Records About Employment Actions: Clarifying What Is and Isn’t Public

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Frayda Bluestein

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Imagine that a local newspaper has requested the following information from a public agency: “A list of all disciplinary actions taken by the agency during the calendar year 2010 against any and all persons employed by the agency, including the name of the individual employee who was disciplined and all of the records pertaining to the disciplinary action, as well as copies of any letters of termination or any other documents that might provide reasons for the terminations.”  You might think that all of this information is now public under the new laws affecting personnel records. You would be wrong.

The recent changes in the personnel privacy laws, summarized here, do indeed significantly increase the amount of information about public employees that is public. The law now requires most public agencies to disclose the date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification. Another section of the law now says that dismissal, suspension, or demotion “for disciplinary reasons” must also be made public. So reading the two sections together, it is probably the case that in addition to the date and type of each action, the agency must identify those actions that were taken for “disciplinary reasons” – a term not defined in the statute. Nothing in these provisions, however, requires the release of any underlying documentation or reasons for the actions taken. Indeed, against the backdrop of the statute, which makes most personnel records confidential, it is important to remember that the agency is prohibited from releasing any information or records that are not included in the specific list of things that the statute makes public.

What about dismissals? Doesn’t the law now require release of information about the reasons for dismissal? Yes it does, but only in a very limited way. The new law makes public “a copy of the written notice of the final decision of the authority setting forth the specific acts or omissions that are the basis of the dismissal.” There is no authority to release information about dismissals other than what is in this notice. As noted in my earlier post, it remains unclear whether all public agencies are required to create such notices for all types of dismissed employees, but it’s clear for all public agencies, that no other records dealing with dismissal are open to general public access.

There is one more new provision that requires the limited release of information about the reasons for a personnel action. The new law makes public a general description of the reasons for promotion. This provision appears to create a new requirement for public agencies to create these descriptions for all employees, at least for those promotions that occur after the effective date of the change, October 1, 2010.  The Attorney General’s opinion states that such descriptions are required for promotions prior to that date only if there is information in the file documenting the reasons for the promotion. There is no requirement in the law, however, to release information or records regarding promotions other than the “general description” called for in the statute, nor is there any other authorization to release such information.

One final point about what is and isn’t public. A resignation is certainly a change in position classification, so the date of a resignation is a matter of public record. Letters of resignation, and any other documentation related to a resignation, however, remain confidential. This includes a notice of final dismissal, even if it is a “final notice,” that is provided to an employee who ultimately resigns. The requirement to release the notice of dismissal applies only when an employee is actually dismissed.

So back the original request: what’s public is a list of the names, dates, and types of actions, and copies of any written notices of dismissal, setting forth the specific acts or omissions that were the basis of the dismissal. What’s not public are the records pertaining to these actions or any other documents that provide reasons for the termination (the part of the request in italics in the first paragraph).

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One Response to Records About Employment Actions: Clarifying What Is and Isn’t Public

  1. Follow Up Comment: A reader posed a great question: what about a resignation letter from the mayor or a board member? Is that confidential? I think not. Board members really aren’t employees, so the personnel privacy laws don’t apply. There are some records of elected officials that are not public – like their tax forms and other personal financial information that is provided in connection with getting paid. But correspondence about their position, performance, resignation, appointment (in the case of filling a vacancy) would all be public record. Yet another category is records of elected officials who are actually full-time employees, such as a Sheriff or Register of Deeds. A different approach would apply to those folks – a topic for another blog post perhaps, but for now, suffice it to say that their records are more like other employees and would be more likely to be protected as such than are those of elected officials who serve only as board members.

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