REPLY TO: Daniel D. Addison Labor Section 919/716-6680 May 8, 2001
Mr. Robert C. Sink, Esq. Robinson, Bradshaw and Hinson, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246
Re: Advisory Opinion; Authority of the Charlotte-Mecklenburg Police Department to
disclose police officer misconduct information to the Citizens Review Board of the City
of Charlotte; Session Law 1997-305; City of Charlotte Code, § 16-36 (1997).
Dear Mr. Sink:
You have requested an opinion from the Attorney General’s Office on behalf of your client, the Citizens Review Board of the City of Charlotte (the "CRB"). The Charlotte-Mecklenburg Police Department ("Department") initially investigates, reviews and makes dispositions of complaints by members of the public alleging misconduct on the part of the Department’s police officers. A person who has made such a complaint, and who is dissatisfied with the Department’s disposition of the complaint, however, may seek a review of the Department’s disposition by appealing it to the CRB. The CRB conducts a hearing and determines whether the Chief of Police abused his or her discretion in the disposition of the complaint. City of Charlotte Code, § 16-36 (1997).
We understand from your letter that members of the CRB have requested that the Police Department disclose the disposition of prior charges against the subject officer, whether or not the prior charges were sustained and whether or not the prior charges were considered or relied upon by the Department during its internal investigation. We also understand that the Department has questioned its authority to disclose the disposition of previous charges against the officer involved in the appeal and the facts underlying those previous charges.
Normally, the information contained in the personnel file of a municipal police officer is confidential and is not open to inspection. N.C. Gen. Stat. § 160A-168(c). A "personnel file" includes information, in any form, related to disciplinary actions with respect to the employee.
N.C. Gen. Stat. § 160A-168(a). However, the General Assembly has created the following additional exception to this rule for the City of Charlotte: Mr. Robert C. Sink, Esq. July 24, 2001 Page 2
"In order to facilitate citizen review of the police disciplinary process, the city manager or the chief of police, or their designees, may release the disposition of disciplinary charges against a police officer and the facts relied upon in determining the disposition to the person alleged to have been aggrieved by the officer’s actions or to the person’s survivor and to members of the citizens’ review board."
Session Law 1997-305, Sec. 3 (hereinafter referred to as "the Act.")
You asked for our opinion concerning the following questions:
- Does the Act authorize the release of the disposition of previous disciplinary charges against the subject officer (a) whether or not "sustained" and (b) whether or not relied upon by the Department in determining the disposition of the current charge?
- If previous disciplinary charges are among the facts relied upon by the Department in determining the disposition of the current charge, may those charges and the underlying facts be released to the CRB and to the person alleged to have been aggrieved by the officer’s action in the instant case?
- If the Department elects not to consider or rely upon all or specified categories of previous charges in determining the disposition of the current charge, is the Department nevertheless authorized to release facts concerning the previous charges upon request by the CRB for its use in determining whether the Chief of Police abused his discretion?
Before addressing these questions, we note that the foregoing language of the Act does not require the City Manager or Chief of Police to provide information to the CRB or the aggrieved person regarding disciplinary charges against a police officer. It simply authorizes the Chief of Police or the City Manager to provide that information to the CRB and the aggrieved person when they determine that releasing that information will "facilitate citizen review of the police disciplinary process." In this regard, the Act is similar to other laws authorizing public officials to release otherwise confidential personnel information upon their determination that certain conditions exist. See N.C. Gen. Stat. §§ 126-24, 115C-321, 115D-29, 153A-98(c)(7), 160A-168(c)(7). (All authorizing public officers to release otherwise confidential personnel information upon a finding that the release of the information is essential to maintaining the integrity of the agency or the quality of the agency’s services.)
With regard to the release of information to the CRB, we conclude that the Act permits the City Manager or Police Chief to disclose the disposition of previous charges against the officer, whether or not those charges were sustained, and whether or not the previous charges were relied upon by the Department in determining the disposition of the current charge. The Act also permits the City Manager or Police Chief to disclose to the CRB the facts the Department Mr. Robert C. Sink, Esq. July 24, 2001 Page 3
relied upon in determining the current charge, and the facts the Department relied upon in determining previous charges.
We reach these conclusions for several reasons. First, there is nothing in the language of the Act that limits the information the City Manager or Police Chief may disclose to the CRB to pending charges. There is also nothing in the Act that limits the Department to releasing only information about sustained charges. The plain language of the Act says that the Department may release to the CRB the disposition of "disciplinary charges" (plural) against "a police officer." In construing a statute, one must first look to the words chosen by the legislature and if they are clear and unambiguous within the context of the statute, they are to be given their plain and ordinary meanings. Union Carbide Corp. v. Offerman, 351 N.C. 310, 315, 526 S.E.2d 167, 170 (2000). Therefore, in our opinion, these words contemplate authorization to release disposition information, whether or not the charges were sustained. This language also contemplates the release of information concerning more than one charge against an officer, which may include the dispositions of other, previous charges.
Second, in order for the CRB to determine whether there is abuse of discretion in the disposition of the current charge against an officer, the CRB may need to determine whether the Chief of Police should have considered the circumstances of previous charges against the officer in making the disposition of the current charge. The failure to consider or rely upon dispositions of previous charges or their underlying facts when making the disposition of the current charge could be significant in some cases.
The information the City Manager or Police Chief may disclose to a person alleged to be aggrieved by the officer’s actions (or that person’s survivor) is more limited. The Department may inform the aggrieved or the survivor about the disposition of the current charge involving the officer’s alleged actions against the aggrieved, and the Department may disclose the facts it relied upon in making the disposition of the current charge. With regard to the dispositions of previous charges against the officer, the Act authorizes the disclosure of those dispositions to the aggrieved person or the survivor only if the Chief of Police has relied upon those dispositions when making the disposition of the current charge. If the Police Chief relied upon the dispositions of previous charges when making the disposition of the current charge, then those prior dispositions may be disclosed to the aggrieved or the survivor, whether or not the prior charges were sustained. Also, if the Police Chief relied upon the facts supporting previous dispositions when making the disposition of the current charge, such facts may be disclosed to the aggrieved person or the survivor. If the dispositions or underlying facts of previous charges were not relied upon in the disposition of the current charge, then the Department may not disclose those dispositions or facts to the aggrieved person or the survivor.
These conclusions flow from the clear language of the Act. In order to be eligible to receive facts about the disposition of a charge against a police officer, a person must be the one Mr. Robert C. Sink, Esq. July 24, 2001 Page 4
who is "alleged to have been aggrieved by the officer’s actions," or the survivor of that person. If a person is aggrieved only by the officer’s current alleged misconduct, and if the person was not the victim of the previous alleged misconduct, then the person was not "aggrieved" by the officer’s previous alleged misconduct and the person is not eligible to receive facts about it. The only exception is when the Chief of Police relies upon facts from previous charges against the officer when making the disposition of a current charge. In such a case, the "facts relied upon" in the disposition of the current charge include facts concerning the previous charges, and those facts may be disclosed to the aggrieved or the survivor. There is no statutory language limiting such disclosure to facts about sustained charges. If the Department may disclose facts about previous charge dispositions to the aggrieved or the survivor, then such facts may be disclosed, regardless of whether the prior charges were sustained.
To summarize, we conclude that the Act permits the City Manager or Police Chief to disclose to the CRB the dispositions of current and previous misconduct charges, and the facts relied upon in making those dispositions, whether or not the charges were sustained. The City Manager or Police Chief may disclose the disposition of a charge, and the facts relied upon in making that disposition, to the person alleged to be aggrieved by the officer misconduct that is the subject of the charge, or that person’s survivor. The City Manager or Police Chief may also disclose facts about previous charges against an officer to the person alleged to be aggrieved person by the officer’s misconduct, or the survivor of that person, but only if the facts were relied upon in making the disposition of the current charge. If facts about a charge are otherwise disclosable to an alleged aggrieved person or the survivor, it makes no difference whether or not the charge was sustained.
We hope that this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact us.
Very truly yours,
Reginald L. Watkins Senior Deputy Attorney General
Daniel D. Addison Assistant Attorney General