RALEIGHPhone (919) 828-

5100Fax (919) 828-2277

CHARLOTTEPhone (704) 332-

8300Fax (704) 332-9994

WILMINGTONPhone (910) 509-

9778Fax (910) 509-9676

www.cshlaw.com

Hear No EvilSee 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. The Temptation to “Do Good”2. The Sympathetic Mayor3. The At Will Employer4. The “CEO”

Questions?

M. Robin Davisrdavis@cshlaw.com

919-863-8748