On CMS’s decision to hire Charles Jeter

[Jan. 19, 2017 update – Thanks to Ann Doss Helms at the Charlotte Observer for writing a follow-up story today on this issue. You can read it here.]

Why did the Charlotte Observer need almost 650 words in their article on December 5, 2016 just to announce former elected official Charles Jeter (R) as the new government liaison for Charlotte-Mecklenburg Schools? It’s almost as if someone involved with CMS felt they really needed to justify to the taxpayers why this hire was worth at least $91,000 of their tax dollars a year. But, even after reading all those words in the online edition of the Observer I was still left with unanswered questions about CMS’s hiring of Mr. Jeter.

• Why would a former politician who resigned unexpectedly at the end of July citing the need to devote time to his young family then apply for a job less than three months later that will likely require him to travel back and forth to Raleigh on a regular basis? And in case you didn’t follow the District 92 House race too closely – the seat flipped from (R) to (D) in November after Mr. Jeter’s unexpected resignation.

• Why would CMS hire a former elected official when he would be prohibited from even doing his job until 6 months after he left office pursuant to the “cooling off” period for lobbyists in North Carolina? [See NCGS 120C-304(b).] This one was easily answered by the NC Ethics Commission after I started reviewing this issue. The 6 month “cooling off” period is not applicable to Mr. Jeter because he was actually hired as a local government liaison, not a lobbyist, and local government liaisons are only subject to Article 5 of the lobbying law according to this 2011 formal advisory opinion from the Ethics Commission. What’s the actual difference between a lobbyist and a local government liaison? Good question.

• Even though he’s only a local government liaison, not a lobbyist, he still has to register as a liaison with the Secretary of State’s Office just like his predecessor. [See NCGS 120C-502(a).] Why then has Mr. Jeter still not registered as a liaison with the Secretary of State’s Office as of the morning of January 17, 2017? You can search for yourself here.

• If he “got out of his trucking company” as the article stated, why is Mr. Jeter still listed as the President of this trucking company according to the Secretary of State’s website?

• There are nine board members on the CMS Board of Education – why was only one, Rhonda Lennon from District 1 (which covers Huntersville, Cornelius and Davidson), cited in the article as mentioning the job opportunity to a friend? When did Ms. Lennon mention this job opportunity to Mr. Jeter and how many other friends did she mention the job opportunity to? Surely other board members mentioned this great job opportunity to their friends as well, right?

• Since Mr. Jeter said he went through a “lengthy selection process” in the Observer article, and since surely other board members mentioned this great opportunity to qualified friends, how many other qualified applicants did Mr. Jeter beat out for this $91,000 a year taxpayer funded job?

I decided to send a records request to CMS on Dec. 13, 2016 to help answer some of these questions. My requests are below along with CMS’s responses in italics.

1) The date the job was first publicly posted and all forms in which the public job posting occurred, e.g., online, newspaper, etc.; [Received January 3 – The position was posted on the CMS job board 10/7/16 – 10/14/16.]

2) The job description or any description of job duties listed; [Received January 4 – see below.]

3) The anticipated or expected salary range listed; [Received January 3 – As advertised in the job posting, the salary range is $71,572.00-$91,187.00.]

4) The number of total applicants applying for this position before it was filled; [Received January 3 – #4 and #5 are requests for information rather than records (I’m awaiting a response from CMS Legal on whether these items can be released)]

5) The total number of applicants interviewed for this position before it was filled; and

6) The date and manner in which an offer of employment was extended to Charles Jeter. [Received January 3 – Date and manner in which an offer of employment was extended is personnel information that isn’t open to public record.]

CMS_Job Description

After the initial responses from CMS we learned the job was only posted for one week and only at CMS’s job board. We also learned Mr. Jeter was hired at or very near the maximum salary since, according to the Observer article, his new job will pay him $91,000 a year. What we didn’t learn was how many other people applied and/or were interviewed for this job during the “lengthy selection process” described by Mr. Jeter or how long after the job posting was he actually offered the job.

On January 6 CMS finally responded to requests 4 & 5 by stating – CMS Legal has determined that no records exist of this information. I asked for clarification – Does this mean the answer to numbers 4 & 5 is zero (0) applicants? Or, does this response mean that no records exist of any applicants applying or interviewing, but that the number is not zero (0)? On January 9 CMS responded to my request for clarification – The response to points 4 and 5 is: there is no record(s) that exist pertaining to the applicant number or number of candidates interviewed.

Still not being satisfied since I originally requested records or information, I revised my request and asked another way – 4) How many total applicants applied for this position before it was filled; and 5) How many total applicants were interviewed for this position before it was filled. CMS responded the same day on January 9 – Thank you for your follow-up inquiry. The items requested in 4 & 5 do not fall in the category of personnel information that is defined in the personnel privacy statutes as public information. Additionally, we have a concern that disclosing such information runs the risk of someone being able to identify the applicants and that would be a disclosure in violation of the personnel privacy laws.

Now we were getting somewhere. So someone at CMS had determined requests 4 & 5 didn’t have to be answered because of personnel privacy laws. But what specific laws were they relying on? Again on January 9 I asked for additional information – Please have CMS Legal specify any and all statutes in support of their refusal to provide the requested information. The next day, January 10, CMS responded – NCGS 132-6.2(e) states that a public agency is not required to respond to records requests by “creating or compiling a record that does not exist.”

I still wasn’t satisfied with CMS’s response to what I thought was a simple question so on January 10 I requested a time to discuss over the phone. After not receiving a response I left a voicemail with my point of contact at CMS requesting the same. On January 11 the Chief Communications Officer at CMS, Kathryn Block, emailed the following response in part – CMS has considered items four and five and determined that disclosing such information runs the risk of someone being able to identify the applicants. This would represent a violation of personnel privacy laws. CMS takes the privacy of its employees and applicants very seriously. Therefore, we are unable to fulfill this portion of your request.

To recap: CMS initially declined responding to 4 & 5 because no records existed. No wait, they said, it’s because responding would violate personnel privacy laws. On second thought, they said, it’s definitely because no records exist and we don’t have to create records that don’t exist.  Seriously though, we can’t disclose the requested information because it would violate personnel privacy laws.

Which is it CMS, no records exist or disclosing the number of applicants and/or interviewees would violate personnel privacy laws?

I decided to consult with Jonathan Jones, Director of the NC Open Government Coalition, who helpfully explained the limitations of a records request. He stated, “[CMS] is only legally obligated to provide records and not information. That’s why it ends up being a potentially valid response to your requests. It’s not a valid response if a record does exist that would answer your request for information and they would rather withhold it for personnel reasons. You can’t argue both because  either the record exists or it doesn’t.”

Essentially, CMS responded to my questions about the number of applicants and interviewees with a “No Comment.” Fair enough. But, based on the job only being posted for one week at the CMS job board and based on CMS’s conflicting responses and absurd conclusion that revealing the number of applicants would somehow result in someone being able to determine the identity of an applicant, it’s also fair for me to infer there was only one applicant and one interviewee – Charles Jeter.

Another example of your tax dollars hard at work in Mecklenburg County.

Eric