By Ryan Oehrli
The Charlotte Observer
RALEIGH, N.C. — Republicans and Democrats in the North Carolina House of Representatives sponsored a bill in April that would, they said, protect good cops who report bad cops.
House Bill 589 would have shielded officers from being disciplined, fired or retaliated against for reporting a co-worker’s misconduct — including breaking the law, misappropriating government resources or abusing authority.
“No one should have to walk on eggshells when they report a crime,” Forsyth County Rep. Kanika Brown, a Democrat who co-sponsored the bill, told The Charlotte Observer.
But like previous bills to protect police whistleblowers, HB 589 stalled out.
Eleven days after it was filed, three law enforcement groups detailed their opposition in a memorandum. They compared the bill’s language to a union contract and said that it would create unnecessary legal troubles.
Its last stop was the Rules Committee, with no sign of life for months now.
Law enforcement groups have concerns
Brown said that her support for the bill arose, in part, after a conversation with former FBI scientist Frederic Whitehurst, who blew the whistle on misconduct in the FBI’s crime lab in the 1980s and 1990s.
Whitehurst alleged that laboratory examiners improperly testified outside their expertise, presented insupportable conclusions, perjured themselves, fabricated evidence and failed to follow procedure, according to a report from the Office of the Inspector General in the US Department of Justice. His complaints led to reforms within the lab.
“Who would want an officer who’s sworn to uphold the law not to speak up if he sees something?” said Whitehurst, who now works as a defense attorney in Pitt County, in an interview with The Observer.
In an April 17 memorandum, groups that opposed HB 589 said that they were not convinced that it would achieve what its supporters hoped. In fact, it could protect officers who misbehave, they said.
The NC Sheriffs’ Association, NC Police Executives Association and NC Association of Chiefs of Police signed it. They were joined by the NC League of Municipalities and the NC Association of County Commissioners.
The memo argued that the bill targeted law enforcement “with no evidence there is prevalent retaliatory discipline or terminations occurring” in those agencies.
The bill’s authors also failed to define important terms like “fraud,” “misappropriation” and “gross mismanagement,” the memo stated. That could open the door to litigation “for years to come.”
Passing it could create mistrust among officers, and make it “exceedingly difficult” or even impossible for agency leaders to discipline or fire bad cops who’d take advantage of the protections, the memo read.
“Language prohibiting discipline or termination like this is often found in labor union contracts and serve as barriers to officer accountability,” it warned.
Besides, state laws provide “ample legal protections for employees,” it said.
“We’re still quite opposed to that bill, and will remain so,” Fred Baggett, a lobbyist for the NC Association of Chiefs of Police, told The Observer three months after HB 589 stalled.
Legislators have tried before
But one law enforcement group that represents the profession’s rank and file has pushed for whistleblower protections for years now.
In its own memo, the North Carolina Police Benevolent Association identified itself as instrumental in HB 589’s filing.
That memo noted that North Carolina and some of its cities already protect whistleblower employees , and said that HB 589 would “simply extend those protections to the many officers that work for local governments that have not provided these protections.”
Legislation like HB 589 has been “a long time coming,” NC PBA Executive Director John Midgette said in an interview.
Past attempts at codifying police whistleblower protections have failed at different stages.
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In 2013 House Bill 643, designed to protect municipal and county law enforcement from retaliation, fell two votes short of passing in the House. It was sent back to the Rules Committee, and never reemerged.
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A House committee declined to advance a 2015 police whistleblower bill in a 6-4 vote, The News & Observer reported at the time.
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In 2017 House Bill 37 was approved and moved to the state Senate, but got stuck in the Rules Committee.
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In 2019 House Bill 348 started as an act to protect municipal law enforcement officers and evolved into a general whistleblower protection for city employees. It passed in the House overwhelmingly, went to the Senate and never made it out of the Rules Committee.
Interest in police accountability rose nationally in 2020, after Minneapolis police officer Derek Chauvin murdered George Floyd, an unarmed Black man. That year House Speaker Tim Moore appointed a committee to look at police reform in North Carolina.
The committee released 13 recommendations in a December 2020 report. The third: provide whistleblower protections for law enforcement employees “while prohibiting the abuse of such protections” so that they would not “prevent the dismissal of law enforcement employees who engage in misconduct” of their own.
House Bill 7 from the 2021 legislative session would have required North Carolina cities to adopt rules encouraging employees, including law enforcement, to report improper or unlawful activity. It never reached a House vote.
Stuck between work and duty
North Carolina law now requires officers to report wrongdoing, but doesn’t protect them when they do so, Midgette said.
“What we have in North Carolina is this conundrum where an officer is compelled to bring forth malfeasance, or be subject to a criminal charge and decertification,” he said. “But if the officer does do that, they can be fired without any protection.”
Midgette cited a 2011 incident where police in small-town Mocksville anonymously called then-Gov. Pat McCrory’s office to report their boss, Police Chief Robert Cook. One of the officers complained that Cook drank on the job while in uniform, according to the Davie County Enterprise Record.
The State Bureau of Investigation intervened, meeting with the police chief and his deputy chief.
Two weeks later, the three whistleblowers were fired. They were awarded millions in a lawsuit years later.
What if the Mocksville officers had blown the whistle while there were legal protections in place in place?
“That would have not only saved the town a lot of money — and taxpayers a lot of payout and attorney’s fees — but they might still have their police department,” Midgette said.
Brown, the co-sponsor who spoke to The Observer, hopes to “build upon” HB 589 in the next legislative session, she said.
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