Public records laws complicate law enforcement transparency
Despite the complexity of discussions surrounding reform and accountability in American law enforcement, it’s likely that many issues would disappear if it were possible to consistently follow two simple rules: Hire only good cops and fire all bad cops.
“Character is hard to train,” said Haywood County Chief Deputy Jeff Haynes. “It’s either there or it’s not. If you hire people of integrity, you can train skills.”
Sometimes, though, a bad cop finds his or her way onto the force, and in North Carolina, they’re easier to get rid of than in other parts of the country. As a right-to-work state, North Carolina does not have collective bargaining and therefore its police chiefs and sheriffs do not have to contend with police unions when attempting to fire someone.
“The county sheriff does not have to disclose any information about why an employee is dismissed,” said Haywood County Sheriff Greg Christopher. “The sheriff only needs to advise the employee their employment service is no longer needed.”
As elected officials, county sheriffs have complete control over hiring and firing decisions in their departments. The process is different in municipal police departments, but it’s still fairly straightforward, said Sylva Police Chief Chris Hatton.
If an officer is involved in a deadly force situation, he or she is immediately suspended with pay. This serves both to allow the State Bureau of Investigations to thoroughly investigate the incident and to allow the officer to deal with any psychological issues resulting from the incident. Many officers die by suicide following deadly force incidents, he said.
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If cleared, the officer can come back to work. If not, he or she can be fired and even charged criminally. There’s also a disciplinary process that can culminate in firing for officers who exhibit more mundane forms of poor job performance, such as arriving late and slacking off on the job.
“Things do happen, and when they do we definitely have to make sure we have all systems in place to make sure bad cops don’t get to continue being cops, or go free,” said Hatton. “Nobody hates a bad cop more than a good cop.”
Personnel records difficult to release
What happens when the cops at the top decline to deal with abusive behavior on the force? The whole world saw what happened in Minneapolis on May 25 when Officer Derek Chauvin placed his knee on the neck of George Floyd for eight minutes and 46 seconds, causing Floyd’s death.
But what the world was not allowed to see prior to that deadly day were the 16 conduct complaints that had been filed against Chauvin in his 19 years with the Minneapolis Police Department. According to the Minneapolis-based Star Tribune, the file included a complaint lodged in August 2007 by a woman who said Chauvin and another officer pulled her from her car, frisked her and put her in the squad car after pulling her over for going 10 miles over the speed limit. The records were released after Floyd’s death and Chauvin’s subsequent firing and arrest, but even so were heavily redacted, the Star Tribune reported.
One has to wonder what might have happened had those complaints been made public years earlier. Would one of the non-lethal incidents in the file have turned the public eye on Chauvin years before 2020 arrived? Would he have lost his job before the day he encountered George Floyd sitting in a parked car outside the Cup Foods corner store?
In many states, personnel records are some of the most closely guarded files in government, and North Carolina is no exception. The list of information about public employees subject to public records requests is finite, and includes the person’s age, date of hire, contract terms, current title and position, salary history and the date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification. The government must also provide the date and general description of the reasons for each promotion and the date and type of each dismissal, suspension or demotion for disciplinary reasons. In case of dismissal, a copy of the written decision including the basis for the dismissal must be provided.
However, most of the personnel file is unavailable to the public, including most disciplinary records. There are some exceptions, however. A judge can order a record opened, and in the case of county and municipal employees the governing board can release such information if it finds that the release is “essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services.”
The law is even more restrictive when it comes to another type of record key to understanding law enforcement actions — body cams and dash cams. A 2016 state law provides that these recordings can be released to the public only by court order.
Restrictions impact transparency
N.C. Press Association President Eric Millsaps, who is also the regional editor for the Hickory Daily Record, said he’s found these laws quite frustrating over the 36 years he’s worked for newspapers in North Carolina. Many newspapers have been forced to resort to court action to get records that he believes should be easily available.
“Here is what I wish elected officials and government employees embraced about public records: When you take the money of the taxpayer, you are accountable to them,” he said. “And taxpayers have the right to know how and where the money is spent. We also should know how the people we pay to represent us and carry out government duties behave in our employ.”
This point of view has some support among Western North Carolina politicians.
“I personally think that every profession should be accountable and those sunshine laws ought to apply to everybody,” said Rep. Kevin Corbin, R-Franklin, who currently represents District 120 in the General Assembly and is running for the District 50 Senate seat. “They certainly apply to us as elected officials. Everything that we say or do, email or text message, is something you can ask for, and I think that’s the way it should be. We shouldn’t be able to shield things from the public.”
Karl Gillespie, a Macon County Republican who is running to fill the District 120 seat Corbin is vacating, expressed agreement with that point of view.
“I think accountability applies at all levels of government,” Gillespie said. “I think that’s what keeps our government in check as far as accountability, so I very much am one for ‘opening the books,’ if you will. The voters are entitled to that and we need to provide that to them.”
But the debate is not quite that simple, said Andy Hansen, assistant professor of criminology and criminal justice at Western Carolina University.
“Sharing relevant information with the public in a timely manner is vital for accountability and transparency. However, there are disagreements regarding what information is relevant and when it should be released,” he said. “For instance, are unfounded use of force complaints from decades ago relevant to a current incident where excessive force is alleged? Timing can be tricky because the public generally wants information such as body cam footage released immediately, while investigators have a duty to protect those accused of misconduct and do not want to prejudice the pool of potential jurors.”
Limitations serve a purpose
Christopher said that he understands the arguments in favor of increasing the availability of personnel records but doesn’t think it would be a good idea in all cases. Some officers end up with a lot of complaints against them, and that’s not always because they’re terrible officers.
“I spent nearly 30 years on the (N.C.) Highway Patrol and investigated literally hundreds of complaints and found some to be very valid — and they were dealt with accordingly, including firings — but also a lot of people who just maybe got stopped or were issued a citation, or sometimes even a warning ticket would come back and they did not appreciate the fact that a trooper or an officer had stopped them for any reason.”
Christopher said he could support a limited loosening of restrictions on personnel records, especially related to complaints that had been investigated and found to be valid, and especially when the deputy in question had been found guilty of a similar violation before.
“I can see where if someone asked that kind of a question we at least tell the complainant that this has occurred before,” he said.
Both Christopher and Hatton said they have at times felt that the public records laws prevented them from effectively telling their side of the story in a given incident.
“If somebody files a complaint with me, I can’t say, ‘I investigated this complaint and I gave this officer a written reprimand for their file,’” said Hatton. “I can’t tell people that, but what I can tell them is, ‘We looked at that. We handled that internally.’ I have to be really careful about what I tell people.”
“Sometimes it would be very good for us to be able to say, ‘He’s never had a complaint,’” Christopher added.
However, he said, while it’s important to keep deputies accountable for their actions, it’s also important to avoid throwing the proverbial baby out with the bathwater. Law enforcement is a difficult career, and in recent years recruitment has become especially challenging. In 2017, Christopher’s office calculated that it costs the department $25,000 to train a new deputy from the time they’re hired until the time they’re ready to patrol solo. So, while firing a deputy is sometimes the only reasonable course of action, it’s always preferable to address issues through training and remediation when possible.
“I’ve been part of lots of groups, and it’s my absolute life’s honor to be a police officer,” said Hatton. “I don’t know any other group I’ve been part of, even in the nonprofit world, where so many good, solid, ethical people are in the same place. It’s just the truth.”
Staff writer Cory Vaillancourt contributed to this report.
