If you don’t already know what we’re referring to as the “216 Battle” then you haven’t been paying enough attention in class. Detention it is for you. Essentially, in response to the media’s public information request and Judge Manning’s subsequent court order requiring UNC to comply with the same, UNC released phone records that included a school-issued cell phone that had hardly been used by Butch Davis. Instead, it appears apparent that Coach Davis was using a “personal” cell phone he acquired while still coaching or at least living in the Cleveland area. Cleveland’s area code: 216.
The Daily Tar Heel had this to say about the matter:
When the NCAA first contacted UNC on June 21, 2010, Davis didn’t make any calls from his land line, and has only used his University cellphone twice in the 35-month period the records cover, even though it costs the athletics department about $80 a month.
Here are Davis’ school-issued cell phone records released to the media supposedly in compliance with Judge Manning’s Order.
The community over at Pack Pride has scoured the phone records that were released, and put together “evidence” of what we all certainly expected might be true. In the months, or at least weeks, while Butch’s school-issued phone was locked up in a desk drawer, it appears that Butch used the 216 phone to speak with his bosses and at least some of his staff. Essentially, it’s apparent from the phone records that Davis was using the “personal” phone for state’s business.
If you’re not familiar with the 216 discussion, you can check out our forums for a discussion on the topic but it is also likely that you want to read the discussion of the folks over at Pack Pride who spent what had to be an ungodly amount of time scouring the phone records that actually did get release.
We advise that you do your own research and draw your own conclusions about what John Blake’s phone records indicate regarding the 216 number, who it belongs to, and why it was being used. Here is a link to what was allegedly released to the media as former UNC Associate Head Coach John Blake’s phone records. That would be newly determined Sports Agent John Blake’s phone records.
For argument’s sake, let’s assume the 216 number does indeed belong to Butch Davis. Let’s also assume that Butch Davis did use that phone to speak to John Blake, Dick Baddour, Holden Thorpe, football recruits, or anyone else associated with college football for the purposes of carrying out his job as Head Football Coach at UNC. Let’s also assume, for argument’s sake, that this phone was indeed paid for by Butch Davis with his personal money and he was not reimbursed for that expense by the tax payers of North Carolina. Again, this is giving some benefit of the doubt for argument’s sake.
So let’s take a look at the statute that governs the NC “Public Information Request” law: N.C.G.S. § 132.
§ 132‑1. “Public records” defined.
(a) “Public record” or “public records” shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data‑processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.
(b) The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law. As used herein, “minimal cost” shall mean the actual cost of reproducing the public record or public information. (1935, c. 265, s. 1; 1975, c. 787, s. 1; 1995, c. 388, s. 1.)
UNC-Central acknowledges in their personnel policies that personal cell phone records, if the phone is used to conduct business within the realm of the state employee’s capacity, is possibly subject to disclosure under N.C.G.S. § 132.
6.0 Mobile Communications Device Allowance (MCDA) Program
The MCD allowance program is not intended to pay the full cost of the employee’s monthly service costs with
their provider. It is intended to only cover the reasonable cost that the employee incurs while using the
device/service as part of their job duties and responsibilities. The MCDA guidelines are as follows:
a. The employee is responsible for procuring and paying for all services and equipment.
b. If the employee’s use (from previous history of having a university provided device) is estimated to be
less than 100 minutes a month, the employee may not receive a MCD allowance unless the supervisor
provides sufficient justification.
c. A state agency is only allowed to provide MCD allowances if the agency’s total cost to provide the
allowance is less expensive than providing state‐owned MCDs.
d. The monthly allowance is taxable income. Appropriate taxes will be withheld from the allowance
payment each month.
e. The employee’s personal mobile communications device records could be subject to the North Carolina
public records law (General Statute 132).
This policy from a University of North Carolina System sister school is interesting for two reasons: 1) it acknowledges that work-related calls/texts on a personal cell phone are likely public record subject to having to be turned over pursuant to a request under this statute, and 2) according to the Daily Tar Heel, UNC enacted a similar program in early 2010 to stipend UNC employees for using personal cell phones in lieu of school-issued cell phones in an effort to assist budget cutting measures.
The Daily Tar Heel story on the UNC’s 2010 cell phone stipend policy change also states this little gem:
Under the stipend plan, employees receiving the stipend will have three days to provide phone records if the University’s public records officer requests them. During those three days, employees may redact any information related to personal calls, text messages or e-mails.
It certainly seems that like its sister school UNCC, UNC-CH believes that personal cell phones used to conduct the state’s business are subject to public records requests!
Along those lines, the Governor of NC issued this Executive Order regarding personal email accounts used to conduct the state’s business:
6. Executive Branch employees who conduct State business via personal e-mail accounts shall ensure that all public records are retained in accordance with this Executive Order and are retained pursuant to the Public Records Law and applicable record retention schedules.
This Executive Order has been interpreted by NC Government entities in this manner when referring to internal email policies:
1.5 Use of Personal E-Mail Accounts
Due to the challenging nature of capturing the information in personal e-mail accounts (such as Gmail™ or Yahoo™), the use of these accounts to conduct official government business is strongly discouraged. If a personal e-mail account is used for government business, employees are required to forward all e-mail messages to their government e-mail account. Those employees who do not have a government e-mail account are expected to print those e-mail messages following the terms of a records retention and disposition schedule. Executive Branch employees who conduct State business via personal e-mail accounts shall ensure that all public records are retained in accordance with Executive Order 18 and are retained pursuant to the Public Records Law and applicable record retention schedules.4 Members of governing boards who use personal accounts to conduct business manage their e-mails according to the records retention schedules and forward the message to the board’s official record keeping entity. If someone has not been appointed, we encourage you to identify the appropriate entity.
The UNC School of Government issued this opinion as to what makes a public record: (We highly recommend that you read this blog entry if you have any questions about NC’s public record law. The UNC School of Government is widely accepted as “the” place to go for a typically accurate interpretation of NC law.)
2. The location of an email does not determine whether or not it is a public record. If an email is made or received in connection with the transaction of public business, it is a public record regardless of whether it is created or stored on a public or a private computer or email system. So an email that relates to public business is a public record even if it is sent from a home computer, or made on a personal email account from any computer. This is true whether the email is sent or received by any public employee, or any elected or appointed public official.
There is obviously a great argument to be made that whether a government agent/employee/elected official is using a personal email account, a personal cell phone, or a personal carrier pigeon, any government business conducted occurring through that communication device is absolute public record… belonging to the people (see the statute set out above).
While North Carolina courts have not, that we can find, addressed the issue of personal cell phones being used to conduct the State’s business, the Colorado Supreme Court just addressed this exact issue last month. The Denver Post sued the Mayor of Denver for his “personal” cell phone records under the premises that it may have been used to conduct his government-capacity business. Read more here.
The Colorado Supreme Court ruled that the personal cell phone records of the Denver mayor were NOT subject to the request issued by the Denver Post. Before you scream that such a holding is an injustice to the concept of government transparency because anyone can now go get a personal cell phone, shelf the state-issued cell phone, and conduct shady dealings in his government capacity…. read closer.
One opinion of the holding of the case sets out this:
While the Post argued that if a public official uses his personal phone for official government business, those phone records become public record, the Supreme Court ruled that the Post had to first prove that Ritter, who opted not to seek a second term, had actually used his personal cell phone (in addition to a state-issued Blackberry) for government business, rather than simply conclude that he did. Since they failed to do so, the court said, Ritter was under no obligation to produce records proving that he did not use his personal cell phone for such purposes.
If you’re the legal scholar type you can read the opinion here. Otherwise, SFN would offer that the holding essentially means that a blanket request for personal cell phone records believed to have maybe been used for the state’s business will likely fail, at least pursuant to Colorado law. This case is distinguishable to the facts at hand because there seems to be actual evidence in this instance that the phone at issue, likely Butch Davis’ personal cell phone number with the 216 area code, was used by both his managers and his subordinates to contact him. Therein lies the pretty obvious conclusion, along with the fact that his UNC-issued phone went almost completely unused, that this phone was used extensively in his state employment capacity to carry out the functions of his job. Keep in mind that the civil standard applicable is not a criminal standard, proof beyond a reasonable doubt, that Butch used the phone to conduct his state job’s business. Rather, the question becomes is there evidence, even if circumstantial, that shows that he more likely than not used the phone in that capacity. Given the evidence and the standard, this seems to be a slam dunk for the plaintiff media outlets should they pursue the 216 records.
Given the Governor’s directive, government agencies’ interpretation of the record, the controlling statutes, the fact that UNC schools (including UNC-CH) have deemed personal communication devices to be potentially subject to public information requests if used to conduct state business, this issue is poised to explode any day now.
If you’re looking for more evidence to support this, take a jaunt around the country and have a peak at other Universities and their policies regarding coaches and personal cell phones:
Each coach must keep a thorough and complete log of all recruiting telephone calls made to prospective student-athletes either on the form provided by the compliance office or on the NCAA Compliance Assistant Internet (CAi). The log must include all recruiting calls placed from any telephone (e.g., phone calls placed from home phones, personal cell phones, department-issued cell phones, office phones, hotel phones, etc.). Each coaching staff must choose one coach or administrative staff member to collect and submit all telephone logs for that sport to the Compliance Office. Logs must be received by the 10th of each month (or the next business day if the 10th falls on a weekend or holiday). Coaches using CAi should notify the compliance office by the 10th day of each month that the database has been fully updated to reflect all recruiting phone calls for the previous month.
The Compliance Office periodically will review these logs for compliance with NCAA rules. If the
Compliance Office finds any violations of NCAA rules, the violation will be reported to the Pac-10 and the NCAA, and appropriate sanctions will be levied.
The Compliance Office periodically will obtain telephone records for coaches’ department-issued cell phones and office phones and compare those records with the information recorded on the coaches’ logs. Note: Coaches may be required to provide the compliance office with copies of phone records from any phone that the coach may have used to make recruiting phone calls (e.g., personal cell phone, home phone, etc.). If the Compliance Office finds any discrepancies between the telephone calls reflected in a coach’s logs and the calls reflected in the phone company records, the discrepancy will be reported to the sport administrator for appropriate action. If the discrepancy results in a violation of NCAA rules, the violation will be reported to the Pac-10 and the NCAA.
Any calls made from personal cell phones and home phones are to be documented and these records submitted to the Athletics Compliance Officer on a monthly basis.
Each coach must keep a thorough and complete log of all recruiting telephone calls made to
prospective student-athletes on the NCAA Compliance Assistant Internet (CAi).
• The log must include all recruiting calls placed from any telephone (e.g., phone calls
placed from home phones, personal cell phones, department-issued cell phones, office
phones, hotel phones, etc.). Logs must be updated by the 10th of each month (or the
next business day if the 10th falls on a weekend or holiday). Coaches should notify
the compliance office by the 10th day of each month that the database has been fully
updated to reflect all recruiting phone calls for the previous month.
I affirm I will report all calls made to prospects or prospect’s parents, including those made by a non-university issued phone, personal cell phone, etc.
I affirm I will notify the Compliance Office if I use an additional phone line or if any of the phone numbers listed above have changed.
I affirm I will submit monthly phone logs to the Compliance Office, listing all recruiting calls made to prospects or prospect’s parents.
I affirm I will provide the Compliance Office access to view all records for the phones listed above.