It's been said that we learn something new everyday.
That indeed held true recently when I discovered that the N.C. Public Records Law has a little government-friendly “loophole” that some public employees can use - and are using - to their advantage.
N.C. General Statute Chapter 132 states that public records are, in part, documents “made or received ... in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.”
But as it turns out, government employees' personal business – when conducted on public time and using public equipment – is, in fact, none of our business since it is not conducted “in connection with the transaction of public business.”
This literal interpretation of the law was taken for a spin most recently by the Iredell County Sheriff's Office, which allowed a deputy to mark out hundreds of phone numbers on four months of his county cell-phone bills, because the calls were supposedly “personal.” Adding insult to injury: The deputy, during all four months, was suspended from the sheriff's office after having been indicted by a state grand jury for obstruction of justice.
ICSO Capt. Marty Byers said the deputy, Tommy Adams, was allowed to review the bills, which spanned from December 2010 – the month he was indicted and suspended – to April 21, 2011 and mark through the numbers of personal calls.
Interestingly, about half the numbers on the bills were blacked out, indicating that half the calls were "personal." It would follow, then, that the other half were not personal. So what were they? Professional? While the deputy was suspended? While he awaits trial on obstruction-of-justice charges stemming from an incident that occurred at the sheriff's office?
And why didn't Adams mark out the calls he made to his wife's cell phone or to Sheriff Phil Redmond's personal residence or to Kim Taylor, the attorney representing him against the state's obstruction-of-justice charge?
The public may never see the full picture since government employees can essentially hide certain activities conducted on public time and equipment by suggesting those activities were “personal.”
This should come as a surprise to Mooresville residents, especially after January's troubling revelations that Mayor Chris Montgomery frequently used town e-mail to carry on inappropriate conversations with a woman who is not his wife. What began as a simple attempt to gain information about the town's cable system ended up becoming yet another south-Iredell scandal after a Freedom-of-Information request for the mayor's e-mails revealed dozens of the inappropriate exchanges.
But come to find out, the town could have withheld those particular records from public review since the e-mails were personal and not “made or received in connection with the transaction of public business.” After all, the mayor obviously wasn't conducting town business in the conversations about love and rose petals, even though he was clearly carrying out that personal business using public resources.
Some records, such as personnel records, attorney-client communications, economic incentives and some law-enforcement investigations, are allowed to be kept confidential, per the public records law. Information that could identify confidential police informants is also off-limits, for obvious reasons.
But just because a record contains confidential information does not necessarily mean that the government can withhold the entire record from public inspection. If confidential information is intermingled on a public document, the law states that the government can black out the confidential information while still turning the record over to the public.
Gregory Rodgers, attorney for Smith, Rodgers & Strickland PLLC – a 24-hour legal support line for law enforcement – recently sent a lengthy letter to the Report, justifying the many black marks on the suspended Iredell deputy's phone bill. Rodgers said the hundreds of calls were personal and therefore off-limits for public review. He did not, however, address the fact that all the calls were made while the deputy was suspended.
Frayda Bluestein, professor of public law and government for UNC Chapel Hill's School of Government, also ok'd the actions of the sheriff's office, saying, “records relating to personal, rather than public business, are not subject to access under the public records law.”
Bluestein said North Carolina has no case law to that effect; however, “cases from other states consistently hold that personal communication falls outside the scope of the public records law.”
North Carolina's attorney general has also issued an opinion “which concludes that personal phone calls/numbers can be redacted from a public agency's bill,” Bluestein said.
Similarly, “the state's records retention provisions for email and other records clearly make this distinction, saying that it is the content of the record, not its location or the email system it is made on, that determines whether it is a public record.”
And therein lies the rub, said Amanda Martin, general counsel to the N.C. Press Association: “Because we have always argued it is the content rather than location of a record, we argue that public business conducted on private computers or via private email accounts are public records,” she said. “The flip side of that, though, is this difficulty in getting information about the mis-use of public property, and we are running into that problem left and right lately.
“It has occurred to me that we might need to consider an amendment to the public records law to address this, though I certainly would not want to concede access to truly public business emails that reside on home computers, etc.,” Martin said.
So why did the Town of Mooresville, seemingly without flinching, turn over the mayor's “personal” emails in response to a public records request earlier this year?
Town Attorney Steve Gambill, who released the records, said the decision to do so was made in light of two factors: “First, the town board has made it clear that they are in favor of transparency of records (and certainly within the confines of the law),” Gambill said. “Second, it can be a burdensome task to review each and every e-mail.
“In most cases, I can only review such records to a reasonable point (I do all I can to screen for any matters that are specifically exempted from being made public, for example, personnel records or records pertaining to civil litigation); I then will not release a record that has a specific legal exception from the public records law,” Gambill said. “If it does not have an exception, it is subject to being released.”
Gambill has it right. In addition to granting public access to documents that belong to the public in the first place, the public records law exists to grant the people the power they should have to see how public officials are spending their time on the public's payroll – and how they're using equipment bought and paid for by the people.
Many controversial stories that brought about good, progressive change in Mooresville in the past decade were based first in public documents and could be largely attributed to the press' ability to gain full access to those records. I'm sure, had the government realized nearly a decade ago that it could withhold those documents and be legally justified in doing so, the press would have never been provided many of the records.
Perhaps we would have never been privy to how our former librarian, eventually convicted of embezzlement, used her town credit card to purchase hair color and Slim Fast diet shakes. Because, after all, that Slim Fast wasn't purchased or (I presume) consumed “in connection with the transaction of public business.”
We also may have never been privy to how an engineering firm was taking the town for a ride, having Mooresville taxpayers reimburse company engineers for their purchases of “cowboy cookies,” clothes hangers, chewing gum and expensive Starbucks coffees.
We may have also never been privy to the fact that Mooresville's town manager in 2004, who fired the new librarian supposedly for exceeding a per-diem dinner expense, had repeatedly violated the same town policy himself and had even purchased an alcoholic beverage on the taxpayers' dime.
But surely the public records law cannot be misinterpreted to suggest that public employees can black-out purchases on their town credit-card receipts and justify that by saying the purchases – bought and paid for by tax dollars – were “personal” expenses. Right?
Wrong.
As ridiculous as it sounds, Bluestein called it “an interesting question” and said that while employees may not be able to “successfully hide” those purchases from their public-agency bosses, “it's possible that they could be redacted from a public records request.”
Perhaps the most frightening part of such a scenario is this: Take, for example, the case of the sheriff's deputy. The public-agency boss is the sheriff himself – the same person who clearly allowed the deputy to keep the county-funded phone and use it to call the sheriff himself at his personal residence.
It's like the fox guarding the hen house.
Denying the public the opportunity to see how government officials are spending our money and using our equipment may be legal. But it violates the spirit of the public records law.
Yet, even using the law in such a way, the Iredell County Sheriff's Office walks away with the black eye.
After all, reviewing the phone numbers on Adams' bills may have satisfied a curious craving to see exactly who the deputy didn't want the public to know he was talking to. But the bigger, more interesting story is the fact that the suspended sheriff's deputy was allowed to keep and use his county cell phone in the first place.
This is the same deputy the sheriff hired despite a felony embezzlement charge by a previous employer that was eventually pleaded down to a misdemeanor and then later expunged from Adams' record during an investigation of the deputy's actions by the State Bureau of Investigation (
If you enforce the law, are you above the law?).
This is the same deputy the sheriff promoted to detective-sergeant fresh out of rookie school, a practice that is unheard of in the law-enforcement community, according to many police chiefs across the state.
This is the same deputy the sheriff allowed to stay on the job for five years after he took home two weapons that were supposed to be submitted as evidence – the same deputy the sheriff didn't suspend until the eleventh hour when the state handed down its indictment.
This is the same deputy who kept his job at the sheriff's office despite being suspended there five times in four years.
And this is the same deputy the sheriff allowed to rack up hundreds of dollars in cell-phone usage, dumping that cost onto the backs of the many hardworking taxpayers of Iredell County, for four months after the deputy was indicted and suspended. And only after a local resident asked for copies of the deputy's most recent phone bills did the sheriff's office disconnect the phone.
That, indeed, is the bigger story. And there isn't a Sharpie marker big enough in this world to cover it up.
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