MEMORANDUM TO: Mayor and Member of the Greensboro City Council Interim City Manager, Denise Turner-Roth Interim

City Attorney, Jamiah Waterman Jim Clark, Police Attorney Nancy Vaughan, Greensboro City Council March 12, 2012 Privacy of Employee Personnel Records

FROM: DATE: SUBJECT:

Denise, two years ago, when you were developing our Public Records Protocol, you and I had extensive conversations about my concern with the City's reliance on the personnel exclusion. I believe that the City's definition of what is covered by the "Privacy of employee personal records" has been too narrowly interpreted. According to the North Carolina Open Government Coalition "Under the state Public Records Law, G.S. 132 every record is public unless there's another law that says it isn't. And North Carolina courts have said repeatedly that state public records law should be construed liberally." (emphasis mine) David Lawrence writes in his book Public Records Law for North Carolina Local Governments, Second Edition North Carolina law defines the term public record very broadly, the state supreme court has held that in the absence of clear statutory exemption or exception, documents falling within the definition of public records in the Public Records Act must be available for public inspection. Therefore, if an item meets the definition of a public record, the custodian must allow public inspection unless the custodian can point to some North Carolina (or federal) statute that permits or requires denial of public access. The North Carolina general statues are silent as to whether or not an employees Request for Outside Employment Form is covered by confidentially. Just because something is placed in an employees file does not make it exempt from public scrutiny. Under this logic, you can place anything in an employees file with the goal of shielding it from public view. One example could be expense accounts. Expense accounts are not listed as being excluded under GS132 or enumerated as a public record in GS168A160. The statutes are silent on expense accounts, just like they are silent on an employees Outside Employment Request Form. From David Lawrences book:

Litigants have sometimes argued that the latter part of the definition made or received pursuant to law or ordinance contains words of limitation and that only those records whose receipt is specifically required by statute or local ordinance are public records. The court of appeals rejected such a limiting reading in the News & Observer Publishing Co. v Wake County Hospital System Inc. Among the records sought in that case were expense account records submitted to the agency by members of its staff and governing board. In holding that these were public records, the court stated that the phrase in GS 1321 pursuant to law or ordinance in connection with the transaction of public business should include, in addition to those records required by law, those records that are kept in carrying out lawful duties. The North Carolina Supreme Court did not specifically address the definition of public record in the News & Observer Publishing Co. v. Poole its leading discussion of the public records statute. But the court obviously accepted a broad reading of the statutory language, consistent with the statement in the court of appeals. A number of the documents involved in Poole we not required by any law, yet the court held they were public records. I recognize that this case is not a perfect parallel but the basic facts are transferrable. I was very pleased to see legal staff acknowledge that there are many instances in which personnel records are public records. It is important for Council to note, that contrary to past legal opinion, the following information is a matter of public record (160A-168, section b): (b) The following information with respect to each city employee is a matter of public record: Name. Age. Date of original employment or appointment to the service The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession. Current position. Title. Current salary. Date and amount of each increase or decrease in salary with that municipality. (9) Date and type of each promotion, demotion, transfer, suspension,

(10) (11)

(12)

separation of other change in position classification with that municipality. Date and general description of the reasons for each promotion with that municipality. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the municipality. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the municipality setting forth the specific acts or omissions that are the basis of the dismissal. The office to which the employee is currently assigned.

In Jamiah Watermans memo, dated March 7, 2012 he states In actuality, the City Council can only vote to release personnel information to the public in one very narrow circumstance. The City Council, in concurrence with the City Manager, may vote to inform the public of: The employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a city employee and the reasons for that personnel action Anything listed in subsection (b) - detailed above - is by definition a public record and does not require a vote by council or concurrence by the City Manager. NCGS 132-b states The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people...

In reviewing GPD directive 3.4.2 Declaration of Outside Employment, attached to Jim Clarks memo: Each employee who wishes to engage in outside employment must submit a Request of Outside Employment form through channels to the Chief of Police prior to initiating such employment. Each successive supervisor will indicate their approval or denial of the request. If the request is approved with restriction or denied, comments must be included stating the reasons supporting this finding. The Office of the Chief of Police will ensure a copy of the completed form is returned to the employee in a timely fashion following the review process. The original completed request form will be maintained in the Resource Management Division. In Mr. Clarks memo he states Approval of outside employment does not constitute an absolute guarantee of the employees continued outside employment. If a conflict of interest arises between the outside employment

and City employment, the duties and obligation owed by the employee to the City absolutely supersede outside employment. Where a conflict arises, the employee is obliged to resolve the conflict in favor of the City. I dont believe that my concern was addressed. We have a Captain who runs a halfway house. That house averages 1.2 calls a month. The calls range from runaways to an allegation of an employee pulling a night stick on a resident. This home is in the service area (Eastern) that the Captain oversees. How can his subordinates comfortably investigate calls to this address? How can his subordinates be assured that there will be no retribution depending on their investigative findings? In case of an emergency how will the Captain balance his responsibilities between what is required by the state and his role as a Captain? Based on the very limited information required to fill out the Request for Outside Employment (outside employer name and address, type of business and work schedule) what is the basis for keeping this form confidential?

Finally, did Captain Hinson fill out a form for each of the three homes for which he was licensed? If yes, please release them. Remember David Lawrences statement North Carolina law defines the term public record very broadly, the state supreme court has held that in the absence of clear statutory exemption or exception, documents falling within the definition of public records in the Public Records Act must be available for public inspection. Therefore, if an item meets the definition of a public record, the custodian must allow public inspection unless the custodian can point to some North Carolina (or federal) statute that permits or requires denial of public access.

It is our duty to serve the citizens of Greensboro, not to find ways to hide behind technicalities. The GPDs motto is Building Trust in our Communities. Since the courts have ruled that public records law should be construed liberally, we should aim to be more open and accessible to truly reflect the GPDs Guiding Principles.

Denise, I think its time for us to revise our Citys Protocol for Public Records Request to accurately reflect state law. Section 160A-168 further states that (b2) The city council shall determine in what form and by whom this information will be maintained. Any person may have access to this

information for the purpose of inspection, examination, and copying, during regular business hours, subject only to such rules and regulations for the safekeeping of public records as the city council may have adopted. I would welcome the opportunity to discuss with you my thoughts on how we can have a more transparent public records policy and how we can turn that policy into action.

CC: Michael Speedling, Assistant City Manager Ken Miller, Chief of Police