Judge grants city's stay but releases redacted disciplinary letters

2012-12-13T16:10:00Z 2012-12-26T07:34:03Z Judge grants city's stay but releases redacted disciplinary lettersBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

A Yellowstone County District Court judge has decided that the city of Billings does not have to release the names of five disciplined city workers while the city pursues an appeal to the Montana Supreme Court.

At the same time, Judge Russell Fagg released disciplinary letters issued to the employees, with only their names and other identifying information blacked out.

Fagg ruled last week that the city had to release to The Billings Gazette all the information it had requested on the workers, who were suspended without pay during the spring and summer for viewing pornography and other inappropriate material on city-owned computers.

The city filed a notice of appeal with the state high court Tuesday, simultaneously asking Fagg to stay, or postpone, the effects of his order pending the outcome of the appeal.

The city had argued that if a stay was not granted and it was forced to reveal the names of the workers, which the city is hoping to prevent by appealing to the Supreme Court, the appeal would be moot.

Fagg agreed with the city, but he also agreed with the response of Martha Sheehy, the attorney for the newspaper, who argued that if the stay were granted, the city should at least hand over the disciplinary letters, with names redacted.

In weighing between the privacy rights asserted by the city and the public's right to know put forth by The Gazette, Fagg said, he chose "the lesser of the two evils" in granting the stay.

"Given the public's competing right to know in this matter, however," he continued, "the Court concludes the stay should be structured so as to best comply with the public's right to know."

That's why he released the disciplinary letters, known as "corrective action forms." Those forms show that there were some differences in what the workers were accused of doing, and one worker received a slightly more lenient suspension than the other four.

That employee was ordered to serve a three-day suspension in April and May, with two days "held in abeyance for 6 months pending no further violations" of city policies.

The corrective action form for that employee also contains the only reference to a threat to the city's computer system. It said the employee accessed "a Polish site with adult content that contained file sharing functionality, subsequently increasing the potential of a virus threat to the City's computer network."

In addition to the charges of accessing inappropriate Internet sites, two employees were also accused of saving inappropriate images to their computers. The form for one worker says "it was discovered that numerous files were saved on your computer titled 'documents/Plea Agreements', 'documents', and documents/PlanPlus Databases/odd documents' that contained images including nude adults and pictures that were pornographic in nature."

Another employee was accused of saving four adult or pornographic images to his or her computer.

All five forms mention the same violation of the city's timekeeping policies: "The City considers the amount of time you devoted to inappropriate and non-work related internet searches as excessive and a theft of work time that the City compensated you for."

Four of the forms refer to the discovery of images that of "nude adults and pictures that were pornographic in nature." The fifth form referred only to images that included "scantily clad adults" but also "pictures of women associated with escort services."

None of the five employees had been involved in any previous disciplinary actions, according to the forms, and all of them were told that their computer use would be subject to random audits for the next 12 months.

As per city policies, the forms say, "users using City-provided Internet accounts should not assume they are provided any degree of anonymity."

The worker accused of storing numerous images on his or her computer was the last one disciplined. He or she discussed the corrective action form with city officials on Aug. 1 and was suspended Aug. 6-10. That person's computer use was monitored for two months — February and March of this year.

In three of the other cases, the workers' computer use was monitored for a week or 10 days. For one employee, it is not stated what period of use was monitored.

One worker was suspended for five days in May, another for five days in July and another for five days in July and August.

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