§ 138A-13. Request for advice.
§ 138A‑13. Request foradvice.
(a) At the request ofany public servant or legislative employee, any individual who is responsiblefor the supervision or appointment of a public servant or legislative employee,legal counsel for any public servant or legislative employee, any ethicsliaison under G.S. 138A‑14, or any member of the Commission, theCommission shall render advice on specific questions involving the meaning andapplication of this Chapter and the public servant's or legislative employee'scompliance therewith. Requests for advice and advice rendered in response tothose requests shall relate prospectively to real or reasonably anticipatedfact settings or circumstances.
(a1) On its own motion,the Commission may render advisory opinions on specific questions involving themeaning and application of this Chapter.
(a2) A request for aformal advisory opinion under subsection (a) of this section shall be inwriting, electronic or otherwise. The Commission shall issue formal advisoryopinions having prospective application only. A public servant or legislativeemployee who relies upon the advice provided to that public servant orlegislative employee on a specific matter addressed by the requested formaladvisory opinion shall be immune from all of the following:
(1) Investigation by theCommission, except for an inquiry under G.S. 138A‑12(b)(3).
(2) Any adverse actionby the employing entity.
(3) Investigation by theSecretary of State.
(b) At the request of alegislator, the Commission shall render advice on specific questions involvingthe meaning and application of this Chapter and Part 1 of Article 14 of Chapter120 of the General Statutes, and the legislator's compliance therewith.Requests for advice and advice rendered in response to those requests shallrelate prospectively to real or reasonably anticipated fact settings orcircumstances.
(b1) A request by alegislator for a recommended formal advisory opinion shall be in writing,electronic or otherwise. The Commission shall issue recommended formal advisoryopinions having prospective application only. Until action is taken by theCommittee under G.S. 120‑104, a legislator who relies upon the adviceprovided to that legislator on a specific matter addressed by the requestedrecommended formal advisory opinion shall be immune from all of the following:
(1) Investigation by theCommittee or Commission, except for an inquiry under G.S. 138A‑12(b)(3).
(2) Any adverse actionby the house of which the legislator is a member.
(3) Investigation by theSecretary of State.
Any recommended formal advisoryopinion issued to a legislator under this subsection shall immediately bedelivered to the chairs of the Committee, together with a copy of the request.Except for the Lieutenant Governor, the immunity granted under this subsectionshall not apply after the time the Committee modifies or overturns the advisoryopinion of the Commission in accordance with G.S. 120‑104.
(b2) At the request ofthe Auditor, the Commission shall render advisory opinions on specificquestions involving the meaning and application of this Chapter, Article 14 ofChapter 120 of the General Statutes, and Chapter 120C of the General Statutesand an affected person's compliance therewith. The request shall be in writing,electronic or otherwise, and relate to real fact settings and circumstances.Except when the question involves a question governed by subsection (b) or (b1)of this section, the Commission shall issue an advisory opinion under thissubsection within 60 days of the receipt of all information deemed necessary bythe Commission to render an opinion. If the question involves a questiongoverned by subsection (b) or (b1) of this section, the Commission shall complywith the provisions of that section prior to responding to the Auditor bydelivering the recommended advisory opinion to the Committee within 60 days ofthe receipt of all information deemed necessary by the Commission to render anopinion. The Committee shall act on the opinion within 30 days of receipt andthe Commission shall deliver the opinion to the Auditor. If the Committee failsto act on a recommended advisory opinion under this subsection with 30 days ofreceipt, the Commission shall deliver its recommended advisory opinion to theAuditor. Notwithstanding G.S. 138A‑13(e), the Auditor may only releasethose portions of the advisory opinion necessary to comply with therequirements of G.S. 147‑64.6(c)(1).
(c) Staff to theCommission may issue advice, but not formal or recommended formal advisoryopinions, under procedures adopted by the Commission.
(d) The Commissionshall publish its formal advisory opinions within 30 days of issuance. Theseformal advisory opinions shall be edited for publication purposes as necessaryto protect the identities of the individuals requesting formal advisoryopinions. When the Commission issues a recommended formal advisory opinion to alegislator under subsection (b1) of this section, the Commission shall publishonly the edited formal advisory opinion of the Committee within 30 days ofreceipt of the edited opinion from the Committee.
(e) Except as providedunder subsections (b2), (d) and (e1) of this section, a request for advice, anyadvice provided by Commission staff, any formal or recommended formal advisoryopinions, any supporting documents submitted or caused to be submitted to theCommission or Commission staff, and any documents prepared or collected by theCommission or Commission staff in connection with a request for advice areconfidential. The identity of the individual making the request for advice, theexistence of the request, and any information related to the request may not berevealed without the consent of the requestor. An individual who requestsadvice or receives advice, including a formal or recommended formal advisoryopinion, may authorize the release to any other person, the State, or anygovernmental unit of the request, the advice, or any supporting documents.
For purposes of this section,"document" is as defined in G.S. 120‑129. Requests for advice,any advice, and any documents related to requests for advice are not"public records" as defined in G.S. 132‑1.
(e1) Staff to theCommission may share all information and documents related to requests foradvice, made by legislators under this section with staff to the Committee. Theinformation and documents in the possession of staff to the Committee areconfidential and are not public records.
(f) This section shallapply to judicial officers only for the purpose of advice related to Article 3of this Chapter.
(g) Requests for advicemay be withdrawn by the requestor at any time prior to the issuance of theadvice. (2006‑201,s. 1; 2007‑348, s. 31; 2008‑213, ss. 2(b), 91.5; 2008‑215, s.6; 2009‑570, s. 17.)