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Appeals court says town manager violated rights of terminated fire captain

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Kernersville’s town manager violated the rights of a firefighter appealing his termination by refusing to turn over unredacted documents that may have led to the firefighter’s firing, the N.C. Court of Appeals ruled Tuesday.

Town Manager Curtis Swisher fired Kevin Bray on June 4, 2015. Bray had been a firefighter for the Kernersville Fire Department for a little more than 17 years and had been promoted to captain.

But Bray alleged in court papers filed in Forsyth Superior Court that Swisher refused to turn over notes from interviews conducted with other fire department employees. And when Swisher did turn over those notes, they were heavily redacted, Bray said.

On June 3, 2016, Judge Richard Doughton of Forsyth Superior Court ruled that Swisher should turn over the unredacted documents after he reviewed them in his chambers.

He determined that the documents were instrumental in Swisher’s decision to fire Bray and that Bray had a right to review them.

He also ordered Swisher to hold a new grievance hearing.

Swisher filed an appeal to the N.C. Court of Appeals. He argued that the notes had nothing to do with Bray’s firing and that the notes included personnel information of other employees. Swisher said he had a duty to protect the privacy of other employees’ personnel records.

The appeals court disagreed.

“Because the town failed to produce those notes as the law required, it deprived Bray of a meaningful opportunity to defend himself at the grievance hearing,” the court ruled.

“Accordingly, the trial court properly held that the town violated Bray’s due process rights and that Bray is entitled to a new grievance hearing after being provided an opportunity to review all records subject to disclosure (under state law).”

In the ruling, Bray was fired after a meeting with Swisher and the town’s human resources director to discuss some of Bray’s concerns about the fire department. Swisher had interviewed other employees and took notes during those interviews.

“Based on those interviews, Swisher determined that most issues within the department were connected to Bray’s ‘shift’ and that Bray was ‘disliked by everyone in the department,’ ‘walks a fine line on policy,’ and caused ‘strife and disharmony within the department.'”

Travis Payne, Bray’s attorney, said that he and Bray are pleased with the decision.

“We look forward to having a fair grievance hearing after we receive all of the documents from Mr. Swisher,” he said.

Swisher could file a petition for discretionary review with the N.C. Supreme Court. The state Supreme Court would have to determine whether it would hear that appeal.

Attorneys for the town did not immediately return phone messages seeking comment.

mhewlett@wsjournal.com 336-727-7326 @mhewlettWSJ

© © Copyright 2017, Winston-Salem Journal, Winston-Salem, NC

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