $27,333.34 payment?
A: Same answer. Public-records status does not depend on the source of payment. The Conciliation Agreement is a single document covering the entire $48,500 resolution. It is all subject to disclosure.

Q: Can a future settling government party draft around this opinion?
A: No. The statute reaches the agreement regardless of contract terms. Drafting around it is not possible. The most a party can do is negotiate redactions for genuinely privacy-protected information, but the underlying settlement is public.

Q: Why did the County Commissioners disclose so much on their own initiative?
A: They appear to have done it carefully and conservatively: disclose the public-funds appropriation publicly (as required for budget purposes), but defer the question of additional details to the AG. The opinion vindicated the Commissioners' caution by confirming the rest of the document is also public.

Background and statutory framework

N.C.G.S. § 132-1.3 was enacted to address a recurring abuse: government entities settling claims and including broad confidentiality clauses to keep the public from learning that public money paid for misconduct. The statute strips those clauses of legal effect for the settlement document itself, making it a public record regardless of what the parties wrote.

The "settlement document" definition is broad. It covers any "settlement documents" in "any suit, administrative proceeding or arbitration." Conciliation Agreements at the EEOC fit. So do mediated settlements in state court, arbitration awards, and out-of-court resolutions of claims that would have been suits.

The "in connection with or arising out of such agency's official actions, duties or responsibilities" qualifier narrows the statute slightly: it has to be agency-related conduct, not purely personal. A sheriff sued personally for a car accident unrelated to official duties might fall outside § 132-1.3. A sheriff sued for discriminatory hiring is well within.

NC has long held that elected county officers (sheriff, register of deeds, clerk of court) are public officers, not just county employees. Borders v. Cline (1937) is one of many decisions confirming the sheriff's public-officer status. That status pulls the sheriff into Chapter 132's definitions.

The AG's opinion is short because the statutory analysis is mechanical: sheriff is a public officer, EEOC charge is an administrative proceeding, settlement was paid with public funds, the agreement falls within § 132-1.3, and a contractual confidentiality clause cannot override the statute. The Hertford County Board's careful procedural posture (deferring further disclosure pending an AG ruling) is the model of how a county can responsibly handle the question.

Citations

• N.C. Gen. Stat. § 132-1 (definitions; "agency of North Carolina government or its subdivisions" includes public officers)
• N.C. Gen. Stat. § 132-1.3 (settlement documents are public records when government agencies or officials are parties)
• N.C. Gen. Stat. Chapter 132 (NC Public Records Act)
• Civil Rights Act of 1964 (federal employment discrimination law administered by the EEOC)
• Borders v. Cline, 212 N.C. 472 (1937) (sheriff is a public officer of the state)

Source

• Landing page: https://ncdoj.gov/opinions/public-records-equal-employment-opportunity-commission-conciliation-agreement-with-sheriff/

Original opinion text

March 4, 1998

Mr. Charles L. Revelle, III
Assistant Hertford County Attorney
201 East Main Street
P. O. Box 448
Murfreesboro, NC 27855

RE: Advisory Opinion; Public Records; Equal Employment Opportunity Commission (EEOC) Conciliation Agreement with Sheriff; N.C.G.S. § 132-1.3

Dear Mr. Revelle:

I reply to your request for our opinion whether a Conciliation Agreement entered into by the Hertford County Sheriff and an individual who filed a charge of discrimination against the Sheriff with the Equal Employment Opportunity Commission is a public record which must be disclosed pursuant to Chapter 132.

The facts are set out in your letter as follows:

In November of 1994, an individual filed a charge of discrimination against Winfred Hardy, Jr., Sheriff of Hertford County with the Equal Employment Opportunity Commission (EEOC), alleging actions that, if true, would be in violation of the Civil Rights Act of 1964. Following the EEOC investigation and before any lawsuit was filed, the parties entered into a Conciliation Agreement, which stated that the only discussions about the matter beyond the public disclosure requirements of N.C.G.S. § 132-1.3 would be to state that "the case had been settled." The settlement required the appropriation of public funds, and the only public statement by the Hertford County Board of Commissioners as to the matter was entered into the minutes of the January 21, 1997 session, and announced in the public meeting, as follows:

In November, 1994, a Charge of Discrimination was filed with the Equal Employment Opportunity Commission (EEOC) regarding alleged actions of Hertford County Sheriff Winfred Hardy, Jr., that would be violative of the Civil Rights Act of 1964.

Following an EEOC investigation, without admission of liability, to resolve the matter and avoid the cost and expense of litigation, in September, 1996, the Hertford County Board of Commissioners appropriated $21,166.66 to settle the claims resulting from the EEOC investigation, before the initiation of any lawsuit.

Sheriff Hardy was responsible for reimbursement of $5,000.00 of the County appropriation. The County's insurance carrier paid an additional $27,333.34 on the claims, resulting in a total settlement of $48,500.00, with the net cost to Hertford County being $16,166.66.

No further comment can be made at this time, pending a ruling to be sought from the North Carolina Attorney General on what, if any, additional settlement details may lawfully be disclosed.

N.C.G.S. § 132-1.3 is titled: "Settlements made by or on behalf of Public Agencies, Public Officials, or Public Employees; Public Records." This statute provides in pertinent part that "public records, as defined in G.S. § 132-1, shall include all settlement documents in any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government or its subdivisions, as defined in G.S. § 132-1, in connection with or arising out of such agency's official actions, duties or responsibilities . . . .". N.C.G.S. § 132-1 defines an "agency of North Carolina government or its subdivisions" as follows: "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." (Emphasis added).

A sheriff is a public officer of the state. See, Borders v. Cline, 212 N.C. 472 (1937). As a public officer of the state, a sheriff meets the definition of "an agency of North Carolina government" as that term is defined in N.C.G.S. § 132-1. It follows, therefore, that any settlement documents entered into by the sheriff as a result of "any suit, administrative proceeding or arbitration instituted against" the sheriff in connection with or arising out of his duties or responsibilities is a matter of public record.

Here, the Hertford County Board of Commissioners appropriated, from public monies, $21,166.66 to settle the claims resulting from the EEOC investigation of the sheriff. The Conciliation Agreement, therefore, is a public record and should be made available to the public as required by N.C.G.S. § 132-1.3.

You ask a number of other questions concerning this Conciliation Agreement. However, in light of our answer to the first question, we see no need to address the other questions.

signed by:

Andrew A. Vanore, Jr.
Chief Deputy Attorney General