By Paul Chesser
North Carolina State University officials denied two requests for public records about work performed by professors, claiming state law allows them to withhold the documents because the employees’ work was conducted in their roles as private consultants.
The requests were turned down despite the fact that professor Robert Handfield, a professor of supply-chain management in NCSU’s Poole College of Management, used NCSU letterhead for correspondence with his client, also a government agency. His colleague,
Michael Cobb, associate professor of political science in the NCSU School of International and Public Affairs, used his official NCSU email address to elicit correspondence for his project.
Both records requests were originally submitted in early April by CarolinaPlottHound.com. (The author of this article publishes that site.)
Eileen Goldgeier, NCSU vice chancellor and general counsel, denied the requests. Her decision was affirmed by Thomas Shanahan, vice president and general counsel for the University of North Carolina System.
“Having determined that the professors were performing outside, non-university work,” Shanahan wrote, “NCSU necessarily concluded that any records related to this outside work are not ‘made or received … in connection with the transaction of public business’ by NCSU and are therefore not subject to release by NCSU under the State public records law.”
Each professor was commissioned for his work based upon his NCSU credentials.
North Carolina’s regional film commissions and the Motion Picture Association of America hired Handfield to conduct an analysis of the economic benefits derived from the state’s hotly debated incentives for movie and television productions. Critics say the incentives amount to “corporate welfare.” Handfield’s report, A Supply Chain Study of the Economic Impact of the North Carolina Motion Picture and Television Industry, concluded that for every dollar the state provided in incentives, the state economy realizes a net benefit of $1.42 in return. His findings were sharply disputed by the free-market John Locke Foundation and by the NC General Assembly’s nonpartisan Fiscal Research Division.
For his part, Cobb writes an election-themed Weblog titled “Margin of Error” for Raleigh-based WRAL, a television station subsidiary of Capitol Broadcasting that is owned by liberal and Democratic donor James Goodmon.
The blog features Cobb’s views on polling and surveys, his area of academic interest. He has received mixed reviews from students on the popular RateMyProfessors.com web site, with several characterizing him as “very liberal” or “obviously liberal,” and many claiming that he teaches his classes with evident bias. Likely revealing his political affections, a November 2009 post from his Facebook page included a photo of Cobb standing next to a full-sized cutout of President Obama; Cobb’s caption for the picture: “Stand by your man.”
On April 1, CarolinaPlottHound.com asked NCSU for records pertaining to Cobb’s communications to arrange his WRAL deal. Three days later, CPH requested all records and correspondence related to Handfield’s study.
In a May 1 email, director of university relations Fred Hartman denied both records requests, saying “both (projects were) conducted as private consultants, not on behalf of the university. Therefore, any content related to their private work is not a public record.”
Four days later CarolinaPlottHound appealed NCSU’s decision. Among the evidence CPH.com cited that refuted NCSU’s claims was the fact that Handfield delivered his study’s conclusions to at least one client – Johnny Griffin, director of the Wilmington Regional Film Commission – using official NCSU letterhead, and signed in his capacity as a Poole College of Management professor. The study Handfield authored also cites extensively his expertise as a NCSU professor.
In Cobb’s case, the WRAL webpage (also here) that explains his role cites extensively his professional NCSU credentials as the basis for his blog work, and even invites readers to correspond with him at his NCSU email address.
And shortly after CarolinaPlottHound.com filed its initial public records request for his records, Cobb emailed his own response (before NCSU had a chance to) from his university email account. He gave no indication that his work was in a private capacity or that it had nothing to do with his official NCSU duties.
“I’m not sure why you pursued a public records law approach without first asking me,” Cobb wrote to CPH.com. “I must confess to being curious as to what I could have done to prompt your request.”
Nevertheless, Hartman informed CarolinaPlottHound.com that NCSU counsel Goldgeier stood by the original decision to deny the records request. After conducting his own review of the matter, UNC System general counsel Thomas Shanahan confirmed the decision, and noted that NCSU “allows employees to have incidental personal use of campus IT resources.” But his message also implied that the professors might have exceeded what could be legitimately defined as “incidental.”
“Determinations concerning external activities for pay, and the application of campus IT use policies, are properly campus matters,” Shanahan wrote. “That said, in our conversations with the Office of General Counsel at NCSU, we suggested that this matter could serve as an opportunity to reinforce NCSU’s policies and regulations related to employees’ use of University e-mail and letterhead for external activities.”
Shanahan’s comments indicate the “private” nature of Handfield’s and Cobb’s records sought by CarolinaPlottHound.com is at least open to question. Jay Schalin, a researcher and writer for the conservative Raleigh-based Pope Center for Higher Education, noted the rules do not allow for personal use if it is for the employee’s “commercial gain or private profit,” unless it is allowed under the university’s permitted external pay regulations, which Schalin called “nonsensical.”
“NC State’s regulations seem to create — perhaps intentionally so — a large ‘gray area’ in which faculty members can perform outside consulting work for pay and at the same time be in gross violation of the regulations governing use of university equipment — and still have their work be protected because it is not part of their job,” he said.
Schalin also said the two professors’ activities and use of NCSU computer resources likely exceeded the policy and Shanahan’s claim that staff “may access University IT resources for occasional, inconsequential personal uses.”
“It appears that their use was both regular and consequential. In the one case we’re talking about a study used to influence state policy, the other to possibly influence an election,” Schalin said. “Second, the film consulting work was unquestionably for pay.”
But barring legal action, or the inability in North Carolina to appeal to an independent reviewer, anyone seeking documents in such cases is forced to take the university’sword for it. And if a professor exceeds the “incidental” use of university resources for the purpose of private consultancy work, the discretion about whether to disclose his correspondence is left to university authorities, who are under no coercion or statutory pressure to release records.
According to a July 3 article on WRAL’s website, in February NCSU Chancellor Randy Woodson told the UNC system’s Board of Governors that North Carolina’s public records law endangered the school’s ability to keep information confidential for potential private collaborators, and has cost the university some research contracts. Vice Chancellor Terri Lomax, head of the Office of Research, Innovation and Economic Development, told WRAL the same thing. Schalin called it worrisome that two top leaders at the university “publicly voiced irritation with public records laws because they inhibit the school’s monetary interaction without outside firms.”
John Bussian, a Raleigh-based lawyer specializing in open records litigation and intellectual property rights, put it more simply.
“If an NC State professor is using a government-owned email account for anything other than purely personal business, the emails are public record,” he said. “The professor should know to use a personal email account if he and NCSU want to claim the emails are really exempt from disclosure.”