Personnel Records
2010 Legislative Changes
NCLM Annual Conference
October 24, 2011
Frayda S. Bluestein
Session Goals
• Review Legislative Changes
• Review AG Opinion Key Conclusions
• Discuss Current Approaches in Practice
for Implementation/Interpretation
Public Employee Records
Public Records Act
Most records of public agencies are public
Exception: Personnel Privacy Statutes
Most public employee records are not public
Exception to the exception: Personnel Privacy Statutes
Specific employee information is public
Information That is Now Public
Effective Oct. 1, 2010
• Date and amount of each increase or
decrease in salary
• Date and type of each promotion,
demotion, transfer, suspension,
separation, or other change in position
classification
• Date and general description of reasons
for each promotion
Information That is Now Public
Effective Oct. 1, 2010
• If the disciplinary action was a dismissal, a
copy of the written notice of the final
decision…setting forth the specific acts or
omissions that are the basis of the
dismissal.
Key conclusions:
Salary history and position change information that exists is public.
Notices of dismissal and reasons for promotion that exist are public.
Public Employers must create notices of dismissal and reasons for promotion for all
employees for actions taken on or after October 1, 2010.
Records vs. Information
• Note: Personnel privacy law specially
requires release of information.
• Does not follow the usual rule that
agencies are not required to create
records.
NCLM Annual Conference
October 24, 2011
Hope A. Root
Senior Assistant City Attorney
Charlotte, NC

The “written notice of the final
decision…setting forth the specific acts or
omissions that are the basis of the dismissal”
(2010 amendments)
 After grievance has been fully heard.
 If no grievance filed, after period for filing
has expired and final decision has been
written.




Management memos regarding investigation
leading up to decision to terminate are not a
matter of public record.
Not a final decision.
Likely contains information that is not a
matter of public record.
Employer should not incorporate by reference
without considering impact.



Review documents for information that
remains confidential despite changes to
personnel records legislation.
Redact confidential information
Examples:
◦
◦
◦
◦
◦
Other employees’ personnel records
FMLA
ADA
HIPAA
NC Identity Theft Act

Employee Smith was terminated for poor
performance. Termination letter stated that
Smith had been previously suspended on
three separate occasions for (1) workplace
violence against Employee Jones; (2) failure to
follow attendance rules; and (3) abuse of the
FMLA policy when Smith was supposed to be
taking care of his disabled child and he was
actually hiking the Appalachian Trail.


Employee is terminated for falsification of
work documents. Employee immediately
goes to the press and says “City terminated
me in retaliation for speaking out against
Management to City Council.”
Can release termination letter, but not until
grievance has been heard or grievance period
has expired.



Not a dismissal; therefore, documents not
public record.
Wait until grievance heard or grievance
opportunity expired before giving out
information that resignation occurred.
May or may not be a position classification
change


Demotion, Transfer, Resignation, Suspension,
Separation, etc.
Currently, only dismissal requires release of a
supporting document.


Although at-will employment remains, the
fact that the dismissal letter will become
public gives the employee a right to a nameclearing hearing.
Effect:
◦ Creates employee right to hearing before final
termination, which did not previously exist.
◦ Employee remains on employment books until after
hearing and grievance process complete.
◦ Cost to City – Time and Resources
Media request:
 Names of all members of police recruit
classes for last 6 years, and salaries broken
down by regular and overtime for each.
 Disciplinary actions taken against all police
officers in last 5 years, including type of
actions and, for dismissals, the final decision
setting forth the specific acts and omissions
that were the reasons for the dismissal.”

Response to Media Request:
◦ Accumulate data in timely manner
◦ Redact confidential information –
Records that were created before the
statutory amendment were written as
confidential, and may include
information outside of the scope of
the statute
◦ “Type” of suspension?


Legislative amendments did not affect
applicants.
Information about applicants for
employment is never public record
◦ Statute includes applicant records as being
private
◦ Statute does NOT include applicant records in the
list of information that is public record.
Before hiring, tell applicant what
information will be pubic record,
including age, salary, etc., as well
as demotions, suspensions, and
details if dismissal.


Employee may resign rather than have
dismissal document become public
record.
After the requisite time has expired,
City can explain why Employee was
terminated.
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1545 - Personnel Policy Provisions