On Tuesday, May 17, Judge Carla Archie heard arguments in Gaston County Superior Court in the matter of Deitz v. Belmont. The case is a challenge brought by the Civitas Institute Center for Law and Freedom (CLF) on behalf of two plaintiffs seeking access to an investigative report into the Belmont Police Department. The defendant City of Belmont maintains that the report is a personnel record, and thus exempt from the Public Records Act. This despite the fact that the Act requires government actors to separate confidential and public information. For a summary of yesterday’s proceedings, we turn to Jonathan Jones of the Open Government Coalition:
Superior Court Judge Carla Archie told Belmont Tuesday to turn over to the court a copy of an independent investigative report into the city’s police department that led to the firing of the chief and resignations of two other officers. The document is at the center of a public records lawsuit. The city contends it is protected as a personnel record. The siblings who asked for the file contend it is outside the scope of the personnel law.
Superior Court Judge Carla Archie ordered the city of Belmont Tuesday to file under seal a copy of a third-party investigative report that looked into problems in the police department. Archie announced in court that she would review the documents. The report is at the center of a public records lawsuit over whether or not such third-party investigations are covered by personnel exemptions to the public records law…
In Gaston County Superior Court Tuesday the city’s attorney, Bradley Kline of Cranfill, Sumner and Harzog, argued that the documents were a part of the personnel files for three police officers – one who was fired and two others who resigned.
“It is the city of Belmont’s position that the ISS report is part of the personnel files of those three officers,” Kline said. He argued that the personnel file exemption should be read broadly.
Elliot Engstrom, of Civitas, argued on behalf of Dietz and Tucker that the report was not gathered by the city, therefore it is not covered by the provisions of the personnel statute. He also argued alternatively that the report was not made with respect to any specific employees but was looking at systemic problems in the police department.
“Does the city have the authority to enter into a relationship with another entity under the cloak of the personnel act?” Engstrom asked. “U.S. ISS Agency is not the city of Belmont.”
Archie denied the city’s motion to dismiss the case and ordered a sealed copy of the investigative report and any supporting exhibits be filed so that she could review them. She did not rule on the plaintiffs motion for summary judgment, withholding her decision until the in camera review has occurred.
Local media was also on hand to report on the proceedings. As reported by The Gaston Gazette, one of the issues argued yesterday was whether all or part of the case against the city should be dismissed:
Current City Manager Adrian Miller was named in the civil suit along with the city of Belmont.
Kline argued Tuesday to have Miller removed as a defendant. Both attorneys presented their arguments as to why Miller’s name should or should not be on the suit. Miller replaced former City Manager Barry Webb, who was initially listed on the suit and has since retired.
Judge Archie sided with Kline and removed Miller from the lawsuit. She denied Kline’s motion to dismiss the case altogether.
The plaintiffs sued City Manager Adrian Miller in his official capacity only. In North Carolina, a plaintiff is required to name the custodian in a public records lawsuit, but North Carolina case law is unclear as to whether the city or the city manager is the custodian, and therefore the proper defendant. In order to be sure to establish standing, the plaintiffs sued both. By dismissing the city manager, Judge Archie necessarily found that the city is the proper custodian of the disputed records.
As reported on the Charlotte local news by WSOC-TV, the lawsuit has special significance for the sibling plaintiffs:
Family members of [Donna Deitz], a woman killed during a police chase[,] went to court Tuesday to push for results of an investigation into the Belmont Police Department…For the first time, a judge will unseal the 150-page report and review it herself, before deciding whether to make it public. The Belmont City Council read it last year and the city manager determined that former chief Charlie Franklin was negligent, incompetent, had falsified records and threatened employees…There may be more in it, Donna Dietz’s sister, Ellen Dietz Tucker, said.
“There might wide spread problems in the department,” Tucker said. “There might be a culture of laxity it seemed to us.”
…Several former officers who complained about treatment in the department talked to private investigators, but their comments were sealed. Civitas, a conservative think tank, provided attorneys to help Dietz make the report public…Both sides expect the judge to take a few days to go over the internal investigation, review both sides of the agreement in this case and then sometime next week decide whether or not that report from the internal investigation should be made public.
You can view more coverage from WSOC-TV, including video of the local news segment, here.
Judge Archie has ordered the City of Belmont to produce the report for her under seal for a judicial review. She then will order the city to produce as public any portions of the report that she finds are not “personnel” records within the meaning of N.C.G.S. § 160A-168.