Frequently Asked Questions

 

What if I receive a public records request?

Consult UNCW’s Public Records Policy. “Public Record” is any documentary material or artifact, regardless of physical form or characteristics (paper, email, electronic, video, film, digital, photograph, audio, etc.), made or received in the course of university business.  According to the NC Public Records Act,  subject to certain confidential exceptions (mainly student or personnel records), any member of the public may request to inspect and/or copy a “public record”.  If you receive such a request and it’s not in writing, ask that the individual put the request in writing so that there’s no misunderstanding of what is being requested.  There is no time deadline to respond; rather the statute requires that agencies act “as promptly as possible”.

If a person requests access to a record containing both public and confidential data, we may not deny a request for access or copying simply because the material is not separately maintained.  It is our responsibility to separate the public material.    There is, however, an additional public interest in maintaining the integrity of the record in good physical condition. To ensure this, the inspection should be supervised and the records kept secure.  You must not inquire as the purpose or motive of the requesting party.  If you are at all uncertain about whether and how to produce the records, you must contact the office of general counsel  and provide  a copy of the request for their review.  (OGC 7/8/2009

If I receive a subpoena that relates to UNCW business or records, what should I do?

You should forward the subpoena immediately to the Office of General Counsel as there are mandatory deadlines for responding. The OGC will review the document to determine whether it was served legally and whether the court from which the subpoena issued has jurisdiction over the university. Once OGC determines that the subpoena is legally valid, we will assist you in satisfying the request.

The subpoena may require the production of documents and/or the appearance of a UNCW employee as a witness.  If the subpoena relates to student records, FERPA obligates the university to attempt to notify a student about the request in advance of releasing any documents. The OGC may be able to limit its scope and/or relieve the employee from the requirement to appear in court. (OGC 7/24/2009)

Are my personal emails private?

No. The electronic resources provided to you for use at work are owned by the State of North Carolina, and you must have no expectation of privacy in the equipment or in the information sent, received or stored on that equipment. UNCW allows for incidental personal use of electronic resources provided that the use is in accordance with policy. Generally, personal emails would not constitute public records. However, the NC Public Records Act and/or E-discovery rules in litigation may obligate the university to examine all emails on a university computer, PDA or server in order to assess the nature and scope of the content. The emails may also be discoverable in litigation or be subject to disclosure under a subpoena. Bottom line – if you do not want someone to read personal emails that you have sent and/or received from the university’s equipment and system, do not send them and notify your friends and family not to send any personal emails to your UNCW email account. (OGC 6/25/09)

How long must I keep this document?

According to North Carolina law, every document, paper, letter, email, voicemail, map, book, photograph, film, sound recording, magnetic or other tape, electronic data processing record, artifact, or other documentary material, regardless of physical form or characteristic, made or received in connection with the transaction of the university’s  business  is considered a public record, unless an exception applies, and may not be disposed of, erased, or destroyed without specific guidance from the Department of Cultural Resources (DCR).  In April 2007, the State of NC, DCR and UNC General Administration, on behalf of the constituent institutions, approved a new retention schedule for university records.  It covers public and confidential records.  The DCR recognizes that many records exist that may have very short-term value to the creating agency.  The expeditious disposal of records possessing only brief administrative or reference value is allowed.  If in doubt about the nature of the document, retain the record and seek guidance or advice from the university’s archivist or the office of general counsel.  No public university official may destroy a public record, unless it is in accordance with the university’s record retention schedule. Violations may result in a Class 3 misdemeanor and fine between $10 and $500.  (OGC 7/7/09)

Will the university defend and represent me if I am sued for something that I have done at work?

Generally, yes. The NC Defense of State Employees Act provides for the defense, representation and indemnification of state employees who are acting within the course and scope of their assigned duties and are sued in their official or individual capacities, whether criminally or civilly. The NC Attorney General has the sole discretion to decide whether to defend. An employee must request representation.  The Attorney General may refuse to defend you, if:  a) the act or omission is not within the scope and course of employment (e.g. you committed sexual harassment); b) you committed fraud, corruption or acted with actual malice; c) there would be a conflict of interest with the State; or d) it would not be in the best interests of the State. (OGC 7/15/09)

Can you offer me legal advice?

 

It depends. The Office of the General Counsel, as a unit of the Chancellor’s Division, provides, manages, and coordinates all legal services for UNCW. The office provides these services on university matters to the Board of Trustees, the Chancellor, the senior officers, other university administrators, and faculty who are acting on behalf of the university.  The Office of the General Counsel does not represent or advise individual faculty members, staff or students about personal legal matters.

Pamphlets can be obtained from the North Carolina Bar Association addressing a variety of legal issues of a personal nature, including one on how to find a lawyer; individuals may also contact its Lawyer Referral Service (800-662-7660) for a referral to a lawyer in your area. Specifically for students, there is an on-campus program to provide free legal consultation; contact the Campus Activities Involvement Center for further information at (910) 962-3553. Eligible individuals may qualify for the free services of Legal Aid of NC for civil matters; in Wilmington, they are located at 201 North Front Street, Suite 1002 (910-763-6207). As a personnel benefit, employees may enroll in NC’s Pre-Paid Legal Services Plan. Contact Human Resources for more information. (OGC 7/7/2009)

Are my communications with the attorneys in the Office of General Counsel or in the NC Attorney General’s Office confidential and privileged?

It depends. The attorney-client privilege is one of the oldest privileges recognized and is the core element of any legal relationship. In North Carolina, the Supreme Court has adopted a five-part test to determine whether the privilege applies: 1) the relationship of the attorney and client existed at the time the communication was made; 2) the communication was made in confidence; 3) the communication relates to a matter about which the attorney is being consulted professionally; 4) the communication was made in the course of seeking or receiving legal advice; and 5) the client has not waived the privilege.  All five parts must be satisfied for the privilege to be valid.

For the public university as client, trustees and numerous individuals at the senior officer level or other managers acting as agents of UNCW are OGC’s clients. Since the client holds the privilege, advice from the university’s attorneys must be maintained in confidence and not shared with anyone who is not another officer of the university with a need to know. Therefore, in order not to waive the privilege, you must  not forward emails with advice from the Office of General Counsel/Attorney General’s Office or share other legal communications with third parties outside of the university or to individuals within the university who are not relevant administrators. Such actions may waive any privilege that would have been attached to the advice.

Just as important in knowing when the privilege applies, there are communications which are not protected. The privilege does not protect 1) underlying facts regarding a matter and 2) requests or communications not specifically sought out as legal advice.  Just because an attorney is in a meeting, serving on a university committee or copied on an email or other correspondence does not make the content of communications confidential.  Also, documents do not become privileged solely by transmitting them for review by an attorney. Finally, the privilege may not shield the university employee for engaging in illegal activity because a court may compel an attorney to testify against an employee in a grand jury investigation.

The North Carolina Public Records Act makes confidential written, attorney-client communications regarding litigation, claims, settlements or threats of litigation against the university, for a period of three years from the date of the communication. N.C.G.S. §132-1.1 (OGC 08/20/09)

What types of insurance does the university maintain and am I covered?

As a constituent institution of the University of North Carolina and a state agency, UNCW is a self-insured entity as required by and set forth in state law (N.C.G.S. §143-291, et seq.).  The university is not allowed to acquire additional or other insurance except by authorization and procurement by the State Department of Insurance (N.C.G.S. §58-31-55). Subject to and consistent with applicable statutes, coverage under the State’s self-insurance program applies to: a) all individuals currently employed by or working for the State and covered by the Defense of State Employees Act; b) authorized volunteers; c) agents of the State; d) individuals previously employed by the State and covered under the Defense of State Employees Act and the policy during their period of employment with the university; and e) individuals employed by UNCW or the University system. Independent contractors are not employees of the State or the university.

The Defense of State Employees Act (N.C.G.S. §143-300.3 et seq.) recognizes that state employees may be named as defendants in their individual capacities as well as their official capacities, based on their job performance. University officers, employees, and agents (not independent contractors) are provided with personal liability coverage for acts or omissions that occur within the course and scope of their authorized work. These protections are defined by statute as well as the terms of the insurance policy. Coverage limits are $10 million per individual, $10 million per occurrence, and $25 million annual aggregate. Exclusions include, but are not limited to, fraud, corruption or actual malice, sexual assault, other criminal acts, immoral acts, and automobiles (coverage provided under motor pool insurance).

Personal liability coverage for university employees is provided in two layers: 1) the State self-insurance program in accordance with the NC Tort Claims Act; and 2) excess liability coverage and limits pursuant to the Defense of State Employees Act.   Other approved insurance exists for motor pool coverage while driving state vehicles on university business by employees. If traveling internationally for business, employees should obtain the university’s approved Blanket Accident and Sickness Insurance which can be obtained through the Office of International Programs. (OGC 7/24/2009)

What if I invent something at work or using university resources? 

Disclosing an Invention.  As soon as you believe you have a potentially patentable invention or discovery, you should notify the UNCW Office of Technology Transfer (OTT).  OTT is located in Hoggard Hall 172 or via extension 2-3837. OTT can explain not only how technology transfer is handled and processed at UNCW, but the steps or measures to protect the discovery, and the services and support that can be provided by the university in exploring potential applications for the subject discovery or invention. OTT can also assist you with the Record of Invention (ROI) form, the first step in initiating the process -- a pdf fillable form providing information necessary to evaluate patentability, inventorship, scope of protection, and obligations to research sponsors external to the institution - http://www.uncw.edu/generalcounsel/documents/ROIUNCW11107.pdf

Please be aware that information regarding an invention must be kept confidential until a patent application is filed or certain patent rights may be lost – this may include a short delay in publishing findings, research results, and data. Information you provide on the ROI remains confidential, however, its disclosure to individuals or entities outside the University without a signed non-disclosure agreement could result in the loss of rights in the subject invention. (OGC 7/7/2009)

Can I use other people’s stuff, their copyrighted content, in my classroom or to post in my Blackboard courseware? 

Critical questions that must generally be answered for any inquiry on the use of content in an educational setting are: is the material copyrighted versus public domain content?  Is the display of the material subject to an express exemption to the Copyright Act because the content will be displayed in a face-to-face class setting or used in a online Blackboard type environment?   How much of the subject content do you need to use? (small portion versus its entirety).  Your inquiry needs to distinguish between the DISPLAY of material and COPYING/ REPRODUCING the content.  These are distinctly different activities, and their treatment under Title 17 of the U.S. Copyright Act in the context of face-to-face teaching in particular results in very different analysis for the use of content. 

Under the Copyright Act, there is an express exemption in §110(1) that permits you to display any copyrighted  content, without permissions of any kind, provided you are in a regularly constituted course, attendant to a face to face classroom setting,  and that material is directly related to the course content.  Conversely, making multiple copies of copyrighted content for each student in the class is distinctly different, and would require a fair use analysis rather than relying upon an express exemption from the Copyright Act. 

If you wish to use copyrighted content for display in your Blackboard course, you can utilize the following URL [ http://www.uncw.edu/generalcounsel/LTcopyright.html ] and review the checklist to determine whether your use of the subject content satisfies the requisites of the TEACH Act, permitting the limited use of copyrighted material in a web-enhanced (e.g. Blackboard) course environment. 

If you have any questions regarding the use or display of copyrighted material attendant to your research, teaching, or scholarship, please contact the Office of General Counsel, Robert Hoon at 2-7886 or hoonr@uncw.edu

Can I sign a university contract, agreement, license, lease or memorandum of understanding?

Only if you have been delegated authority in writing to do so. University contracts or agreements of any kind must be signed by authorized employees possessing written delegated signature authority. You may not execute a contract on behalf of the university unless you have received written delegated authority. The chancellor has delegated signature authority to various positions at the university based upon the subject matter of the contract. Generally, the vice chancellors have been given specified signature authority. For additional information and FAQs about university contracts, please click here.

If you sign a university contract that you are not authorized to sign, pursuant to NC General Statute you may be held personally liable for any breach or for the value of the contract. (OGC 8/4/2009)

Is UNCW a 501(c)(3) recognized organization?

501(c)(3) status is an IRS recognized status for a religious, charitable, educational, or scientific organizations. As a recognized 501(c)(3), such an organization is exempt from the payment of federal income tax.  State agencies and institutions are also exempt from federal income taxation pursuant to Section 115 of the Internal Revenue Code (IRC).   Where 501(c)(3) status focuses on the organization’s status, Section 115 exempt status focuses on the income derived from an entity’s activitiesThe respective status of an organization is not mutually exclusive – specifically, a state university is a Sec. 115 entity and can also apply for and secure recognized 501(c)(3) status – though there is generally no reason to do so. UNCW does not have a 501(c)(3) recognition letter from the IRS.

For Purpose of Federal and State Taxes.  While there is an argument that “The University of North Carolina” is an IRS recognized 501(c)(3) organization and UNCW is included in that recognition by extension as a constituent institution of the System, the more accurate analysis  for UNCW’s federal tax-exempt status and the authority to remain exempt from the payment of federal income tax is as  an IRC Sec. 115(1) entity.   The UNC System possesses a July 1929 ‘award’ of federal tax-exempt status under Sec. 103(6) of the former Revenue Act of 1928 – that section was later carried forward as Sec. 501(c)(3) of the current Code.  UNCW is exempt from North Carolina state income and property taxes pursuant to State General Statutes, not by virtue of its federal 115 status.

For Purpose of Charitable Gift Credit.   Conversely, if donors wish to know if their gifts, bequests, or contributions are tax-deductible charitable contributions – all gifts to UNCW, as a 115(1) entity, are tax-deductible pursuant to Section 170 of the Internal Revenue Code.   Similarly, charitable gifts to the Foundation (a 501(c)(3) organization) are also tax-deductible pursuant to Section 170 of the IRC.

Can I talk with a parent about his or her students’ academic progress, grades, financial accounts or other information?

Yes under certain conditions. The Family Educational Rights and Privacy Act (FERPA) grants rights to education records in the student attending the university, not the parent. The university may disclose information in the student’s records to parents in the following situations: 1) if the student provides written consent to the university; 2) if the student is a dependent for income tax purposes; 3) if a health or safety emergency involves the student; or 4) if the student is under the age of 21 and has violated a policy or law relating to use or possession of alcohol or a controlled substance.

If the situation involves a dependent child or the student consents, have the student complete the FERPA form before communicating with the parent.  If the dependent child’s parents are divorced, both parents may have access to the student’s records, unless a court order indicates otherwise.  In situations involving a health or safety emergency, please contact the Office of General Counsel, the UNCW Police Department or the Student Health Center/Counseling Center in advance of any disclosure to a parent. Generally, the university advocates that rather than talking with parents directly, even with consent of the dependent student, we encourage the parent to obtain education information directly from their child. For information on FERPA, click here. (OGC 7/15/2009)

What should I do if I observe or learn of misuse of state property?

You must report as promptly as possible. The university provides multiple offices and methods in which to report. You should report to your supervisor or to the UNCW Police Department, Internal Audit or the Office of State Auditors. These offices also allow for anonymous complaints to be called in or be submitted electronically. Contact information can be found in the university’s Policy on Reporting and Investigating Misuse of University Property. All individuals who report or who are involved as witnesses in an investigation are protected against retaliation. State property must only be used for university business. This applies to all property – including, but not limited to, vehicles, fax machines, copiers, scanners, furniture, tools, music, art and film equipment, athletic and exercise equipment, office supplies, research equipment, and purchasing cards – as well as to classrooms, buildings, offices and other facilities.  (OGC 7/22/2009)

Can my office/department/unit/program conduct a raffle to raise money?

No. The university controls the timing, scope and nature of any raffles conducted on its behalf.  Generally, the university will not allow raffles to be conducted for specific areas. The law on raffles in NC limits state agencies and non-profits to no more than 2 raffles each calendar year. No raffle may be conducted on behalf of UNCW or any of its affiliated entities (i.e. UNCW Foundation, Seahawk Club, UNCW Alumni Association) unless it is authorized in writing ahead of time by the vice chancellor for university advancement, chief of staff or athletics director. Registered student organizations may conduct raffles in accordance with the rules established in the Code of Student Life. (OGC 7/22/2009)


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