Part 1

Privacy fence shields state workers' files

Law hides all but basic facts

Staff WriterMarch 14, 2010 

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Former State Highway Patrolman Michael Steele, left, is escorted from the Orange County courthouse by Orange County Sheriff's Capt. Bobby Collins after his sentencing hearing Tuesday. Steele pleaded guilty last month to felonious restraint, second-degree kidnapping, extortion, assault on a female and sexual battery. Orange County Superior Court Judge Allen Baddour sentenced Steele to serve between six years and 10 months to nine years and nine months.

CHUCK LIDDY - CLIDDY@NEWSOBSERVER.COM

  • Dan Kane, 49, a graduate of St. John Fisher College in Rochester, N.Y., joined The News & Observer in 1997. He covered Durham City Hall and N.C. State University before moving to the state government team in 2002. He and reporter J. Andrew Curliss broke stories about legislative corruption and the creation of the state lottery, all involving former House Speaker Jim Black. Kane joined The N&O's investigative team last April; he and Joseph Neff wrote the series "Generous Assembly," in which Kane focused on legislators' little-known pet projects and expensive perks for state employees.

  • The law does not allow the automatic release of personnel records for employees who are convicted of crimes or are disciplined for misconduct. Should this information be made public?

    Gov. Bev Perdue

    "I will call on my Cabinet secretaries to release information on any future felony convictions of an employee within their agency." An aide later said that this would not necessarily include releasing other details from the employee's personnel file.

    Senate leader Marc Basnight

    "I don't know. I would be open to review this more with my members, so I can't answer you, but in the case of the highway patrolman [Michael Steele, convicted of kidnapping and related felonies], heck yeah. I'd like to have known about him, and the public should have known about him."

    House Speaker Joe Hackney

    "It's a line-drawing exercise, and whether the line is drawn in exactly the right place, I don't know the answer to that. I'm not opposed to looking at it."

    Senate Minority Leader Phil Berger

    "Yes. The distinction between employment-related and personal information should be maintained; however, information in a public employee's personnel file related to criminal convictions or misconduct resulting in discipline, particularly if the misconduct occurs in connection with state employment by law enforcement or policymaking personnel, should be made available."

    House Minority Leader Paul Stam

    "Release of complete personnel records must be only under specific circumstances. Explanation: Release of information would of course be justified if the employee was convicted of a crime relating to his/her official duties. 'Misconduct' is a subjective term and needs to be narrowly defined. If the misconduct is of a degree that merits termination, then the information should be released."

  • This is Sunshine Week, when journalists, librarians, lawyers, educators and other advocates of open government highlight the value of freedom of information. Our coverage begins with a three-part series on the state's restrictive personnel law. Here's what's coming in The News & Observer:

    Today: What stays hidden can be dangerous.

    Monday: Politically connected hires get obscured, too.

    Tuesday: Just how big was that raise?

    Wednesday: Coverage of Sunshine Day in Greensboro.

    Friday: North Carolinians' attitudes about open government.

First of three parts

Former state Trooper Michael Steele is serving at least six years in prison for a crime that abused the public's trust.

In August 2008, Steele cruised Orange County in his patrol car, looking for Latina women who he suspected were here illegally and therefore unlikely to report his attempts to coerce them into having sex with him. Steele forced three women from their vehicles and into his patrol car before he was caught.

The public will probably never know whether there were warning signs about Steele's character during his training and time on the job, because state officials won't make that information public. They cite the same reason that has time and again barred the public from learning more than the most basic details about the employees whose salaries they pay:

"The information contained in the file is protected by state personnel laws," said state Highway Patrol spokesman Everett Clendenin.

North Carolina has one of the nation's most highly regarded public records laws. It states that unless otherwise specified by law, all records are considered public, to be produced upon request. But the state's personnel law turns that stance around.

The personnel law makes a secret of all but the most basic information about public employees. You can find out when they were hired, their current compensation, their current position, their most recent pay increase or decrease, and the most recent change in their job status.

Everything else is considered private. Those in government who attempt to make it public can be charged with a crime.

Few if any states have such a restrictive personnel law, according to public records experts and a News & Observer review of states' personnel laws. North Carolina, for example, is the only state where salary information is limited to what's current.

"It certainly limits the amount of information that we have about the job that public servants are doing for us," said Dale Harrison, assistant director of Elon University's Sunshine Center, which promotes open government. "One of the spirits behind the public records law is that we can look at what public servants are doing and hold them accountable. When the information that you can get is this limited, you can't draw much of a picture."

Employee groups and advocates for local governments say the law protects employees falsely accused of misconduct or shoddy performance. Making disciplinary actions public could prompt more false claims, and lead to more litigation as those publicly accused of misconduct file lawsuits. If a fired employee wants his job back, the process is public in an administrative court.

"I do think that employees have some expectations for privacy in their dealings with their employer, and that includes in the public sector," said Ellis Hankins, executive director for the N.C. League of Municipalities. "There are just sound personnel administration reasons for keeping some of those disciplinary actions and the reasons for the disciplinary actions confidential."

A barrier to employers

But the law has become such a barrier that even governmental agencies - and those they hire to examine personnel problems - are being shut out.

School districts cite the law in failing to share information about teachers who behave badly then quietly move to other districts, said Katie Cornetto, a lawyer with the State Board of Education. She said the result is known as "passing the trash."

An example: In 2008, Jessica Wishnask, a middle school teacher in New Hanover County, resigned after twice being suspended for inappropriate contact with a student. Wishnask's employment history wasn't shared with the Pitt County schools until Wilmington police caught her "in intimate contact" with the same 15-year-old student, The Star-News of Wilmington reported. She is now serving a prison sentence for taking indecent liberties with a minor.

The incident left Pitt County school board members embarrassed and upset. But they said they were limited in talking about the case because of the state's personnel law.

"If it was made public, certainly you wouldn't hire her," school board member Roy Peaden told The N&O.

Investigating police

The state Highway Patrol has had more than two dozen cases of trooper misconduct since 1997, many of them sex-related. Two years ago, the patrol spent nearly $100,000 for an independent consultant to evaluate the patrol's hiring, training and supervision of troopers. But the consultant, Kroll, never looked at misconduct cases, because the personnel law prohibited an examination of those files. The patrol continues to keep a tight rein on information involving misbehaving troopers.

Last month, the patrol dismissed Trooper Anthony Scott, who has acknowledged being at the home of a Pittsboro woman with whom he had an affair when her estranged husband showed up. Scott, in appealing his dismissal, said he was unfairly disciplined and is not guilty of failing to intervene when Jennifer Andrews' husband allegedly threatened and assaulted her. The patrol, citing personnel law, has never explained why Scott was fired.

In Greensboro, federal Justice Department investigators struggled to gather information into long-standing complaints of racial discrimination within the city's police department. City employees were advised not to talk for fear of violating the personnel law, city officials told the News & Record of Greensboro.

There are many other cases where employees get into trouble, and public agencies won't share details. Marcus Jackson, a Charlotte-Mecklenburg police officer, is accused of sexually assaulting six women during traffic stops while on duty, but the department will not make public his personnel file to show whether he had been disciplined in the past.

'Shocking' incident

In Greenville, East Carolina University authorities declined to identify police officers who knocked down and roughed up fans celebrating the football team's 2008 upset victory against West Virginia, despite ECU Chancellor Steve Ballard's description of the incident: "the most disappointing and shocking I've witnessed in my more than four years here."

Pitt County District Attorney Clark Everett said the investigation into the incident has ended and that he declined to press charges, citing a lack of evidence, in part because some witnesses refused to be interviewed.

It's not just cops and teachers. After an audit found that the UNC-Chapel Hill Citizen Soldier Support Program had spent $7.3 million in federal money with little to show for it, university officials redacted information that would have identified who was responsible for the program's failures. They said under the law, that wasn't public.

Much of the secrecy stems from the passage of the State Personnel Act in 1975 and amendments two years later that shut down all but the most basic information about public employees. State departments immediately began closing up about employees who had gotten into trouble. The change was so restrictive that even one of the legislative sponsors, Rep. Joseph E. Johnson, a Wake Democrat, admitted that he had gone too far.

But the fix lawmakers passed the following legislative session has done little to make government accountable. The legislation created what is known as the "integrity exemption," which gives an agency head the authority to release nonpublic personnel information when the agency's reputation is at stake. It has been used rarely, usually under extreme pressure from the news media.

Rufus Edmisten was state attorney general when the law was changed to restrict public information. He warned then that it "could inadvertently contribute to cover-ups." Today, he says that has happened. "I think the mischief that I might have mentioned back then might have come to pass," he said.

State Attorney General Roy Cooper tried to make public information about fired, demoted or suspended employees 13 years ago as Senate majority leader. Employee groups and government associations - powerful constituencies - fought it vigorously. The bill died in the House Committee on Public Employees.

"I still think serious discipline of governmental employees should be public record," Cooper said. "Taxpayers should be allowed to know if and why a public employee has been suspended, demoted or fired."

Case for more access

Roughly 35 states, including Florida, Georgia, South Carolina and Tennessee, give citizens more access.

In Georgia, for example, Atlanta Journal-Constitution reporters reviewed school principals' personnel files to help uncover a cheating scandal that led to criminal charges. Officials are examining test scores at roughly 10 percent of the state's public schools to see how widespread the problem may be.

In interviews and in a survey, North Carolina lawmakers generally favored releasing more information when employees get into trouble. Some said more disclosure would result in a harsher, more distrustful work environment. Others say opening personnel files in disciplinary matters might deter bad behavior.

But no one interviewed said the Highway Patrol should protect a former trooper who used his badge and gun to abduct women to try to have sex with them. Some suggested the purpose in withholding the records was to protect the patrol.

"It's being used not to protect the employee's privacy but to protect the public officials from scrutiny of the decisions they've made over time," said Senate Minority Leader Phil Berger, a Rockingham County Republican. "And when it's used that way, it strikes me that that's the opposite of what we ought to have."

News researcher Teresa Leonard contributed to this report.

dan.kane@newsobserver.com or 919-829-4861

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