Council members not told about efforts to seal former police chief’s statements

Published 12:00 am Tuesday, February 23, 2016

By Josh Bergeron

At least two Salisbury City Council members, including Mayor Karen Alexander, say they weren’t aware of efforts to legally seal previous statements made by former Police Chief Rory Collins.

An attorney for the City of Salisbury on Monday asked a superior court judge to seal six pages of a January deposition. Charlotte attorney Brad Kline, representing Salisbury, argued that parts of the deposition embarrass Collins.

The pages in question include information about Collins’ use of prescription medication and family matters. Elsewhere in the deposition, Collins mostly discusses information related to a wrongful termination suit brought by former police officer Kenny Lane.

When asked, Alexander and Councilman Kenny Hardin said they were unaware of the effort to seal Collins’ deposition. Councilman David Post said he was only generally aware of the fact that the city wanted to seal Collins’ statements.

Kline said the city hoped to prevent further dissemination of six pages of information, which was first published on a local blog site. He initially asked the judge to hear arguments in private. The request was denied.

“You may feel the horse is already out of the barn, but we are trying to do what is right,” Kline said about his request to seal parts of the deposition.

Collins’ prescription medication use was the focal point of Monday’s discussions. Kline argued the deposition contains private medical information. He said Collins was being sued as a police chief, not a private individual.

David Shelby, representing Lane in the suit, countered that Collins’ statements were responses to “legitimate areas of inquiry.”

In one line of questioning, Shelby asks whether Collins was under the influence of any drug.

“I take prescription medication,” Collins says in the deposition. “I take medication for my back. I take OxyContin on a daily basis.”

Shelby later asks when Collins last took OxyContin.

“This morning,” Collins responded. “I take it every day.”

Collins later in the deposition says he takes OxyContin twice per day.

“I have degenerative spine disease and have had back trouble since I was in middle school,” Collins says. “About 10 years ago, I met with a doctor that felt I should begin taking that to control the pain.”

Collins further states he has taken OxyContin for “quite a long time,” and it doesn’t produce side effects. He tells Shelby in the deposition that a Salisbury city manager was aware of his prescription medication use.

City policy allows employees to use prescription medication if approved by a supervisor — the city manager in Collins’ case.

Judge Robert C. Ervin in court questioned whether he would have the ability to seal parts of the deposition, including parts about prescription medicine, because it hasn’t been placed in Lane’s case file. Shelby said his client — Lane — voluntarily sent the deposition to a local blog site. Ervin said he can’t control a third party that’s not named in the lawsuit.

Ervin said he could order Lane to request the deposition be removed from the Internet, but ensuring compliance would be difficult.

Ervin didn’t immediately rule on the city’s request during Monday’s court hearing.

It’s unclear whether Salisbury City Council members were told in advance about Monday’s court action. Council members provided different answers when asked if they were aware of the city’s intent to seal Collins’ deposition.

Mayor Pro Tem Maggie Blackwell would only say she was aware of the decision to seal the deposition.

“The city manager does a good job of keeping us up on things,” Blackwell said.

Councilman David Post said he was aware that the city wanted to seal Collins’ deposition. However, Post said he wasn’t sure whether he learned that from a city staff member or a member of the Salisbury community.

“I knew about it, but not very much,” Post said.

Alexander said she wasn’t aware of Monday’s court arguments. She said City Council members only have a certain amount of authority in lawsuits. She said council members decide a general direction.

“I have never read a single deposition,” Alexander said. “I’m not interested in it because I am not an attorney.”

She referred additional questions to Salisbury City Manager Lane Bailey.

When contacted about the matter, Hardin said he had received a copy of the deposition and wasn’t fully informed about the case. After speaking with city staff, Hardin responded to questions about the lawsuit.

“I was caught off guard by your questions since I had no prior knowledge,” Hardin said in an email. “After our call, I reached out and spoke at length with Mayor Alexander and Lane Bailey. I expressed my anger and discontent with being made aware of this by the Post and not by them. I told them that I expected a better level of courtesy and respect and to be kept abreast moving forward as an elected official.”

It’s also unclear who made the decision to proceed with a request to seal the deposition. City of Salisbury spokeswoman Linda McElroy said “no one person or specific entity asked for the deposition to be sealed.”

McElroy said Kline advocated for a sealed deposition because sections violate the Health Insurance Portability and Accountability Act, frequently abbreviated HIPAA. However, Kline only asked to seal a few of the several pages containing medication-related statements. Under the city’s request, other statements by Collins concerning medication use would remain unsealed.

The unsealed section would include statements about who was made aware of Collins’ medication use and whether other police officers take prescription medicine.

Contact reporter Josh Bergeron at 704-797-4246.