North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: Hal F. Askins

Motor Vehicles Section Telephone No.(919) 716-6650 Fax. No. (919) 716-6708

March 5, 1999

The Honorable Ralph Campbell, Jr. State Auditor 300 N. Salisbury Street Raleigh, N.C. 27603

RE: Advisory Opinion; Authority of State Auditor to Examine Personnel Records; Article 5A, Chapter 147 and N.C.G.S. § 126-24

Dear State Auditor Campbell:

You request our opinion whether the provisions of Article 5A of Chapter 147 of the General Statutes, specifically the provisions of N.C.G.S. § 147-64.7(a)(1), supersede the provisions of N.C.G.S. § 126-24. We conclude that pursuant to N.C.G.S. § 147-64.13 the provisions of N.C.G.S. § 147-64(a)(1) supersede the provisions of N.C.G.S. § 126-24 to the extent they conflict. Specifically, we conclude that the Auditor’s power to examine documents in the course of an authorized audit includes the power to examine confidential employee personnel files relevant to that audit without the consent of the employee or his employer.

The State Auditor is charged by the General Assembly to audit “government, organizations, programs, activities, and functions.” N.C.G.S. § 147-64.4(1). This duty includes the duty “independently . . . to examine into and make findings of fact on whether State agencies . . . [h]ave established adequate operating and administrative procedures and practices . . . [and] [a]re conducting programs and activities . . . in a faithful, efficient, and economical manner in compliance with and in furtherance of applicable laws . . . .” N.C.G.S. § 147-64.6(b). In order to perform these duties, the General Assembly has conferred broad powers on the Auditor including the power to “examine and copy all books, records, reports, vouchers, correspondence, files, investments, and any other documentation of any State agency.” The General Assembly has also directed that this power be construed broadly to take precedence over conflicting laws. N.C.G.S. § 147-64.13 provides: Letter to State Auditor Ralph Campbell, Jr. March 5, 1999 Page 2

It is the intent of this Article that the establishment of the Office of the Auditor and the duties, powers, qualifications, and purposes herein specified shall take precedence over any conflicting part or application of any other law.

In N.C.G.S. § 126-24, the General Assembly has concluded that the personnel files of state employees shall be confidential and has sharply restricted access to those files. Under that statute, the Auditor cannot obtain access to a personnel file except by permission of the employee, permission of the employee’s Department Head or a court order. This limitation on the Auditor’s access to personnel files conflicts with the authority granted him in N.C.G.S. § 147-64.7(a)(1) to “examine and copy all . . . files . . .of any state agency.”

The General Assembly has prescribed the rule to be applied in resolving this conflict and that rule is determinative. See In re Watson, 273 N.C. 629, 632, 161 S.E.2d 1 (1968) (statutes must be interpreted in light of interpretative guides adopted by the General Assembly). Pursuant to N.C.G.S. § 147-64.13, the Auditor’s power to “examine and copy . . . all . . . files . . . of any state agency” takes precedence over any conflicting part or application of N.C.G.S. § 126-24. Accordingly, it is our opinion that when the Auditor conducts an authorized audit and needs access to a personnel file to complete that audit, he is entitled to obtain that file on demand without the permission of the employee, the employee’s Department Head or a court order.

It should be noted, however, that no other provisions of Article 5A of Chapter 147 and Article 7 of Chapter 126 of the General Statutes appear to be in conflict. In the absence of such conflict, the rules of statutory construction require that the provisions of both sets of statutes be given full effect. See Jackson v. Guilford Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969) (statutes dealing with the same subject matter must be read “together as constituting one law”). Construing the relevant statutory provisions as one law, we conclude: (1) that the Auditor may not divulge any part of a confidential personnel file “for purposes of assisting in a criminal investigation, nor for purposes of a tax investigation,” N.C.G.S. § 126-24, and (2) that the Auditor is obliged to preserve the confidentiality of personnel files in his possession to the same extent as other state officers having confidential personnel files in their possession. This latter obligation is particularly significant given the Auditor’s duty to maintain work files for ten (10) years. N.C.G.S. § 147-64.6(d).

Letter to State Auditor Ralph Campbell, Jr. March 5, 1999 Page 3

We hope this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact this office.

Sincerely yours,

Reginald L. Watkins Senior Deputy Attorney General

Hal F. Askins Special Deputy Attorney General