§ 120-103.1 — Investigations by the Committee

North Carolina § 120-103.1

• Jurisdiction: North Carolina
• Ch. 120: General Assembly
• Art. 14: Legislative Ethics Act

Text

(a) Institution of Proceedings. - On its own motion, upon receipt by the Committee of a signed and sworn, under oath or affirmation, allegation of unethical conduct by a legislator from a registered voter or upon receipt of a referral of a complaint from the State Ethics Commission under Chapter 138A of the General Statutes, the Committee shall conduct an investigation into any of the following:
(1) The application or alleged violation of Chapter 138A of the General Statutes.
(2) Repealed by Session Laws 2007-348, s. 2, effective August 9, 2007.
(3) The alleged violation of the criminal law by a legislator while acting in the legislator's official capacity as a participant in the lawmaking process.
(a1) Complaints on Its Own Motion. - An investigation initiated by the Committee on its own motion instituted under subsection (a) of this section shall be treated as a complaint for purposes of this section and need not be sworn or verified. Any requirements under this section that require the Committee to notify the complainant shall not apply to complaints taken up by the Committee on its own motion. If the Committee is acting on a complaint referred to the Committee by the Commission where the Commission was acting on its own motion, the Committee shall be deemed to have satisfied the notice requirements by providing notice to the Commission. Any notice provided to the Commission under this section is confidential and shall not be disclosed by the Commission.
(a2) Notice of Allegation. - Upon receipt by the Committee of a complaint or the referral of a complaint, or upon the initiation by the Committee of an inquiry under subsection (a1) of this section, the Committee shall immediately provide written notice to the legislator who is the subject of the allegation or inquiry.
(b) Initial Consideration of a Complaint. - All of the following shall apply to the Committee's initial consideration of a complaint:
(1) The Committee may, in its sole discretion, request additional information to be provided by the complainant within a specified period of time of no less than seven business days.
(2) The Committee may decline to accept or further investigate a complaint if it determines that any of the following apply:
a. The complaint is frivolous or brought in bad faith.
b. The individuals and conduct complained of have already been the subject of a prior complaint.
c. The conduct complained of is primarily a matter more appropriately and adequately addressed and handled by other federal, State, or local agencies or authorities, including law enforcement authorities. If other agencies or authorities are conducting an investigation of the same actions or conduct involved in a complaint filed under this section, the Committee may stay its complaint investigation pending final resolution of the other investigation.
(3) Repealed by Session Laws 2009-549, s. 1, effective August 28, 2009.
(4) Notwithstanding any other provisions of this section, complaints filed with the Committee concerning the conduct of the Lieutenant Governor shall be referred to the State Ethics Commission under Chapter 138A of the General Statutes without investigation by the Committee.
(c) Investigation of Complaints. - The Committee shall investigate all complaints properly before the Committee in a timely manner. If the Committee receives a complaint or a referral of a complaint while the General Assembly is in Regular Session, the Committee shall proceed under this subsection within 10 business days of receiving the complaint or the referral. If the Committee receives a complaint or a referral of a complaint at any other time, the Committee shall proceed under this subsection within 20 business days of receiving the complaint or the referral. Within the applicable time period, the Committee shall do at least one of the following:
(1) Dismiss the complaint.
(2) Initiate a preliminary investigation of the complaint.
(3) Refer the complaint for further investigation and a hearing in accordance with subsection (i) of this section.
(4) Make recommendations to the house in which the legislator who is the subject of the complaint is a member without further investigation, if either of the following apply:
a. The referral is from the State Ethics Commission.
b. The referral alleges conduct that may be unethical but the Committee determines it does not have jurisdiction under subsection (a) of this section.
(c1) Preliminary Investigation. - The Committee may initiate a preliminary investigation if it determines that the complaint alleges facts sufficient to constitute a violation of matters over which the Committee has jurisdiction as set forth in subsection (a) of this section. In determining whether there is reason to believe that a violation has or may have occurred, a member of the Committee may take general notice of available information even if not formally provided to the Committee in the form of a complaint. The Committee may utilize the services of a hired investigator when conducting investigations. The Committee shall provide written notification of the initiation of a preliminary investigation under this subsection to the legislator who is the subject of the complaint within 10 days of the date of the Committee's decision to initiate an investigation. The Committee shall conclude the preliminary inquiry within 20 business days of initiating the preliminary investigation but may extend the amount of time if the Committee determines it does not have sufficient information to proceed under subsection (g) or (h) of this section.
(d) Repealed by Session Laws 2009-549, s. 1, effective August 28, 2009.
(e) Investigation by the Committee of Matters Other Than Complaints. -
The Committee may investigate matters other than complaints properly within the jurisdiction of the Committee under subsection (a) of this section. For any investigation initiated under this subsection, the Committee may take any action it deems necessary or appropriate to further compliance with this Article, including the initiation of a complaint, the issuance of an advisory opinion under G.S. 120-104, or referral to appropriate law enforcement or other authorities pursuant to subdivision (j)(2) of this section.
(f) Legislator Cooperation with Investigation. - Legislators shall promptly and fully cooperate with the Committee in any Committee-related investigation. Failure to cooperate fully with the Committee in any investigation shall be grounds for sanctions under this section.
(g) Dismissal of Complaint After Preliminary Investigation. - If the Committee determines at the end of its preliminary investigation that the complaint does not allege facts sufficient to constitute a violation of matters over which the Committee has jurisdiction as set forth in subsection (a) of this section, the Committee shall dismiss the complaint and provide written notice of the dismissal to the individual who filed the complaint and to the legislator against whom the complaint was filed.
(h) Probable Cause Determination and Notice of Hearing. - If at the end of its preliminary investigation, the Committee determines that probable cause exists to proceed with further investigation into the conduct of a legislator, the Committee shall determine the charges that will be the basis for further investigation of the complaint and provide written notice to the legislator that the Committee will conduct further investigation and the charges against the legislator. The legislator shall be given an opportunity to file a written response to the charges with the Committee.
The Committee shall give full and fair consideration to the complaint and to the legislator's response to the complaint. Except as provided in subsection (h2) of this section, if the Committee determines that the complaint cannot be resolved without further investigation and a hearing, or if the legislator requests a public hearing, the Committee shall hold a hearing on the charges against the legislator. The Committee shall send a notice of the hearing to the complainant and to the legislator. The notice shall contain the charges against the legislator and the time and place for the hearing. The Committee shall begin the hearing no sooner than 15 days and no later than 90 days after the date of the notice of hearing.
(h1) Repealed by Session Laws 2013-146, s. 1, effective June 19, 2013.
(h2) Private Admonishment. - The Committee may issue a private admonishment without holding a hearing, subject to the requirements of subsection (k) of this section.
(i) Hearing. - All the following shall apply to any hearing on a complaint held by the Committee:
(1)-(3) Repealed by Session Laws 2009-549, s. 1, effective August 28, 2009.
(4) Oral evidence shall be taken only on oath or affirmation.
(5) The hearing shall be open to the public, except for matters that could otherwise be considered in closed session under G.S. 143-318.11, matters involving minors, or matters involving a personnel record. In any event, the deliberations by the Committee on a complaint may be held in closed session.
(6) The legislator being investigated shall have the right to present evidence, call and examine witnesses, cross-examine witnesses, introduce exhibits, and be represented by counsel.
(j) Disposition of Investigations After Hearing. - Except as permitted under subsections (b) and (g) of this section, after the hearing, the Committee shall dispose of the matter before the Committee under this section, in any of the following ways:
(1) If the Committee finds that the alleged violation is not established by clear and convincing evidence, the Committee shall dismiss the complaint.
(2) If the Committee finds that the alleged violation is established by clear and convincing evidence, the Committee shall do one or more of the following:
a. Issue a public or private admonishment to the legislator.
b. Refer the matter to the Attorney General for investigation and referral to the district attorney for possible prosecution or the appropriate house for appropriate action, or both, if the Committee finds substantial evidence of a violation of a criminal statute.
c. Refer the matter to the appropriate house for appropriate action, which may include censure and expulsion.
(3) If the Committee issues an admonishment as provided in subdivision (2)a. of this subsection, the legislator affected may, upon written request to the Committee, have the matter referred as provided under subdivision (2)c. of this subsection.
(k) Effect of Dismissal or Private Admonishment. - If the Committee dismisses a complaint or issues a private admonishment prior to commencing a hearing under subsection (i) of this section, the Committee shall retain its records or findings in confidence, unless the legislator under inquiry requests in writing that the records and findings be made public. If the Committee later finds that a legislator's subsequent unethical activities were similar to and the subject of an earlier private admonishment, then the Committee may make public the earlier admonishment and the records and findings related to it.
(l) Confidentiality. - The complaint, response, records, and findings of the Committee connected to an inquiry under this section shall be confidential and not matters of public record, except as otherwise provided in this section or when the legislator under inquiry requests in writing that the complaint, response, and findings be made public. Once a hearing under subsection (i) of this section commences the complaint, response, Committee's report to the house, and all other documents offered at the hearing in conjunction with the complaint, that are not otherwise privileged or confidential under law, shall be public records. If no hearing is held, at such time as the Committee recommends sanctions to the house of which the legislator is a member, the complaint, response, and Committee's report to the house shall be made public.
(m) Concurrent Jurisdiction. - Any action or lack of action by the Committee under this section shall not limit the right of each house of the General Assembly to discipline or to expel its members.
(n) Reports. - The Committee shall publish annual statistics on complaints filed with or considered by the Committee, including the number of complaints filed, the number of complaints dismissed, the number of complaints resulting in admonishment, the number of complaints referred to the appropriate house for appropriate action, the number of complaints referred for criminal prosecution, and the number and age of complaints pending action by the Committee. (2006-201, s. 12; 2007-347, s. 2; 2007-348, ss. 2-4; 2008-187, s. 20; 2008-213, ss. 1(a), 3; 2009-549, s. 1; 2010-169, s. 23(f), (g); 2013-146, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 4.2(c), 6.1.)