Protests, a deal, then a ‘bizarre’ ending: Why Cooper vetoed the death records bill
To some legislators, Gov. Roy Cooper’s veto of Senate Bill 168 came as a surprise.
Days before the veto of a bill that garnered national attention and days-long protests for its provision that would have further shielded some death investigation records from public access, Cooper struck a deal with lawmakers: If the legislature repealed the public records provision within SB 168, he would sign it into law.
But that didn’t happen.
On the day of Cooper’s deadline to sign, veto or let SB 168 become law, lawmakers presented new legislation to repeal the public records provision as agreed. Also included were two unrelated provisions, one of which a lawmaker said they didn’t have time to research.
Hours after legislators passed the fix, with public pressure mounting, Cooper killed the so-called “non-controversial agency bill” and all the provisions within it.
“The Governor opposed the provision on public records and had concerns that the agreed-upon legislative repeal might fail or either pass in a bill with amendments he could not support,” said Cooper spokesperson Ford Porter. “In order to make sure this provision did not become law, he vetoed SB 168 just before the deadline.”
Revived bill
The Department of Health and Human Services requested the language within SB 168 merely to make technical corrections to department-related laws, legislators and state officials said. They also maintained the now-controversial records provision was not ill-intended and meant to clarify that already-confidential records remain so.
The provision was mainly intended to shield death investigations by law enforcement from becoming public record, fixing a loophole that made those records technically public after leaving law enforcement hands.
State officials said that loophole made law enforcement hesitant or unwilling to share records that are vital to medical examiner investigations.
“I think a key piece of this is it’s really looking at situations where it’s a record that already has a level of confidentiality when it’s with another entity, and to my knowledge law enforcement is the only entity,” said Matt Gross, assistant secretary for government affairs for DHHS, the day following the bill’s passage.
The records provision was originally introduced as a medical examiner-specific bill in 2019 but stalled in the Senate after passing the House.
The language was revived in May as a new bill, House Bill 1214, alongside numerous other provisions. They included adjustments to federal block-grant funding for maternal health, mental health and social services, changes to the state’s definition of developmental disability to match the federal government’s and even regulation of hot tub displays to prevent the spread of infection.
That bill stalled, too, until it was revived the day before what was planned to be the final day of session, as SB 168.
The bill passed the House on the one-month anniversary of George Floyd’s death. Minneapolis Police Officer Derek Chauvin knelt on Floyd’s neck for nearly nine minutes, killing him and sparking protests around the country.
Days after its passage, the public caught wind of the public records provision after The News & Observer and other news media reported on it, and advocates raised concerns about potential obstacles it could raise in accessing information about deaths in law enforcement custody. Protesters stood, camped and chanted for eight days straight, until the day Cooper vetoed the bill.
‘Revisited and corrected’
With mounting public pressure, legislators said they were willing to walk the provision back just days after its passage.
“The General Assembly acted in good faith to fulfill their request, and that’s why it was included in the bill,” Rep. John Bell, a Republican from Goldsboro, said of DHHS’s request for the bill. “After further conversations and discussions about its unintended consequences, I am confident this will be revisited and corrected once the legislature reconvenes.”
In a letter to Cooper dated June 30, Senate Rules Chairman Bill Rabon asked that Cooper provide clarity on what he wanted the legislature to do about the records provision.
“If your position on the public records provision in Senate Bill 168 has changed, we will remove it next week after you sign the bill,” Rabon, a Republican from Brunswick County, told Cooper in the letter.
In response, Cooper expressed his concern about the provision and asked that the legislature repeal the provision in a “clean bill or otherwise non-controversial legislation so that other important items in this bill can move forward.”
But when legislators reconvened Monday and presented a new bill, Senate Bill 232, to repeal the public records provision, lawmakers also tacked on two unrelated amendments.
One would make it legal to wear masks for health reasons beyond Aug. 1, extending an exception to a 1950s mask ban aimed at the Ku Klux Klan. The other would have shielded businesses from liability for violating Cooper’s mask mandate, as long as the business displayed a sign saying masks were required.
House Democratic Leader Darren Jackson voted against the bill. He said he did not have time to research the liability amendment and could not get answers to his questions about it.
“We had an agreement and trust, and we had a plan that everybody was on board with,” said Sen. Wiley Nickel, a Democrat from Cary. “Whatever that was in the House ... that was the problem, I would guess. You had an issue with the House breaking the deal.”
Hours after a House committee passed SB 232 to repeal the public records provision and allow for the passage of the other DHHS-requested provisions within SB 168, Cooper vetoed SB 168 in its entirety, saying the public records provision would have unintended consequences.
“At the end of the day, there were a lot of good provisions in that bill that unfortunately aren’t moving forward,” Bell said. “I was very disappointed the governor decided to do it.”
Cooper’s spokesperson Porter said that was because the governor had concerns that the repeal bill may not have passed the legislature or included amendments he couldn’t support.
“Letting that bill going into law for even one day would’ve sent the wrong signal,” said Rep. Pricey Harrison, a Democrat from Guilford County. “I think it struck a nerve with the public, and I’m guessing the governor noticed the public’s reaction to that provision.”
Since the veto of SB 168, the legislature passed two bills containing the other provisions requested by DHHS.
“The reason this bill is before you may be the most bizarre thing that I’ve ever dealt with in my time in the General Assembly,” said Rep. Josh Dobson, who was also the sponsor of SB 168, when he presented one of those bills Tuesday.
Senate Bill 380, which Dobson also sponsored, revived the block grant funding originally included in SB 168.
“At this point in time,” Dobson, who is a Republican from McDowell County, emphasized, “I know of no opposition to the bill.”
It stalled in the Senate, but the legislature is slated to reconvene in September, when the bill could be taken up again.
On the House floor Tuesday, legislators also removed the liability provision Jackson voted against from SB 232, which would have repealed the public records provision in SB 168 if the bill was signed into law. SB 232 also still includes the provision to extend the legality of wearing masks in public indefinitely. The bill passed both the House and the Senate, and now awaits the governor’s signature.
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This story was originally published July 10, 2020 at 7:30 AM with the headline "Protests, a deal, then a ‘bizarre’ ending: Why Cooper vetoed the death records bill."
