RALEIGH
CHARLOTTE
WILMINGTON
Phone (919) 828-5100
Phone (704) 332-8300
Phone (910) 509-9778
Fax (919) 828-2277
Fax (704) 332-9994
Fax (910) 509-9676
www.cshlaw.com
Hear No Evil
See No Evil
Speak No Evil
Don’t Throw a Monkey Wrench
into Your Political Career!
Consider Your Role As
an Elected Official . . .
There are things
that are
tempting to do
as an elected
official, BUT . . .
. . . there are often strategy
and/or practical reasons why
you should not give in to that
temptation.
As long as you act within the
scope of your duties as an
elected official, you have
certain immunity protections.
If you exceed
your duties as
an elected
official, you run
the risk of
personal
liability.
Areas of greatest risk:
1. Involving yourself in personnel
matters
2. Talking about personnel
matters involving public
employees (outside of briefings
in closed sessions)
3. Involving yourself in litigation
Involving yourself in
personnel matters
(may come back to bite you…)
• Statutory duty belongs
to City Manager (N.C.
Gen. Stat. §160A-148)
• Elected officials
prohibited from serving
or acting as manager or
interim manager (N.C.
Gen. Stat. § §160A-151
and 160A-147)
• The office of City Manager is hereby
declared to be an office that may be
held concurrently with other appointive
(but not elective) offices pursuant to
Article VI, Sec. 9 of the Constitution.
• Oath of office . . . to maintain the
Constitution and laws of North Carolina
(Article VI, Sec. 7. of North Carolina
Constitution)
§ 160A-148. Powers and
Duties of Manager.
• The manager shall be the chief
administrator of the city. He shall be
responsible to the council for
administering all municipal affairs
placed in his charge by them, and shall
have the following powers and duties:
– He shall appoint and suspend or
remove all city officers and employees
not elected by the people, and whose
appointment or removal is not otherwise
provided for by law, except the city
attorney, in accordance with such
general personnel rules, regulations,
policies, or ordinances as the council
may adopt.
– He shall direct and supervise the
administration of all departments,
offices, and agencies of the city, subject to
the general direction and control of the
council, except as otherwise provided by
law. (1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973,
c. 426, s. 22.)
• Risk of creating inconsistencies
• Risk of personal liability
Talking about personnel matters
involving public employees
• Violates N.C. Gen.
Stat.§160A-168
• Can result in
protracted litigation
against the City and
You
• Can result in personal
liability
§ 160A-168. Privacy of
Employee Personnel Records.
• Notwithstanding the provisions of G.S. 132-6
or any other general law or local act
concerning access to public records,
personnel files of employees, former
employees, or applicants for employment
maintained by a city are subject to
inspection and may be disclosed only as
provided by this section.
For purposes of this section, an employee's
personnel file consists of any information in
any form gathered by the city with respect to
that employee and, by way of illustration but
not limitation, relating to his application,
selection or nonselection, performance,
promotions, demotions, transfers,
suspension and other disciplinary actions,
evaluation forms, leave, salary, and
termination of employment. As used in this
section, "employee" includes former
employees of the city.
•
The following information with respect to
each city employee is a matter of public
record:
–
name; age; date of original employment or
appointment to the service; the terms of any
contract by which the employee is employed
whether written or oral, past and current, to the
extent that the city has the written contract or a
record of the oral contract in its possession;
current position title; current salary; date and
amount of the most recent increase or decrease
in salary; date of the most recent promotion,
demotion, transfer, suspension, separation, or
other change in position classification; and the
office to which the employee is currently
assigned.
– For the purposes of this subsection, the
term "salary" includes pay, benefits,
incentives, bonuses, and deferred and all
other forms of compensation paid by the
employing entity.
– A city employee
having
supervisory
authority over
the employee
may examine all
material in the
employee's
personnel file.
•
A public official or employee who
knowingly, willfully, and with
malice permits any person to have
access to information contained in a
personnel file, except as is permitted
by this section, is guilty of a Class 3
misdemeanor and upon conviction
shall only be fined an amount not
more than five hundred dollars
($500.00).
•
Any person, not specifically authorized by
this section to have access to a personnel
file designated as confidential, who shall
knowingly and willfully examine in its official
filing place, remove or copy any portion of a
confidential personnel file shall be guilty of
a Class 3 misdemeanor and upon
conviction shall only be fined in the
discretion of the court but not in excess of
five hundred dollars ($500.00). (1975, c. 701,
s. 2; 1981, c. 926, ss. 1-4; 1993, c. 539, ss. 1084,
1085; 1994, Ex. Sess., c. 24, s. 14(c); 2007-508, s.
7.)
The Slippery Slope of Public
Statements
Statements outside of 160A168 Give rise to other claims
• Defamation (personal liability)
• Liberty Interest Claims (Municipal
Liability)
• Blacklisting
• Interference with Contract
• Other Tort Claims
BUT . . . there are ways to
release private personnel
information of public
employees -if done the right way!
– An employee may sign a written
release, to be placed with his
personnel file, that permits the person
with custody of the file to provide,
either in person, by telephone, or by
mail, information specified in the
release to prospective employers,
educational institutions, or other
persons specified in the release.
The city manager, with concurrence of
the council, or, in cities not having a
manager, the council may inform any
person of the employment or
nonemployment, promotion, demotion,
suspension or other disciplinary action,
reinstatement, transfer, or termination of
a city employee and the reasons for that
personnel action.
Before releasing the information, the
manager or council shall determine in
writing 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. This written
determination shall be retained in the
office of the manager or the city clerk,
and is a record available for public
inspection and shall become part of
the employee's personnel file.
Involving yourself
in litigation
• Risk of destroying attorney-client
privilege
• Risk of inconsistent treatment of
employees
• Risk of personal liability to YOU
Hypotheticals
1.
2.
3.
4.
The Temptation to “Do Good”
The Sympathetic Mayor
The At Will Employer
The “CEO”
Questions?
M. Robin Davis
[email protected]
919-863-8748