Release of Information to News Media after Hearing; Open Grievance Hearings

Subject:

Requested By: J. Phil Carlton Secretary Department of Crime Control and Public Safety

Question: If disciplinary action is taken against an employee, the employee appeals the disciplinary action, and a department level hearing is held, may the department release to the news media information disclosed at this departmental hearing?

 

1.  
2. If disciplinary action is taken against an employee, the employee then appeals the disciplinary action to the State Personnel Commission and a hearing is held, may the department release to the news media information disclosed at the hearing?

    

3. After a departmental hearing does the nature of the disciplinary action taken become public information which may be released to the news media?

    

4. After a Personnel Commission hearing, does the nature of the disciplinary action taken become public information which may be released to the news media?

    

5. May the news media be told why an employee has been dismissed?

    

Conclusion: No.

 

1.  
2. Yes.

    

3. No, unless the nature of the discipline taken is the most recent demotion, suspension, separation or other change in position or classification or such action becomes part of the public record of a hearing.

    

4. No, unless the nature of the discipline taken is the most recent demotion, suspension, separation or other change in position or classification or such action becomes part of the public record of a hearing.

    

5. No, unless an employee appeals to a public hearing and the reason why the employee is dismissed is contained in the public record.

    

Chapter 866 of the 1977 Session Laws amended the State Personnel Act, Chapter 126 of the General Statutes, G.S. 126-33, as amended, provides that personnel files of State employees, former State employees, or applicants for State employment shall not be subject to inspection and examination as authorized by G.S. 132-6. A personnel file consists of ". . . any information gathered by the Department . . . which . . . relates to the individual’s application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and determination of employment whatever located and in whatever form" (Emphasis added) G.S. 126-22. The General Assembly also provided criminal penalties for any public official or employee who "knowingly and willfully" permits any person to have access to confidential information contained in a personnel file, G.S. 126-27, and penalties for any person who "knowingly and willfully" examines a confidential file, G.S. 126-28.

Inspection and examination of this confidential information is allowed for certain persons. The employee, applicant for employment, former employee or his properly authorized agent may examine the confidential information, except for letters of reference or medical information that a prudent physician would not divulge to a patient. The supervisor of the employee, members of the General Assembly, a party authorized by a court order, an official of an agency of the Federal government, State government or any local subdivision thereof, when the head of the Department deems such inspection necessary and essential to the proper function of said agency, may have access to the confidential personnel file. G.S. 126-24. Also, a party to a quasi judicial hearing of a State agency or a State agency which is conducting a quasi judicial hearing, may have access to "relevant material" in personnel files and may introduce copies of such material or information based on such material as evidence in a hearing either upon consent of the employee or upon subpoena properly issued by the agency. G.S. 126-29; c.f. 150A-27.

In addition, a public record must be maintained on each employee by each department. This public record must show the name, age, date of original employment or appointment to State service, current position title, current salary, date and amount of most recent increase or decrease in salary, date of most recent promotion, demotion, transfer, suspension, separation, or other change in position or classification, and the office or station for which the employee is currently assigned. Any person may inspect, examine, or copy this record. G.S. 126-23.

Finally, a previous opinion of this office advised that the news media may not be told that an employee is being investigated or why an employee is being investigated. Also, the news media may not be told the type of suspension imposed but may be told the date an employee was suspended if this suspension was the most recent change in position or classification. See opinion of Attorney General to Secretary J. Phil Carlton, 47 N.C.A.G. 141 (1977).

The first issue is whether the departmental level hearing may be a public hearing and thereby cause a waiver of an employee’s right to confidentiality when he subjects himself to it. The Open Meetings Law G.S. 143-318. 1 et seq clearly does not require the meeting to be open. See G.S. 143-318. 3(a)(3) and Student Bar Association vs. Byrd. ___ NC ___ (filed December 15, 1977). The provisions of G.S. 150A-23(e) require such a hearing to be open only if the hearing is a contested case within the meaning of G.S. 150A-2(2).

A contested case "means any agency proceeding, by whatever name called, wherein the legal rights or privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing." (Emphasis added) G.S. 150A-2(2). The question is whether a departmental level adjudicatory hearing is required by law.

First, there is no statute which specifically requires a departmental level adjudicatory hearing for employee grievance. G.S. 126-34 states:

"Any permanent State employee having a grievance arising out of or due to his employment and who does not allege discrimination . . . shall first discuss his problem or grievance with his supervisor and follow the grievance procedure established by his department or agency."

This statute seems to require a grievance procedure which would determine a permanent employee’s rights, duties and privileges. However, it does not require an "adjudicatory hearing". Therefore, absent a specific requirement, which is not present in the Department of Crime Control statutes, a departmental level hearing is not required by statute for permanent or nonpermanent State employees.

The terms "required by law" does not seem to limit the definition of a contested case to those required by statute. The constitution, state or federal, may require an adjudicatory hearing.

"The right to a hearing and prior notice thereof in an adjudication proceeding before an administrative agency is usually granted by the statute conferring a particular power upon the agency, but if not such right is granted by statute, ordinance, or administrative regulation, the right is derived in a proper case from common-law principles embodied in the constitutional guaranty of due process of law. However, in regard to some particular administrative determinations neither the statute or regulations nor the constitution confers right to notice and hearing." 2 Am Jur 2d Administrative Law § 298 p. 203.

An examination of when an employee would have a constitutional right to a department level hearing reveals only a very few times one is required. The Personnel Commission usually provides the adjudicatory hearing when the Constitution requires one.

The Constitution requires a hearing before the discharge of an employee when the employee has a property interest or liberty interest protected by the due process cause and such interest is infringed by the discharge. A property interest is not created by the Constitution but is created and its dimensions defined by existing rules and understandings that stem from some independent source such as State law — rules or understandings that secure benefits and that support claims of entitlement to those benefits. Board of Regents v. Roth, 408 US 564, 577, 33 LEd 2d 548 (1972). In North Carolina an enforceable expectation of continued public employment can exist only if the employer, by statute or contract, has been actually granted some form of guarantee. Still v. Lance, 279 NC 254, 182 SE 2d 403 (1971). An employee who is exempt from the Personnel Act does not have an enforceable expectation of continued employment. An employee with less than five years of continuous service or an employee in a policy making position, among others, are exempted from the tenure provisions of the State Personnel Act. G.S. 1265-5(d)(1) and (4). The employees exempted from the Personnel Act need not be given a hearing before discharge. An employee with more than five years’ continuous service, and not otherwise exempted, may only be discharged for just cause and has a right to appeal to the Personnel Commission for a hearing when discharged. G.S. 126-35. Therefore, no departmental level adjudicatory hearing is required by the Constitution when an employee’s property interest is continued employee is at stake.

A hearing is also required when an employee’s liberty is impaired. The liberty interests also do not require a departmental level hearing. The State may not foreclose a range of opportunities in a manner that contravenes due process. Roth, supra 408 US at 574, 33 I.Ed. 2d 559. All employees whose future ability to obtain employment is impaired have a right to a hearing. However, the mere discharge of an employee in and of itself does not infringe upon the employee’s liberty interest, when he is free to seek other positions. Roth, supra 408 US at 575. If the reasons for discharge are made public or placed in an employee’s personnel file and these damage his ability to obtain future employment, then the employee has a right to a hearing. See Bishop v. Wood, 426 US 341, 348, 48 Led 2d 684, 692 (1976). Again, no departmental level adjudicatory hearing is required. First, the reasons for discharge are confidential and therefore may not be made public. G.S. 126-22, et seq. If the reasons are not made public, then there is no basis for a claim of infringement of liberty. Bishop v. Wood, supra. If the reasons are placed in an employee’s personnel file, any State employee, permanent, policy making, or nonpermanent, may appeal to the Personnel Commission to have any inaccurate material removed. G.S. 126-25; G.S. 126-39. When a claim of stigmatization has been made out, an opportunity to refute the charges and clear one’s good name must be provided. Codd v. Belger, ___ US ___ , 51 LEd 2d 92 (1977). Therefore, the infringement on an employee’s liberty interest will not require a departmental level hearing. The Personnel Commission will hear the matter.

An employee, even one who is terminable at will, may not be discharged for a constitutionally impermissible reason. The fact that the reason for the discharge was impermissible, will not confer upon the employee a right to a due process hearing.

"Doyle’s claim under the First and Fourteenth Amendments are not defeated by the fact that he did not have tenure. Even though he could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, Board of Regence vs. Roth, 408 US 564, 33 L.Ed 2d 548, 92 SCT 2701 (1972), he may nontheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedom of spirit." Mt. Health City Board of Education v. Doyle, ___ US ___ , 50 LEd 2d 471, 481 (1977).

Any employee, permanent, policy making, or nonpermanent, who alleges discrimination may appeal directly to the State Personnel Commission. G.S. 126-39. There are other reasons, i.e. freedom of speech, for which a non-tenured employee may not be discharged. Even if an employee is discharged for such a reasons, a departmental level hearing is not required. Such a hearing may be wise, but is not required by law.

Appeal from all changes in working conditions, pay, promotions, suspensions, transfers, etc.,

other than discharge, allow a hearing before the State Personnel Commission by State employees, permanent policy making, or nonpermanent. See G.S. 126-5(d). The adjudicatory hearing must be held by the Personnel Commission. Therefore, the Constitution does not require a departmental level hearing.

Finally, agency rules themselves do not bring the hearing within the terms "required by law". The departmental rules may not force an employee to waive his rights to confidentiality of personnel records merely by submitting to the grievance procedure. However, the department can provide for a grievance procedure whereby the rights, duties and privileges of employees are determined.

G.S. 143B-10 (j). The issue is whether once a hearing is provided, are the "rights, duties and privileges" of an employee "required by law to be determined after an opportunity for an adjudicatory hearing." G.S. 150A-2(2). If so, then by operation of statute, G.S. 150A-23(e), and not by agency rule, the hearing must be open.

There is a death of case law in North Carolina governing administrative procedures. At least one other state has addressed this question and concluded that agency rules which provide for a hearing bring the hearing within the contested case provisions.

"The phrase "required by law", found in SDCL 1-26-1(2), which establishes when the "contested case" hearing is necessary, includes constitutional requirements of fair play, due process and agency rules as well as the requirements of statutory law. It must be then concluded that this was a "contested case" because the Banking Commission, by its own procedure established the rules which required the adjudicature hearing, sought to determine the legal rights, duties or privileges of a party "herein, the respondent Farmers State Bank of Canton, SDCL 1-26-1(2)." Valley State Bank v. Farmers Bank, 87 S.D. 614, 621, 213 N.W.2d 459, 463 (1973).

Despite this holding to the contrary, we must conclude that the General Assembly did not intend that agency rules which provide for a hearing bring the hearing within the contested case provisions. G.S. 150A-2(2) as originally passed defined contested case to mean "any agency proceeding, by whatever name called, wherein the legal rights, duties or privileges of specific parties are to be determined . . ." Chapter 1331, s.1, 1973 Session Laws, Second Session. This definition was changed to the current one which defined contested case to mean "any agency proceeding, by whatever name called, wherein the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing." Chapter 983, s.61, 1975 Session Laws, Second Session. If the mere fact that agency rules provide for a hearing would make this hearing "required by law", then the amendment to the definition of contested case would have no actual effect. It is clear that the intent of the General Assembly was to reduce the number of agency hearings and thereby the expense of the implementation of the administrative procedures act when it passed this new definition. This conclusion is buttressed by the fact that the amendment was contained in the appropriations bill of the Second Session of the 1975 General Assembly. The purpose of this Session was to consider the budget and methods of reducing government expense.

Although once an agency grants an individual the right to a hearing, it is required to provide this hearing, the agency rules, absent some constitutional or statutory requirement, do not bring the hearing within the definition of a contested case.

In summary, we foresee no situation whereby a departmental level hearing provided in your regulations for the resolution of employee grievances will become a contested case within the meaning of G.S. 150A-2(2). Therefore, the agency is without authority to require that such a hearing be open to the public, absent the consent of the employee. Since this departmental level hearing cannot be required to be open to the public, all information and evidence offered at the hearing should be held confidential as part of an employee’s personnel file. The news media may not be informed of any of the happenings at a departmental level hearing, absent the consent of the employee.

If an employee appeals to the State Personnel Commission, it is clear that the hearing conducted by the Commission will be a contested case and open pursuant to G.S. 150A-23(e). Since the hearing will be open and relevant information from a party’s personnel file may be introduced at the hearing, G.S. 126-29, any information made public at the open hearing may be released to the news media. The employee is deemed to have waived his rights to confidentiality by appealing to the State Personnel Commission.

Even after a Personnel Commission hearing has been held, the nature of the disciplinary action may not be divulged to the media unless such action becomes part of the public record at the hearing, or part of an employee’s public record i.e. most recent change in position or classification, or the final order of the Personnel Commission is a public record pursuant to G.S. 150A-11(3). The hearings held, as a general rule, involve the taking of evidence by the Commission itself or a hearing officer. The Commission then takes the matter under advisement and renders a decision at a later time. The deliberations of the Commission or a hearing officer are not performed in public. The nature of the disciplinary action taken may still be confidential. Therefore, only if the action taken is either part of the public record of the employee, i.e. most recent change in position or classification, G.S. 126-23, part of the record at a public hearing, or part of the final agency decision, then the action taken is confidential. If an employee was reprimanded or counseled, this information may or may not be part of the public record.

A department may tell the news media why an employee was fired if, and only if, the reasons for the dismissal becomes part of a public record pursuant to some appeals process or otherwise. If an employee is terminated and does not appeal, the department may only give the news media the date of his most recent change in position, i.e. termination, and other information contained in the public part of the personnel file. G.S. 126-23.

Although a department may have the right to release certain formerly confidential information to the news media in situations described above, the agency is strongly advised not to release the information merely to discredit or bring disrepute upon an applicant, employee or former employee. The formerly confidential information, and only so much as is necessary, should be used only after inquiry and only to explain or clarify the action of the agency. Finally, if there is any doubt as to whether information is confidential, a release from the employee in question should be obtained. If such a release cannot be obtained, the department will be well advised not to release the doubtful information.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Assistant Attorney General