NC lawmakers pass bill making personnel actions public; heads to House for concurrence

By Jeff Moore

Raleigh, NC – A bill to provide more transparency to the public regarding performance and disciplinary records of government employees moved one step closer to becoming law Monday evening as House Bill 64, Government Transparency Act of 2021, passed its third reading in the N.C. Senate. If enacted as law, the new requirements would apply to state employees and workers in local school districts, counties, cities, and colleges and universities.

photo by Wesley Tingey

A nearly identical senate version of the bill was active earlier this year, and supported by the N.C. Press Association, which asserted that “a general description of the reasons for demotions, suspensions, and terminations have been kept secret from the public for far too long.”

The proposal is energetically opposed by Democrats, interest groups such as the N.C. Justice Center, and employee unions like the N.C. Association of Educators, who have deemed the proposal unconstitutional.

Specifically, bill opponents raise concerns over exposure of protected employee information. Proponents of the act, however, regard political resistance to the transparency legislation as merely an effort to keep unflattering personnel records from public view and scrutiny.

In an opinion piece published in Carolina Journal and throughout the state, Paul Mauney and Bill Moss of the NCPA say these organizations, “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.”

“Contrary to the NCAE’s arguments, due process safeguards exist — by statute or by agency procedural rules — at every level of city, county, and state government for employees who believe they have been wrongfully accused and discharged. Language has been added to the bill to prohibit disclosure of personal medical information; and additional safeguards are built into judicial decisions that are well-known to public sector lawyers, who train their state and local government managers to use them when appropriate. There is nothing legally defective — much less constitutionally defective — about this bill.”

Whereas current state law only requires the date and type of personnel actions be made public, to include a termination letter if an employee is fired, H.B. 64 would expand public record requirements to include government personnel actions like suspensions, promotions, demotions, transfers, separations, and dismissals. Each such action would require a general description be entered and maintained in public record as soon as the appeals period expires.

Gov. Roy Cooper, who has been virtually silent on the bill, is presumed to oppose it. The governor has been pressed since spring on whether he would support the legislation, especially considering his previous sponsorship of the Discipline Disclosure Act as a state senator in 1997.

In an unusual scenario, on this issue Cooper finds himself opposite press outlets that typically align with his policy positions. Media outlets such as the Raleigh News & Observer have publicly expressed frustration over the administration’s reticence when it comes to disclosing records of public interest, such as those on state incentives offered to lure Apple to Research Triangle Park, the $58 million Atlantic Coast Pipeline Agreement, and a bevy of records requests related to COVID data and North Carolina nursing homes that remain unfulfilled.

The transparency legislation comes at a time of heightened public focus on improving accountability of public employees. The issue cuts across party lines in that expanding the public’s right to know could provide insight into the personnel practices of law enforcement during an acute period of scrutiny; it can also provide for accountability in public schools, for teachers and school administrators, amid an avalanche of parent concern over controversial trends in cultural instruction.

Ahead of the Monday evening vote, the NCPA noted as much, reporting that seven out of 10 North Carolinians favor a change to the State’s public records law.

“The Government Transparency Act does not make entire personnel files open to the public. Personnel evaluations, supervisory letters, leave documents, and many other types of documents would still be shielded.

The act does ensure that the public can see when a government employee has been promoted, demoted, disciplined or terminated and a brief reason for the change. It ensures that supervisors cannot covertly promote and demote staff without any public accountability. The act helps with tracking “bad apple” employees that shuffle between agencies. It can assist with tracking gender-based, racial, and forms of inequity.

“Government employees in North Carolina work for the taxpaying public. The people have a right to know if a police officer has been disciplined for excessive force, if a teacher has been demoted for inappropriate contact with a minor student, or if a family member has been given a big promotion due to nepotism,” the NCPA writes.

Further, Civitas Action let lawmakers know Monday afternoon the organization would be scoring the vote on its Civitas Action Freedom Rankings, adding that it views a ‘Yes’ vote on House Bill 64 as a ‘vote for freedom.’

“Since the positions subject to the changes in H.B. 64 are taxpayer-funded, this change will provide more transparency for taxpayers to understand how government is using their money, wisely or otherwise.  

“Unlike private sector workers, state employees are funded using money that was compelled from taxpayers, who have little to no oversight or recourse if their money is being mismanaged. Increased sunshine on publicly-funded personnel helps keep government accountable to make prudent personnel choices.”

Having passed the Senate on a party line vote, the bill heads to the N.C. House for concurrence and then on to the desk of Cooper, who faces diametrically opposed pressures that do not follow the usual political pattern.