State Politics

Two days after signing HB2, Gov. McCrory was still receiving information on the bill

N.C. Gov. Pat McCrory addresses the media during a news conference at Charlotte-Mecklenburg Police Department headquarters in September.
N.C. Gov. Pat McCrory addresses the media during a news conference at Charlotte-Mecklenburg Police Department headquarters in September. dtfoster@charlotteobserver.com

Two days after signing House Bill 2, N.C. Gov. Pat McCrory was still receiving information about specific provisions in the controversial bill, according to an email obtained through a records request.

On March 23, the legislature passed House Bill 2 primarily to overturn a Charlotte nondiscrimination ordinance that allowed transgender people to use the bathrooms that matched the gender with which they identified. But HB2 also included provisions related to wages and employment discrimination.

McCrory signed the bill on the same day it passed the General Assembly. But early on March 25, state Sen. Dan Bishop, R-Mecklenburg, sent him an email explaining why the legislature included the additional provisions instead of just striking down the bathroom portion of the Charlotte ordinance. The ordinance would have extended nondiscrimination protections to LGBT individuals.

Spokespersons for the governor’s office and the McCrory campaign did not respond to a request for comment. In an interview Tuesday, Bishop said that he and McCrory had discussed the matter beforehand, as had lawyers working for the legislature and the governor’s office.

“We had those discussions before that was written,” Bishop, HB2’s primary author, said of the email. “There was disagreement. The governor’s lawyers wanted to do a bathroom-only provision and so we were explaining why that wouldn’t work, why we didn’t have the power to do it.”

Bishop said the email showed him putting his rationale into writing after those earlier discussions. The email was obtained through a records request made by Indy Week, a Raleigh-area publication, and shared among a media consortium.

HB2 requires people in the state to use bathrooms in government-run facilities that match the gender on their birth certificate. It also includes provisions that prevent local governments from enacting wage-related ordinances as well as measures that regulate “discriminatory practices in employment.”

Supporters of the law say it protects privacy in bathrooms and locker rooms, while critics have said it discriminates against LGBT individuals. To protest the law, companies have called off business expansions, sports organizations have pulled games and artists have canceled performances.

The law became an issue in the gubernatorial race, which currently has McCrory trailing opponent Roy Cooper, although the governor is asking for a recount.

Critics have faulted McCrory for signing the bill within hours of its passage.

On March 28, at his first news conference after signing HB2, McCrory showed that he may not have had a full understanding of the ramifications of the law. When a reporter asked whether the law affected specific ordinances and policies in Greensboro and Raleigh, McCrory said: “You’re blindsiding me with a question.”

The Bishop-McCrory exchange began at 12:36 a.m. on Friday, March 25, when Bishop sent the governor an email with the subject line: “As discussed.”

“Q. Why could the General Assembly not simply reverse the ‘bathroom provision’ of the Charlotte ordinance?” Bishop asked in the email, before providing a seven-paragraph answer.

In his explanation, Bishop said the state constitution prohibits the General Assembly from passing “local acts” on certain subjects, such as business regulation.

“Therefore, we could not pass a law to amend or modify Charlotte’s ordinance specifically and directly to reverse the bathroom-access aspect,” Bishop wrote.

By amending an existing ordinance, the Charlotte City Council had “not only acted beyond their delegated authority, they also created direct conflicts with at least two state statutes, the Building Code and the indecent exposure statute, both of which already preclude unisex use and operation of such facilities,” he wrote.

Had the General Assembly passed a bill forbidding cities from passing ordinances that allowed the use of “opposite-sex facilities,” that would have created a “third statutory conflict, but no clear resolution,” Bishop wrote.

Instead, according to Bishop, what the legislature did was apply Charlotte’s pre-ordinance “public accommodations protections on a statewide basis.” These were protections from discrimination based on race, color, religion, national origin and sex that had been in place since the 1960s and 1970s.

The General Assembly then pre-empted cities from passing new ordinances on this topic and adopted a policy of “sex-separated bathrooms statewide for government buildings,” he wrote.

“All of this was necessary to undo the cross-sex bathroom maneuver without uncertainty and without killing the legacy public accommodations protections,” Bishop wrote.

In the conclusion of the email, Bishop says the prohibition on wage regulation was not “strictly necessary,” but added “it also was well warranted and will be welcomed by businesses.” In effect, the provision prevented cities from enacting their own minimum wage.

Six minutes later, though, Bishop sent a follow-up email to McCrory saying the “prohibition from regulating wages” was actually a “clarification of existing law only.”

At 9:53 a.m. on that same day, McCrory forwarded the exchange to Bill Constangy, his deputy campaign manager, adding: “I need hard copy of this delivered to house. Pat.”

In the interview Tuesday, Bishop said the provisions in the bill concerning wages clarified language around requirements that cities can impose on contractors. Basically, the legislature made explicit existing language that had already been implied, he said.

The Observer has previously reported that McCrory’s general counsel, Bob Stephens, told a former legal colleague on March 26 that the governor battled the legislature over the bill.

“You have no idea how hard the Governor worked to limit it,” Stephens said in an email to the colleague that was obtained through a records request. “He told the legislature that it went too far. We lobbied against it and even drafted our own version of the bill but it was not accepted.”

That statement contrasted, however, with McCrory’s staunch defense of the bill while campaigning for a second term as governor.

Rick Rothacker: 704-358-5170, @rickrothacker

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