Sheriffs claim exemption in personnel disclosure

dkane@newsobserver.com pseligson@newsobserver.comMarch 21, 2014 

  • Sunshine Week

    Last week was Sunshine Week, when advocates of open government celebrate the value of freedom-of-information laws. This article is part of the N&O’s coverage.

Last summer, Johnston County Sheriff Steve Bizzell quietly fired a deputy who had spent more than seven years on the force.

Dustin Glenn Thompson, 32, had no suspensions or demotions during his career and received numerous pay increases before the sheriff fired him on Aug. 10.

Bizzell and an attorney for his office, Ronnie Mitchell, at first said the sheriff was not required to provide a letter regarding the firing. But then the attorney said he would seek one from Bizzell. That was in November. The letter, dated Nov. 26, wasn’t made public until last week; it said simply that Thompson had been fired for unspecified “conduct unbecoming of a law enforcement officer.”

Thompson’s firing is another example in which county sheriffs and some other law enforcement agencies have resisted providing disciplinary information requested under the state’s revised personnel law. They contend the new law is not as broad in scope as those who created it believe.

“My understanding of what they wrote all along was that it said if you have a letter, you have to disclose it, but if you don’t have one, you don’t have to write it,” said Eddie Caldwell, executive vice president and general counsel for the N.C. Sheriffs’ Association.

In 2010, lawmakers added more sunshine to what had been one of the nation’s most restrictive laws on personnel matters. The revised law requires state and local agencies to provide information on disciplinary actions such as suspensions, demotions and dismissals.

The law added a new category of public record: dismissal letters. The law says that “if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal” is a public record.

At the time, lawmakers who led the floor debate for the legislation’s passage said the new law required state and local government agencies to write a dismissal letter explaining why an employee was fired. The goal was to provide transparency to the public and make government more accountable to its citizens.

Former state Sen. David Hoyle, a Gaston County Democrat involved in creating the legislation, admitted to a fuzzy memory of the early morning events when the provision was added to the legislation and passed. But he said the intent was to give the public the ability to learn why an employee had been fired.

“There’s supposed to be a letter in the (personnel) file explaining why the dismissal took place, and it’s supposed to be available,” he said. “That’s what I remember.”

But Mitchell, the Johnston sheriff’s attorney, said the law is a suggestion. “What that’s saying is not that you have to create such a record,” he said. “It’s saying that if such a record exists, it’s public record.”

Using the law

The new law came after reports in The News & Observer and other media about law enforcement officers, teachers and other public employees who had committed felonies but whose past behavior was kept secret by the agencies where they worked.

State and local officials, including Clayton’s police chief at the time, quickly sought to limit the law’s scope. They asked Attorney General Roy Cooper whether the law meant that disciplinary actions prior to the law’s passage had to be made public. They also asked whether past disciplinary letters had to be made public and whether agencies were now required to create them.

Cooper, in a November 2010 advisory opinion, said the legislative intent was to provide more transparency and that included past disciplinary actions and a new requirement that dismissal letters be written. He said there was no requirement for letters to be written for employees who had been fired prior to the law’s passage.

Caldwell cited an opinion by Frayda Bluestein with UNC’s Institute of Government that questioned whether agencies that had not been creating dismissal letters now needed to provide them. Bluestein’s analysis preceded Cooper’s advisory opinion.

Since Cooper’s opinion, the law has allowed news media to report the reasons behind many dismissals that in the past would not have been known:

In January 2012, The Salisbury Post reported that an East Spencer fire chief and assistant fire chief were dismissed for repeatedly shocking a junior firefighter with a stun gun at a Christmas party.

In February 2012, The Daily Dispatch of Henderson reported a school bus driver was fired for failing to report being involved in a wreck with two students aboard.

Last May, The Wilson Daily Times reported that a county health director was fired for numerous personnel policy violations, including a breach of confidential information.

Necessary to sue?

Sheriffs and at least one local police department have maintained the law is much more limited in what it requires to be made public.

In May 2011, Wake County Sheriff Donnie Harrison would not provide the disciplinary history for a jail officer involved in an altercation that left an inmate in a coma with a debilitating brain injury. Harrison would only confirm a suspension that took place after the law’s start date.

He withheld that information until a criminal investigation – which found no wrongdoing – had been completed, even though the law does not allow for public records to be withheld for that reason.

Six months earlier, newly-elected Lincoln County Sheriff David Carpenter told The Charlotte Observer he would not write dismissal letters for fired employees. He would continue the office’s practice of firing them orally.

Deputies are considered “at-will” employees under state law, meaning they can be fired without just cause. But the revised law made no exception for such employees, Cooper noted in his opinion.

Earlier this month, Curtis Lambert, a Republican candidate for sheriff in Jackson County, was fired from his job as a Sylva patrol officer. The town manager, Paige Roberson, told a local TV station she would only explain the firing if Lambert gave written permission, which Lambert has not done.

She said that information was not public.

As a result, Lambert says he suspects his firing was political, a suspicion that is hard to confirm without a public explanation from the town.

“As a member of the public, something like this, it’s frustrating, and it causes you to lose trust in your government agencies,” said Jonathan Jones, a former prosecutor who heads the N.C. Open Government Coalition at Elon University. “If I lived in the town of Sylva, I would question whether or not the Sylva Police Department was doing everything above board if they weren’t going to be responsive to the public records law and explain why they let this guy go.”

Caldwell, the sheriffs’ association counsel, said sheriffs should have the discretion to say publicly why they fired an employee.

“In some cases, an employee has done something wrong, and they’ve been discharged. That’s a determination that that employee is no longer suited for that position, that level of the public’s trust,” Caldwell said. “But if you disclose all that to the public, you ruin their reputation in the community, you embarrass their family. The punishment is they’ve lost their job. Is it necessary to spread that all around the community?”

Mitchell, the lawyer performing legal work for the Johnston County sheriff, said he recommends sheriffs create letters of dismissal. But he contended sheriffs do not have to comply with the law because their offices do not come under the state personnel law. But that would mean all of those employees’ personnel information would be public; the state’s public records law requires anything that’s not specifically exempted under the law to be public.

Caldwell said deputies are covered under the personnel law. But he said until lawmakers revise the current law, or someone sues a sheriff who has not generated or provided a dismissal letter, he’s telling them to not write them.

“Nobody’s going to know what the answer is until the legislature comes back and clarifies it or the court case comes up and the courts clarify,” he said.

Kane: 919-829-4861; Twitter: @dankanenando

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