State Codes and Statutes

Statutes > North-carolina > Chapter_138A > GS_138A-12

§ 138A‑12.  Inquiries bythe Commission.

(a)        Jurisdiction. – TheCommission may receive complaints alleging unethical conduct by covered personsand legislative employees and shall conduct inquiries of complaints allegingunethical conduct by covered persons and legislative employees, as set forth inthis section.

(a1)      Notice ofAllegation. – Upon receipt by the Commission of a written allegation ofunethical conduct by a covered person or legislative employee, or theinitiation by the Commission of an inquiry into unethical conduct undersubsection (b) of this section, the Commission shall immediately notify thecovered person or legislative employee subject to the allegation or inquiry inwriting.

(b)        Institution ofProceedings. – On its own motion, in response to a signed and sworn complaintof any individual filed with the Commission, or upon the written request of anypublic servant or those responsible for the hiring, appointing, or supervisingof a public servant, the Commission shall conduct an inquiry into any of thefollowing:

(1)        The application oralleged violation of this Chapter.

(2)        For legislators, theapplication of alleged violations of Part 1 of Article 14 of Chapter 120 of theGeneral Statutes.

(3)        An alleged violationof the criminal law by a covered person in the performance of that individual'sofficial duties.

(4)        An alleged violationof G.S. 126‑14.

Upon receipt of a referral underG.S. 147‑64.6B or a report under G.S. 147‑64.6(c)(19), theCommission may conduct an inquiry under this section on its own motion.Allegations of violations of the Code of Judicial Conduct shall be referred tothe Judicial Standards Commission without investigation.

(b1)      Complaints on ItsOwn Motion. – An investigation initiated by the Commission on its own motion orupon written request of any public servant or those responsible for the hiring,appointing, or supervising of a public servant instituted under subsection (b)of this section shall be treated as a complaint for purposes of this sectionand need not be sworn or verified.

(c)        Complaint. –

(1)        A sworn complaintfiled under this Chapter shall state the name, address, and telephone number ofthe individual filing the complaint, the name and job title or appointiveposition of the covered person or legislative employee against whom thecomplaint is filed, and a concise statement of the nature of the complaint andspecific facts indicating that a violation of this Chapter or Chapter 120 ofthe General Statutes has occurred, the date the alleged violation occurred, andeither (i) that the contents of the complaint are within the knowledge of theindividual verifying the complaint, or (ii) the basis upon which the individualverifying the complaint believes the allegations to be true.

(2)        Except as providedin subsection (d) of this section, a complaint filed under this Chapter must befiled within two years of the date the complainant knew or should have known ofthe conduct upon which the complaint is based.

(3)        The Commission maydecline to accept, refer, or conduct an inquiry into any complaint that doesnot meet all of the requirements set forth in subdivision (1) of thissubsection, or the Commission may, in its sole discretion, request additionalinformation to be provided by the complainant within a specified period of timeof no less than seven business days.

(4)        In addition tosubdivision (3) of this subsection, the Commission may decline to accept,refer, or conduct an inquiry into a complaint if it determines that any of thefollowing apply:

a.         The complaint isfrivolous or brought in bad faith.

b.         The covered personor legislative employee and conduct complained of have already been the subjectof a prior complaint.

c.         The conductcomplained of is primarily a matter more appropriately and adequately addressedand handled by other federal, State, or local agencies or authorities,including law enforcement authorities. If other agencies or authorities areconducting an investigation of the same actions or conduct involved in acomplaint filed under this section, the Commission may stay its complaintinquiry pending final resolution of the other investigation.

(5)        The Commission shallsend a copy of the complaint to the covered person or legislative employee whois the subject of the complaint and the employing entity, within 30 days of thefiling.

(d)        Conduct of Inquiryof Complaints by the Commission. – The Commission shall conduct an inquiry intoall complaints properly before the Commission in a timely manner. TheCommission shall initiate an inquiry into a complaint within 60 days of thefiling of the complaint. The Commission is authorized to initiate inquiriesupon request of any member of the Commission if there is reason to believe thata covered person or legislative employee has or may have violated this Chapter.Commission‑initiated complaint inquiries under this section shall beinitiated within two years of the date the Commission knew of the conduct uponwhich the complaint is based, except when the conduct is material to thecontinuing conduct of the duties in office. In determining whether there isreason to believe that a violation has or may have occurred, a member of theCommission may take general notice of available information even if notformally provided to the Commission in the form of a complaint. The Commissionmay utilize the services of a hired investigator when conducting inquiries.

(e)        Covered Person andLegislative Employees Cooperation With Inquiry. – Covered persons andlegislative employees shall promptly and fully cooperate with the Commission inany Commission‑related inquiry. Failure to cooperate fully with theCommission in any inquiry shall be grounds for sanctions as set forth in G.S.138A‑45.

(f)         Dismissal ofComplaint After Preliminary Inquiry. – If the Commission determines at the endof its preliminary inquiry that (i) the individual who is the subject of thecomplaint is not a covered person or legislative employee subject to theCommission's jurisdiction and authority under this Chapter, or (ii) thecomplaint does not allege facts sufficient to constitute a violation within thejurisdiction of the Commission under subsection (b) of this section, theCommission shall dismiss the complaint.

(g)        CommissionInquiries. – If at the end of its preliminary inquiry, the Commissiondetermines to proceed with further inquiry into the conduct of a covered personor legislative employee, the Commission shall provide written notice to theindividual who filed the complaint and the covered person or legislativeemployee as to the fact of the inquiry and the charges against the coveredperson or legislative employee. The covered person or legislative employeeshall be given an opportunity to file a written response with the Commission.

(h)        Action onInquiries. – The Commission shall conduct inquiries into complaints to theextent necessary to either dismiss the complaint for lack of probable cause ofa violation under this section, or:

(1)        For public servants,decide to proceed with a hearing under subsection (i) of this section.

(2)        For legislators,except the Lieutenant Governor, refer the complaint to the Committee.

(3)        For judicialofficers, refer the complaint to the Judicial Standards Commission forcomplaints against justices and judges, to the senior resident superior courtjudge of the district or county for complaints against district attorneys, orto the chief district court judge for the district or county for complaintsagainst clerks of court.

(4)        For legislativeemployees, refer the complaint to the employing entity.

(i)         Hearing. –

(1)        The Commission shallgive full and fair consideration to all complaints received against a publicservant. If the Commission determines that the complaint cannot be resolvedwithout a hearing, or if the public servant requests a hearing, a hearing shallbe held.

(2)        The Commission shallsend a notice of the hearing to the complainant, and the public servant. Thenotice shall contain the time and place for a hearing on the matter, whichshall begin no less than 30 days and no more than 90 days after the date of thenotice.

(3)        The Commission shallmake available to the public servant or that public servant's private legalcounsel all documents or other evidence which are intended to be presented atthe hearing to the Commission or which a reasonable person would believe mightexculpate the accused public servant at least 30 days prior to the date of thehearing held in connection with the investigation of a complaint. Any documentsor other evidence discovered within less than 30 days of the hearing shall befurnished as soon as possible after discovery but prior to the hearing.

(4)        At any hearing heldby the Commission:

a.         Oral evidence shallbe taken only on oath or affirmation.

b.         The hearing shall beopen to the public, except for matters involving minors, personnel records, ormatters that could otherwise be considered in closed session under G.S. 143‑318.11.In any event, the deliberations by the Commission on a complaint may be held inclosed session.

c.         The public servantbeing investigated shall have the right to present evidence, call and examinewitnesses, cross‑examine witnesses, introduce exhibits, and berepresented by counsel.

(j)         Settlement ofInquiries. – The public servant who is the subject of the complaint and thestaff of the Commission may meet by mutual consent before the hearing todiscuss the possibility of settlement of the inquiry or the stipulation of anyissues, facts, or matters of law. Any proposed settlement of the inquiry issubject to the approval of the Commission.

(k)        Disposition ofInquiries. – After hearing, the Commission shall dispose of the matter in oneor more of the following ways:

(1)        If the Commissionfinds substantial evidence of an alleged violation of a criminal statute, theCommission shall refer the matter to the Attorney General for investigation andreferral to the district attorney for possible prosecution.

(2)        If the Commissionfinds that the alleged violation is not established by clear and convincingevidence, the Commission shall dismiss the complaint.

(3)        If the Commissionfinds that the alleged violation of this Chapter is established by clear andconvincing evidence, the Commission shall do one or more of the following:

a.         Issue a privateadmonishment to the public servant and notify the employing entity, ifapplicable. Such notification shall be treated as part of the personnel recordof the public servant.

b.         Refer the matter forappropriate action to the Governor and the employing entity that appointed oremployed the public servant or of which the public servant is a member.

c.         Refer the matter forappropriate action to the Chief Justice for judicial employees.

d.         Refer the matter tothe Principal Clerks of the House of Representatives and Senate of the GeneralAssembly for constitutional officers of the State.

e.         Refer the matter forappropriate action to the principal clerk of the house of the General Assemblythat elected the public servant for members of the Board of Governors and theState Board of Community Colleges.

(l)         Notice of Dismissal.– Upon the dismissal of a complaint under this section, the Commission shallprovide written notice of the dismissal to the individual who filed thecomplaint and the covered person or legislative employee against whom thecomplaint was filed. The Commission shall forward copies of complaints andnotices of dismissal of complaints against legislators to the Committee,against legislative employees to the employing entity for legislativeemployees, and against judicial officers to the Judicial Standards Commissionfor complaints against justices and judges, and the senior resident superiorcourt judge of the district or county for complaints against districtattorneys, or the chief district court judge of the district or county forcomplaints against clerks of court. The Commission shall also forward a copy ofthe notice of dismissal to the employing entity of the covered person againstwhom a complaint was filed if the employing entity received a copy of thecomplaint under subdivision (5) of subsection (c) of this section. Except asprovided in subsection (n) of this section, the complaint and notice ofdismissal are confidential and not public records.

(m)       Reports and Records.– The Commission shall render the results of its inquiry in writing. When a matteris referred under subdivision (h)(2) and (3), or subsection (k) of thissection, the Commission's report shall consist of the complaint, response, anddetailed results of its inquiry in support of the Commission's finding of aviolation under this Chapter.

(n)        Confidentiality. – Complaintsand responses filed with the Commission and reports and other investigativedocuments and records of the Commission connected to an inquiry under thissection, including information provided pursuant to G.S. 147‑64.6B orG.S. 147‑64.6(c)(19), shall be confidential and not matters of publicrecord, except as otherwise provided in this section or when the covered personor legislative employee under inquiry requests in writing that the complaint,response, and findings be made public. Once a hearing under this sectioncommences, the complaint, response, and all other documents offered at thehearing in conjunction with the complaint, not otherwise privileged orconfidential under law, shall be public records. If no hearing is held at suchtime as the Commission reports to the employing entity a recommendation ofsanctions, the complaint and response shall be made public.

(o)        Recommendations ofSanctions. – After referring a matter under subsection (k) of this section, ifrequested by the entity to which the matter was referred, the Commission mayrecommend sanctions or issue rulings as it deems necessary or appropriate toprotect the public interest and ensure compliance with this Chapter. Inrecommending appropriate sanctions, the Commission may consider the followingfactors:

(1)        The public servant'sprior experience in an agency or on a board and prior opportunities to learnthe ethical standards for a public servant as set forth in Article 4 of thisChapter, including those dealing with conflicts of interest.

(2)        The number of ethicsviolations.

(3)        The severity of theethics violations.

(4)        Whether the ethicsviolations involve the public servant's financial interest.

(5)        Whether the ethicsviolations were inadvertent or intentional.

(6)        Whether the publicservant knew or should have known that the improper conduct was a violation ofthis Chapter.

(7)        Whether the publicservant has previously been advised or warned by the Commission.

(8)        Whether the conductor situation giving rise to the ethics violation was pointed out to the publicservant in the Commission's Statement of Economic Interest evaluation letterissued under G.S. 138A‑24(e).

(9)        The public servant'smotivation or reason for the improper conduct or action, including whether theaction was for personal financial gain versus protection of the publicinterest.

In making recommendationsunder this subsection, if the Commission determines, after proper review andinvestigation, that sanctions are appropriate, the Commission may recommend anyaction it deems necessary to properly address and rectify any violation of thisChapter by a public servant, including removal of the public servant from thepublic servant's State position. Nothing in this subsection is intended, andshall not be construed, to give the Commission any independent civil, criminal,or administrative investigative or enforcement authority over covered persons,or other State employees or appointees.

(p)        Authority ofEmploying Entity. – Any action or failure to act by the Commission under thisChapter, except G.S. 138A‑13, shall not limit any authority of any of theapplicable employing entities to discipline the covered person or legislativeemployee.

(q)        ContinuingJurisdiction. – The Commission shall have continuing jurisdiction toinvestigate possible criminal violations of this Chapter for a period of oneyear following the date an individual, who was formerly a public servant orlegislative employee, ceases to be a public servant or legislative employee forany investigation that commenced prior to the date the public servant orlegislative employee ceases to be a public servant or legislative employee.

(r)        Subpoena Authority.– The Commission may petition the Superior Court of Wake County for theapproval to issue subpoenas and subpoenas duces tecum as necessary to conductinvestigations of alleged violations of this Chapter. The court shall authorizesubpoenas under this subsection when the court determines the subpoenas arenecessary for the enforcement of this Chapter. Subpoenas issued under thissubsection shall be enforceable by the court through contempt powers. Venueshall be with the Superior Court of Wake County for any person or governmentalunit covered by this Chapter, and personal jurisdiction may be asserted underG.S. 1‑75.4.

(s)        Reports. – Thenumber of complaints referred under this section shall be reported under G.S.138A‑10(a)(12).

(t)         ConcurrentJurisdiction. – Nothing in this section shall limit the jurisdiction of theCommittee or the Judicial Standards Commission with regards to legislative orjudicial misconduct, and jurisdiction under this section shall be concurrentwith the jurisdiction of the Committee and the Judicial Standards Commission.  (2006‑201, s. 1; 2007‑348,ss. 27‑30; 2008‑187, s. 21; 2008‑213, ss. 1(b), 57; 2008‑215,ss. 4, 5; 2009‑549, ss. 9, 10, 11.)

State Codes and Statutes

Statutes > North-carolina > Chapter_138A > GS_138A-12

§ 138A‑12.  Inquiries bythe Commission.

(a)        Jurisdiction. – TheCommission may receive complaints alleging unethical conduct by covered personsand legislative employees and shall conduct inquiries of complaints allegingunethical conduct by covered persons and legislative employees, as set forth inthis section.

(a1)      Notice ofAllegation. – Upon receipt by the Commission of a written allegation ofunethical conduct by a covered person or legislative employee, or theinitiation by the Commission of an inquiry into unethical conduct undersubsection (b) of this section, the Commission shall immediately notify thecovered person or legislative employee subject to the allegation or inquiry inwriting.

(b)        Institution ofProceedings. – On its own motion, in response to a signed and sworn complaintof any individual filed with the Commission, or upon the written request of anypublic servant or those responsible for the hiring, appointing, or supervisingof a public servant, the Commission shall conduct an inquiry into any of thefollowing:

(1)        The application oralleged violation of this Chapter.

(2)        For legislators, theapplication of alleged violations of Part 1 of Article 14 of Chapter 120 of theGeneral Statutes.

(3)        An alleged violationof the criminal law by a covered person in the performance of that individual'sofficial duties.

(4)        An alleged violationof G.S. 126‑14.

Upon receipt of a referral underG.S. 147‑64.6B or a report under G.S. 147‑64.6(c)(19), theCommission may conduct an inquiry under this section on its own motion.Allegations of violations of the Code of Judicial Conduct shall be referred tothe Judicial Standards Commission without investigation.

(b1)      Complaints on ItsOwn Motion. – An investigation initiated by the Commission on its own motion orupon written request of any public servant or those responsible for the hiring,appointing, or supervising of a public servant instituted under subsection (b)of this section shall be treated as a complaint for purposes of this sectionand need not be sworn or verified.

(c)        Complaint. –

(1)        A sworn complaintfiled under this Chapter shall state the name, address, and telephone number ofthe individual filing the complaint, the name and job title or appointiveposition of the covered person or legislative employee against whom thecomplaint is filed, and a concise statement of the nature of the complaint andspecific facts indicating that a violation of this Chapter or Chapter 120 ofthe General Statutes has occurred, the date the alleged violation occurred, andeither (i) that the contents of the complaint are within the knowledge of theindividual verifying the complaint, or (ii) the basis upon which the individualverifying the complaint believes the allegations to be true.

(2)        Except as providedin subsection (d) of this section, a complaint filed under this Chapter must befiled within two years of the date the complainant knew or should have known ofthe conduct upon which the complaint is based.

(3)        The Commission maydecline to accept, refer, or conduct an inquiry into any complaint that doesnot meet all of the requirements set forth in subdivision (1) of thissubsection, or the Commission may, in its sole discretion, request additionalinformation to be provided by the complainant within a specified period of timeof no less than seven business days.

(4)        In addition tosubdivision (3) of this subsection, the Commission may decline to accept,refer, or conduct an inquiry into a complaint if it determines that any of thefollowing apply:

a.         The complaint isfrivolous or brought in bad faith.

b.         The covered personor legislative employee and conduct complained of have already been the subjectof a prior complaint.

c.         The conductcomplained of is primarily a matter more appropriately and adequately addressedand handled by other federal, State, or local agencies or authorities,including law enforcement authorities. If other agencies or authorities areconducting an investigation of the same actions or conduct involved in acomplaint filed under this section, the Commission may stay its complaintinquiry pending final resolution of the other investigation.

(5)        The Commission shallsend a copy of the complaint to the covered person or legislative employee whois the subject of the complaint and the employing entity, within 30 days of thefiling.

(d)        Conduct of Inquiryof Complaints by the Commission. – The Commission shall conduct an inquiry intoall complaints properly before the Commission in a timely manner. TheCommission shall initiate an inquiry into a complaint within 60 days of thefiling of the complaint. The Commission is authorized to initiate inquiriesupon request of any member of the Commission if there is reason to believe thata covered person or legislative employee has or may have violated this Chapter.Commission‑initiated complaint inquiries under this section shall beinitiated within two years of the date the Commission knew of the conduct uponwhich the complaint is based, except when the conduct is material to thecontinuing conduct of the duties in office. In determining whether there isreason to believe that a violation has or may have occurred, a member of theCommission may take general notice of available information even if notformally provided to the Commission in the form of a complaint. The Commissionmay utilize the services of a hired investigator when conducting inquiries.

(e)        Covered Person andLegislative Employees Cooperation With Inquiry. – Covered persons andlegislative employees shall promptly and fully cooperate with the Commission inany Commission‑related inquiry. Failure to cooperate fully with theCommission in any inquiry shall be grounds for sanctions as set forth in G.S.138A‑45.

(f)         Dismissal ofComplaint After Preliminary Inquiry. – If the Commission determines at the endof its preliminary inquiry that (i) the individual who is the subject of thecomplaint is not a covered person or legislative employee subject to theCommission's jurisdiction and authority under this Chapter, or (ii) thecomplaint does not allege facts sufficient to constitute a violation within thejurisdiction of the Commission under subsection (b) of this section, theCommission shall dismiss the complaint.

(g)        CommissionInquiries. – If at the end of its preliminary inquiry, the Commissiondetermines to proceed with further inquiry into the conduct of a covered personor legislative employee, the Commission shall provide written notice to theindividual who filed the complaint and the covered person or legislativeemployee as to the fact of the inquiry and the charges against the coveredperson or legislative employee. The covered person or legislative employeeshall be given an opportunity to file a written response with the Commission.

(h)        Action onInquiries. – The Commission shall conduct inquiries into complaints to theextent necessary to either dismiss the complaint for lack of probable cause ofa violation under this section, or:

(1)        For public servants,decide to proceed with a hearing under subsection (i) of this section.

(2)        For legislators,except the Lieutenant Governor, refer the complaint to the Committee.

(3)        For judicialofficers, refer the complaint to the Judicial Standards Commission forcomplaints against justices and judges, to the senior resident superior courtjudge of the district or county for complaints against district attorneys, orto the chief district court judge for the district or county for complaintsagainst clerks of court.

(4)        For legislativeemployees, refer the complaint to the employing entity.

(i)         Hearing. –

(1)        The Commission shallgive full and fair consideration to all complaints received against a publicservant. If the Commission determines that the complaint cannot be resolvedwithout a hearing, or if the public servant requests a hearing, a hearing shallbe held.

(2)        The Commission shallsend a notice of the hearing to the complainant, and the public servant. Thenotice shall contain the time and place for a hearing on the matter, whichshall begin no less than 30 days and no more than 90 days after the date of thenotice.

(3)        The Commission shallmake available to the public servant or that public servant's private legalcounsel all documents or other evidence which are intended to be presented atthe hearing to the Commission or which a reasonable person would believe mightexculpate the accused public servant at least 30 days prior to the date of thehearing held in connection with the investigation of a complaint. Any documentsor other evidence discovered within less than 30 days of the hearing shall befurnished as soon as possible after discovery but prior to the hearing.

(4)        At any hearing heldby the Commission:

a.         Oral evidence shallbe taken only on oath or affirmation.

b.         The hearing shall beopen to the public, except for matters involving minors, personnel records, ormatters that could otherwise be considered in closed session under G.S. 143‑318.11.In any event, the deliberations by the Commission on a complaint may be held inclosed session.

c.         The public servantbeing investigated shall have the right to present evidence, call and examinewitnesses, cross‑examine witnesses, introduce exhibits, and berepresented by counsel.

(j)         Settlement ofInquiries. – The public servant who is the subject of the complaint and thestaff of the Commission may meet by mutual consent before the hearing todiscuss the possibility of settlement of the inquiry or the stipulation of anyissues, facts, or matters of law. Any proposed settlement of the inquiry issubject to the approval of the Commission.

(k)        Disposition ofInquiries. – After hearing, the Commission shall dispose of the matter in oneor more of the following ways:

(1)        If the Commissionfinds substantial evidence of an alleged violation of a criminal statute, theCommission shall refer the matter to the Attorney General for investigation andreferral to the district attorney for possible prosecution.

(2)        If the Commissionfinds that the alleged violation is not established by clear and convincingevidence, the Commission shall dismiss the complaint.

(3)        If the Commissionfinds that the alleged violation of this Chapter is established by clear andconvincing evidence, the Commission shall do one or more of the following:

a.         Issue a privateadmonishment to the public servant and notify the employing entity, ifapplicable. Such notification shall be treated as part of the personnel recordof the public servant.

b.         Refer the matter forappropriate action to the Governor and the employing entity that appointed oremployed the public servant or of which the public servant is a member.

c.         Refer the matter forappropriate action to the Chief Justice for judicial employees.

d.         Refer the matter tothe Principal Clerks of the House of Representatives and Senate of the GeneralAssembly for constitutional officers of the State.

e.         Refer the matter forappropriate action to the principal clerk of the house of the General Assemblythat elected the public servant for members of the Board of Governors and theState Board of Community Colleges.

(l)         Notice of Dismissal.– Upon the dismissal of a complaint under this section, the Commission shallprovide written notice of the dismissal to the individual who filed thecomplaint and the covered person or legislative employee against whom thecomplaint was filed. The Commission shall forward copies of complaints andnotices of dismissal of complaints against legislators to the Committee,against legislative employees to the employing entity for legislativeemployees, and against judicial officers to the Judicial Standards Commissionfor complaints against justices and judges, and the senior resident superiorcourt judge of the district or county for complaints against districtattorneys, or the chief district court judge of the district or county forcomplaints against clerks of court. The Commission shall also forward a copy ofthe notice of dismissal to the employing entity of the covered person againstwhom a complaint was filed if the employing entity received a copy of thecomplaint under subdivision (5) of subsection (c) of this section. Except asprovided in subsection (n) of this section, the complaint and notice ofdismissal are confidential and not public records.

(m)       Reports and Records.– The Commission shall render the results of its inquiry in writing. When a matteris referred under subdivision (h)(2) and (3), or subsection (k) of thissection, the Commission's report shall consist of the complaint, response, anddetailed results of its inquiry in support of the Commission's finding of aviolation under this Chapter.

(n)        Confidentiality. – Complaintsand responses filed with the Commission and reports and other investigativedocuments and records of the Commission connected to an inquiry under thissection, including information provided pursuant to G.S. 147‑64.6B orG.S. 147‑64.6(c)(19), shall be confidential and not matters of publicrecord, except as otherwise provided in this section or when the covered personor legislative employee under inquiry requests in writing that the complaint,response, and findings be made public. Once a hearing under this sectioncommences, the complaint, response, and all other documents offered at thehearing in conjunction with the complaint, not otherwise privileged orconfidential under law, shall be public records. If no hearing is held at suchtime as the Commission reports to the employing entity a recommendation ofsanctions, the complaint and response shall be made public.

(o)        Recommendations ofSanctions. – After referring a matter under subsection (k) of this section, ifrequested by the entity to which the matter was referred, the Commission mayrecommend sanctions or issue rulings as it deems necessary or appropriate toprotect the public interest and ensure compliance with this Chapter. Inrecommending appropriate sanctions, the Commission may consider the followingfactors:

(1)        The public servant'sprior experience in an agency or on a board and prior opportunities to learnthe ethical standards for a public servant as set forth in Article 4 of thisChapter, including those dealing with conflicts of interest.

(2)        The number of ethicsviolations.

(3)        The severity of theethics violations.

(4)        Whether the ethicsviolations involve the public servant's financial interest.

(5)        Whether the ethicsviolations were inadvertent or intentional.

(6)        Whether the publicservant knew or should have known that the improper conduct was a violation ofthis Chapter.

(7)        Whether the publicservant has previously been advised or warned by the Commission.

(8)        Whether the conductor situation giving rise to the ethics violation was pointed out to the publicservant in the Commission's Statement of Economic Interest evaluation letterissued under G.S. 138A‑24(e).

(9)        The public servant'smotivation or reason for the improper conduct or action, including whether theaction was for personal financial gain versus protection of the publicinterest.

In making recommendationsunder this subsection, if the Commission determines, after proper review andinvestigation, that sanctions are appropriate, the Commission may recommend anyaction it deems necessary to properly address and rectify any violation of thisChapter by a public servant, including removal of the public servant from thepublic servant's State position. Nothing in this subsection is intended, andshall not be construed, to give the Commission any independent civil, criminal,or administrative investigative or enforcement authority over covered persons,or other State employees or appointees.

(p)        Authority ofEmploying Entity. – Any action or failure to act by the Commission under thisChapter, except G.S. 138A‑13, shall not limit any authority of any of theapplicable employing entities to discipline the covered person or legislativeemployee.

(q)        ContinuingJurisdiction. – The Commission shall have continuing jurisdiction toinvestigate possible criminal violations of this Chapter for a period of oneyear following the date an individual, who was formerly a public servant orlegislative employee, ceases to be a public servant or legislative employee forany investigation that commenced prior to the date the public servant orlegislative employee ceases to be a public servant or legislative employee.

(r)        Subpoena Authority.– The Commission may petition the Superior Court of Wake County for theapproval to issue subpoenas and subpoenas duces tecum as necessary to conductinvestigations of alleged violations of this Chapter. The court shall authorizesubpoenas under this subsection when the court determines the subpoenas arenecessary for the enforcement of this Chapter. Subpoenas issued under thissubsection shall be enforceable by the court through contempt powers. Venueshall be with the Superior Court of Wake County for any person or governmentalunit covered by this Chapter, and personal jurisdiction may be asserted underG.S. 1‑75.4.

(s)        Reports. – Thenumber of complaints referred under this section shall be reported under G.S.138A‑10(a)(12).

(t)         ConcurrentJurisdiction. – Nothing in this section shall limit the jurisdiction of theCommittee or the Judicial Standards Commission with regards to legislative orjudicial misconduct, and jurisdiction under this section shall be concurrentwith the jurisdiction of the Committee and the Judicial Standards Commission.  (2006‑201, s. 1; 2007‑348,ss. 27‑30; 2008‑187, s. 21; 2008‑213, ss. 1(b), 57; 2008‑215,ss. 4, 5; 2009‑549, ss. 9, 10, 11.)


State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_138A > GS_138A-12

§ 138A‑12.  Inquiries bythe Commission.

(a)        Jurisdiction. – TheCommission may receive complaints alleging unethical conduct by covered personsand legislative employees and shall conduct inquiries of complaints allegingunethical conduct by covered persons and legislative employees, as set forth inthis section.

(a1)      Notice ofAllegation. – Upon receipt by the Commission of a written allegation ofunethical conduct by a covered person or legislative employee, or theinitiation by the Commission of an inquiry into unethical conduct undersubsection (b) of this section, the Commission shall immediately notify thecovered person or legislative employee subject to the allegation or inquiry inwriting.

(b)        Institution ofProceedings. – On its own motion, in response to a signed and sworn complaintof any individual filed with the Commission, or upon the written request of anypublic servant or those responsible for the hiring, appointing, or supervisingof a public servant, the Commission shall conduct an inquiry into any of thefollowing:

(1)        The application oralleged violation of this Chapter.

(2)        For legislators, theapplication of alleged violations of Part 1 of Article 14 of Chapter 120 of theGeneral Statutes.

(3)        An alleged violationof the criminal law by a covered person in the performance of that individual'sofficial duties.

(4)        An alleged violationof G.S. 126‑14.

Upon receipt of a referral underG.S. 147‑64.6B or a report under G.S. 147‑64.6(c)(19), theCommission may conduct an inquiry under this section on its own motion.Allegations of violations of the Code of Judicial Conduct shall be referred tothe Judicial Standards Commission without investigation.

(b1)      Complaints on ItsOwn Motion. – An investigation initiated by the Commission on its own motion orupon written request of any public servant or those responsible for the hiring,appointing, or supervising of a public servant instituted under subsection (b)of this section shall be treated as a complaint for purposes of this sectionand need not be sworn or verified.

(c)        Complaint. –

(1)        A sworn complaintfiled under this Chapter shall state the name, address, and telephone number ofthe individual filing the complaint, the name and job title or appointiveposition of the covered person or legislative employee against whom thecomplaint is filed, and a concise statement of the nature of the complaint andspecific facts indicating that a violation of this Chapter or Chapter 120 ofthe General Statutes has occurred, the date the alleged violation occurred, andeither (i) that the contents of the complaint are within the knowledge of theindividual verifying the complaint, or (ii) the basis upon which the individualverifying the complaint believes the allegations to be true.

(2)        Except as providedin subsection (d) of this section, a complaint filed under this Chapter must befiled within two years of the date the complainant knew or should have known ofthe conduct upon which the complaint is based.

(3)        The Commission maydecline to accept, refer, or conduct an inquiry into any complaint that doesnot meet all of the requirements set forth in subdivision (1) of thissubsection, or the Commission may, in its sole discretion, request additionalinformation to be provided by the complainant within a specified period of timeof no less than seven business days.

(4)        In addition tosubdivision (3) of this subsection, the Commission may decline to accept,refer, or conduct an inquiry into a complaint if it determines that any of thefollowing apply:

a.         The complaint isfrivolous or brought in bad faith.

b.         The covered personor legislative employee and conduct complained of have already been the subjectof a prior complaint.

c.         The conductcomplained of is primarily a matter more appropriately and adequately addressedand handled by other federal, State, or local agencies or authorities,including law enforcement authorities. If other agencies or authorities areconducting an investigation of the same actions or conduct involved in acomplaint filed under this section, the Commission may stay its complaintinquiry pending final resolution of the other investigation.

(5)        The Commission shallsend a copy of the complaint to the covered person or legislative employee whois the subject of the complaint and the employing entity, within 30 days of thefiling.

(d)        Conduct of Inquiryof Complaints by the Commission. – The Commission shall conduct an inquiry intoall complaints properly before the Commission in a timely manner. TheCommission shall initiate an inquiry into a complaint within 60 days of thefiling of the complaint. The Commission is authorized to initiate inquiriesupon request of any member of the Commission if there is reason to believe thata covered person or legislative employee has or may have violated this Chapter.Commission‑initiated complaint inquiries under this section shall beinitiated within two years of the date the Commission knew of the conduct uponwhich the complaint is based, except when the conduct is material to thecontinuing conduct of the duties in office. In determining whether there isreason to believe that a violation has or may have occurred, a member of theCommission may take general notice of available information even if notformally provided to the Commission in the form of a complaint. The Commissionmay utilize the services of a hired investigator when conducting inquiries.

(e)        Covered Person andLegislative Employees Cooperation With Inquiry. – Covered persons andlegislative employees shall promptly and fully cooperate with the Commission inany Commission‑related inquiry. Failure to cooperate fully with theCommission in any inquiry shall be grounds for sanctions as set forth in G.S.138A‑45.

(f)         Dismissal ofComplaint After Preliminary Inquiry. – If the Commission determines at the endof its preliminary inquiry that (i) the individual who is the subject of thecomplaint is not a covered person or legislative employee subject to theCommission's jurisdiction and authority under this Chapter, or (ii) thecomplaint does not allege facts sufficient to constitute a violation within thejurisdiction of the Commission under subsection (b) of this section, theCommission shall dismiss the complaint.

(g)        CommissionInquiries. – If at the end of its preliminary inquiry, the Commissiondetermines to proceed with further inquiry into the conduct of a covered personor legislative employee, the Commission shall provide written notice to theindividual who filed the complaint and the covered person or legislativeemployee as to the fact of the inquiry and the charges against the coveredperson or legislative employee. The covered person or legislative employeeshall be given an opportunity to file a written response with the Commission.

(h)        Action onInquiries. – The Commission shall conduct inquiries into complaints to theextent necessary to either dismiss the complaint for lack of probable cause ofa violation under this section, or:

(1)        For public servants,decide to proceed with a hearing under subsection (i) of this section.

(2)        For legislators,except the Lieutenant Governor, refer the complaint to the Committee.

(3)        For judicialofficers, refer the complaint to the Judicial Standards Commission forcomplaints against justices and judges, to the senior resident superior courtjudge of the district or county for complaints against district attorneys, orto the chief district court judge for the district or county for complaintsagainst clerks of court.

(4)        For legislativeemployees, refer the complaint to the employing entity.

(i)         Hearing. –

(1)        The Commission shallgive full and fair consideration to all complaints received against a publicservant. If the Commission determines that the complaint cannot be resolvedwithout a hearing, or if the public servant requests a hearing, a hearing shallbe held.

(2)        The Commission shallsend a notice of the hearing to the complainant, and the public servant. Thenotice shall contain the time and place for a hearing on the matter, whichshall begin no less than 30 days and no more than 90 days after the date of thenotice.

(3)        The Commission shallmake available to the public servant or that public servant's private legalcounsel all documents or other evidence which are intended to be presented atthe hearing to the Commission or which a reasonable person would believe mightexculpate the accused public servant at least 30 days prior to the date of thehearing held in connection with the investigation of a complaint. Any documentsor other evidence discovered within less than 30 days of the hearing shall befurnished as soon as possible after discovery but prior to the hearing.

(4)        At any hearing heldby the Commission:

a.         Oral evidence shallbe taken only on oath or affirmation.

b.         The hearing shall beopen to the public, except for matters involving minors, personnel records, ormatters that could otherwise be considered in closed session under G.S. 143‑318.11.In any event, the deliberations by the Commission on a complaint may be held inclosed session.

c.         The public servantbeing investigated shall have the right to present evidence, call and examinewitnesses, cross‑examine witnesses, introduce exhibits, and berepresented by counsel.

(j)         Settlement ofInquiries. – The public servant who is the subject of the complaint and thestaff of the Commission may meet by mutual consent before the hearing todiscuss the possibility of settlement of the inquiry or the stipulation of anyissues, facts, or matters of law. Any proposed settlement of the inquiry issubject to the approval of the Commission.

(k)        Disposition ofInquiries. – After hearing, the Commission shall dispose of the matter in oneor more of the following ways:

(1)        If the Commissionfinds substantial evidence of an alleged violation of a criminal statute, theCommission shall refer the matter to the Attorney General for investigation andreferral to the district attorney for possible prosecution.

(2)        If the Commissionfinds that the alleged violation is not established by clear and convincingevidence, the Commission shall dismiss the complaint.

(3)        If the Commissionfinds that the alleged violation of this Chapter is established by clear andconvincing evidence, the Commission shall do one or more of the following:

a.         Issue a privateadmonishment to the public servant and notify the employing entity, ifapplicable. Such notification shall be treated as part of the personnel recordof the public servant.

b.         Refer the matter forappropriate action to the Governor and the employing entity that appointed oremployed the public servant or of which the public servant is a member.

c.         Refer the matter forappropriate action to the Chief Justice for judicial employees.

d.         Refer the matter tothe Principal Clerks of the House of Representatives and Senate of the GeneralAssembly for constitutional officers of the State.

e.         Refer the matter forappropriate action to the principal clerk of the house of the General Assemblythat elected the public servant for members of the Board of Governors and theState Board of Community Colleges.

(l)         Notice of Dismissal.– Upon the dismissal of a complaint under this section, the Commission shallprovide written notice of the dismissal to the individual who filed thecomplaint and the covered person or legislative employee against whom thecomplaint was filed. The Commission shall forward copies of complaints andnotices of dismissal of complaints against legislators to the Committee,against legislative employees to the employing entity for legislativeemployees, and against judicial officers to the Judicial Standards Commissionfor complaints against justices and judges, and the senior resident superiorcourt judge of the district or county for complaints against districtattorneys, or the chief district court judge of the district or county forcomplaints against clerks of court. The Commission shall also forward a copy ofthe notice of dismissal to the employing entity of the covered person againstwhom a complaint was filed if the employing entity received a copy of thecomplaint under subdivision (5) of subsection (c) of this section. Except asprovided in subsection (n) of this section, the complaint and notice ofdismissal are confidential and not public records.

(m)       Reports and Records.– The Commission shall render the results of its inquiry in writing. When a matteris referred under subdivision (h)(2) and (3), or subsection (k) of thissection, the Commission's report shall consist of the complaint, response, anddetailed results of its inquiry in support of the Commission's finding of aviolation under this Chapter.

(n)        Confidentiality. – Complaintsand responses filed with the Commission and reports and other investigativedocuments and records of the Commission connected to an inquiry under thissection, including information provided pursuant to G.S. 147‑64.6B orG.S. 147‑64.6(c)(19), shall be confidential and not matters of publicrecord, except as otherwise provided in this section or when the covered personor legislative employee under inquiry requests in writing that the complaint,response, and findings be made public. Once a hearing under this sectioncommences, the complaint, response, and all other documents offered at thehearing in conjunction with the complaint, not otherwise privileged orconfidential under law, shall be public records. If no hearing is held at suchtime as the Commission reports to the employing entity a recommendation ofsanctions, the complaint and response shall be made public.

(o)        Recommendations ofSanctions. – After referring a matter under subsection (k) of this section, ifrequested by the entity to which the matter was referred, the Commission mayrecommend sanctions or issue rulings as it deems necessary or appropriate toprotect the public interest and ensure compliance with this Chapter. Inrecommending appropriate sanctions, the Commission may consider the followingfactors:

(1)        The public servant'sprior experience in an agency or on a board and prior opportunities to learnthe ethical standards for a public servant as set forth in Article 4 of thisChapter, including those dealing with conflicts of interest.

(2)        The number of ethicsviolations.

(3)        The severity of theethics violations.

(4)        Whether the ethicsviolations involve the public servant's financial interest.

(5)        Whether the ethicsviolations were inadvertent or intentional.

(6)        Whether the publicservant knew or should have known that the improper conduct was a violation ofthis Chapter.

(7)        Whether the publicservant has previously been advised or warned by the Commission.

(8)        Whether the conductor situation giving rise to the ethics violation was pointed out to the publicservant in the Commission's Statement of Economic Interest evaluation letterissued under G.S. 138A‑24(e).

(9)        The public servant'smotivation or reason for the improper conduct or action, including whether theaction was for personal financial gain versus protection of the publicinterest.

In making recommendationsunder this subsection, if the Commission determines, after proper review andinvestigation, that sanctions are appropriate, the Commission may recommend anyaction it deems necessary to properly address and rectify any violation of thisChapter by a public servant, including removal of the public servant from thepublic servant's State position. Nothing in this subsection is intended, andshall not be construed, to give the Commission any independent civil, criminal,or administrative investigative or enforcement authority over covered persons,or other State employees or appointees.

(p)        Authority ofEmploying Entity. – Any action or failure to act by the Commission under thisChapter, except G.S. 138A‑13, shall not limit any authority of any of theapplicable employing entities to discipline the covered person or legislativeemployee.

(q)        ContinuingJurisdiction. – The Commission shall have continuing jurisdiction toinvestigate possible criminal violations of this Chapter for a period of oneyear following the date an individual, who was formerly a public servant orlegislative employee, ceases to be a public servant or legislative employee forany investigation that commenced prior to the date the public servant orlegislative employee ceases to be a public servant or legislative employee.

(r)        Subpoena Authority.– The Commission may petition the Superior Court of Wake County for theapproval to issue subpoenas and subpoenas duces tecum as necessary to conductinvestigations of alleged violations of this Chapter. The court shall authorizesubpoenas under this subsection when the court determines the subpoenas arenecessary for the enforcement of this Chapter. Subpoenas issued under thissubsection shall be enforceable by the court through contempt powers. Venueshall be with the Superior Court of Wake County for any person or governmentalunit covered by this Chapter, and personal jurisdiction may be asserted underG.S. 1‑75.4.

(s)        Reports. – Thenumber of complaints referred under this section shall be reported under G.S.138A‑10(a)(12).

(t)         ConcurrentJurisdiction. – Nothing in this section shall limit the jurisdiction of theCommittee or the Judicial Standards Commission with regards to legislative orjudicial misconduct, and jurisdiction under this section shall be concurrentwith the jurisdiction of the Committee and the Judicial Standards Commission.  (2006‑201, s. 1; 2007‑348,ss. 27‑30; 2008‑187, s. 21; 2008‑213, ss. 1(b), 57; 2008‑215,ss. 4, 5; 2009‑549, ss. 9, 10, 11.)