June 15, 2009
Laura B. Luger
Vice President and General Counsel
The University of North Carolina
Post Office Box 2688
Chapel Hill, North Carolina 27515-2688
Re: Advisory Opinion: Public Records Act; Accrued Leave Balances
Dear Ms. Luger:
You have asked whether the following categories of employee information are public information which should be disclosed upon request:
1. Sick leave balances;
2. Vacation leave balances;
3. Compensatory time accrued; and
4. Bonus leave balances
It is our understanding that a request has been made for this information as applicable to all employees of the University system.
The North Carolina Public Records Act, Chapter 132 of the General Statutes, requires every custodian of public records to allow for their inspection at reasonable times and under reasonable supervision, and to furnish copies upon payment of fees as prescribed by law. Public records, as defined by NCGS §132-1, are records "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions, including public universities." Therefore, absent a specific statutory exception, the University system is required to provide the requested public records. See News & Observer Publishing Co. v. Poole, 330 N.C. 465 (1992).
One such exception is found in NCGS §126-22, which restricts the release of "personnel files" of state employees. "Personnel File" is defined as employment-related or personal information gathered by an employer related to an individual’s "application, selection, promotion, demotion, transfer, leave, salary, contract for employment, benefits, suspension, performance evaluation, disciplinary actions, and termination." Confidential personnel file information also includes an individual’s home address, social security number, medical history, personal financial data, marital status, dependents, and beneficiaries.
This exception, however, must be applied in conjunction with NCGS §126-23 which requires that certain employee information be kept open for public inspection. With respect to each employee, a public record must be maintained showing name, age, date of original employment or appointment to State service, the terms of any employment contract, current position, title, current salary, date and amount of most recent increase or decrease in salary, date of most recent promotion, demotion, transfer, suspension, separation, or other change in position classification, and the office or station to which the employee is currently assigned. In 2007, an amendment to this section further defined the employee information required to be kept open by adding:
For the purposes of this section, the term "salary" includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity.
S.L. 2007-508, s. 4.
In view of these provisions, responding to your question requires a determination as to whether sick leave, vacation leave, compensatory time and bonus leave were intended by the legislature to be encompassed within the definition of "salary" included in the 2007 amendments to the statute. More specifically, is leave time a "benefit" or "other form of compensation" and therefore within the definition of "salary"? It would appear to be axiomatic that paid leave time is an employee benefit. Furthermore, there are several provisions of North Carolina law which reference leave time as a form of compensation or a benefit. See, e.g. NCGS §135-1(7a)(a)(4) ("compensation" shall include payout of vacation leave); NCGS §135-4(e) (sick leave shall be factored into retirement benefit calculations); S.L. 2002-126, s. 28.3B (Benefits under this section [Family Medical Leave] are supplemental to any benefit to which an employee may otherwise be entitled). It is therefore our opinion that leave time is a benefit within the definition of "salary" in NCGS §126-23 and required to be kept open for public inspection.
You also ask, however, whether the statute requires "leave balances" to be made public. You note that inasmuch as NCGS §126-23 requires that only "current salary" be kept public, an argument can be made that the legislative intent in enacting the 2007 amendment defining "salary" was to require that only "current benefits" be open for inspection. You therefore suggest that accrued leave balances are not "current benefits" and that only amounts of leave earned during a "current" period are required to be kept open.
We are not aware of any case law, regulation, or other guidance which answers this question. Therefore, we agree that under standard principles of statutory construction a plain reading of the 2007 amendment dictates that only "current benefits" must be available for inspection. However, it is our view that "current benefits" includes the amount of accumulated leave time that an employee has available for use at the time the inspection is requested. As such, it is our opinion that NCGS §126-23 requires the University system to provide the accumulated leave time for the employees in question.
In conclusion, it is the opinion of this Office that leave time is a benefit required to be kept open for public inspection in accordance with NCGS §126-23. Sick leave balances, vacation leave balances, bonus leave balances, and compensatory time accrued are therefore current benefits which should be made available for inspection and copying upon request. Please contact me if further assistance is required.
Very truly yours,
Grayson G. Kelley
Chief Deputy Attorney General