LUMBERTON — When Joshua Malcolm walks away Thursday from his job as general counsel for The University of North Carolina at Pembroke he will be leaving as the campus and the UNC system are embroiled in a lawsuit related to him.
Gray Media Group Inc., the parent company of Charlotte-based television station WBTV, filed a lawsuit in Superior Court on Aug. 13. The lawsuit asks the court to order UNCP and the university system to hand over Malcolm’s email messages, incoming and outgoing, from March 16, 2018, through Jan. 11. The legal action states WBTV specifically seeks messages with singular and plural versions of the words election, Republican, Democrat, board, NCSBE, Lutz, Cooper, Governor, McCready, poll, precinct, and race, among others.
The lawsuit also seeks use records for Malcolm’s UNCP-issued cellular telephone for the same time period.
During the time period in question, Malcolm served on the North Carolina State Board of Elections, and was named chairman of the board by Gov. Roy Cooper in December 2018. It also covers most of the 2018 election season, the regional highlight of which was the investigation of allegations of absentee ballot fraud in the contest between Republican Mark Harris and Democrat Dan McCready for the N.C. District 9 seat in the U.S. House of Representatives.
The allegations rose out of Bladen County. Jens Lutz, a Democrat, resigned as vice chairman of the Bladen County Board of Elections in December 2018.
The lawsuit, a copy of which The Robesonian obtained via the WBTV website, lists as the defendants Robin Gary Cummings, “in his capacity as Chancellor of the University of North Carolina at Pembroke,” and William L. Roper, “in his capacity as the President (Interim) of the University of North Carolina.”
Jodi Phelps, UNCP’s chief Communications & Marketing officer, confirmed Wednesday that Malcolm has offered his resignation and his last day on the job is Thursday.
As for the lawsuit, Phelps said only, “Purposefully, Joshua Malcolm has not been leading or representing the university in the public records request from WBTV. And, as this matter is currently in active litigation, the university cannot comment further.”
When announcing Malcolm’s resignation to the UNCP campus this past week Cummings did not mention the lawsuit.
The chancellor’s announcement reads in part, “I want to make you aware of a leadership change at our university. General Counsel Joshua Malcolm has submitted his resignation from UNC Pembroke. His last day at the university will be Thursday, October 17, 2019. I am very grateful for Joshua’s many contributions to our university during his 12 years, and I wish him the best in the next chapter of his life. As an alum with deep family connections to UNCP, he has been a consistent advocate for the university and community.”
When contacted, Malcolm gave the following statement.
“I’ve enjoyed my time at UNC Pembroke. I was honored to be chosen by Chancellor (Allen) Meadors, almost 12 years ago, to take the helm as Chief of Staff & General Counsel. I’m forever grateful to him for his confidence in me. Since that time, I’ve given this institution everything in my being. I’m most proud of my role in protecting the university’s legal interests during a time of great transition.
“As for my future endeavors, I’m eligible for retirement but doubt I’ll take that route. I will continue serving my community and state whenever called upon to do so. In the meantime, I’m going to enjoy my family.
“As for the assertions that my departure from my beloved university has anything to do with a public records lawsuit, I can tell you unequivocally the two are not related. I’ve not been a part of any decisions/consultations/decisions in that matter, as it should be.”
The lawsuit documents do not contain an explanation for why WBTV requested the communications records. But, in a previous WBTV report the station states the records were requested from UNCP after a previous investigation revealed Malcolm had frequent contact with a well-known Bladen County Democrat.
The legal filing states that WBTV investigative reporter Nick Ochsner first requested the records in an email sent to UNCP’s Phelps on Jan. 13. On Jan. 24, Ochsner received an email from UNCP Assistant General Counsel Kelvin Jacobs in which Jacobs tells Ochsner that his request would be attended to, but because of the volume of records involved it will take “substantial time.”
On Jan. 24, Phelps wrote to Ochsner to tell him the “UNC System Office had agreed to assist in the preparation of materials responsive to his request and indicated that the UNC System’s legal/public records team would be working to fulfill the requests.”
Ochsner tried to follow up on his records request in March. He sent an email to Phelps on March 25 in which he clarified part of his request.
According to lawsuit documents, Ochsner followed up on the status of his request over the next several months with Phelps and Josh Ellis, assistant vice president for Media Relations at the UNC system. Ochsner sent an email to Ellis on July 1 restating his request and expressing frustration at not having received any records.
Ellis’ emailed response, which is attached to the legal filing, reads in part, “To be clear, the UNC System Office did not take over responsibility for responding to the public records request, which was directed to UNC-Pembroke and seeks records created and maintained by individuals at that institution. UNC-Pembroke remains responsible for fulfilling this request and all others directed toward it.”
According to the lawsuit, a “national counsel” for WBTV sent a letter to Phelps on behalf of the television station in which the counsel chronicled the history of the requests and addressed contentions made that all the records required a privilege review before they could be released.
Gray Media and WBTV argue that the records requested are public record because they were compiled by North Carolina agencies or their subdivisions. The only exception is communications made by an attorney during the execution of the attorney’s duties.
The national counsel’s letter to Phelps reads in part, “Accordingly, emails sent to Mr. Malcolm would not be subject to a claim of privilege, and it is only Mr. Malcolm’s own communications that would require a privilege review and potential redaction.”
The counsel goes on to say that the bulk of Ochsner’s requests don’t seek the content of Malcolm’s communications, “but rather the fact that certain communications and meetings occurred.”
The lawsuit documents go on to state that UNCP’s Jacobs responded to the national counsel on Aug. 8, and in his response blamed Ochsner’s request for the delays and didn’t say when Ochsner might receive a response to his requests.
The lawsuit also asks the court to order the defendants to pay Gray Media’s and WBTV’s attorney fees and to order the defendants to pay court costs and “additional relief as the court should deem just, proper and authorized by law.”