Lawmakers in the N.C. General Assembly will again take up what, on its face, seems a commonsense bill that would open the disciplinary records of government employees. The Government Transparency Act — House Bill 64 and companion measure Senate Bill 355 last session — crept through the legislature in 2021 before petering out in committee.
Sens. Bill Rabon, R-Brunswick, and Norm Sanderson, R-Craven, who sponsored S.B. 355, have signed on to the new measure, which lawmakers will file in the current session, John Bussian, one of the most prominent media and First Amendment lawyers in the country, told The Wake Weekly.
This comes just in time for National Newspaper Week, Oct. 2-8, marking the 82nd year in recognition of the service of newspapers and their employees throughout the U.S. and Canada, the N.C. Press Association says.
The Newspaper Association Managers sponsors the celebration of print and digital newspapers, which are a vital part of our democracy. The Fourth Estate, or the idea of a strong and free press, is the proverbial gatekeeper guarding against public corruption and malfeasance, and its role as watchdog is needed more today than ever.
“There is no legitimate public policy reason not to allow North Carolinians the right to see records of disciplinary actions taken against the people they employ in state and local government,” Bussian said.
“The vast majority of states enjoy access like this, and the best of these states allow complete access to these files.”
The previous iterations of the transparency measures, the bills’ summaries say, would amend various statutes governing confidentiality of personnel records of governmental employees to provide the public access to the date and a general description of each demotion, transfer, suspension, separation and dismissal in addition to each promotion.
The upcoming bill will also require each affected governmental employer to adopt policies to allow employees to challenge the wording of the general descriptions, the summary says. Under current law, personnel files of state and local government employees are confidential and can’t be released, except for certain items of information, which must be maintained as separate public records.
As a consequence, media outlets are shut out of the process, and the idea of an open and transparent government effectively falls by the wayside. The only recourse news outlets have to obtain those records is to sue for them, which is a costly and oftentimes fruitless process.
The N.C. Press Association
strongly pushed the previous bill, but employee unions, including the State Employees Association of North Carolina, the N.C. Association of Educators and the Teamsters, fought it.
Most Democrats, too, are against the bill, save for a handful of lawmakers, Bussian said. The N.C. Press Association
pushed for the bill last session, and it will again. Employee unions, however, will likely keep fighting it.
State statute provides a list of data that each state agency must maintain and make available to the public for inspection upon request, including name and age, terms of any contract, current position, title, and salary, date and general description of the reasons for each promotion, and date and type of each dismissal, suspension or demotion for disciplinary reasons.
The new measure looks to create a new requirement that the state provides a general description for each demotion, dismissal, transfer, suspension, separation or other change in position for each state employee, the bill language says.
The difference between a bill back in 2010, sponsored by Rabon and others, required disclosure of a “general description of the reason” for the suspension, demotion or firing of any state or local government employee, Bussian told The Wake Weekly.
The new bill provides that an accused employee shall have an opportunity to appeal the disciplinary action and the reason for the disciplinary action can’t be disclosed until the appeal has run its course, Bussian says. Lacking an appeal, the reason would be disclosed as soon as the time for appeal has expired.
In an opinion piece published throughout the state last year, Paul Mauney and Bill Moss of the NCPA say these union organizations, as well as the N.C. Justice Center, “have flooded senators’ inboxes with a letter declaring the bill unconstitutional, and they persist in the false portrayal even after sponsors agreed to an amendment addressing their due process concerns.
“The aggressive opposition raises several questions. What is there to hide? What is the public policy interest in keeping public employee performance records hidden from the public?”
Signing the letter were Ardis Watkins, executive director of the state employees association, and Tamika Walker Kelly, president of the teachers association. In the letter, the pair said the bill “would allow ANYONE full access to a state employer’s personnel file, including any comments from supervisors about disciplinary actions in real-time, even though an employee’s appeal of potentially false information could take months.”
Medical records and other personal information are already protected by federal law, including the Health Insurance Portability and Accountability Act, or HIPPA
The bill is constitutional, an expert on the U.S. Constitution told Carolina Journal last year, and the core language was written in 2010 by, among others, N.C. Senate President Phil Berger, R-Rockingham. That bill passed with the same wording, the expert said, but, because of union opposition, was diluted to the point of becoming ineffective.
Gov. Roy Cooper, a Democrat, often says he supports an open and transparent government, and, as attorney general, he even published a sort of manifesto on the subject and the importance of a free press and exchange of ideas. As a state senator in 1997, Cooper sponsored a failed bill, the Discipline Disclosure Act
, which sought, it said, “to bring more openness to the performance of public employees by providing greater access to personnel records.”
But, as governor, Cooper has treated the idea as anathema, I wrote for CJl last year. Cooper has been reluctant to talk about the bill and whether he would support it.
About 40 states currently have some sort of transparency measure, allowing access to personnel records of state workers. Not surprisingly, unions are heavily invested in the states restricting such measures — states such as Illinois and Pennsylvania.
Thus the opposition from N.C. Democrats, who are increasingly becoming beholden to union interests, proponents of the transparency measures say.
“We’ve had no problem attracting Republic leadership to this bill,” Bussian told The Wake Weekly last week.
Most Democrats, he said, “are nowhere to be found.”
In a survey last year by the NCPA, seven of 10 N.C. residents would favor a change in the state’s public records law that would improve people’s right to see records of law enforcement and other government officials.
The goal, says Bussian and the NCPA, is to make government transparency a campaign issue and to debunk progressive fear-mongering. Bussian called it a “very basic first step” toward a more open government.
“There’s a gaping hold in the law,” he says. “It’s just so basic.”