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

An individual filed an EEOC discrimination charge against Hertford County Sheriff Winfred Hardy, Jr. After an investigation, the parties entered a Conciliation Agreement before any lawsuit. The county commissioners appropriated $21,166.66 in public funds toward settlement, with part reimbursed by the sheriff and another part paid by the insurer. The assistant county attorney asked whether the agreement was a public record. Source

The AG answered yes. N.C.G.S. § 132-1.3 included settlement documents in covered suits, administrative proceedings, and arbitrations involving government agencies or officers. The opinion cited Borders v. Cline, 212 N.C. 472 (1937), for the sheriff's status as a public officer. It concluded that the Conciliation Agreement "is a public record and should be made available to the public." Source

The agreement, as described in the letter, allowed discussion beyond its limited public statement to the extent required by N.C.G.S. § 132-1.3. The AG did not analyze a confidentiality clause conflicting with the statute or decide whether such a clause would be invalid. It said the answer to the public-record question made the requester's other questions unnecessary to address. Source

Currency note

This opinion was issued in March 1998. Check current public-records law and the terms of a present agreement before deciding a current disclosure request.

Background and statutory framework

The opinion quotes § 132-1.3's settlement-document rule and § 132-1's definition of a government agency, which included public officers. It applied those provisions to a settlement arising from an EEOC investigation of a sheriff's alleged official conduct. The county's public appropriation is part of the facts the AG recounted. Source

Common questions

Was the Hertford County Conciliation Agreement a public record?

Yes. The AG concluded that the agreement should be made available under N.C.G.S. § 132-1.3. Source

Did the AG invalidate a confidentiality clause in the agreement?

No. The described agreement expressly allowed disclosures required by § 132-1.3. The opinion contains no ruling about an agreement with contrary confidentiality terms. Source

Did the AG answer the other questions the county attorney asked?

No. After answering the public-record question, the letter says, "we see no need to address the other questions." Source

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
• 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