§ 120-103.1. Investigations by the Committee. - North Carolina Statutes

§ 120‑103.1. Investigations by the Committee.

(a)        Institution ofProceedings. – On its own motion, or upon receipt of a referral of a complaintfrom 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 oralleged violation of Chapter 138A of the General Statutes and of this Article.

(2)        Repealed by SessionLaws 2007‑348, s. 2, effective August 9, 2007.

(3)        The allegedviolation of the criminal law by a legislator while acting in the legislator'sofficial capacity as a participant in the lawmaking process.

(a1)      Complaints on ItsOwn Motion. – An investigation initiated by the Committee on its own motioninstituted under subsection (a) of this section shall be treated as a complaintfor purposes of this section and need not be sworn or verified. Anyrequirements under this section that require the Committee to notify thecomplainant 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 theCommission where the Commission was acting on its own motion, the Committeeshall be deemed to have satisfied the notice requirements by providing noticeto the Commission. Any notice provided to the Commission under this section isconfidential and shall not be disclosed by the Commission.

(b)        InitialConsideration of a Complaint. – All of the following shall apply to theCommittee's initial consideration of a complaint:

(1)        The Committee may,in its sole discretion, request additional information to be provided by thecomplainant within a specified period of time of no less than seven businessdays.

(2)        The Committee maydecline to accept or further investigate a complaint if it determines that anyof the following apply:

a.         The complaint isfrivolous or brought in bad faith.

b.         The individuals andconduct complained of have already been the subject of 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 Committee may stay its complaintinvestigation pending final resolution of the other investigation.

(3)        Repealed by SessionLaws 2009‑549, s. 1, effective August 28, 2009.

(4)        Notwithstanding anyother provisions of this section, complaints filed with the Committeeconcerning the conduct of the Lieutenant Governor shall be referred to theState Ethics Commission under Chapter 138A of the General Statutes withoutinvestigation by the Committee.

(c)        Investigation of Complaints.– The Committee shall investigate all complaints properly before the Committeein a timely manner. Within 60 days of receiving a complaint or a referral of acomplaint to the Committee, the Committee shall do at least one of thefollowing:

(1)        Dismiss thecomplaint.

(2)        Initiate apreliminary investigation of the complaint.

(3)        Refer the complaintfor further investigation and a hearing in accordance with subsection (i) ofthis section.

(4)        Make recommendationsto the house in which the legislator who is the subject of the complaint is amember without further investigation, if the referral is from the State EthicsCommission.

(c1)      PreliminaryInvestigation. – The Committee may initiate a preliminary investigation if itdetermines that the complaint alleges facts sufficient to constitute aviolation of matters over which the Committee has jurisdiction as set forth insubsection (a) of this section. In determining whether there is reason tobelieve that a violation has or may have occurred, a member of the Committeemay take general notice of available information even if not formally providedto the Committee in the form of a complaint. The Committee may utilize theservices of a hired investigator when conducting investigations. The Committeeshall provide written notification of the initiation of an investigation underthis section to the legislator who is the subject of the complaint within 10days of the date of the Committee's decision to initiate an investigation.

(d)        Repealed by SessionLaws 2009‑549, s. 1, effective August 28, 2009.

(e)        Investigation bythe Committee of Matters Other Than Complaints. – The Committee may investigatematters other than complaints properly before the Committee under subsection(a) of this section. For any investigation initiated under this subsection, theCommittee may take any action it deems necessary or appropriate to furthercompliance with this Article, including the initiation of a complaint, theissuance of an advisory opinion under G.S. 120‑104, or referral toappropriate law enforcement or other authorities pursuant to subdivision (j)(2)of this section.

(f)         LegislatorCooperation with Investigation. – Legislators shall promptly and fullycooperate with the Committee in any Committee‑related investigation.Failure to cooperate fully with the Committee in any investigation shall begrounds for sanctions under this section.

(g)        Dismissal ofComplaint After Preliminary Investigation. – If the Committee determines at theend of its preliminary investigation that the complaint does not allege factssufficient to constitute a violation of matters over which the Committee hasjurisdiction as set forth in subsection (a) of this section, the Committeeshall dismiss the complaint and provide written notice of the dismissal to theindividual who filed the complaint and to the legislator against whom thecomplaint was filed.

(h)        Probable CauseDetermination. – If at the end of its preliminary investigation, the Committeedetermines that probable cause exists to proceed with further investigationinto the conduct of a legislator, the Committee shall determine the chargesthat will be the basis for further investigation of the complaint and providewritten notice to the individual who filed the complaint and the legislator thatthe Committee will conduct further investigation and the charges against thelegislator. The legislator shall be given an opportunity to file a writtenresponse to the charges with the Committee.

(h1)      Consideration ofResponse and Notice of Hearing. – The Committee shall give full and fairconsideration to the complaint and to the legislator's response to thecomplaint. If the Committee determines that the complaint cannot be resolvedwithout further investigation and a hearing, or if the legislator requests apublic hearing, the Committee shall hold a hearing on the charges against thelegislator. The Committee shall send a notice of the hearing to the complainantand to the legislator. The notice shall contain the charges against thelegislator and the time and place for the hearing. The Committee shall beginthe hearing no sooner than 15 days and no later than 90 days after the date ofthe notice of hearing.

(i)         Hearing. – All thefollowing shall apply to any hearing on a complaint held by the Committee:

(1)‑(3)  Repealed bySession Laws 2009‑549, s. 1, effective August 28, 2009.

(4)        Oral evidence shallbe taken only on oath or affirmation.

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

(6)        The legislator beinginvestigated shall have the right to present evidence, call and examinewitnesses, cross‑examine witnesses, introduce exhibits, and berepresented by counsel.

(j)         Disposition ofInvestigations. – Except as permitted under subsections (b) and (g) of thissection, after the hearing, the Committee shall dispose of the matter beforethe Committee under this section, in any of the following ways:

(1)        If the Committeefinds that the alleged violation is not established by clear and convincingevidence, the Committee shall dismiss the complaint.

(2)        If the Committeefinds that the alleged violation is established by clear and convincingevidence, the Committee shall do one or more of the following:

a.         Issue a public orprivate admonishment to the legislator.

b.         Refer the matter tothe Attorney General for investigation and referral to the district attorneyfor possible prosecution or the appropriate house for appropriate action, orboth, if the Committee finds substantial evidence of a violation of a criminalstatute.

c.         Refer the matter tothe appropriate house for appropriate action, which may include censure andexpulsion.

(3)        If the Committeeissues an admonishment as provided in subdivision (2)a. of this subsection, thelegislator affected may, upon written request to the Committee, have the matterreferred as provided under subdivision (2)c. of this subsection.

(k)        Effect of Dismissalor Private Admonishment. – If the Committee dismisses a complaint or issues aprivate admonishment prior to commencing a hearing under subsection (i) of thissection, the Committee shall retain its records or findings in confidence,unless the legislator under inquiry requests in writing that the records andfindings be made public. If the Committee later finds that a legislator'ssubsequent unethical activities were similar to and the subject of an earlierprivate admonishment, then the Committee may make public the earlieradmonishment and the records and findings related to it.

(l)         Confidentiality. –Except as provided under subsection (k) of this section, the complaint, response,records, and findings of the Committee connected to an inquiry under thissection shall be confidential and not matters of public record, except asotherwise provided in this section or when the legislator under inquiryrequests 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 atthe hearing in conjunction with the complaint, that are not otherwiseprivileged or confidential under law, shall be public records. If no hearing isheld, at such time as the Committee recommends sanctions to the house of whichthe legislator is a member, the complaint, response, and Committee's report tothe house shall be made public.

(m)       ConcurrentJurisdiction. – Any action or lack of action by the Committee under thissection shall not limit the right of each house of the General Assembly todiscipline or to expel its members.

(n)        Reports. – The Committeeshall publish annual statistics on complaints filed with or considered by theCommittee, including the number of complaints filed, the number of complaintsdismissed, the number of complaints resulting in admonishment, the number ofcomplaints referred to the appropriate house for appropriate action, the numberof complaints referred for criminal prosecution, and the number and age ofcomplaints 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.)