Public employees’ files not all open yet (Charlotte Observer)
City seeks ruling that could limit access to personnel records under new sunshine law.
Good-government advocates hoped a new law this month would crack open North Carolina’s secretive old law on releasing personnel records for public employees.
But the city of Charlotte is among five state or municipal entities seeking attorney general’s opinions that could limit or close off newly available information for taxpayer-supported state and local workers.
At issue is whether the law should be applied retroactively for suspensions, dismissals and other actions that happened prior to Oct. 1, when the law took effect.
Noelle Talley, spokeswoman for Attorney General Roy Cooper, said Cooper’s office is preparing a response, which she said should be completed soon.
The old law made North Carolina the only state in the nation that allowed the release of no more than an employee’s current salary, position and job status.
The new law makes that information public, along with information about suspensions, demotions and dismissals.
Gov. Bev Perdue signed the measures as part of a series of ethics reforms, including tougher penalties for campaign contribution violations and other steps. The records law joins several others passed since 2005 to increase accountability in government.
City seeks clarification
The city of Charlotte sought clarification after the Observer requested information about all disciplinary actions taken against Charlotte Mecklenburg Police Department officers for the past five years.
The newspaper filed its request Friday, the day the law took effect. It also sought information on former officer Marcus Jackson, who is accused of sexually assaulting women he pulled over during traffic stops.
Six women have come forward alleging that Jackson sexually assaulted them. Jackson, 26, has been indicted in several of the cases. He has been fired from the department and is in Mecklenburg jail awaiting trial.
After Jackson was fired in December, the Observer and other news outlets discovered Jackson had a domestic violence complaint against him before he was hired. He also twice had faced suspension for other issues during his first year on patrol.
But the public may never know how well, or poorly, the Charlotte Mecklenburg Police Department performed in evaluating Jackson’s character and in supervising the rookie officer, because city leaders have refused to make Jackson’s personnel file public.
The city of Charlotte announced Wednesday that it has settled three lawsuits from two alleged victims of former police officer Marcus Jackson for a total of $225,000.
City Attorney Mac McCarley said the city would delay fulfilling the Observer’s request for records on Jackson and other officers because the city did not want to face liability for improperly releasing information.
“Because the statute is silent regarding the retroactivity of the provisions … it is unclear whether the city legally can or must provide the information that you have requested,” McCarley wrote in an e-mail.
Legislators may revisit law
There is nothing in the new law that says it should be applied retroactively or prospectively.
But Gov. Bev Perdue and several lawmakers have said they supported the law to make public the salary and employment histories of state and local employees.
Senate Majority Leader Martin Nesbitt, an Asheville Democrat, played a key role in reaching a compromise on the personnel law changes that passed the House and Senate overwhelmingly in the waning hours of the session. He said the intent was to make the law retroactive.
“We intended it to apply for all the records,” he said. “I think the statute is fairly clear. If you don’t say it applies to actions taken after this date it applies to all files.”
But Rep. Rick Glazier, a Fayetteville Democrat who led the House on the negotiations, raised doubts about whether lawmakers intended the law to be retroactive.
“I think there’s an open question here,” he said.
Both lawmakers said it’s likely the legislature will revisit the law next session because it is generating a lot of concern from local governments.
The Office of State Personnel said the law should not be applied retroactively for dismissal letters filed before Oct. 1, when the new law took effect.
“We have reason to believe that such release might violate the legal rights of these employees whom the law previously required that their dismissal letters were confidential,” wrote State Personnel Director Linda Coleman.
She is a former state representative from Wake County who was a strong advocate for state employees.
The state personnel office has sought an attorney general’s opinion, along with Alamance County, the town of Clayton, and the Johnston County Board of Education.
Clayton Police Chief Glen Allen questioned whether the new law should allow the release of any additional information pertaining to suspensions, demotions or promotions if they occurred before Oct. 1.
He and Coleman also asked the attorney general if the new law requires state and local agencies to create dismissal letters explaining why an employee was fired if those agencies did not do so prior to Oct. 1. The new law requires agencies make public their “final decision” for dismissal “setting forth the specific acts or omissions that are the basis of the dismissal.”
Meanwhile, Alamance County Attorney Clyde Albright wrote that a 2007 U.S. Fourth Circuit opinion makes the personnel law changes a violation of employee rights.
In that case, a Newport News, Va., police officer was fired after the department accused him of tampering with his squad car’s odometer to inflate the mileage and get a new car.
The court found that the dismissal should not be released because the officer had not had a hearing to defend himself against charges he said were false.
Records open in many states
Attorney General Cooper has advocated for release of more personnel information than what the legislature passed.
He said in a (Raleigh) News & Observer series about the personnel law that state and local government should make public the reasons behind all suspensions, demotions and dismissals. He sought to make it law 13 years ago as Senate majority leader.
“I still think serious discipline of governmental employees should be public record,” Cooper said. “Taxpayers should be allowed to know if and why a public employee has been suspended, demoted or fired.”
Several states, including Florida, Georgia, Ohio, South Carolina and Texas, have long made disciplinary actions and most other personnel actions public.
Frayda Bluestein of the UNC School of Government said asking for a legal opinion is a “reasonable first step” for governmental bodies concerned about liability under the new law.
Bluestein also offered another way to frame the debate. Instead of thinking about retroactivity, she said another view is simply whether records are on hand or not when the law became effective, regardless of when they were created.
“One way to look at this is as of October 1, if you have a record that meets this definition, that’s a public record,” Bluestein said.
Amanda Martin, an attorney for the N.C. Press Association, which includes the Observer and The News & Observer as members, agreed with Bluestein’s interpretation. While the law doesn’t discuss retroactivity, Martin said it does reclassify salary and employment histories as public record. As a result, state and local governments should provide the records.
“I believe that the new law makes the full panoply of those records public,” she said.
By Dan Kane and Doug Miller
Staff Writers
Posted: Thursday, Oct. 07, 2010
Read more: http://www.charlotteobserver.com/2010/10/07/1744206/public-employees-files-not-all.html#storylink=omni_popular#ixzz11g5zL6kG
