SPEAKERS:
Patrick H. Flanagan
(704) 940-3419
[email protected]
Norwood P. Blanchard
(910) 332-0944
[email protected]
Ryan D. Bolick
(704) 940-3416
[email protected]
SPEAKERS:
Patricia L. Holland
(919) 424-8608
[email protected]
M. Robin Davis
(919) 424-8609
[email protected]
Ann H. Smith
(919) 424-8610
[email protected]
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 160A-168
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?
SPEAKERS:
Patrick H. Flanagan
(704) 940-3419
[email protected]
Norwood P. Blanchard
(910) 332-0944
[email protected]
Ryan D. Bolick
(704) 940-3416
[email protected]
SPEAKERS:
Patricia L. Holland
(919) 424-8608
[email protected]
M. Robin Davis
(919) 424-8609
[email protected]
Ann H. Smith
(919) 424-8610
[email protected]