NCPBA Legislative Alert - The Good, the Bad and the Ugly
Mar 19, 2013
The Good
On Thursday, March 14, 2013, House Bill 299 was introduced in the House. Led by our four primary bill sponsors, Representatives Marilyn Avila, Charles Jeter, Jonathan Jordan, and Rick Glazier, 16 total co-sponsors (11 Republicans and 5 Democrats) signed onto the bill.
The Bad
Unfortunately, despite strong bipartisan support, HB 299 was sent to the House Rules Committee where bills traditionally are sent to die.
PBA leaders are working non-stop, talking with bill sponsors and House Rules Committee Chair and PBA friend Tim Moore to get the bill a fair hearing. PBA leaders from House Speaker Tom Tellis’ district are planning a meeting with the Speaker this week. We will keep you posted.
The Ugly
Senate Bill 332, Government Transparency Act, was introduced in the Senate on Tuesday, March 19, 2013. Sponsored by Senators Thom Goolsby and Wesley Meredith, SB 332 would further expand the erosion of the North Carolina Personnel Privacy Act.
As you recall, the last General Assembly amended the Personnel Privacy Act by making termination letters and other documents from officers’ personnel files public records. Now from the proposed legislation in SB 332 comes another leap as provided in subsections 10 and 11, which provides in part:
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A general description of the reasons for each promotion, demotion, transfer, suspension, separation, or other change in position classification with the department, agency, institution, commission, or bureau.
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The performance of the employee, to the extent that the department, agency, institution, commission, or bureau has performance records in its possession.
As you can see, if this bill is enacted, any member of the public, including those who complain against officers and/or who have been arrested by officers, will be able to obtain:
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Termination letters and the purported facts and reasons alleged, including all alleged acts and omissions.
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The reasons for each promotion, demotion, transfer, suspension, separation or dismissal. Such reasons appear in all kinds of various documents, many times void of any findings of fact or conclusions of law.
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The performance of each employee, which for troopers and other officers would include all written evaluations, all performance testing records, all letters of commendation, support or complaint. Training records related to performance will be disclosable.
In addition, there is an on-going debate about whether or not this will open up medical records. The pro-disclosure forces are arguing that the medical conditions of employees impacts on their performance, behavior and conduct. This could mean a nightmare for police officers faced by demands from unscrupulous lawyers who are attempting more frequently to obtain officers’ personnel files to help fuel unwarranted civil litigation claims against officers or to dismiss otherwise solid criminal cases against their clients. If this bill is enacted, there will be virtually nothing left of the Personnel Privacy Act.
Below is a letter the PBA presented to the bill sponsors offering a solution to the intended transparency without compromising officer safety and careers.
March 19, 2013
Senator Thom Goolsby
North Carolina Senate
300 N. Salisbury Street, Room 406
Raleigh, NC 27603-5925
Dear Senator Goolsby:
We are writing to you regarding Senate Bill 332, Government Transparency Act.
The North Carolina Police Benevolent Association, Inc. has been representing thousands of law enforcement officers since 1986 and has grown to become the largest law enforcement association of active duty law enforcement professionals in the state.
As you recall, we recently spoke to you about the disparity in North Carolina law enforcement agencies in the manner and practice in which allegations of police misconduct are investigated and adjudicated.
North Carolina law enforcement officers are being abused and attacked with greater frequency, in alternative forums: in the streets, in human resource departments, in internal affairs units and from unscrupulous attorneys who are attempting to obtain reams of unrelated personnel information on our members to develop unwarranted claims or to dismiss cases against their clients. Officers, except state employed officers, have virtually no means to meaningfully challenge false allegations. Under SB 332, much more information about officers will be publicly released.
While state officers enjoy a basic minimum right to due process to contest false allegations and adverse employment actions, most municipal and county officers do not. Of the five municipalities including Wilmington, that actually utilize a civil service board established to provide a fair and independent hearing process for law enforcement officers, only three of these boards actually adhere to a lawfully recognized standard of review and fact finding.
This leaves more than 500 other local law enforcement agencies in North Carolina employing thousands of law enforcement officers where no type of fair or impartial review or hearing process exists. Additionally, all North Carolina law enforcement officers are required to maintain state certification through the North Carolina Criminal Justice Education and Training Standards Commission.
Clearly, our law enforcement officers work under a system where their jobs are scrutinized like no other profession. Professional officers welcome this scrutiny and work diligently to consistently raise the standard of the profession. But being faced with a system of disciplinary review where officers are forced to present their side of the story to the very source who ordered the discipline in the first place puts officers in the position of receiving bias or unjust discipline or simply not contesting the discipline at all, knowing the frivolity and uselessness of an appeal.
Officers facing such decisions have at least been protected from public release of false or misleading information and discipline pursuant to the provisions provided by North Carolina personnel privacy laws. Senate Bill 332 would obviously change that.
Professional police officers know that they are held to a higher standard than those who they serve and protect, and they applaud any effort to make government more transparent. However, transparency without fairness or accountability, especially as it pertains here, will needlessly harm police officers, personally and professionally.
Police officers are uniquely in the position of having their personal information released to criminals that our officers arrest, creating the possibility of not only destructive but deadly consequences for our members and their families. We are opposed to SB 332.
A number of compelling cases have revealed injuries inflicted on police officers as a result of documents disclosed from their personnel files, e.g., Toomer v. Garrett, 155 N.C. App. 462 (2002). The criminal element seek to harm officers in multiple ways.
Many cases and studies have demonstrated that officers are frequently the victims of extensive false, frivolous and other unsupported complaints. Those allegations relate to the alleged performance of the officers, thus they will become public under this bill. Officers will be held up to scorn and ridicule. Officers are usually forbidden by their agencies from publicly responding. Anti-police media will sensationalize from false allegations. The officers will be harmed.
The information to be disclosed in the bill needs to be substantially reduced.
However, at the very least, we respectfully request that you amend SB 332 to provide meaningful and fair due process for officers to contest false allegations and adverse actions to ensure that the transparent public dissemination of information is also truthful information.
We stand ready to work with you in such efforts and look forward to your thoughts and consideration.
Sincerely,
Randy Byrd John Midgette
North Carolina Division President Executive Director
RB/JM:hd
cc: Senator Wesley Meredith
North Carolina Division
