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Personnel Information Required to Be Made Available For Inspection

 
November 8, 2010 
 
The Honorable Linda Coleman
State Personnel Director
NC Office of State Personnel
1331 Mail Service Center
Raleigh, North Carolina 27699-1331
 
Re:      Advisory Opinion: Personnel Information Required to Be Made Available For Inspection By Public Employers
 
Dear Director Coleman:
 
             On July 10, 2010, the General Assembly enacted 2010 N.C. Sess. Laws c. 169 (HB 961)(the Act). The Governor approved the Act on August 2, 2010. In Section 18 of the Act, the General Assembly made uniform amendments to G.S. 126-23 and six other statutes which require public employers, including State employers who have employees subject to the State Personnel Act, to maintain and provide public access to certain information regarding their employees.[1] On September 15, 2010, you wrote to ask several questions regarding the effect that the amendments in Section 18 will have on the obligations of public employers and the practices of the Office of State Personnel (OSP).  We are writing to offer our legal opinion in response to those questions.
 
In the amendments in Section 18, the General Assembly increased and clarified public access to information regarding those employees by requiring each affected employer to maintain a record for each employee which includes the following information:
 
1.    The date and amount of each increase or decrease in the employee’s salary with the employer. Prior to the Act, the public had access to only the employee’s current salary and the date and amount of the most recent increase or decrease in a public employee’s salary. 
 
2.    The date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification. Prior to the Act, the public had access to only the date of the most recent promotion, demotion, transfer, suspension, separation, or other change in position classification.
 
3.    A general description of the reasons for each promotion that a public employee received. Prior to the Act, the public did not have access to the reasons for a public employee’s promotion.
 
4.    Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken against the employee and, if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the public employer setting forth the specific acts or omissions that are the basis of the dismissal. Prior to the Act, the public did not have access to either the type of disciplinary dismissal, suspension or demotion or a copy of the final decision setting forth the specific basis for a disciplinary dismissal.
 
When interpreting the effect of these amendments, it is our duty to determine the intent of the General Assembly. “The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute.” Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283 (1972). See also Sutton v. Aetna Casualty and Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989) (the cardinal rule of statutory construction is that legislation must be construed to accomplish the General Assembly’s intent).
 
In this case, the title of the Act states that one of the General Assembly’s purposes was “To Strengthen Transparency Of Government Through Increasing And Clarifying Accessibility To Legislative Records And Other Public Records.” Under the Public Records Act, G.S. 132-1 et seq., every document made or received in connection with the transaction of public business is a public record. Thus, personnel records of public employees are public records. Absent a statutory exception, G.S. 132-6 gives the public the right to inspect, examine and copy any public record. News & Observer Publishing Co. v. Poole, 330 N.C. 465, 486, 412 S.E.2d 7, 19 (1992). However, the various statutes governing the personnel records of public employees all exempt personnel records from public inspection with limited exceptions. See, e.g., G.S. 126-24 and G.S. 115C-321(a). Therefore, personnel records of public employees are generally not subject to public inspection under G.S. 132-6. G.S. 126-23 and similar statutes, however, require public employers to maintain certain information in a record and permit the public to inspect that informationSee, e.g. G.S. 126-22(b)(4)(as used in Article 7 of Chapter 126, “record” specifically means “the personnel information that each employer is required to maintain in accordance with G.S. 126-23.”) 
 
The Act expands the personnel information that public employers must maintain for public inspection and copying. Consistent with the title of the Act, we presume the General Assembly enacted the amendments in order to provide more transparency regarding decisions affecting public employment while preserving the confidentiality of most personnel records. See State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 763-64 (1992) (courts may consider the title of an act to determine legislative intent). That purpose provides the primary basis for our response to the questions raised in your letter.
 
Question 1: Are public employers required to maintain a public record of an employee’s entire salary and position classification history?
 
Answer: Public employers are now required to maintain a public record of the entire salary and position classification history of each employee to the extent the employer has possession of such information.
 
As noted, the primary principle of statutory construction is a determination of legislative intent. In our view, it is clear that the principal purpose for the enactment of Section 18 of the Act was to increase public access to employment information concerning public officials and employees. To achieve this goal, the General Assembly has directed state and local government employers to maintain an expanded public record of certain personnel-related information. 
 
As a result of the amendments in the Act, after October 1, 2010, public employers will be required to maintain a public record of not only their employees’ current salary and date of the most recent change in position classification but also each increase and decrease in salary and the date and type of each change in classification with that employer. It appears that these particular amendments were enacted to address a problem of statutory interpretation which restricted the salary information that public employers could make available for inspection.
 
Prior to passage of the Act, G.S. 126-23 required State employers to maintain a public record of only the employee’s current salary, the amount and the date of the most recent increase or decrease in the employee’s salary, and the date of the employee’s most recent change in position classification. Read literally, the statutes could be interpreted to mean that, prior to the amendments, the public’s access to salary or classification information was limited to an employee’s current or most recent information, meaning that the salary and classification information open to public inspection changed with every change in an employee’s salary or classification. We believe the General Assembly intended, through the amendments in the Act, to clarify that public employers are required to maintain a public record of each employee’s entire salary and position classification history with that public body. This conclusion does not require employers to retroactively create records, but rather reflects our belief that the General Assembly intended to make public a record of existing salary and classification history.
 
You note in your letter that the amendments to G.S. 126-23 also raise an issue regarding an employer’s ability to provide the public with access to an employee’s entire salary and classification history, as opposed to the employee’s history only with that employer. As amended, G.S. 126-23(7) and 126(8) require a state employer to maintain a public record of each increase and decrease in salary and the date and type of each change in classification with that state employer. Again, strictly and literally construed, this amendment would mean that a state employer could not provide the public with access to changes in an employee’s salary and classification while employed with another public employer – even though that information is publicly available through another employer. Consequently, if a member of the public desired to have a complete history of an employee’s salary and classification, he would have to make separate inquiries of the employee’s present employer and each of the employee’s former employers. Stated another way, an employee’s salary and classification information would be public information under G.S. 126-23 or confidential information under G.S. 126-24 depending upon which state employer the public asked.  
 
It is our view that the language in the amendments which requires an employee’s current employer to maintain a record of and permit the public to inspect each increase and decrease in salary and the date and type of each change in classification with that employer was not intended by the legislature to prohibit one state employer from providing information which is public in the hands of another state employer. Instead, we believe these words were only meant to limit the information that the public employer was or is obligated to maintain in the personnel information open to public inspection. Consequently, if a current public employer has access to an employee’s complete salary or classification history, that employer is not  prohibited from providing the public with access to all that information even though the statutes only obligate it to maintain a portion of that information.
 
Therefore, it is our opinion that public employers are now required to maintain a public record of each employee’s entire salary and position classification history with that employer. Public employers may also make available salary and position classification history from an employee’s prior public employer if in the employer’s possession or if the employer elects to request the information from previous employers.
 
 
Question 2: Does the Act require public employers to maintain for public inspection a copy of the written notice of dismissal for each employee terminated for disciplinary reasons?
 
Answer: The Act requires public employers to maintain for public inspection a copy of the final decision of the public body setting forth the specific acts or omissions for termination of each employee dismissed for disciplinary reasons. 
 
In Section 18 of the Act, the General Assembly amended public employee personnel statutes to impose a new and unique obligation on public employers dismissing employees for disciplinary reasons. In these amendments, the General Assembly has for the first time explicitly directed public employers that have dismissed an employee for disciplinary reasons to permit the public to have access to a copy of the written notice of the final decision of the public employer setting forth the specific acts or omissions that are the basis of the disciplinary dismissal. E.g., 2010 N.C. Sess. Laws, c. 169, sec. 18(a). Other provisions in the amendments and the affected statutes only require public employers to maintain a record of personnel information open to the public. This particular amendment, however, requires public employers to maintain and provide public access to a specific document, i.e., a copy of thewritten notice of the final decision of the employer setting forth the specific acts or omissions that were the basis of a disciplinary dismissal. It therefore appears to have been the clear intent of the legislature that public employers must now maintain for public inspection a copy of the final dismissal letter regarding each employee dismissed for a disciplinary reason.
 
Most public employees are entitled to protection from dismissal without just cause. In those cases, public employers have the constitutional and statutory obligation to provide those employees with the reasons for their dismissal on disciplinary grounds. See, e.g., G.S. 126-35(career State employees).[2] See also, Bishop v. N.C. Dep’t of Human Resources, 100 N.C. App. 175, 177, 394 S.E.2d 702, 703 (1990), cert. denied, 328 N.C. 325, 401 S.E.2d 366 (1991) (“The essential due process requirements for discharging a state employee who has such a property interest have been stated to be that ‘[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.’”)(quoting Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506 (1985)). Therefore, in the case of career state employees, as well as certain local government employees, employers should be able to readily make disciplinary dismissal letters available for inspection. 
 
You note in your letter, however, that certain employees may be dismissed for reasons unrelated to discipline. For example, employees may be separated due to reductions-in-force or disability. Chapter 126 also lists numerous categories of “exempt” employees who essentially serve “at will” and may be terminated without “just cause.” An employer may therefore decide to dismiss an at-will employee for disciplinary reasons, but provide no notice to the employee of the reasons. See, e.g, Soles v. City of Raleigh Civ. Serv. Comm’n, 345 N.C. 443, 480 S.E.2d 685 (1997). The Act thus raises a question as to the responsibilities of a public employer in regard to employees who have been terminated without receiving a letter stating the reasons for dismissal, particularly those actually dismissed for a disciplinary reason.
 
It is well established that statutes should be interpreted so as to avoid absurd consequences and impossibilities. Rhyne v. K-Mart Corp., 358 N.C. 160, 189, 594 S.E.2d 1, 20 (2004); Hobbs v. County of Moore, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966).   With this principle of statutory construction in mind, we cannot conclude that the General Assembly intended to direct public employers to create a dismissal letter for terminated employees who were separated for reasons other than discipline. Nor do we believe that the General Assembly intended to require public employers to retroactively create and serve dismissal letters on former employees, some of whom may no longer even be alive, in situations where the dismissal may have been for disciplinary reasons but notice of the specific reasons was not required or provided.
 
It is our opinion, however, that the General Assembly did intend that in the future when a public employee is dismissed for disciplinary reasons the employer will provide the employee a letter of dismissal specifying the acts or omissions constituting the basis for the dismissal and the public will be allowed access to the letter of dismissal. As such, on and after October 1, 2010, public employers are required to document and maintain for public inspection a copy of the final decision of the public body dismissing each employee terminated for disciplinary reasons, including employees who are not otherwise entitled to such formal notification.
 
You have also asked whether dismissal letters to employees terminated for disciplinary reasons prior to October 1, 2010, are now required to be made available for public inspection. In that such letters were confidential at the time received, you question whether their release after the effective date of the Act may violate employees’ legal rights and expose public employers to liability.
 
We recognize that requiring public employers to now make public previous disciplinary letters of dismissal may raise issues of due process, privacy or vested rights. At a minimum, courts have held that public employees have a constitutional right to a due process “name-clearing hearing” when governmental action threatens a person’s liberty interest in his reputation or choice of occupation. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 308 (4th Cir. 2006); Stone v. Univ. of Maryland Med. Svs. Corp., 855 F.2d 167, 172 n.5 (4th Cir. 1988). However, not all reasons for dismissing a public employee pose a threat to his liberty interest in future employment. Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982)(allegations of incompetence alone do not give rise to a protected liberty interest); see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 308-09 (4th Cir. 2006); Sciolino v. City of Newport News, 480 F.3d 642, 647 (4th Cir. 2007). Nevertheless, it is reasonable to assume that some of the heretofore confidential personnel information made public under the amendments, e.g., specific acts of dishonesty or immorality which form the basis of a disciplinary dismissal, could threaten a public employee’s reputation or choice of future occupation. See Ridpath, 447 F.3d at 308. Therefore, a public employer’s publication of the reasons for dismissing a public employee prior to providing the employee with an opportunity for a name-clearing hearing could violate the employee’s due process rights. Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir. 2007) (employee has right to name clearing hearing when evidence shows either a likelihood that employers to whom he will apply for employment or the public at large will inspect personnel file containing stigmatizing information); Harrell v. City of Gastonia, 2010 U.S. App. LEXIS 17714 (4th Cir. 2010)(summary judgment for public employer on public employee’s claim that presence of reasons for dismissal in his personnel file violated his due process rights affirmed because plaintiff had no evidence that the challenged information was released to any entity or otherwise made public prior to the name-clearing hearing).
 
Nevertheless, the plain language of the Act specifically requires public employers to maintain a record of disciplinary actions against each employee, and if the action was dismissal a copy of the written notice of dismissal must now be made available for public inspection. We cannot conclude that this requirement, even if applied to notices of dismissal written prior to the effective date of the Act, violates clearly established rights of former employees dismissed for disciplinary reasons. It is therefore our opinion that written notices of dismissal as to each employee terminated for disciplinary reasons, including those written prior to October 1, 2010, must now be made available for public inspection.
 
To summarize, it is our view that the General Assembly intended to make public written notices of dismissal for each employee terminated for disciplinary reasons, including those written prior to October 1, 2010. Public employers, however, are not required to retroactively attempt to create dismissal letters where former employees were terminated without being provided specific reasons. It is our further opinion that, on and after October 1, 2010, public employers are required to create and make available for public inspection a written notice setting forth the specific acts or omissions constituting the basis for dismissal of each employee terminated for disciplinary reasons, including employees who are not otherwise entitled to such notice.
 
Question 3: Does the Act require public employers to retroactively create personnel information reflecting reasons for promotions that occurred prior to the effective date of the Act?
 
Answer: No. The Act does not require public employers to retroactively create information or documents that did not exist on October 1, 2010. Information reflecting a general description of the reasons for promotions that did exist as of October 1, 2010, however, is now required to be maintained in a record that is open for public inspection.
 
Under the amendments to G.S. 126-23, a new subsection (10) requires each covered employer to maintain as to each employee a record showing a “… general description of the reasons for each promotion …” with that employer. You have asked whether employers are now required to create a general description of the reasons for each promotion of every employee if no such record presently exists. 
 
As previously noted, statutes should be interpreted so as to avoid absurd consequences and impossibilities if such results can be avoided by other fair and reasonable construction of their terms. See, e.g., Rhyne v. K-Mart Corp., 358 N.C. 160, 189, 594 S.E.2d 1, 20 (2004); Hobbs v. County of Moore, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966).  Interpreting the Act to require public employersto create and maintain a public record of information describing employment events that occurred prior to the effective date of the Act would certainly lead to absurd and impossible results. For example, it is reasonable to assume that the State of North Carolina has been promoting employees for decades, even prior to the passage of the State Personnel Act in 1965. Requiring public employers to review the employment history of every current and former employee in order to identify whether they were ever promoted, to reconstruct a general description of the reasons for every promotion and then enter that information into the public record of their employment history requires an interpretation that we do not believe the General Assembly intended. Indeed, it would likely be impossible for current employers to reconstruct information concerning promotions awarded in the distant past if such information is not presently documented in personnel records.
 
In addition, statutes should be interpreted in pari materia and all parts thereof should be construed together and compared with each other. Empire Power Co. v. North Carolina Dep’t of Env’t, Health & Natural Res., 337 N.C. 569, 590-591, 447 S.E.2d 768, 781 (1994); Comm’r. of Ins. v. Rate Bureau, 300 N.C. 381, 399-400, 269 S.E.2d 547, 561, reh’g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). The General Assembly has repeatedly stated that the public’s right to examine and copy public records is distinct from a public entity’s obligation to create or compile a record.   G.S. 132-6.1(c)[3]; 132-6.2(e)[4] There is nothing in the Act to indicate that the General Assembly intended to require public entities to create records that did not already exist prior to the effective date of Section 18 of the Act — October 1, 2010. Nor is there anything in the Public Records Act, Chapter 132, or the State Personnel Act, Chapter 126, or other statutes addressing public employees to indicate that the General Assembly intended to expand a public employers’ obligations to create records of events which heretofore had gone undocumented.  
 
In view of these principles of statutory construction, it is our opinion that the General Assembly intended the amendments to require public employers, on and after October 1, 2010, to maintain a public record of information which includes a general description of the reasons for each promotion of each employee. We do not believe the General Assembly intended the amendments to require public employers to attempt to reconstruct or create information concerning past promotions where such information is not presently documented. 
 
However, if records presently maintained by an employer include the information concerning promotions described in the amendments, we believe the General Assembly intended for such information to now be made available for inspection in accordance with G.S. 126-23(c). This conclusion does not require employers to retroactively create documents or information. Rather, the Act simply expands the amount of existing information which public employers are required to make available for inspection.