Legal Topics
The Office of General Counsel provides comprehensive legal support and advice to the university, ensuring compliance with state and federal laws while protecting App State’s interests. Our team advises on a wide range of legal topics, including governance, employment, student affairs, contracts, litigation, and regulatory compliance. We are dedicated to supporting App State’s mission whether addressing policy development, risk management, or responding to legal disputes. We provide strategic guidance to faculty, staff, and leadership in complex legal challenges facing the university.
Policy Manual
The Office of General Counsel maintains the policies contained in the Appalachian State University Policy Manual which are applicable to all faculty, staff, students, and visitors of the University.
University Policies are developed, reviewed, revised, approved, and published in accordance with the standards and procedures specified in University Policy 101, Policy on Policies.
The following are recently revised or newly implemented Appalachian State University policies
- Policy 602.33, Employment of Foreign Nationals, revised March 31, 2025
- Policy 601,11, Employment Eligibility Verification (I-9 and E-Verify) Issued March 31, 2025
- Policy 603.4, Tuition Waiver, Revised March 3, 2025
- Policy 104, Facility Use, Revised February 17, 2025
- Policy 302.7, Emergency Notification System, Revised February 17, 2025
- Policy 602.30, Criminal Background Reports, Revised February 17, 2025
- Policy 301.7, Behavioral Threat Assessment Team Policy, Issued February 17, 2025
- Policy 602.10, Supplemental Pay, Revised February 3, 2025
- Policy 209, Research Involving Human Subjects, Revised January 27, 2025
- Policy 602.23, Exempt Professional Staff Review of Personnel Actions, Revised January 27, 2025
Record Retention
The UNC System Records Retention and Disposition Schedule (the “Schedule”) is a tool for the staff and faculty of Appalachian State University to use when managing the records in their offices. This schedule lists records commonly found at App State and gives an assessment of their retention value by indicating when, and if, those records may be destroyed.
Under N.C. Gen. Stat. § 121-5 and N.C. Gen. Stat. § 132-3, no Appalachian State University employee may destroy University records without the consent of the Department of Natural and Cultural Resources (DNCR). The Schedule is the primary mechanism used by the DNCR to give consent. Records, regardless of medium, not listed in the schedule may not be destroyed without direct approval from the DNCR. For more information on the Schedule and for questions on the destruction of records, please visit the following website App State’s Records Management.
Revised: Dec 16, 2019
Questions about Record Retention
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 Natural and Cultural Resources (DNCR).
In February 2021, the State of NC, DNCR, and UNC General Administration approved a new retention schedule for university records on behalf of the constituent institutions. It covers public and confidential records. The DNCR recognizes that many records 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, refer to App State’s Record Retention Policy, 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 a fine between $10 and $500.
Public Records
Under N.C. Gen. Stat. § 132 et seq., public records may be released to the public upon request. Public records are defined as any document, regardless of physical form or storage location, that is made or received in the scope of conducting University business.
Records held in any medium may be considered a public record, including but not limited to documents, papers, letters, maps, books, photographs, films, sound recordings, electronic data-processing records, artifacts, and electronic communications.
Although a wide range of University records may be considered releasable to the public, Federal and State law preclude certain records from being released. Such records generally include, but are not limited to:
- Personnel Records, under Article 7 of N.C. Gen. Stat. § 126;
- Research Records, under N.C. Gen. Stat. § 116-43.17; and
- Student Records, under the Family Educational Rights and Privacy Act (FERPA).
Appalachian State University is committed to operating in an environment of openness, transparency and cooperation with members of the public while observing the integrity and confidentiality of content that is not designated as a public record. In order to ensure App State’s commitment to openness and integrity are met, the University has developed a process for facilitating public record requests. For more information please visit the following website University Communications – Public Record Requests.
Revised: Dec 16, 2019
Questions about Public Records
What if I receive a Public Records Request?
Refer to App State’s Public Records Requests Policy (105.6). “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 public member may request to inspect and/or copy a “public record.”
App State is committed to fulfilling public records requests in a timely manner while protecting the privacy rights of its students and employees. To simplify the request process, App State’s University Communications Department implemented an online public records portal. University Communications is the principal liaison for all public records requests and works with OGC as appropriate, in complying with requests. Individuals who desire to request a public record of the university or information regarding current public records requests should do so through the portal.
App State is subject to the laws and policies of the federal government, the state of North Carolina, and the University of North Carolina System. Any confidential and/or legally protected information will be redacted before the requested information is provided to the requestor.
Are my emails private?
No. The State of North Carolina owns the electronic resources provided to you for use at work, and you must have no expectation of privacy in the equipment or in the information sent, received, or stored on that equipment. App State 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 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.
Important reminder: If you do not want someone to read personal emails 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 App State email account.
Intellectual Property
Appalachian State University encourages faculty, staff, and students to participate in scholarly research and creative activities that create knowledge and enhance the education of our students and community. Intellectual property is a general term that describes a wide variety of works created by a musician, artist, author, inventor, or researcher. These works must be original creations manifested in a tangible form that can be legally protected. Intellectual property law includes the rights of patent, trademark, trade secret, and copyright protection. These rights protect the creator of the work, and the University, from infringement and use by third parties. Both App State and the University of North Carolina system have established policies and procedures to balance the interests of the public, the University, and the respective inventor(s), author(s), or artist(s) in intellectual property arising from research and creative activities conducted by employees and students.
Employees and students using university resources or creating intellectual property in the course and scope of their employment have a duty to disclose such intellectual property created or discovered. To complete an intellectual property disclosure form please visit this Intellectual Property Forms page. The process for disclosing the creation of intellectual property at the University for employees and students is detailed in the University’s Intellectual Property Transfer Policy. For questions or more information, please feel free to reach out to the Office of Research Protections.
Revised: Dec 16, 2019
Questions about Intellectual Property
Can I use other people’s copyrighted content in my classroom or post in my AsULearn Course?
Critical questions that must generally be answered for any inquiry on using 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 an online AsULearn-type environment? How much of the subject content do you need to use? (small portion versus its entirety). Your inquiry must distinguish between displaying the 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 analyses of content use.
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. It would require a fair use analysis rather than relying upon an express exemption from the Copyright Act.
First Amendment
Appalachian State University (“University”) is a supporter of the concepts of free speech and academic freedom and acknowledges the differences between speakers, opinions, and beliefs. Still, the University must balance respect for and obligation to the First Amendment of the United States Constitution against an institutional culture of respect for thought, belief, and community similar to what other universities face across the nation. Despite this challenge, the University’s policies and procedures ensure that faculty and students will remain free to learn, study, and gain knowledge inherent within the academic pursuit of higher education consistent with applicable state and federal law and The University of North Carolina’s Campus Free Speech & Free Expression policy. The UNC Campus Free Speech and Free Expression can be found at UNC Policy 1300.8 – Policy on Free Speech and Free Expression Within the University of North Carolina System.
Facility Use
Appalachian State University encourages the free exchange of ideas on its campus while ensuring that other important University interests and activities are not infringed upon or disrupted. As such, the Facility Use Policy is designed to support the University’s educational mission and strategic goals by establishing procedures for University groups and non-University groups that seek to use buildings or grounds owned, leased, or operated by the University. More specifically, this policy is adopted to prioritize the orderly use of University facilities by University departments, recognized student clubs and organizations, University-associated groups, University-sponsored groups, and non-University groups This policy also establishes parameters and procedures governing the use of the University facilities.
Contracts Process / Management
A contract is any document that imposes an obligation on the University or legally binds the University to another party. Contracts can be used to purchase goods or services, detail a relationship between two entities or persons, or include the responsibilities and obligations of one party to another. A contract can be called a variety of things, including, but not limited to, Agreement, Nondisclosure Agreement (NDA), Memorandum of Agreement (MOA), Memorandum of Understanding (MOU), Letter Agreement, Affiliation Agreement, Waiver, Grant Agreement, Lease, or License. Contracts do not always involve the payment of funds from one party to another. Terms and conditions that you must accept or “click through” prior to using an online product or service are also contracts and may bind the individual user or the university that the user represents. Appalachian State University requires that all contracts be in writing and signed by an authorized representative of each party.
The following administrative offices are responsible for reviewing and processing University agreements:
- Procurement Services: Purchases of goods or services. Procurement Services will also review and negotiate terms and conditions provided by vendors before sending the agreement to the appropriate party for signature.
- Sponsored Programs: Contracts involving a grant, research, or sponsored project.
- IT Security (“ITS”): Software agreements must be reviewed by App State ITS prior to review/negotiation. Information on Software Services can be found HERE.
- Conference and Event Services (“CES”): Contracts involving summer camps, conferences, or events on campus. CES also coordinates all activities involving minors on campus.
- Office of University Events: Facility Use Agreements, reserving space on campus through 25Live, planning events across campus, including Grandview Ballroom, Plemmons Student Union, and Holmes Convocation Center.
All University agreements for goods or services (including renewals and amendments) should be submitted through the University’s Total Contract Manager (“TCM”) software. More information on TCM and contract requests may be found HERE. TCM utilizes university template agreements for goods and professional services on campus. Should a vendor provide an agreement for a good or service, that agreement should be included in the TCM contract request.
If you have questions related to any contract, the contract process, or where to route a contract, please feel free to contact the Office of General Counsel.
Questions about Contracts Process / Management
Can I sign a university contract, agreement, license, lease, or memo 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 on 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 get in touch with the OGC.
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.
Additionally, please see Signatures for further information regarding the validity of electronic or digital signatures for contracts and other legally binding documents.
Political Activities of Employees
University employees who wish to run for or hold any elective or appointive public office are subject to state law and regulations adopted by the Board of Governors or the Office of State Human Resources (OSHR). Due to potential conflicts of interest or time, all EPS employees (faculty and EPS non-faculty) becoming candidates for or holding public offices must make certain disclosures and receive various approvals on a prescribed schedule or risk an automatic loss of University employment. For SHRA employees, activities related to public officeholding are governed by policies adopted by OSHR pursuant to its authority under Chapter 126 of the North Carolina General Statutes. In each instance, it is the responsibility of the employee to understand and comply with applicable policies and procedures.
App State 2024 Fall Political Activity Memorandum
App State Policy 604.7– Political Activities and Public Office Holding
UNC System Policy 300.5.1, Political Activities of Employees
Lawsuits, Litigation & Subpoenas
The Office of General Counsel provides legal guidance and representation for the university in matters related to lawsuits, litigation, and subpoenas. We support the institution by managing legal disputes involving faculty, staff, students, and external entities that are engaged in university business, ensuring compliance with state and federal laws. Whether the university is initiating or defending against litigation, our team works to protect its interests while upholding its mission. We also assist in responding to subpoenas, ensuring that the university complies with legal inquiries and requests while safeguarding sensitive information. OGC is committed to providing strategic legal counsel to mitigate risks, resolve disputes efficiently, and uphold the integrity of the institution.
Questions about Lawsuits, Litigation & Subpoenas
Will the Office of General Counsel represent or advise me on a personal matter?
No. The Office of General Counsel cannot advise students or employees on any personal legal matters or matters that would conflict with the Office’s obligation to App State. The Office of General Counsel provides services on legal issues involving or affecting the institution to the Board of Trustees, the Chancellor, the other senior administrators of the University, and through them, to the University’s faculty and staff.
Pamphlets addressing a variety of personal legal issues, including one on how to find a lawyer, can be obtained from the North Carolina Bar Association; individuals may also contact its Lawyer Referral Service at 919.677.8574 for a referral to a lawyer in their area. Specifically for students, there is a Student Legal Clinic that offers free and confidential legal consultation.
Eligible individuals may qualify for the free services of Legal Aid of NC, which is located at 144 Poplar Grove Road, Suite 221, in Boone. Please call 828-355-4890.
Does the Office of General Counsel work with external agencies?
Yes. The Office of General Counsel represents the University to a variety of external regulatory and law enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the Office for Civil Rights (OCR), and the National Collegiate Athletic Association (NCAA). This function requires responding to inquiries, charges, or complaints registered by or with such organizations, usually through internal investigations, collecting and managing evidence, and developing and articulating University positions and responses in consultation with appropriate University Administrators. In addition, the Office of General Counsel works with Access and Equity, Internal Audits, and the Office of Compliance & Ethics, which includes Risk Management to promote and support an academic and working environment that reflects the University’s commitment to maintaining the highest level of integrity and ethical standards in the conduct of its operations.
Who can accept service of court papers on behalf of the University?
The Chancellor or the General Counsel are the only authorized persons to receive a Service of Process on behalf of the University (process agent). Court papers (legal summons, complaints, and subpoenas) should be served on properly registered process agents. Please see App State’s Legal Services Policy (102.1) for further information.
If I receive a subpoena that relates to university business or records, what should I do?
You should forward the subpoena immediately to the OGC, as there are typically mandatory response deadlines. The OGC will review the document to determine whether it was served legally and whether the court from which the subpoena was issued has jurisdiction over the university. Once it is determined whether or not the subpoena is legally valid, OGC will manage the process from there.
The subpoena may require the production of documents and/or the appearance of a university employee. 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 limit its scope and/or relieve the employee from the requirement to appear in court.
Will the university represent me if I am sued for an action at work?
Generally, yes. The NC Defense of State Employees Act provides for the defense, representation, and indemnification of state employees 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:
- the act or omission is not within the scope and course of employment (e.g., you committed sexual harassment);
- you committed fraud, corruption, or acted with actual malice;
- there would be a conflict of interest with the State; or
- it would not be in the best interests of the State.
I received a litigation hold notice, what does that mean?
When App State receives knowledge of potential or actual litigation, the Office of General Counsel will send a notice of Litigation Hold/duty to Preserve Evidence (the “Notice”) to all employees who may be in possession of potentially relevant information. Electronic discovery, or e-discovery, refers to the process of retrieving, saving, and producing electronically stored information (“ESI”) in anticipation of and during litigation. The litigation hold Notice is generated and managed from within an eDiscovery platform, Logikcull, and informs employees of the nature of the threatened or actual lawsuit and directs employees to preserve documents relating to the matter. Data stewards and data custodians will be included in the Notice and should preserve any potentially relevant information. The employee will receive the notice via email and will be asked to confirm receipt. As part of the litigation hold process, employees who may be in possession of potentially relevant information will also receive a Records Questionnaire. The form/questionnaire shall be completed and returned to the OGC as soon as possible but no later than ten (10) days after receipt.
Employees in possession of relevant or potentially relevant information are under a legal obligation to preserve immediately the information wherever located and in whatever form. Information subject to the Notice may be in hard copy or electronic form. Information may be located in division files, department files, individual files, and electronic files and folders, and may also include any records generated as part of the individual’s employment (including on personal devices).
Upon receipt of the Notice, the employee should immediately suspend the deletion, overriding or any other destruction of ESI relevant to the matter. If required, documents subject to the Notice must be preserved even if they would normally be destroyed in accordance with the UNC System Records Retention and Disposition Schedule. Employees may receive further notification when the need to produce any ESI is required. Failure to comply with the requirements for preserving and producing ESI may subject the University to serious sanctions.
OGC will notify all employees subject to the litigation hold when the need to preserve is over, and the hold is released.
Other Frequently Asked Legal Questions
Are communications with the Office of General Counsel attorneys 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:
- the relationship between the attorney and client existed at the time the communication was made;
- the communication was made in confidence;
- the communication relates to a matter about which the attorney is being consulted professionally;
- the communication was made in the course of seeking or receiving legal advice; and
- the client has not waived the privilege. All five parts must be satisfied for the privilege to be valid.
The University, not officials in their private or individual capacity, is our client. When Trustees, Administrators, Staff, or Faculty act in their official capacities, they are our clients. Advice from the university’s attorneys must be maintained in confidence and not shared with anyone who is not another university officer with a need to know.
Therefore, to not 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 who are not relevant administrators. Such actions may waive any privilege that would have been attached to the advice.
Just as necessary in knowing when the privilege applies, some communications are not protected. The privilege does not protect
- underlying facts regarding a matter and
- requests or communications not explicitly 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 being transmitted for review by an attorney. Finally, the privilege may not shield the university employee from 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
Is App State 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 activities.
The respective statuses of organizations are 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.
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 App State is included in that recognition by extension as a constituent institution of the System, the more accurate analysis for App State’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. App State is exempt from North Carolina state income and property taxes pursuant to State General Statutes, not under 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 App State, 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 their student’s progress, grades, or financial accounts?
Yes, under certain conditions. The Family Educational Rights and Privacy Act (FERPA) grants rights to education records to the university student, not the parent. The university may disclose information in the student’s records to parents in the following situations:
- if the student provides written consent to the university;
- if the student is a dependent for income tax purposes;
- if a health or safety emergency involves the student; or
- 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, please refer the student to the process outlined by the Registrar’s Office or the instructions for granting access, 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 OGC, the App State 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 the consent of the dependent student, we encourage the parent to obtain education information directly from their child. For information on FERPA, contact the OGC.
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, the App State Police Department, Internal Audit, or the Office of State Auditors. These offices also allow anonymous complaints to be called in or submitted electronically.
All individuals who report or 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.