Captain Entitled To See Notes Taken In Disciplinary Investigation

In June 2015, the Town of Kernersville, North Carolina terminated Fire Captain Kevin Bray, who had served the Fire Department for more than 17 years. Bray’s termination stemmed from a meeting he had with Town Manager Curtis Swisher and the Town’s human resources director to discuss some of Bray’s concerns about the Fire Department. In response to Bray’s concerns, Swisher interviewed other employees and took notes during the interviews.

Based on those interviews, Swisher concluded that most issues within the Department were connected to Bray’s shift and that Bray was “disliked by everyone in the Department,” “walks a fine line on policy,” and caused “strife and disharmony within the Department.” When the Town terminated him, Bray requested a hearing through the Town’s employee grievance procedure, and sought a copy of “all personnel files, records and documents” concerning his employment.

The Town provided Bray with what it asserted was his personnel file but did not include the notes and other documents concerning the investigation that led to Bray’s termination. Bray protested, and Swisher reconsidered, eventually providing Bray with 40 pages of heavily redacted interview notes that memorialized Swisher’s interviews with Fire Department employees. The portions that were unredacted primarily contained statements from unidentified employees indicating that Bray was the source of morale problems within the Fire Department.

After receiving those redacted notes, Bray again objected and informed the Town that he could not fairly defend himself at the grievance hearing without receiving the full version of the interview notes on which the Town relied in its decision to terminate him. This time, however, the Town refused to reconsider and proceeded with the grievance hearing. After the hearing, Swisher upheld Bray’s termination.

Bray and the Kernersville Professional Fire Fighters Association filed a lawsuit seeking to compel Swisher to provide an unredacted copy of the notes and to conduct a new grievance hearing. After a trial court ordered Swisher to produce the notes, the Town appealed to the North Carolina Court of Appeals.

The Court upheld the lower court’s order requiring the Town to produce the notes. The Court’s decision turned on a state statute providing that an employee “may examine all portions of his personnel file,” but that an exception exists for “notes, preliminary drafts and internal communications concerning an employee” unless those documents were used in a personnel decision.

The problem, the Court found, was that “the appellate record does not contain a copy of the unredacted notes that the trial court reviewed in camera. As a result, this Court has no way to know what the redacted portions of those notes say. For example, the notes might contain a clear statement that the Town intends to rely on their entire contents to terminate Bray’s employment. Or the redacted notes might contain material wholly unrelated to Bray. This Court can only speculate, which prevents us from reviewing the trial court’s finding. Instead, we must follow the long-standing rule that where the record is silent on a particular point, we presume that the trial court acted correctly.”

The Court then went on to decide whether Bray was entitled to a new grievance hearing after receiving the unredacted notes. The Court found that “it would make little sense to interpret the statute as providing only a right to eventually receive the records, rather than a right to receive them for use in challenging the official personnel decision that made the records subject to disclosure in the first place. In both scenarios the government’s interest in maintaining the confidentiality of internal investigations is undermined, but only in the latter case is the employee’s interest in confronting the official personnel decision advanced. Accordingly, we interpret the statute as providing a statutory right to receive all documents used in an official personnel decision during any applicable administrative review or grievance process (provided, of course, that the employee requests those documents at a reasonable time before or during the grievance process, as happened here).

“Having concluded that Bray had a statutory right to receive all documents subject to disclosure in advance of his grievance hearing, we agree with the trial court that Bray’s due process rights were violated. When the State chooses to afford procedural rights – such as a grievance hearing for employees – it must ensure that the procedure comports with due process. Here, the Town deprived Bray of that right by refusing to turn over documents that Bray had a statutory right to receive in order to mount an effective defense against the Town’s adverse personnel decision.”

Bray v. Swisher
, 2017 WL 1650131 (N.C. App. 2017).