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NC sheriffs debate whether to fire verbally or in writing

By Dan Kane and Michael Gordon
mgordon@charlotteobserver.com

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When it comes to punishing employees, many North Carolina sheriffs still prefer not to put it in writing.

Four years after the legislature revised the state’s personnel law requiring greater public disclosure of the punishment of workers, many sheriffs still refuse to comply.

Right after taking office in 2010, Lincoln County Sheriff David Carpenter said he would continue the county’s tradition of firing employees orally, declining to create written documents to satisfy public requests.

“I stand by now what I stood by then,” Carpenter said this week, “and I don’t know any other sheriffs around who don’t feel the same way.”

In fact, some do and some don’t. But Carpenter’s stance has the backing of the N.C. Sheriffs’ Association, which is among the groups saying the law is not as broad as those who created and support it believe.

“My understanding of what they wrote all along was that it said if you have a letter, you have to disclose it, but if you don’t have one, you don’t have to write it,” said Eddie Caldwell, the executive vice president and general counsel for the N.C. Sheriffs’ Association.

In 2010, lawmakers added more sunshine to what had been one of the nation’s most restrictive laws on personnel matters. The revisions require state and local agencies to provide information on suspensions, demotions and dismissals.

Former state Sen. David Hoyle, a Gaston County Democrat involved in creating the legislation, admitted to a fuzzy memory of the early morning events when the provision was added to the legislation and passed, but he said the intent was to give the public the ability to learn why an employee had been fired.

“There’s supposed to be a letter in the (personnel) file explaining why the dismissal took place, and it’s supposed to be available,” he said. “That’s what I remember.”

Four years later, adherence remains hit or miss.

In Union County, Sheriff Eddie Cathey said that when he fires an employee, he first discusses the allegations with them, followed by a one-sentence letter: “Your services are no longer required.”

Out of respect for the employee’s privacy, he said, the letter doesn’t include details.

“I think I owe my employees the respect to sit them down and explain to them why I’m firing them,” Cathey said. “In the 12 years I’ve been in office, I bet I haven’t used that letter five times. Maybe it’s twice.”

Mecklenburg Sheriff Chipp Bailey takes a different stance that dates back almost 20 years. As chief deputy under then-Sheriff Jim Pendergraph in the mid-1990s, Bailey said he helped bring written personnel procedures to a department that had none.

Under those policies, which were based on what Pendergraph and Bailey worked under at the Charlotte-Mecklenburg Police Department, employees facing discipline have a hearing before a chain of command review board. Any punishment – from a written reprimand to firing – is put in writing along with a brief description of the violation involved.

Bailey said he considers that letter a public record. He knows many other sheriffs don’t put their punishments in writing.

“Some just say, ‘I don’t like how you did this, and I don’t know what we’re going to do without you,’ ” he said.

Using the law

The new law came after media reports about law enforcement officers, teachers and other public employees who had committed felonies but whose past behavior was kept secret by the agencies where they worked.

State and local officials sought to limit the law’s scope. Among their queries to Attorney General Roy Cooper: whether past disciplinary letters had to be made public and whether agencies were now required to create them.

Cooper, in a November 2010 advisory opinion, said the legislative intent was to provide more transparency, and that included past disciplinary actions and a new requirement that dismissal letters be written.

However, Caldwell of the sheriffs’ association cited an opinion by Frayda Bluestein with UNC’s Institute of Government that questioned whether agencies that had not been creating dismissal letters now needed to provide them.

Since Cooper’s opinion, the law has allowed news media to report the reasons behind many dismissals that in the past would not have been known:

In January 2012, for example, the Salisbury Post reported that an East Spencer fire chief and assistant fire chief were dismissed for repeatedly shocking a junior firefighter with a stun gun at a Christmas party.

Necessary to sue?

Sheriffs and at least one police department have maintained the law is much more limited in what it requires to be made public. Other officeholders have taken creative steps to avoid full disclosure.

In late 2010, Mecklenburg District Attorney Peter Gilchrist fired a longtime prosecutor and refused to say why. When the prosecutor was hired by a neighboring county, the Administrative Office of Courts classified her termination as a “transfer,” eliminating the need for a termination letter.

In May 2011, Wake County Sheriff Donnie Harrison would not provide the disciplinary history for a jail officer involved in an altercation that left an inmate in a coma with a debilitating brain injury. Harrison would only confirm a suspension that took place after the law’s start date.

Harrison withheld that information until a criminal investigation – which found no wrongdoing – had been completed, even though the law does not allow for public records to be withheld for that reason.

Deputies are considered “at-will” employees under state law, meaning they can be fired without cause. But the revised law made no exception for such employees, Cooper noted in his opinion.

Earlier this month, a candidate for sheriff in Jackson County was fired from his job as a Sylva police officer without explanation. Jonathan Jones, a former prosecutor who heads the N.C. Open Government Coalition at Elon University, said such a move “causes you to lose your trust in your government agencies.”

Caldwell, though, said sheriffs should have the discretion whether to say publicly why they fired an employee. With full disclosure of an employee’s failings, “you ruin their reputation in the community, you embarrass their family. The punishment is they’ve lost their job. Is it necessary to spread that all around?”

Cathey, the Union County sheriff, agrees. Besides, he said, his job is an elected post. As such, he considers it separate from county government and exempt from the new state personnel law – a law he says he has not read. Paula Seligson of The (Raleigh) News & Observer contributed.

Gordon: 704-358-5095
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