July 24, 1998
The Honorable R. L. Clark North Carolina State Senate Room 118, Legislative Building Raleigh, North Carolina 27601
RE: Advisory Opinion; Department Heads to Report Possible Violations of Criminal Statutes involving Misuse of State Property to State Bureau of Investigation; N.C.G.S. § 114-15.1
Dear Senator Clark:
I reply to your July 14, 1998 letter to the Attorney General concerning your June 16, 1998 letter to E. Norris Tolson, Secretary of the North Carolina Department of Transportation. You request our opinion on the meaning and intent of N.C.G.S. § 114-15.1, particularly as that statute applies to department heads who receive information alleging criminal misuse of state property.
N.C.G.S. § 114-15.1 requires that when the head of any state department receives "any information or evidence" of criminal misuse of any state-owned personal property, the head of the department "shall within a reasonable time, but no later than 10 days from receipt thereof, report such information in writing to the Director of the State Bureau of Investigation."
No court has ever interpreted § 114-15.1. Nor has our office ever issued a formal or advisory opinion on its meaning. Since the statute was enacted in 1977, I have on numerous occasions orally advised department heads whenever they receive any credible information or evidence that state property has been criminally abused or misused they should notify the Director of the SBI in writing as soon as possible and within the 10 day period. Although the statute is somewhat ambiguous in this regard, I have always advised that the department head may exercise some judgment that the information or evidence has some credibility, although the threshold is admittedly low.
As you and I discussed in our telephone conversation this past Tuesday, July 21, another ambiguity in the statute is whether it applies to members of the General Assembly. The reporting requirements of the statute apply to "all state employees." Although I do not believe that the Legislature intended to include its members within the broad classification of "all state employees," it is a possible interpretation.
As we further discussed in our telephone conversation, the SBI was made aware on July 1 of the allegations contained in your June 16 letter and is presently investigating those allegations. Moreover, Secretary Tolson responded to your inquiry by letter dated July 15, 1998, and copied SBI Director Coman.
In the future, it would be our advice that any time a department head receives an allegation of possible criminal misuse of state-owned property, the threshold determination of credibility should be made within the 10-day period referenced in the statute. If the allegation appears credible, the Director of the SBI should be notified in writing immediately. If the department head is unable to determine whether the allegation is credible or not within 10 days, the SBI still should be notified of the allegation within the 10-day period.
I hope this answers your inquiry. Should you have any further questions, please feel free to contact us.
signed by:
Andrew A. Vanore, Jr. General Counsel