Judge orders city to release documents in disciplinary cases

2012-12-05T17:45:00Z 2012-12-26T07:34:03Z Judge orders city to release documents in disciplinary casesBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

A Yellowstone County District Court judge has ordered the city of Billings to release all the information sought by The Billings Gazette in regard to city workers suspended for inappropriate computer use at work.

In an order issued Wednesday, Judge Russell Fagg ordered the city to release the names of the five employees, copies of all investigative documents with only the names of uninvolved third parties redacted, and copies of the disciplinary letters given to each employee "in completely unredacted form."

The employees were suspended for five days without pay last spring after an investigation showed that they had been using city computers to access adult or pornographic material.

The city had argued that the disciplinary letters, formally known as corrective action forms, were internal personnel documents not subject to public disclosure, but Fagg rejected that contention.

Unlike some other personnel files, he said, the forms were the end product of an investigation into the workers' misconduct and "do not discuss protected information such as personnel records or job performance evaluations, generally."

Fagg said he was issuing the order reluctantly, but that while "public humiliation may be an unfortunate byproduct of disclosure in this case, it is not a defense to disclosure."

"Society will not permit complete privacy and unaccountability when a public employee is accused of misconduct which is related to the performance of his or her public duties," Fagg said.

City Administrator Tina Volek declined Wednesday to release the information detailed by Fagg, saying she and City Attorney Brent Brooks had not had time to read the order or discuss it. She said they also needed to consult with Emily Jones and Gerald Murphy, the Moulton Bellingham attorneys who represented the city in this case.

Volek said she hoped to have a response Thursday. The judge's order does not specify when the information is to be released.

The Gazette filed suit against the city after its requests for public documents in the case were only partially satisfied. The city did release redacted copies of the investigative documents and sometimes heavily redacted copies of email correspondence among city managers regarding the investigation. It did not release the corrective action forms.

The city had argued that it withheld the information to protect the employees' privacy rights, saying they outweighed the merits of public disclosure.

But Fagg quoted from the city's "acceptable use" policy governing Internet use, in which employees were warned that people using city-provided Internet accounts "should not assume they are provided with any degree of anonymity."

In a hearing before Fagg last week, Jones said the workers were disciplined only for inappropriate actions, not because their activities threatened the security of the city's computer network or because the activities interfered with their ability to perform their jobs, as Gazette attorney Martha Sheehy had maintained.

Fagg rejected the city's arguments, pointing out that the corrective action forms told the workers of "the potential of a virus threat to the City's computer network," and excess "amounts of time being spent on non-work related searches while you were being compensated to perform your assigned duties."

By giving employees public computers and Internet access, Fagg said, the city trusted that the employees "would use the computers in furtherance of their work duties and in an appropriate manner."

Instead, he continued, "the Employees breached public trust with respect to their use of public resources."

Gazette Editor Steve Prosinski said in a prepared statement that it was "unfortunate that we had to go to court, again, to obtain public documents."

"We take seriously our responsibility to defend the public’s right to know how its local government is operating," he said. "Courts have ruled that when employees in positions of public trust are disciplined, citizens have a right to scrutinize the investigations to decide for themselves if appropriate action has been taken."

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