After an altercation that left a Wake County jail inmate comatose, Sheriff Donnie Harrison recently declined to say whether the officer involved had ever been suspended, demoted or promoted.
Such information is public under the new state personnel law. But Harrison and department spokeswoman Phyllis Stephens were wrong when they cited another state law they said would allow them to withhold it, said Amanda Martin, an attorney for the N.C. Press Association who also represents The News & Observer.
Stephens said the department relied on advice from its legal staff. But one of those two attorneys, Josh Tharrington, wouldn't talk about it, referring all questions to Stephens and Harrison.
Harrison is not the only sheriff who is avoiding or disputing the requirements under the new law. In December, Lincoln County Sheriff David Carpenter told The Charlotte Observer he would not write dismissal letters for fired employees. He said he would continue to tell them verbally why they were being fired.
Both postures are counter to the intent of the new law, according to a recent state attorney general's opinion. The new law requires state and local departments, agencies and governments to make public all promotions, demotions, suspensions and transfers, and to identify demotions and suspensions that are for disciplinary reasons.
Harrison and Stephens said information regarding the jail officer wasn't public because the case is under investigation. But the state law regarding criminal investigations does not allow public records to be withheld because of an investigation, Martin said.
The law says the "use of a public record in connection with a criminal investigation or the gathering of criminal intelligence shall not affect its status as a public record."
The new personnel law also requires state agencies and local governments to write dismissal letters citing the "acts or omissions" that led to an employee's firing, the attorney general's opinion said.
Some representatives of sheriffs, counties and school districts contend the new law does not apply to sheriffs because their employees are considered "at-will," which means they serve at the pleasure of the sheriff and can be fired for no stated reason. They say requiring sheriffs to now document a dismissal involving a disciplinary action could convey an employment right that didn't previously exist.
The new law "only provides that if an agency chooses to produce a dismissal letter then that letter is public," said Eddie Caldwell, an attorney and lobbyist for the N.C. Sheriff's Association.
The attorney general's opinion noted the concerns about at-will employees. But it concluded that state lawmakers' intent is for public employers to write the letter and make it public, including for employees "who are not otherwise entitled to such formal notification." The new law has no stated exception for at-will employees.
News researcher Brooke Cain and Charlotte Observer staff writer Fred Clasen-Kelly contributed.
