To amend or not to amend — that’s the question the North Carolina House faces next week when it resumes debate on a measure that would enshrine North Carolina’s open-records law in the state constitution.
A vote final on House Bill 87, Sunshine Amendment, was postponed earlier this week in response to Democrats’ concerns that the legislation should be a statute rather than an amendment. Republicans have scrambled to muster enough support to achieve the three-fifths majority needed for passage.
“We’re counting votes to see whether or not we have the votes,” said House Speaker Thom Tillis, R-Mecklenburg, Tuesday morning.
The GOP caucus has 68 members in the House. It would need four Democratic defectors to gain enough votes.
The public already has the right to access government documents and meetings under general statutes, but H.B. 87 would make those rights harder for lawmakers or courts to tamper with by putting them in the state’s highest governing document.
As it stands, the General Assembly can modify the open records law by a simple majority vote. It wouldn’t be so easy with an amendment. A three-fifths majority would be required to change the law.
If the amendment ends up on the ballot in 2012, recent polling suggests it would pass handily. An Elon University survey from February found that four out of five respondents favor putting open-records access in the constitution.
Government transparency advocates say the concept has been successful in other states.
“It’s been a good thing for Florida, it’s been a good thing for California,” said John Bussian, a lawyer with the North Carolina Press Association. “They’ve got at least 10 years of a track record with these things in place in those constitutions. It works.”
Tweaking the bill
But opponents say a constitutional amendment goes too far, and they’ve mounted a campaign to change the bill from an amendment to a statute.
“This thing already looks like Swiss cheese in terms of the number of exceptions that are made to it on the face of it identified within this body,” said Rep. Bill Faison, D-Orange, during debate on the House floor last week. “Not only that, it anticipates that we’d add to the holes in the Swiss cheese in the future. We do not do that with constitutional provisions.”
If foes successfully convert the bill to a statute, the state’s open record’s law would remain largely unchanged — aside from the three-fifths majority vote provision.
The idea of scuttling the amendment is at least getting a hearing from top House leaders.
“There is a legitimate discussion around whether you bake some of these things into the constitution or have them remain in statute,” Tillis said. “There is some valid argument about how much you want to imbed in the constitution.”
Democrats and Republicans already have agreed to adopt two revisions to the bill. The first removes the judicial branch from a list of government entities to which the public is guaranteed open access.
The second ensures that “every natural person” who is a citizen of North Carolina has access to public records, as opposed to a former version that said “every person” has that right.
Despite winning these changes, Democrats say the bill was a rush job.
“I will say without fear of serious dispute that this was rushed in committee,” said House Minority Leader Joe Hackney, D-Orange. “It was as if any concerns or objections were brushed aside.”
Related legislation — Senate Bill 344, Government Transparency Act of 2011 — would expand significantly the public’s access to personnel records for state and local government employees. That’s been a chief goal of open-records supporters.
Current law requires public agencies to release only the date and type of an employee’s dismissal, plus “a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.”
S.B. 344 would expand the public’s right to know reasons for the termination. It also would loosen access to performance reviews and explanations for promotions, demotions, transfers, separations, or other changes in classification.
Additionally, the bill would make it easier for plaintiffs who file open-records lawsuits to recover attorneys’ fees.
Unlike the sunshine amendment, S.B. 344 would only amend statutory law. But Bussian said both are important.
“This is a really telling fork in the road for North Carolina,” he said. “We’ve got two bills up right now that give the state the chance to step forward and be in the vanguard of open government states.”
David N. Bass is an associate editor of Carolina Journal.