Under the 2010 NC public-records amendments, what salary, promotion, and disciplinary-dismissal records do public employers have to keep open for inspection, and do they have to dig up information from before October 1, 2010?

Plain-English summary

In 2010, the General Assembly passed Session Law 2010-169, titled "To Strengthen Transparency Of Government Through Increasing And Clarifying Accessibility To Legislative Records And Other Public Records." Section 18 of that act rewrote the personnel-records provisions across seven statutes covering state employees, public school employees, community college employees, mental health authority employees, county employees, municipal employees, and water and sewer authority employees.

Chief Deputy AG Grayson Kelley and General Counsel JB Kelly issued this advisory opinion to walk public employers through six specific implementation questions. The headline answers:

Full salary and classification history is now public. Before the 2010 amendments, a literal reading of G.S. 126-23 limited public access to "current" salary and the date of the "most recent" change in classification. The amendments require employers to maintain a public record of each increase or decrease in salary and each change in classification with that employer. Employers don't have to retroactively reconstruct old records, but information they already have on file is now public going forward.

Disciplinary dismissal letters are public, including ones written before October 1, 2010. When a public employee is dismissed for disciplinary reasons, the employer must keep a copy of the final-decision dismissal notice open for inspection. That notice must set forth the specific acts or omissions that were the basis for the dismissal. The AG concluded this requirement applies even to dismissal letters written before the effective date of the act, recognizing that some employees may have due-process "name-clearing hearing" rights before stigmatizing information is publicly released.

No retroactive creation of records. The act does not require employers to invent dismissal letters for past employees who were separated without one (for instance, at-will employees who had no statutory right to written notice of reasons). It also does not require employers to reconstruct promotion reasons from decades-old personnel actions where no record currently exists.

"Final decision" has a specific meaning. A decision is "final" when the highest authority in the employing agency has acted, OR when the employee has lost the right to further internal review through passage of time or procedural default. The AG construed "final decision" in G.S. 126-23(a)(11) consistently with the same phrase in G.S. 126-35(a), which governs internal appeals.

Other personnel documents stay confidential. The amendments expand what information must be in the open record. They do NOT amend the confidentiality provisions for the underlying personnel file documents. Employers don't have to disclose the documents supporting a promotion or the documents underlying a disciplinary action (other than the specific dismissal notice now required by G.S. 126-23(a)(11)).

OSP database obligations did not change. The Office of State Personnel maintains a separate computer database under G.S. 126-3(7). The 2010 amendments do not require OSP to mirror every employer's expanded record into that database.

Currency note

This opinion was issued in 2010. 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.

The 2010 amendments were a significant expansion of personnel-records disclosure, and the statutes have been amended several times since. The Office of State Human Resources (OSHR) succeeded the Office of State Personnel (OSP). Anyone applying this opinion to a current request should pull the current text of G.S. 126-23 and the parallel statutes for the relevant employer type, and check for later cases addressing the constitutional name-clearing-hearing question for pre-2010 disciplinary letters.

Common questions

Q: Which employers does the 2010 act cover?
A: Section 18 of Session Law 2010-169 amended seven personnel statutes:
- G.S. 126-23 (state employees subject to the State Personnel Act)
- G.S. 115C-320 (public school employees)
- G.S. 115D-28 (community college employees)
- G.S. 122C-158(b) (area mental health authority employees)
- G.S. 153A-98(b) (county employees)
- G.S. 160A-168(b) (municipal employees)
- G.S. 162A-6.1 (water and sewer authority employees)

Q: What specifically became public under the amendments?
A: For each employee:
- Date and amount of each salary increase or decrease (not just current and most recent)
- Date and type of each promotion, demotion, transfer, suspension, separation, or other classification change
- A general description of the reasons for each promotion
- Date and type of each disciplinary dismissal, suspension, or demotion
- A copy of the final-decision written notice of dismissal for disciplinary dismissals, setting forth specific acts or omissions

Q: Can a public employer release classification history from a former employer?
A: The AG concluded yes, if the current employer has that information. The statutes only obligate an employer to maintain a record of that employer's classification history. They do not prohibit releasing information from a prior employer that the current employer happens to have on file.

Q: What is a "name-clearing hearing"?
A: A due-process hearing required by federal constitutional law when government action threatens a public employee's reputation or future employability through publicly released stigmatizing information. The AG flagged that releasing a pre-2010 disciplinary dismissal letter could trigger this requirement if the dismissal allegations rise to the level of threatening the employee's liberty interest in reputation or choice of occupation.

Q: If an at-will employee was fired in 2008 without a written notice of reasons, must the employer create one now?
A: No. The AG drew on the statutory-construction principle that statutes should not be read to require absurd or impossible results. Reconstructing dismissal letters years later, sometimes for employees who have died, would be both. Going forward (after October 1, 2010), however, public employers must create a final-decision dismissal letter for every employee terminated for disciplinary reasons, even at-will employees who would not otherwise be entitled to one.

Q: Does the amendment make the underlying personnel file public?
A: No. The opinion is careful here. G.S. 126-22(c) continues to make most personnel records confidential, with limited release of some documents after the employee has been separated from state employment for ten years (and even then, papers relating to demotions and disciplinary dismissals stay confidential at the document level). The 2010 amendments only expanded the information employers must maintain in the open "record" alongside the underlying confidential personnel file.

Q: What is "the record" versus "the personnel file"?
A: G.S. 126-22(b)(4) defines "record" as the personnel information that each employer is required to maintain in accordance with G.S. 126-23. That open record is a curated subset of the broader personnel file. The personnel file itself remains generally confidential under G.S. 126-22 and G.S. 126-24.

Background and statutory framework

The North Carolina Public Records Act, G.S. 132-1 et seq., presumes that documents made or received in connection with public business are public. The act has carve-outs for various categories of information that the legislature has determined should be confidential. Public-employee personnel records are one of the larger carve-outs: the personnel file as a whole is confidential under G.S. 126-22 and G.S. 126-24, but specific salary, classification, and disciplinary information is open under G.S. 126-23 and the parallel statutes for non-state public employees.

Before the 2010 amendments, the "open" personnel record was narrow. The public could see an employee's name, current salary, the date and amount of the most recent salary change, and the date of the most recent classification change. The lack of historical data made it hard to track patterns (for instance, whether a manager had been demoted then quickly re-promoted, or whether an employee had received multiple raises across years).

The 2010 amendments expanded the open record without touching the underlying confidentiality of the personnel file. Each prior salary change is now public. Each prior promotion's general reasons are public (if previously documented). Each prior change in classification is public. And, for disciplinary dismissals only, the actual final-decision notice document is open for inspection.

The opinion reflects the tension between two policy considerations:

1. The statutory text expanded transparency. Reading the amendments narrowly would defeat the General Assembly's stated purpose ("To Strengthen Transparency Of Government").
2. Some pre-2010 disciplinary actions involved employees who were never told why they were fired (because they were at-will), or employees who were given confidential reasons in a setting where they expected those reasons would remain confidential. Releasing those records years later could create due-process problems.

The AG threaded the needle by:
- Refusing to require employers to invent records that don't exist
- Recognizing that pre-2010 dismissal letters are subject to the new release rule, while flagging the constitutional name-clearing-hearing question for case-by-case analysis
- Treating "final decision" as a defined term keyed to the agency's own internal appeals process

Citations

• N.C.G.S. § 132-1 et seq. (Public Records Act)
• N.C.G.S. § 132-6 (right to inspect public records)
• N.C.G.S. §§ 132-6.1(c) and 132-6.2(e) (no obligation to create records that don't exist)
• N.C.G.S. § 126-22 (confidentiality of state personnel files generally)
• N.C.G.S. § 126-23 (open personnel record), as amended by 2010 N.C. Sess. Laws c. 169, sec. 18
• N.C.G.S. § 126-24 (limited public access exceptions)
• N.C.G.S. § 126-35 ("final decision" in internal appeals)
• Parallel statutes for schools, community colleges, mental health authorities, counties, municipalities, water/sewer authorities (G.S. 115C-320, 115D-28, 122C-158(b), 153A-98(b), 160A-168(b), 162A-6.1)
• 2010 N.C. Sess. Laws c. 169 ("To Strengthen Transparency Of Government Through Increasing And Clarifying Accessibility To Legislative Records And Other Public Records")
• Stevenson v. Durham, 281 N.C. 300 (1972) (statutory construction)
• News & Observer Publishing Co. v. Poole, 330 N.C. 465 (1992) (presumption of public access)
• Rhyne v. K-Mart Corp., 358 N.C. 160 (2004) (avoid absurd consequences)
• Bd. of Regents v. Roth, 408 U.S. 564 (1972) (due process liberty interest)
• Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (due process for tenured public employees)
• Sciolino v. City of Newport News, 480 F.3d 642 (4th Cir. 2007) (name-clearing hearing)

Source

• Landing page: https://ncdoj.gov/opinions/personnel-information-required-to-be-made-available-for-inspection-by-public-employers/

Original opinion text

The original opinion is reproduced from the NCDOJ landing page. Footnotes are at the end.

[The opinion responds to a letter from a public employer asking six questions about implementing Section 18 of the 2010 Act.]

When interpreting the effect of these amendments, it is our duty to determine the intent of the General Assembly. "The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute." Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283 (1972). See also Sutton v. Aetna Casualty and Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989) (the cardinal rule of statutory construction is that legislation must be construed to accomplish the General Assembly's intent).

In this case, the title of the Act states that one of the General Assembly's purposes was "To Strengthen Transparency Of Government Through Increasing And Clarifying Accessibility To Legislative Records And Other Public Records." Under the Public Records Act, G.S. 132-1 et seq., every document made or received in connection with the transaction of public business is a public record. Thus, personnel records of public employees are public records. Absent a statutory exception, G.S. 132-6 gives the public the right to inspect, examine and copy any public record. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 486, 412 S.E.2d 7, 19 (1992). However, the various statutes governing the personnel records of public employees all exempt personnel records from public inspection with limited exceptions. See, e.g., G.S. 126-24 and G.S. 115C-321(a). Therefore, personnel records of public employees are generally not subject to public inspection under G.S. 132-6. G.S. 126-23 and similar statutes, however, require public employers to maintain certain information in a record and permit the public to inspect that information. See, e.g. G.S. 126-22(b)(4) (as used in Article 7 of Chapter 126, "record" specifically means "the personnel information that each employer is required to maintain in accordance with G.S. 126-23.")

The Act expands the personnel information that public employers must maintain for public inspection and copying. Consistent with the title of the Act, we presume the General Assembly enacted the amendments in order to provide more transparency regarding decisions affecting public employment while preserving the confidentiality of most personnel records. See State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 763-64 (1992) (courts may consider the title of an act to determine legislative intent). That purpose provides the primary basis for our response to the questions raised in your letter.

Question 1: Are public employers required to maintain a public record of an employee's entire salary and position classification history?

Answer: Public employers are now required to maintain a public record of the entire salary and position classification history of each employee to the extent the employer has possession of such information.

As noted, the primary principle of statutory construction is a determination of legislative intent. In our view, it is clear that the principal purpose for the enactment of Section 18 of the Act was to increase public access to employment information concerning public officials and employees. To achieve this goal, the General Assembly has directed state and local government employers to maintain an expanded public record of certain personnel-related information.

As a result of the amendments in the Act, after October 1, 2010, public employers will be required to maintain a public record of not only their employees' current salary and date of the most recent change in position classification but also each increase and decrease in salary and the date and type of each change in classification with that employer. It appears that these particular amendments were enacted to address a problem of statutory interpretation which restricted the salary information that public employers could make available for inspection.

Prior to passage of the Act, G.S. 126-23 required State employers to maintain a public record of only the employee's current salary, the amount and the date of the most recent increase or decrease in the employee's salary, and the date of the employee's most recent change in position classification. Read literally, the statutes could be interpreted to mean that, prior to the amendments, the public's access to salary or classification information was limited to an employee's current or most recent information, meaning that the salary and classification information open to public inspection changed with every change in an employee's salary or classification. We believe the General Assembly intended, through the amendments in the Act, to clarify that public employers are required to maintain a public record of each employee's entire salary and position classification history with that public body. This conclusion does not require employers to retroactively create records, but rather reflects our belief that the General Assembly intended to make public a record of existing salary and classification history.

You note in your letter that the amendments to G.S. 126-23 also raise an issue regarding an employer's ability to provide the public with access to an employee's entire salary and classification history, as opposed to the employee's history only with that employer. As amended, G.S. 126-23(7) and 126(8) require a state employer to maintain a public record of each increase and decrease in salary and the date and type of each change in classification with that state employer. Again, strictly and literally construed, this amendment would mean that a state employer could not provide the public with access to changes in an employee's salary and classification while employed with another public employer, even though that information is publicly available through another employer. Consequently, if a member of the public desired to have a complete history of an employee's salary and classification, he would have to make separate inquiries of the employee's present employer and each of the employee's former employers. Stated another way, an employee's salary and classification information would be public information under G.S. 126-23 or confidential information under G.S. 126-24 depending upon which state employer the public asked.

It is our view that the language in the amendments which requires an employee's current employer to maintain a record of and permit the public to inspect each increase and decrease in salary and the date and type of each change in classification with that employer was not intended by the legislature to prohibit one state employer from providing information which is public in the hands of another state employer. Instead, we believe these words were only meant to limit the information that the public employer was or is obligated to maintain in the personnel information open to public inspection. Consequently, if a current public employer has access to an employee's complete salary or classification history, that employer is not prohibited from providing the public with access to all that information even though the statutes only obligate it to maintain a portion of that information.

Therefore, it is our opinion that public employers are now required to maintain a public record of each employee's entire salary and position classification history with that employer. Public employers may also make available salary and position classification history from an employee's prior public employer if in the employer's possession or if the employer elects to request the information from previous employers.

Question 2: Does the Act require public employers to maintain for public inspection a copy of the written notice of dismissal for each employee terminated for disciplinary reasons?

Answer: The Act requires public employers to maintain for public inspection a copy of the final decision of the public body setting forth the specific acts or omissions for termination of each employee dismissed for disciplinary reasons.

In Section 18 of the Act, the General Assembly amended public employee personnel statutes to impose a new and unique obligation on public employers dismissing employees for disciplinary reasons. In these amendments, the General Assembly has for the first time explicitly directed public employers that have dismissed an employee for disciplinary reasons to permit the public to have access to a copy of the written notice of the final decision of the public employer setting forth the specific acts or omissions that are the basis of the disciplinary dismissal. E.g., 2010 N.C. Sess. Laws, c. 169, sec. 18(a). Other provisions in the amendments and the affected statutes only require public employers to maintain a record of personnel information open to the public. This particular amendment, however, requires public employers to maintain and provide public access to a specific document, i.e., a copy of the written notice of the final decision of the employer setting forth the specific acts or omissions that were the basis of a disciplinary dismissal. It therefore appears to have been the clear intent of the legislature that public employers must now maintain for public inspection a copy of the final dismissal letter regarding each employee dismissed for a disciplinary reason.

Most public employees are entitled to protection from dismissal without just cause. In those cases, public employers have the constitutional and statutory obligation to provide those employees with the reasons for their dismissal on disciplinary grounds. See, e.g., G.S. 126-35 (career State employees). See also Bishop v. N.C. Dep't of Human Resources, 100 N.C. App. 175, 177, 394 S.E.2d 702, 703 (1990), cert. denied, 328 N.C. 325, 401 S.E.2d 366 (1991) ("The essential due process requirements for discharging a state employee who has such a property interest have been stated to be that '[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'") (quoting Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506 (1985)). Therefore, in the case of career state employees, as well as certain local government employees, employers should be able to readily make disciplinary dismissal letters available for inspection.

You note in your letter, however, that certain employees may be dismissed for reasons unrelated to discipline. For example, employees may be separated due to reductions-in-force or disability. Chapter 126 also lists numerous categories of "exempt" employees who essentially serve "at will" and may be terminated without "just cause." An employer may therefore decide to dismiss an at-will employee for disciplinary reasons, but provide no notice to the employee of the reasons. See, e.g., Soles v. City of Raleigh Civ. Serv. Comm'n, 345 N.C. 443, 480 S.E.2d 685 (1997). The Act thus raises a question as to the responsibilities of a public employer in regard to employees who have been terminated without receiving a letter stating the reasons for dismissal, particularly those actually dismissed for a disciplinary reason.

It is well established that statutes should be interpreted so as to avoid absurd consequences and impossibilities. Rhyne v. K-Mart Corp., 358 N.C. 160, 189, 594 S.E.2d 1, 20 (2004); Hobbs v. County of Moore, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966). With this principle of statutory construction in mind, we cannot conclude that the General Assembly intended to direct public employers to create a dismissal letter for terminated employees who were separated for reasons other than discipline. Nor do we believe that the General Assembly intended to require public employers to retroactively create and serve dismissal letters on former employees, some of whom may no longer even be alive, in situations where the dismissal may have been for disciplinary reasons but notice of the specific reasons was not required or provided.

It is our opinion, however, that the General Assembly did intend that in the future when a public employee is dismissed for disciplinary reasons the employer will provide the employee a letter of dismissal specifying the acts or omissions constituting the basis for the dismissal and the public will be allowed access to the letter of dismissal. As such, on and after October 1, 2010, public employers are required to document and maintain for public inspection a copy of the final decision of the public body dismissing each employee terminated for disciplinary reasons, including employees who are not otherwise entitled to such formal notification.

You have also asked whether dismissal letters to employees terminated for disciplinary reasons prior to October 1, 2010, are now required to be made available for public inspection. In that such letters were confidential at the time received, you question whether their release after the effective date of the Act may violate employees' legal rights and expose public employers to liability.

We recognize that requiring public employers to now make public previous disciplinary letters of dismissal may raise issues of due process, privacy or vested rights. At a minimum, courts have held that public employees have a constitutional right to a due process "name-clearing hearing" when governmental action threatens a person's liberty interest in his reputation or choice of occupation. See, e.g., Bd. Of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 308 (4th Cir. 2006); Stone v. Univ. of Maryland Med. Svs. Corp., 855 F.2d 167, 172 n.5 (4th Cir. 1988). However, not all reasons for dismissing a public employee pose a threat to his liberty interest in future employment. Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982) (allegations of incompetence alone do not give rise to a protected liberty interest); see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 308-09 (4th Cir. 2006); Sciolino v. City of Newport News, 480 F.3d 642, 647 (4th Cir. 2007). Nevertheless, it is reasonable to assume that some of the heretofore confidential personnel information made public under the amendments, e.g., specific acts of dishonesty or immorality which form the basis of a disciplinary dismissal, could threaten a public employee's reputation or choice of future occupation. See Ridpath, 447 F.3d at 308. Therefore, a public employer's publication of the reasons for dismissing a public employee prior to providing the employee with an opportunity for a name-clearing hearing could violate the employee's due process rights. Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir. 2007) (employee has right to name clearing hearing when evidence shows either a likelihood that employers to whom he will apply for employment or the public at large will inspect personnel file containing stigmatizing information); Harrell v. City of Gastonia, 2010 U.S. App. LEXIS 17714 (4th Cir. 2010) (summary judgment for public employer on public employee's claim that presence of reasons for dismissal in his personnel file violated his due process rights affirmed because plaintiff had no evidence that the challenged information was released to any entity or otherwise made public prior to the name-clearing hearing).

Nevertheless, the plain language of the Act specifically requires public employers to maintain a record of disciplinary actions against each employee, and if the action was dismissal a copy of the written notice of dismissal must now be made available for public inspection. We cannot conclude that this requirement, even if applied to notices of dismissal written prior to the effective date of the Act, violates clearly established rights of former employees dismissed for disciplinary reasons. It is therefore our opinion that written notices of dismissal as to each employee terminated for disciplinary reasons, including those written prior to October 1, 2010, must now be made available for public inspection.

To summarize, it is our view that the General Assembly intended to make public written notices of dismissal for each employee terminated for disciplinary reasons, including those written prior to October 1, 2010. Public employers, however, are not required to retroactively attempt to create dismissal letters where former employees were terminated without being provided specific reasons. It is our further opinion that, on and after October 1, 2010, public employers are required to create and make available for public inspection a written notice setting forth the specific acts or omissions constituting the basis for dismissal of each employee terminated for disciplinary reasons, including employees who are not otherwise entitled to such notice.

Question 3: Does the Act require public employers to retroactively create personnel information reflecting reasons for promotions that occurred prior to the effective date of the Act?

Answer: No. The Act does not require public employers to retroactively create information or documents that did not exist on October 1, 2010. Information reflecting a general description of the reasons for promotions that did exist as of October 1, 2010, however, is now required to be maintained in a record that is open for public inspection.

Under the amendments to G.S. 126-23, a new subsection (10) requires each covered employer to maintain as to each employee a record showing a "... general description of the reasons for each promotion ..." with that employer. You have asked whether employers are now required to create a general description of the reasons for each promotion of every employee if no such record presently exists.

As previously noted, statutes should be interpreted so as to avoid absurd consequences and impossibilities if such results can be avoided by other fair and reasonable construction of their terms. See, e.g., Rhyne v. K-Mart Corp., 358 N.C. 160, 189, 594 S.E.2d 1, 20 (2004); Hobbs v. County of Moore, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966). Interpreting the Act to require public employers to create and maintain a public record of information describing employment events that occurred prior to the effective date of the Act would certainly lead to absurd and impossible results. For example, it is reasonable to assume that the State of North Carolina has been promoting employees for decades, even prior to the passage of the State Personnel Act in 1965. Requiring public employers to review the employment history of every current and former employee in order to identify whether they were ever promoted, to reconstruct a general description of the reasons for every promotion and then enter that information into the public record of their employment history requires an interpretation that we do not believe the General Assembly intended. Indeed, it would likely be impossible for current employers to reconstruct information concerning promotions awarded in the distant past if such information is not presently documented in personnel records.

In addition, statutes should be interpreted in pari materia and all parts thereof should be construed together and compared with each other. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Res., 337 N.C. 569, 590-591, 447 S.E.2d 768, 781 (1994); Comm'r of Ins. v. Rate Bureau, 300 N.C. 381, 399-400, 269 S.E.2d 547, 561, reh'g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). The General Assembly has repeatedly stated that the public's right to examine and copy public records is distinct from a public entity's obligation to create or compile a record. G.S. 132-6.1(c); 132-6.2(e). There is nothing in the Act to indicate that the General Assembly intended to require public entities to create records that did not already exist prior to the effective date of Section 18 of the Act, October 1, 2010. Nor is there anything in the Public Records Act, Chapter 132, or the State Personnel Act, Chapter 126, or other statutes addressing public employees to indicate that the General Assembly intended to expand a public employers' obligations to create records of events which heretofore had gone undocumented.

In view of these principles of statutory construction, it is our opinion that the General Assembly intended the amendments to require public employers, on and after October 1, 2010, to maintain a public record of information which includes a general description of the reasons for each promotion of each employee. We do not believe the General Assembly intended the amendments to require public employers to attempt to reconstruct or create information concerning past promotions where such information is not presently documented.

However, if records presently maintained by an employer include the information concerning promotions described in the amendments, we believe the General Assembly intended for such information to now be made available for inspection in accordance with G.S. 126-23(c). This conclusion does not require employers to retroactively create documents or information. Rather, the Act simply expands the amount of existing information which public employers are required to make available for inspection.

Question 4: What constitutes a "final decision" as that term is used in the amendments to G.S. 126-23(a)(11) and similar amendments in Section 18 of the Act?

Answer: A "final decision" is a decision which is made by the highest authority in the employing agency or which due to the passage of time, or other procedural defaults is not subject to further review within the department, agency, institution, commission, bureau, or other employing body or authority.

Section 18(a) amended G.S. 126-23 to add this obligation:

If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.

G.S. 126-23(a)(11) (emphasis added). Section 18 also amended the obligations of other public employers to require them to provide public access to their "final decisions" of dismissal. This amendment raises the question of when a decision to dismiss an employee is final for purposes of providing public access to the notice of dismissal.

As we noted above, statutes should be interpreted in pari materia and all parts thereof should be construed together and compared with each other. In this case, we believe that the phrase "final decision" of the head of the department in G.S. 126-23(a)(11) should be interpreted consistently with the same phrase in G.S. 126-35(a). Among other things, that statute provides "if [an employee] is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department, [he] may appeal to the State Personnel Commission." G.S. 126-35(a) (emphasis added).

In both cases, the phrase "final decision" means the decision of the employing agency or its agent for which an employee has no right to further review within the employing agency. A "final decision" may be one on which the highest authority in the employing agency has passed judgment or a "final decision" may be an action of an agent to whom final agency decision making authority has been delegated. "Final decision" also encompasses decisions of other agents of the public employer which the employee, through the passage of time or other procedural defaults, has lost the right to appeal within the agency. In all those cases, the decision is properly deemed "the final decision" of the agency because there is nothing further that the employee can do to change the employer's decision without recourse to a superior administrative or judicial forum.

Question 5: Does the Act require public employers to provide the public with access to other documents relating to employee promotions and the type of disciplinary dismissals, suspensions and demotions which are part of an employee's confidential personnel file under G.S. 126-24?

Answer: No. The Act does not require public employers to provide the public with copies of or access to any documents other than the written notices described in G.S. 126-23(a)(11) which relate to the disciplinary dismissals of employees.

The amendments require public employers to include in the public record a general description of the reason for a promotion as well as the date and type of any disciplinary dismissal, suspension or demotion. These amendments also require employers to provide the public with access to copies of the written notices of disciplinary dismissals. Those amendments raise the question of whether other documents, created prior to or after October 1, 2010, that relate to promotions or the type of disciplinary dismissals, suspensions, or demotions, are now public records subject to examination and copying under G.S. 132-6. It is our opinion that the General Assembly did not intend to make those documents public records.

There is nothing in the amendments or the statutes they amend which require public employers to permit the public to inspect or copy the documents from which the information maintained in the public record is gathered. The amendments in Section 18 expand the information that a public employer must maintain open to public inspection. The amendments also require public employers to provide the public with copies of the notices of disciplinary dismissals which employees have received. The amendments in Section 18 do not amend any of the statutes that exempt other personnel records from public inspection or require public employers to provide access to documents in confidential personnel files.

Our opinion that the General Assembly did not intend to require public employers to provide access to any personnel documents not specified in the amendments is supported by the fact that it did not amend G.S. 126-22(c). That statute provides that once a State employee has been separated from employment for ten (10) years the State may open his or her personnel file, i.e., the actual documents in the employer's files, for public inspection. But, even while G.S. 126-22(c) permits public access to most of the documents in a former State employee's personnel file, the General Assembly has explicitly provided that the State shall not give the public access to "the papers and documents relating to demotions and to disciplinary actions resulting in the dismissal of the employee." G.S. 126-22(c). The continuing confidentially of these personnel files is strong evidence that the General Assembly did not intend the amendments in Section 18 to require any public employer to permit the public to inspect or copy any documents not specifically described in those amendments.

The Act does not directly amend any statutes that provide for the confidentiality of personnel information. Unless and until the General Assembly amends other statutes to remove the protections afforded documents in confidential personnel files, it is our opinion that a public employer is not required to permit the public to inspect and copy any documents in a confidential personnel file other than the notices of disciplinary dismissals now required by G.S. 126-33(11).

Question 6: Do the amendments to G.S. 126-23 require the Office of State Personnel (OSP) to change the contents of the database which it maintains in accordance with G.S. 126-3(7)?

Answer: No. The Act did not amend G.S. 126-3(7) and OSP is under no obligation to add the personnel information that the General Assembly has mandated each State employer maintain in its records. OSP may elect to add that information to its database if it determines that the information is "relevant and necessary" to its mission.

One of the specific purposes of OSP is to "serve as the central repository of State Personnel System data." G.S. 126-1. Consistent with that purpose, the General Assembly enacted G.S. 126-3(7) which makes OSP responsible for "maintaining a computer database of all relevant and necessary information on employees and positions within agencies, departments, and institutions in the State's personnel system." The obligation to maintain this computer database is distinct from the obligation which G.S. 126-23 imposes on each state employer to maintain certain information about each of its employees in a record open for public inspection. The General Assembly's intent to distinguish these obligations is clearly stated in G.S. 126-22(b)(4). That statute provides that as used in Article 7 of Chapter 126, which includes G.S. 126-22 through 126-30, "record" specifically means "the personnel information that each employer is required to maintain in accordance with G.S. 126-23." OSP's obligations to serve as a central repository and maintain a computer database of information on employees are set out in G.S. 126-1 and 126-3.

Where one statute deals with a particular situation in detail (e.g., G.S. 126-23(a)'s description of the employee information that each employer is to keep available for public inspection), but another statute deals with it in general and comprehensive terms, (e.g., G.S. 126-3(7)'s directive that OSP maintain a computer database of "all relevant and necessary information on employees and positions"), the more particular statute will be construed as controlling absent a clear legislative intent to the contrary.

Merritt v. Edwards Ridge, 323 N.C. 330, 337, 372 S.E.2d 559, 563 (1988). See also State ex rel. Utils. Comm'n v. Town of Kill Devil Hills, 194 N.C. App. 561, 670 S.E.2d 341, aff'd, 363 N.C. 739, 686 S.E.2d 151 (2009).

There is nothing in the Act to indicate that, when amending the record of personnel information that individual state employers are required to maintain under G.S. 126-23(a), the General Assembly also intended to amend OSP's obligations in Article 1 of Chapter 126 and require OSP to include that additional information in the State Personnel system computer database. Had the legislature intended to require OSP to maintain duplicate copies of the records which individual state employers are required to maintain in G.S. 126-23(a), the General Assembly could have imposed that obligation on OSP; it did not.

Therefore, while OSP is to serve as the central repository for State Personnel System data and maintain a computer database of all relevant and necessary information on employees and positions within agencies, departments, and institutions in the State's personnel system, it is not obligated to keep in a central repository all the information that each state employer must maintain in the public record of its employees. It is our opinion that until the General Assembly directs otherwise, OSP may continue to maintain in its computer database only that information it deems to be "relevant and necessary" to maintaining the State personnel system.

Sincerely yours,

Grayson G. Kelley
Chief Deputy Attorney General

JB Kelly
General Counsel

Footnote 1: Section 18(a) amended G.S. 126-23 which pertains to public access to information about State employees; Section 18(b) amended G.S. 115C-320 which pertains to public access to information about public school employees; Section 18(c) amended G.S. 115D-28 which pertains to public access to information about community college employees; Section 18(d) amended G.S. 122C-158(b) which pertains to public access to information about employees of area mental health, developmental disabilities and substance abuse authorities; Section 18(e) amended G.S. 153A-98(b) which pertains to public access to information about county employees; Section 18(f) amended G.S. 160A-168(b) which pertains to public access to information about municipal employees; and Section 18(g) amended G.S. 162A-6.1 which pertains to public access to information about water and sewer authority employees.

Footnote 2: G.S. 126-35 provides: "No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights." (Emphasis added.)

Footnote 3: "Nothing in this section shall require a public agency to create a computer database that the public agency has not otherwise created or is not otherwise required to be created." G.S. 132-6.1(c).

Footnote 4: "Nothing in this section shall be construed to require a public agency to respond to a request for a copy of a public record by creating or compiling a record that does not exist. If a public agency, as a service to the requester, voluntarily elects to create or compile a record, it may negotiate a reasonable charge for the service with the requester. Nothing in this section shall be construed to require a public agency to put into electronic medium a record that is not kept in electronic medium." G.S. 132-6.2(e).