The 2010 session of the North Carolina General Assembly is a "short" session to handle budget issues and items left over from the 2009 "long" session. Click on links below in the summary to be taken to more information on that bill.

Omnibus government ethics and public transparency legislation (HB 961)

7-10-10 UPDATE: Both chambers of the General Assembly ratified the Ethics Bill in the early morning hours of July 10. As passed, the bill is a major victory for those the public, returning the right of automatic recovery of attorney fees in winning open records lawsuits (with certain restrictions if the governmental bodies took specific steps before denying access). The legislation also establishes a mediation process for such disputes, although it allows for both parties to waive any mediation and proceed to court.

The biggest controversy in the last days of the session concerned government employee personnel records and how much would be open for inspection by the public. While the final version of the bill cut back on the expansion of what would now be public, it did add some provisions sought by government watchdogs. Currently only the most recent salary increase, change in position or other action is public. Under the new law each action throughout the person's employment with the agency is available for inspection. Also now to be made public are general descriptions of the reasons for each promotion and in cases of dismissal, "a copy of the written notice of the final decision of the authority setting forth the specific acts or omissions that are the basis of the dismissal."

The Open Government Act (HB 1134), designed to award attorney fees to the prevailing winner in most open records court cases was tweaked by leadership in both chambers, and absorbed into this much larger bill lawmakers on the campaign trail are dubbing the “Good Government” bill. Also incorporated into this bill is language to open up more of government employee personnel records including salary histories and all promotions, demotions, but not disciplinary actions.

The big change to what was the Open Government Act involves a mediation provision for public records disputes. (Note: If you are reading through this lengthy bill, this provision is near the end.) Mediation would be the first step, however both sides of the issue can agree to waive mediation. Beyond the mediation, this bill does establish that governmental bodies found by a court to be in violation of the open records law must pay plaintiff’s attorney fees unless it relied on a judgment or an order of a court applicable to the governmental unit or governmental body; the published opinion of an appellate court, an order of the North Carolina Business Court, or a final order of the Trial Division of the General Court of Justice; or a written opinion, decision, or letter of the Attorney General.

The NCPA feels the benefits of the open government act – even with the changes tossed in without warning in the dark of night – and the need to open state personnel records more to public scrutiny outweigh any disadvantages in the larger HB 961. NCPA and its members have worked for seven long years to improve the attorney fees provisions in state law and this bill will, at long last, make that happen. NCPA does not object to mediation in such cases. We urge you to contact your legislators and talk to them about HB 961 and ask them to support it. Tell them all newspapers support automatic attorney fees AND more openness in state employee personnel files.

On July 6, both chambers approved its own version of the ethics bill. In the House, the bill (SB 716) had four amendments approved, two of which dealt with openness issues. The biggest, from Rep. Deborah Ross of Raleigh, makes a major change in the language concerning what government personnel records would be open to the public. Under this amendment, the public would be able to see the reasons for any promotion, it would not make pubic the reasons for demotions, transfers, suspension, separation or other changes in position classification... unless the change was due to a criminal conviction (not charges, but a conviction). The unamended version of the bill made the reasons for a change public in all cases. The amendment was approved on a 112-2 vote.

The other amendment, also sponsored by Rep. Ross, gives public hospitals an automatic exemption from having to pay attorney fees if they lose in any public record case "if the court finds that the action was brought by or on behalf of a competing health care provider for obtaining information to be used to gain a competitive advantage." This amendment was approved 114-0.

In the Senate, two amendments to HB 961 were approved. One of those mirrored the exemption for public hospitals. It was sponsored by Sen. Dan Clodfelter of Charlotte. The amendment was approved 48-0. Other openness provisions, including the reasons for changes in the status of government employees, was passed the the full Senate.

Permitting big counties to avoid advertising tax liens in newspapers (SB 1381)

Under this bill, filed by Sen. Daniel G. Clodfelter (D-Charlotte) allows counties with population of more than 800,000 to avoid publishing the annual listing of tax liens in the newspaper. Instead, those counties may just use their own county government website as a way of fulfilling the public notice requirements. At this time there are no co-sponsors listed.

The population requirement would currently limit this to Mecklenburg County (2009 est. 913,639) and Wake County (2009 estimate 897,214). [The next largest county, Guilford, has an estimated population of 480,362]

NCPA Position: Newspapers have run these ads, as the law prescribes, for many years. As any county government official will tell you, the cost of running the ad is tiny when you look at the tens of thousands of dollars in revenue that delinquent taxpayers send in after seeing their name in the paper. Running these ads on a government web site all but guarantees these two counties will suffer a significant revenue loss – at the hands of their own legislators. Check the traffic on these governmental web sites, then compare it to the numbers of people who read the ad in the paper, read it online and pass it along to their friends and neighbors. It’s no contest. Government web sites are NOT destination sites for real people. Newspaper sites are.

Open state employee personnel records (SB 1433)

NOTE: Much of the contents of this bill is now a part of HB 961, the "Good Government" bill. See above.

Sen. Phil Berger (R-Eden) filed this bill May 25. It amends the statutes concerning government employees' records in two ways. First, for the benefit of the public, it adds more information that is available for inspection. For the employee, it does away with restrictions on what files the employee himself or herself can see -- allowing the employee to see the file in its entirety.

The bill would make the following items public that currently are not: retirement benefits, letters of recommendation, all salary changes (not just the most recent one) plus the history of every promotion, demotion, etc. and every change of position.

The bill has been assigned to the Committee on Judiciary 1. While it is too early to tell at this point, it is likely that this will be rolled into the promised ethics legislation that Democratic leaders have discussed. See more details on this below.

Republican leaders split on bill (N&O blog report) 6-2-10 (Click on News reports button below)

Police cell phone numbers confidential in Greensboro (HB 1993 / SB 1413)

A local bill that would expand the definition of "records of criminal investigations" to include the cell phone numbers of equipment provided to law enforcement officers in Greensboro. The current definition is "all records or any information that pertains to a person or group of persons that is compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements." The change would make the cell phone numbers equivalent to evidence used in the investigation of a crime.

The House bill was filed by Rep. Earl Jones (D-Greensboro), who is the owner and publisher of The Greensboro Times newspaper (not an NCPA member). Jones was defeated in the May 4 primary. Co-sponsor is Rep. Alma Adams (D-Greensboro). It has been assigned to the Committee on Local Government 1 and if reported favorably to Judiciary 1. The Senate bill's primary sponsor is Don Vaughan (D-Greensboro), co-sponsored by Philip Berger (R-Eden), Stan Bingham (R-Denton) and Katie G. Dorsett (D-Guilford). It is assigned to the Senate's Committee on Judiciary 1.

E-mail lists from Wake County and its municipalities (HB 1921)

This local bill establishes that while e-mail subscriber lists maintained by Wake County, Raleigh and towns in the county are public records open to public inspection, those governmental units are not required to provide electronic copies of those lists, even if they are available in that format.

This measure would counter the state's public records law, specifically section 132-6.2, which states in part, "Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium."

NCPA POSITION: We are investigating this legislation and will be in talks with local representatives.

Changes were made to this legislation. Read latest version by clicking on Text button below.

Expanding legislative confidentiality to include documents from outside sources (HB1855)

In the 2009 session, in a quest to broaden confidentiality between legislators and their staffs, the General Assembly completely reworked a bill (HB104) that originally dealt with terms for Legislative Ethics Committee members and changed the timing of ethics training for legislators. (The House had actually approved this version on 2nd and 3rd reading, sending it to the Senate.) The conversion of the bill into one that expanded secrecy rules was accomplished in the final days of the session and passed without a single “nay” vote in either chamber.

The bill expands legislative confidentiality beyond communications between legislators and staffs to include anything sent to or provided by someone else – including constituents and lobbyists. Any document received by any legislator or staff member could be stamped “confidential” and would be exempt from public records laws.

Gov. Beverly Perdue vetoed the legislation on Sept. 10. At the time she was quoted as saying “This bill unnecessarily adds new restrictions on public access to documents and information.” House and Senate leaders opted against calling a special session to override the veto.

In the 2009 version, any legislative employee in violation of this measure would be subject to disciplinary actions, or if the person was a public officer, subject to removal from office. Anyone else would be subject to facing a Class 3 misdemeanor charge. However, in the 2010 version, the proposal adds executive branch and judicial branch employees to the list of those who would only face disciplinary actions and not the criminal charge.

Both the previously passed version and the 2010 version include a provision that would automatically amend the Open Government Act (HB 1134), which is pending action in the Senate. NCPA has so far kept that bill from being changed from its original version, but NCPA Legislative Counsel John Bussian said this could provide an underhanded way of approving an amendment without debating that issue when considering HB1134.

NCPA POSITION: H1855 broadens the legislative privilege (currently part of North Carolina law) that exempts from the public records law communications between lawmakers and the general assembly staff. This bill would broaden that privilege to include communications from the press and public and lobbyist to lawmakers. Communications from the press, the public and lobbyists – as well as letters of recommendation from lawmakers to employers, universities and others – would become secret. This bill makes it a crime for the public, press and other non-staff to disclose any of the communications to anybody. This is public business and communications between elected representatives and the public they serve – especially lobbyists – should remain public. We urge all NCPA members to contact their legislators to ask them to stop this bill!

Open Government Act and Attorney Fees (HB1134)

NOTE: Much of the contents of this bill is now a part of HB 961, the "Good Government" bill. See above.

This bill is now pending in the Senate. If has been assigned first to the Judiciary 1 Committee and if reported favorably, will be sent on to the Senate Finance Committee. The Judiciary 1 Committee is chaired by Martin L. Nesbitt Jr. The panel has four vice-chairmen: R. C. Soles Jr., Daniel G. Clodfelter, Peter S. Brunstetter and Josh Stein.

Other members of the committee are: Charles W. Albertson, Philip E. Berger, Dan Blue, Eleanor Kinnaird, Floyd B. McKissick Jr., David Rouzer, Andrew C. Brock, Harry Brown, Debbie A. Clary, Malcolm Graham, David W. Hoyle, Clark Jenkins, Richard Stevens and Jerry W. Tillman.

The Open Government bill passed on third reading in the House on July 13, 2009. The vote was 107-5 with 2 members not voting and six excused absences (Get the roll call vote report here). You can read a statement on the vote from the Attorney General's office by clicking here.

The full title of this legislation is "An Act To Create The Open Government Unit Of The Department Of Justice, To Establish A Fee For Services Of Moderation And Mediation By The Open Government Unit, And To Provide That The Successful Plaintiff In A Public Records Dispute Is Entitled To Reasonable Attorneys' Fees."

The title provides a good summary of this legislation. It does set up parameters for judges to deny automatic recovery of attorney fees when the defendant has taken certain steps before denying the public access. The bill passed the House with the original language intact. Efforts by government interest lobbyists to make changes were defeated. They wanted an exemption from the automatic recovery if the public body being sued had been advised by their own attorney not to release a public record. The pressure for changes is likely to increase in the Senate.

We urge each member to promote passage of this bill WITH NO AMENDMENTS. Newspapers and the NCPA strongly support this bill AS IT STANDS. This bill – IF LEFT UNCHANGED -- gives the people of North Carolina automatic recovery of attorney fees in public records cases.

Allowing the city of Burlington to sell/lease land privately (SB1121 & HB 1688)

NOTE: This bill in its current version, passed by both Chambers and signed into law, removes the objectionable passages.

This legislation, which for the time being affects only Burlington, would amend the city's charter. According to this bill, the city council "may publicly or privately sell, lease, rent, exchange, or otherwise convey or cause to be publicly or privately sold, leased, rented, exchanged, or otherwise conveyed, for such consideration and upon such terms and conditions as determined by the city council, any real property or any interest in any real property belonging to the city." The measure eliminates public notice procedures currently required by the charter, giving the public or press no notice of any bid made for city property and without approving the transaction in an open city council meeting.

In the Senate, the bill is sponsored by Sen. Tony Foriest (D-Graham). It was assigned to the Committee on State and Local Government. In the House, the matching bill is sponsored by Rep. Alice L. Bordsen (D-Mebane) and Rep. Dan W. Ingle (R-Burlington). It was sent to the House Committee on Local Government 1.

Electronic public notices in Clayton (HB710)

NOTE: While the Clayton bill was passed by the House, in the Senate the text concerning Clayton was completely removed and replaced with legislation concerning the boundary of the town of Archer Lodge.

The previous version, affecting public notices in Clayton, passed the House in 2009. It was referred to the Committee on State and Local Government as its first stop in the Senate. During the 2009 session, House Republican Leader Skip Stam made several unsuccessful attempts at adding more cities to the Clayton bill. In the House it was sponsored by Rep. Leo Daughtry as a local bill. With local bills the House and Senate tend to defer to the local legislators on whether to adopt it.

Fortunately for Clayton, while HB 710 passed the House, the local senator has indicated an unwillingness to move the bill through the Senate. That should kill it, but there is no guarantees.

Because of the nature of local bills, there is also no guarantee that other communities won't become targets for those wanting to remove public notices from newspapers. Local bills are an exception to the crossover bill that prohibits new legislation being introduced in the second year of a General Assembly session. In a time of tight budgets, odds are high that other local bills, especially in Wake County, will be filed to give local governmental units the option of running their legal notices on their own Web sites.

NCPA Legislative Counsel John Bussian warns of a bandwagon effect if one local bill passes. “There will be a fairly large battle to the death on this. We need to be prepared for a long, hard fight.”

NCPA VIEW: We strongly oppose this measure as taking public notices out of even one newspaper where the public will notice means that members of that community (or communities) are denied information that may be vital to them.

Latest editorial from The Clayton News-Star (click on Editorials button below)