In an effort to address a “pattern of surveillance by employees,” Chadbourn town leaders have adopted a policy that would prevent employees from secretly recording conversations with co-workers.
While no specific examples are referenced in supporting material attached to the policy proposal, there has been at least one instance of a town employee covertly taping closed-door meetings with their supervisors.
In September 2016, ousted Chadbourn Police Officer Ricky Soles gave WECT recordings of two disciplinary meetings – the first concerning his suspension and the second concerning his termination – over a controversial social media post he made.
Soles’ termination had a ripple effect on the police department. Shortly after his firing, another officer resigned, and a prospective officer pulled his employment. Several months later, the police chief resigned, saying he felt he had “limited control, but full accountability” of the department.
Then, the officer chosen to lead the department following the former chief’s departure was fired after less than three weeks on the job over “sexually explicit” social media posts he reportedly made. According to the officer’s dismissal letter, town leaders were made aware of the posts by Soles.
Is it legal?
The policy (below) seemingly contradicts North Carolina law, which explicitly allows an individual to record a conversation without informing the other party.
In an effort to maintain trust and to encourage communications among employees, no employee shall make or cause to be made any voice recordings of any co-worker without that employee’s knowledge. The only allowed exceptions are for active criminal investigations or approved administrative investigations.
The use of voice recorders by police officers when interacting with victims, witnesses and/or suspects is acceptable, and an officer should use his or her discretion as to whether to notify the other party of the recording. If an officer is utilizing a voice recorder during the regular course of duty, reasonable efforts should be made to make co-workers aware of this practice. Officers need to be aware that the full content of recordings made during criminal investigations is discoverable under North Carolina law.
However, Chadbourn Town Attorney Howard Pope says employers have the ability to enact policies prohibiting lawful actions.
"Because it's lawful doesn't mean it's right," said Pope. "It's like smoking. It's lawful to smoke, but an employer can say 'no smoking.'"
Jonathan Jones, the director of the North Carolina Open Government Coalition, echoed the town attorney's statements.
"As long as the town's policies are being enacted and the employees are given notice, then I think the town is within its authority to require employees to notify other people when they're recording conversation," said Jones.
Though it is legal, Jones says it is not common.
"To me, it's very unusual," he said. "I don't think there are a lot of governments that have policies like this. I suppose in this modern era we should always anticipate that we're being recorded whether we know it or not and I think frequently we are and so to require consent seems a little bit superfluous to me."
A UNC School of Government blog attached as supporting material for the proposed policy states that although it is recommended, supervisors do not have to allow their employee to record a conversation when asked.
“Just because it is lawful does not mean that it has to be permitted,” Robert Joyce, a professor of public law and government, wrote in the blog. “It’s also lawful to wear a swimsuit with tassel loafers, but an employee does not have a right to dress that way at work. The supervisor is free to tell the employee that such attire is unacceptable and the supervisor is free to tell the employee that recording the meeting is unacceptable.”
In a memo to Chadbourn Town Council, Town Manager Trey Burke wrote that managers should use Joyce’s blog to guide their application of the policy, should it be approved.
“The Town Manager will expect department heads to always allow their employees to record their conversations provided that the employee notifies their supervisor, and further, to consider the context in personnel actions should an employee violate this policy,” Burke wrote.
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