September 17, 1996
Wren Gay Davis, Regulatory Issues Chairman North Carolina Hearing Aid Dealers & Fitters Board 401 Oberlin Road, Suite 111 Raleigh, North Carolina 27605
RE: Advisory opinion; North Carolina Hearing Aid Dealers & Fitters Board; N.C.Gen.Stat. §§ 93D-13, 132-1, and 132-6; 21 NCAC 22L .001
Dear Ms. Davis:
The following is submitted in response to your letter asking for an opinion on three questions relating to the North Carolina State Hearing Aid Dealers and Fitters Board’s Committee on Investigations rule, 21 NCAC 22L .001.
You ask first what is a private reprimand and whether it conflicts with the "new" public records law. Before reaching that question, however, one point should be clarified. In actual fact, the public records law of this State is not new. It was enacted in 1935, and the original act both defined the term "public records" and gave the public a right to inspect anything that was a public record. See 1935 N.C. Sess. Laws 265 § 1. The public records law is generally codified as Chapter 132 of the General Statutes. See N.C.Gen.Stat. §§ 132-1 et seq. (1995). The chapter was amended during the 1995 legislative session, but these amendments dealt primarily with procedural and related issues. See 1995 N.C. Sess. Laws 388. The amendments neither changed the definition of the term "public record" nor, with one possible exception, made any record subject to inspection that was not previously available. The possible exception clarified that an agency cannot refuse to permit inspection of a record that would otherwise be subject to inspection on the grounds that it contains both confidential and nonconfidential information. The agency must provide a version with the confidential information removed. See 1995 N.C. Sess. Laws 388 § 2 (codified at N.C.Gen.Stat. § 132-6 (1995)).
N.C.Gen.Stat. § 93D-13 permits the Board "in its discretion [to] administer the punishment of private reprimand, suspension of license for a fixed period or revocation of license as the case may warrant in their [sic] judgment" for a violation of the Board’s rules or for any of a list of other causes set out in that section. N.C.Gen.Stat. § 93D-13 (1991). The quoted portion of the statute has not been changed since it was enacted in 1969. The term "private reprimand" is not, and apparently never has been, defined in Chapter 93D or any other statute that might reasonably apply to the Board (for example, Chapter 12 (which contains definitions applicable throughout the General Statutes), Chapter 93B (on occupational licensing boards generally), or Chapter 150B (the Administrative Procedures Act) of the General Statutes). The Board’s rules contain no definition. The term presumably means a reproof or censure that is used as a form of licensee discipline ("punishment") and is "private." Other than the mere use of the adjective "private," however, Chapter 93D contains no provision specifying whether such a reprimand is or is not a public record available for inspection, which appears to be the actual concern behind your question.
The term "public record" has been defined since 1975 as all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, 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. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.
N.C.Gen.Stat. § 132-1 (1995). Prior to 1975, the definition of "public record" was "all written or printed books, papers, letters, documents and maps made and received in pursuance of law by the public offices of the State and its counties, municipalities and other subdivisions of government in the transaction of business." 1935 N.C. Sess. Laws 265 § 1. A written reprimand issued by the Board pursuant to its statutory authority would apparently always have been a public record subject to inspection by the public unless the use of the term "private" creates an exception to the public’s right to inspect.
The courts of this State have been reluctant to find exceptions to the public records law in the absence of an express enactment by the General Assembly. E.g., News and Observer Publishing Company v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Although "private" can certainly mean "confidential" or "secret," it has other meanings. For example, a "private" act enacted by the legislature was one that affected only a limited number of persons, see McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961); it was not a secret or confidential act. Although there do not appear to be any other references to "private reprimand" in the statutes today, those for two other occupational licensing boards contained a reference to the term in 1969 when Chapter 93D was enacted. These were the North Carolina State Board of Examiners in Optometry and the North Carolina State Bar. The term "private reprimand" was not defined in their statutes either.
The State Bar, however, had rules on the issuance and publication of its forms of discipline, including the private reprimand. The Bar not only kept its own record of suspensions and disbarments, it also transmitted them to both the Superior Court and the Supreme Court of North Carolina. In contrast, private reprimands were not broadcasted, or publicized, in that fashion but were delivered personally and read to the recipient. Nevertheless, the private reprimand was apparently not truly confidential; the rules specifically required the Secretary to "spread upon his minutes as a final judgment of the Council, the order of private reprimand, the name of the member of the Council to deliver the same, and the time and place therefor." Rules of the State Bar, Art. VI § 5 (1961) and Art. IX § 2 (1962) (reprinted in 4A General Statutes of North Carolina (1955 and Supp. 1969)).
Although the State Bar is sufficiently different from other licensing boards that its rules and practices are not always a useful precedent for them, it is nevertheless one of the oldest, largest, and most visible occupational licensing agencies in North Carolina and has long been available as a model. When the General Assembly used a term already found in the Bar’s statutes when it created a new board, in the same context, without qualifying or otherwise defining the term, it seems reasonable to conclude that it intended the same meaning in both places. If a "private" reprimand was not the same as a "secret" reprimand in one place, the General Assembly is not likely to have intended that meaning in the other. This conclusion is also supported by the fact that at the same time, the General Assembly also required the Board to distribute annually to certain designated public officials a list of licensees, which would necessarily reflect current suspensions and revocations and so "publicize" them in a manner similar to the State Bar’s treatment of suspensions and disbarments. See N.C.Gen.Stat. § 93D-3 (1991); see also N.C.Gen.Stat. § 93B-3 (1993). Moreover, where the General Assembly intends to exempt a record from inspection, it generally uses very specific language. E.g., N.C.Gen.Stat. §§ 7A-675 (1995), 20-7 (1993 and Supp. 1995), 48-9-102 (1995), 126-24 (1995), 130A-131.17 (1995). Given the reluctance of the courts to find exceptions to the public records law, the fact that the term "private reprimand" apparently did not mean "secret" in at least one other context at the time the Board’s statutes were enacted, and the extremely clear language found in other statutory exemptions from the public records law, it appears that a private reprimand issued by the Board would be a subject to inspection on request by the public.
Your second question is what happens when, pursuant to paragraph (i) of your rule, a private reprimand is refused and whether it is removed from the licensee’s official record at that point. The provision in question, 21 NCAC 22L .0001(i), states:
If probable cause is found, but it is determined that a disciplinary hearing is not warranted, the Board may issue a private reprimand to the accused party. A statement of such reprimand shall be mailed to the accused party. Within 20 days after receipt of the reprimand, the accused party may refuse the reprimand. Such refusal shall be addressed to the Committee and filed with the Secretary for the Board. The legal counsel for the Board may thereafter prepare, file, and serve a Notice of Hearing as necessary. If the letter or reprimand is accepted, a record of the reprimand shall be maintained in the office of the Board.
21 NCAC 22L .0001 (April 1996). A private reprimand issued under this paragraph is in effect a settlement offer to the licensee. If it is accepted, it is effective as a disciplinary measure against the licensee and both the Board and the licensee avoid the expense of litigating a contested case. If the licensee refuses the offer (the private reprimand), however, it has the same status as any other settlement offer that is refused. It is not effective. If the Board wishes to proceed to impose some sort of discipline in that event, it must take further action. A private reprimand issued and refused under this provision could be retained to the same extent as any failed settlement offer as part of the documents connected with the particular litigation, but it should not be treated as an effective private reprimand.
Your third question is whether the Board must publish and update what is acceptable practice as that term is used in 21 NCAC 22L .0001(k). This question is not completely clear. Standards of "acceptable professional practice" are certainly found in the Board’s statutes and rules. The basis for any discipline needs to be found in one of those two places. The State, however, causes both the statutes and the rules of administrative agencies to be published; the Board is not required to produce a separate publication. See N.C.Gen.Stat. §§ 150B-21.18 (1995) and 164-10 (1993). If the question refers to matters of professional practice that are not found in the Board’s statutes or rules, please provide specific examples.
If this office can be of further assistance in this matter, please do not hesitate to contact us.
Ann Reed Senior Deputy Attorney General
P. Bly Hall
Assistant Attorney General