The UNC Policy Manual
200.5
Adopted
08/14/98
Replaced
05/14/04
Amended
09/08/05
Amended
09/09/16
Amended 11/19/20
I. Purpose. This policy governs legal affairs and the initiation and settlement of
litigation within the University of North Carolina.
II. Definitions. For purposes of this policy:
A. “Chancellor”
means the administrative and executive head of a constituent institution of the
University of North Carolina, as described in Section 502 of The Code.
B. “Constituent
institution” means one of the 17 degree/diploma granting institutions that comprise
the University of North Carolina.
C. “President”
means the chief administrative and executive officer of the University of North
Carolina, as described in Section 501 of The
Code.
D. “University”
means the University of North Carolina, a body politic and corporate defined as
a single public multi-campus University composed of seventeen (17) constituent
institutions and other educational, research, and public service organizations.
III. Legal
Counsel
A. The UNC System Office and the constituent institutions
employ attorneys on staff, whose clients are their employing institutions,
rather than individual University officers or employees in their personal
capacities.
B. Every person employed within the University of North
Carolina, including any of its constituent institutions, to serve as an
attorney shall be licensed to practice law in the State of North Carolina at
the time that the person is employed. If a person is licensed to practice
law in another state, but is not licensed to practice law in the State of North
Carolina, the person may be provisionally employed conditioned on the person’s
obtaining a license to practice law in North Carolina within one year after the
date of the person’s initial employment. The president is authorized to
make an exception to this requirement if the particular position for which the
person is employed requires that the person offer advice and counsel
predominantly in areas of federal law.
C. Pursuant to N.C. Gen. Stat. § 116-11(13b)
(hereinafter G.S.), the president shall, subject to University procedures, have
the authority to (1) authorize the designation of legal counsel, including
private counsel, to provide legal advice, counsel, and representation to the
University of North Carolina, the constituent institutions, and University
officers and employees in any legal matter, case, or proceeding; and (2) authorize
the expenditure of funds for private counsel or other outside counsel for the
legal services they provide.
IV. Initiating and Settling Potential and Pending Litigation
A. By virtue of G.S. 116-3, the capacity
and authority to initiate litigation, as well as to settle potential and
pending litigation, in the name of the University of North Carolina, and on
behalf of the constituent institutions, lies exclusively with the Board of
Governors. A constituent institution has
no independent capacity or authority to initiate litigation or to settle potential
or pending litigation in its own name or in the name of the University of North
Carolina.
B. Potential or pending litigation may
involve issues and claims that do not require the attention of the Board of
Governors to approve their initiation or settlement. The Board of Governors therefore delegates
the authority to initiate and settle potential and pending litigation only in
the circumstances below:
1. A constituent institution may
initiate litigation in the name of the University of North Carolina or the
constituent institution if the amount in controversy is less than the
jurisdictional amount for civil actions in superior court as set out in G.S.
7A-243 upon the approval of the chancellor.
The University of North Carolina may initiate litigation concerning
issues that do not arise at a constituent institution, or that arise at more
than one constituent institution, if the amount in controversy is less than the
jurisdictional amount for civil actions in superior court as set out in G.S.
7A-243 upon the approval of the president.
2. The Committee on University
Governance may authorize the initiation of litigation in the name of the
University of North Carolina if the amount in controversy is greater than the
jurisdictional amount for civil actions in superior court, or if injunctive
relief is sought.[1] A request to initiate litigation shall be
made by the chancellor of a constituent institution, or by the request of the
president for issues that do not arise at a constituent institution or that
arise at more than one constituent institution. In an emergency, if a
constituent institution or the University needs to seek an order from a court
sooner than it is practical to call a meeting of the Governance Committee, the
constituent institution or the University may initiate litigation on the
authorization of the president or the senior vice president and general counsel
of the University. The president or
general counsel shall consult with the chair of the Committee on University Governance
before authorizing the litigation if it is practical to do so. If emergency litigation is initiated without
the authorization of the Committee on University Governance, the president, or
the president’s designee, shall inform the Committee on University Governance
about the litigation at the committee’s next regular or special meeting.
3. If a settlement of potential or
pending litigation involving a constituent institution or the University of
North Carolina:
a. Is solely for monetary relief, and
if the amount that the University of North Carolina is to pay pursuant to an
agreement to settle the potential or pending litigation is less than $75,000,
or if the University is to receive a payment, and the amount claimed was less
than $75,000, then the chancellor of a constituent institution is authorized to
approve the settlement. If a matter did
not arise at a constituent institution or involves more than one constituent
institution, the president is authorized to approve the settlement.
b. Is solely for monetary relief, and
if the amount that the University of North Carolina is to pay is $75,000 or
greater, or if the University will receive a payment, and the amount claimed
was $75,000 or greater, then the Committee on University Governance is
authorized to approve the settlement.[2]
c. Includes an agreement by the
University, or one or more constituent institutions, to take, or refrain from
taking, a specific action, and the agreement affects only the named parties in
the litigation or parties reasonably anticipated to be named in potential
litigation, such as actions that affect only named employees or students, then
the president or the chancellor of the constituent institution may authorize
the settlement agreement.
d. Includes an agreement by the
University, or one or more constituent institutions, to take or refrain from
taking a specific action which affects a group or class of people or which
results in changing a University or constituent institution policy, procedure
or regulation, then the Committee on University Governance is authorized to
approve the settlement.
4. The Committee on University
Governance may refer a request to initiate or settle potential or pending
litigation to the Board of Governors, in the committee’s discretion. The president may refer a request to settle
potential or pending litigation to the Committee on University Governance in
the president’s discretion. If the
president makes such a referral, the Committee on University Governance is
authorized to decide the matter, or it may make a recommendation to the Board
of Governors.
5. Any settlement approved pursuant to
this policy shall be reported to the Committee on University Governance and to
the Board of Governors either in writing before the next regular meeting of the
Board of Governors or at the next regular meeting of the Board of Governors
after the settlement is finalized.[3]
6. The University of North Carolina may
appear as amicus curiae in a lawsuit
or judicial proceeding only after receiving the approval of the Committee on
University Governance. The committee, in
its discretion, may refer the question to the Board of Governors.
7. A constituent institution, or a
school or college of a constituent institution, may appear as amicus curiae in a lawsuit or judicial
proceeding only after receiving the approval of the chancellor of the
institution and after providing advance written notice to the president. Nothing
in this section is intended to limit the ability of an individual University
employee or group of employees to appear as amicus
curiae in the individual’s or employee group’s name.
V. This
policy applies to the UNC Health Care System, to the UNC Faculty Physicians,
and to the ECU Physicians except as otherwise provided in Sections 1200.4 and
1200.5 of the UNC Policy Manual and except as otherwise provided by state law,
including G.S. 116-219, et seq.
VI. Other Matters
A. The requirements of this policy shall be effective on the
date of adoption by the Board of Governors.
B. The foregoing policy is meant to supplement, and does not
supplant or modify, those statutory enactments which may govern the initiation
and resolution of legal claims.
C. This policy shall be implemented and applied in accordance
with such regulations and guidelines as may be adopted from time to time by the
president.
[1]Pursuant
to G.S. 116-11(13), and notwithstanding The
Code or any other Board of Governors policy, the Board of Governors has
delegated certain authorities to the president of the University. See Section 200.6 of the UNC Policy Manual, Policy on Delegation Authority to the
President.
[2]See
Footnote 1.
[3]See
Footnote 1.