From the Fayetteville Observer (3/14/10): It started with automobile brake lights glowing before dawn last May. It ended in January with a middle school teacher going to prison.
In between, parents in Wilmington learned how North Carolina’s restrictive law governing public employee records can put their children in danger.
It’s a lesson in government accountability that could be applied in Fayetteville and elsewhere.
About 4 a.m. on May 23, the brake lights drew a patrol officer to a parked car in downtown Wilmington, where 27-year-old teacher Jessica Wishnask was found “in intimate contact” with a 15-year-old boy, police said.
Twice before that incident, Wishnask had been suspended by New Hanover County schools for suspicious behavior with the boy before she resigned.
Yet she quickly landed another teaching job in Pitt County.
How?
School officials weren’t saying at first, taking refuge behind a law that makes most public employee records a state secret in North Carolina.
Violation of the employee-secrecy statute carries criminal penalties, unlike when public officials break open-meetings or open-records laws.
But The Star-News of Wilmington managed to pry loose a letter of recommendation written for Wishnask by the assistant superintendent for personnel at New Hanover County schools.
The letter from John A. Welmers Jr. praised Wishnask as “personable, professional and efficient,” even after the suspensions. She is now serving 3 1/2years in state prison after accepting a plea deal and being convicted of taking indecent liberties with a minor.
Her case is just one of many in which state personnel laws have shielded government employees from public scrutiny.
In the past few months in Cumberland County alone:
A radio dispatcher was “appropriately” disciplined, in the words of Fayetteville City Manager Dale Iman, for taking more than an hour to send police to what turned out to be a multiple homicide. The employee’s identity and punishment were never revealed.
A principal was sent home with full pay for four months while the school system looked into grade tampering. The principal, Diane Antolak, resigned March 5 after an internal investigation about which little has been revealed.
“Even when employees are disciplined or fired or demoted or transferred, it’s like pulling teeth to find out why,” said Hugh Stevens, president of the North Carolina Open Government Coalition. “For some reason, our personnel laws are much more stacked in favor of protecting the employee than most states.”
While public employees cannot bargain collectively in North Carolina, they are not unorganized.
The Professional Fire Fighters and Paramedics of North Carolina, for example, crows to members that it has beaten back legislation that would have opened their disciplinary files.
“Every time you talk about trying to improve access to government employee records, you’re up against the full power and might of the public sector,” said John A. Bussian III, a Raleigh lawyer who has lobbied the General Assembly on behalf of news media. “You name it, the state employees, the teachers, law enforcement.”
The State Employees Association of North Carolina likes things as they are.
“If there’s an investigation going on,” said Erica Baldwin, the association’s assistant public relations director, “we want to make sure due process is done and that an employee’s hard work and good name isn’t sullied during an investigation.”
If wrongdoing is confirmed, however, the association also wants that hidden from the public. The only exception would be when an employee is convicted of a criminal offense, Baldwin said.
In the Wishnask case in Wilmington, an arrest was the only reason parents found out that school officials had gotten rid of a future sex offender by passing her along to an unsuspecting district.
The outcry had even Welmers – the assistant superintendent who wrote Wishnask’s letter of recommendation – lamenting the law.
“We cannot defend ourselves,” Welmers told the Star-News. “We have to protect the rights of the employees and the integrity of the system.”
In truth, integrity cuts more than one way with public employee records.
The law contains a loophole that allows school boards to release the entire contents of a personnel file when disclosure becomes “essential to maintaining the integrity of the board or to maintaining the level or quality of services provided by the board.”
Almost identical language is found in the statutes governing personnel records for city, county, state and higher education employees.
“We’ve asked organizations to take a look at that provision because a lot of times you’ll hear from the government agency: ‘Well, gee, we’d love to be able to tell you that but our hands are tied because it’s a personnel matter,’ ” said Stevens, a Raleigh lawyer who represents news media. “And our response is: ‘Well, your hands are not completely tied.’ “
When Stevens has suggested officials invoke the provision, though, they seldom do.
“I’m surprised, frankly, that more governing bodies don’t recognize that this gives them an opportunity to protect themselves,” Stevens said. “I don’t think that public officials take advantage of this as a way to clear the air and restore public confidence nearly often enough.”
Cumberland County Attorney Rick Moorefield, who has worked as an administrator, commissioner and lawyer in several North Carolina county governments, said he has never seen employee-record confidentiality waived.
Under public pressure in Wilmington, the New Hanover County Board of Education did take a rare half-step toward transparency last June.
The board released a one-page summary of Wishnak’s two suspensions – the first after she was caught in a locked classroom with the boy, the second for speaking with the boy after she was warned to avoid him.
The summary emphasized that Wishnak’s arrest came after she left New Hanover County schools. The board refused to release her personnel file.
Wishnak’s criminal plea deal isn’t the end of the matter. School officials are facing a negligence lawsuit from the victim’s family for failing to disclose that Wishnak had been suspended for misbehaving with the boy.
Charles Davis, executive director of the National Freedom of Information Coalition, said schools slip suspected predators out the back door with handshakes and reference letters all the time.
“They get into trouble in their taxpayer-funded position, are able to resolve that by quitting – and sometimes they are quite heinous things that they have done – and we’re none the wiser,” said Davis, a journalism professor at the University of Missouri. “They move one county over and go right back to work.”
Laws like North Carolina’s are ideal for officials who want to cover those tracks, Davis said.
June Atkinson, the state superintendent of public instruction, wants to make teacher employment histories even more of a mystery to the public.
Atkinson released a report last week calling on state legislators to close teacher-licensing applications to public inspection.
A task force appointed by Atkinson and dominated by education officials recommended sealing the applications, which are now public records, in the name of helping the state do a better job of keeping unfit or dangerous personnel out of the classroom.
“In order to encourage honesty, and hence accuracy, a teacher’s responses to questions about prior employment actions should enjoy the same protection those records would have if part of the personnel file,” the task force wrote in the report.
But keeping disciplinary records secret doesn’t always benefit public employees.
Two years ago, a Cumberland County man told The Fayetteville Observer that his wife, a teacher, had an affair with the principal at her school. The husband demanded to know why his wife got transferred while the principal stayed put.
In a subsequent interview, the teacher confirmed the affair, expressed regret, and agreed with her husband that she was more severely punished than her boss. She alleged that the principal was a serial philanderer with teachers under his supervision, yet once again appeared to be getting a pass from school officials.
Those officials declined to discuss the situation, relying on the privacy statutes for government employees.
“They always throw this privacy thing around, as if this has anything to do with privacy,” Davis said. “You don’t have an expectation of privacy in your illicit behavior.”
In states without such gag laws, openness can provide people with a fuller understanding of what a public employee is up against.
In Georgia, The Atlanta Journal-Constitution has exposed widespread cheating on standardized exams in local public schools, apparently by principals and teachers under enormous pressure to raise test scores.
The newspaper reviewed the personnel file of a principal whose school test scores had improbably skyrocketed in one year. The file revealed that the principal had been reprimanded earlier for a drop in scores.
Davis rejects the argument that states lose top job candidates when personnel records aren’t exempted from disclosure.
“Nobody wants to go to Florida to work, no, no,” Davis said, sarcastically. “Florida doesn’t have a personnel exemption. Georgia doesn’t have a personnel exemption. And these states have not fallen off into the sea. They continue to function as part of the republic.”
by Francis X. Gilpin, Fayetteville Observer Staff Writer