Change on the Horizon: What the Government Transparency Act Could Mean for Public Employers
In general, except for basic information, the personnel files of public employers are mostly private. NCGS Sec. 153A-98 for County employees, and the companion statute for municipal employees, NCGS Sec. 160A-168, make private the personnel records of public employees, former public employees and applicants for public employment except for 12 enumerated specifics:
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- Name;
- Age;
- Date of original employment or appointment to the county service;
- The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession;
- Current position;
- Title;
- Current salary;
- Date and amount of each increase or decrease in salary with that county;
- Date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification with that county;
- Date and general description of the reasons for each promotion with that county;
- Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the county. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal;
- The office to which the employee is currently assigned.
The statutes go on to state that all other information in a pubic employee’s personnel file is confidential and is only open to inspection under narrow circumstances.
Senate Bill 355: The Government Transparency Act
In March 2021, Senate Bill 355, the Government Transparency Act, An Act to Strengthen Confidence in Government by Increasing Accessibility to Public Personnel Hiring, Firing and Performance Records, was introduced. The bill, subtlety, yet dramatically increases access to information regarding public employees.
The bill specifies that the following information on a public employee is a matter of public record:
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- Name;
- Age;
- Date of original employment or appointment to the county service;
- The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession;
- Current position;
- Title;
- Current salary;
- Date and amount of each increase or decrease in salary with that county;
- Date and type of each promotion, demotion, transfer, suspension, separation 6 or other change in position classification with that county;
- Date and general description of the reasons for each promotion demotion, dismissal, transfer, suspension, separation, or other change in position classification with that county; (emphasis added)
- Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the county. If the disciplinary personnel action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal. Nothing in this section shall be construed to authorize the disclosure of any confidential information protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 110 Stat. 1936, the Americans with 17 Disabilities Act of 1990 (ADA), 104 Stat. 327, or other applicable law. If the reason for an employee’s promotion, demotion, dismissal, transfer, suspension, separation, or other change in position classification is prohibited from disclosure by an applicable law, the general description to be provided shall be listed as “description of action prohibited by applicable law.” The date and general description for each promotion, dismissal, transfer, suspension, separation, or other change in position classification shall not be disclosed before the employee has exhausted all administrative appeals that the employee is entitled to pursue under applicable law. However, once the employee has exhausted all administrative appeals, the date and general description for each promotion, dismissal, transfer, suspension, separation, or other change in position classification shall be disclosed within 30 days of any final decision.
- The office to which the employee is currently assigned.
While not yet law, public employers should be aware of the possible change and the impact it could have on business as usual. If the bill becomes law, disciplinary actions, write ups, possibly even results of internal investigations could be public record.
Now, more than ever, public employers need to shore up its processes and ensure that all managers and supervisors are properly trained on personnel policies, procedures and best practices. If the bill becomes law, public employers could possibly face additional litigation from their public employees challenging the merit or veracity of a disciplinary action. Conversely, public employers themselves may be able to make more informed hiring decisions by having better access to information as to why an employee from another public entity was demoted or left that employment. Only time will tell.
It is clear that the public seeks more access to information on public employees so, even if Senate Bill 355 does not become law, it may be only a matter of time.