Ruling blocks Clemmons man from learning reasons for firing in whistle-blower case
By Richard Craver Winston-Salem Journal 1 hr ago (0)
An administrative law judge has ruled that a Clemmons man does not have the right to have a hearing to learn the reasons behind his firing from a state job in 2013.
Judge Randolph Ward’s ruling last week covers the N.C. Office of Administrative Hearings, or OAH, which is where the legal case of Joseph Vincoli against the N.C. Department of Public Safety would have been handled.
Vincoli said he will appeal Ward’s ruling to the N.C. Court of Appeals.
The ruling came the same week that state Sen. Joyce Krawiec, R-Forsyth, filed a bill that would expand whistleblower protections for state employees. Krawiec said Vincoli’s legal case served as a motivation for Senate Bill 530.
In July 2012, then-Gov. Bev Perdue, a Democrat, signed a deal, also inspired by Vincoli’s whistleblowing efforts, that contained new protections for people who allege wrongdoing affecting the State Health Plan.
Vincoli’s job was affected directly by the Republican-controlled General Assembly’s approval of a bill in August 2013 that gave then-Gov. Pat McCrory, a Republican, and his administration more authority over hiring and firing state employees.
Vincoli worked for more than three years in an administrative role with the N.C. Department of Correction, attaining career status.
His job was changed from nonexempt to managerial exempt in October 2013. He was fired on Dec. 9, 2013.
Issue dates to 2014
Vincoli has been pursuing a hearing before the OAH since August 2014, primarily to question state administrative officials about why his state job was changed.
On Nov. 1, 2016, the state appeals court ruled that Vincoli has a statutory right to an OAH hearing. A hearing had been set tentatively for the week of April 24
The N.C. Attorney General’s Office, representing the N.C. Department of Public Safety, or DPS, which oversees the corrections division, appealed that ruling.
Tamika Henderson, an assistant attorney general, said that “there is no genuine issue of material fact with regard to petitioner’s claims,” including that Vincoli “does not have a valid whistle-blower claim.”
Ward said his dismissal decision was based in part that Vincoli did not file his appeal to the appellate court in a timely manner, and in part because “no law authorizing OAH to provide a hearing under these circumstances has been identified.” He ruled that Vincoli’s whistleblower act claim is dismissed “for lack of subject matter jurisdiction.”
Ward also cited Vincoli’s job position as being classified as exempt by the McCrory administration, meaning his position could be terminated and he did not have rights to appeal the termination.
“The Court of Appeals ruled that I had a constitutional right to a hearing in OAH when I first filed for one,” Vincoli said. “The OAH, though, denied me that constitutional right.
“Now, the administrative law judge has ruled that I don’t have a right to a hearing because of decisions that were made by my lawyers, like where to file the appeals, were done in one way and not another.
“The tragedy here is that I would not have had to deal with any of these issues cited by the administrative law judge had my initial hearing been granted,” Vincoli said.
The attorney general’s office requested the dismissal of Vincoli’s motion. Laura Brewer, communications director for the AG’s office, said Friday that staff attorneys “will review the decision carefully, and we’ll share with our client.”
Though the appeals court ruling directly affects only Vincoli, it appeared from the opinion that it could affect an additional 1,199 state employees who also were shifted from nonexempt to exempt career status.
Henderson claims that Vincoli has not proven he was unjustly fired from his state job after submitting whistleblower claims for a legal dispute involving Wake Forest Baptist Medical Center and the State Health Plan that began in June 2009.
DPS officials claimed they told Vincoli that the agency was not the proper avenue for pursuing his state property incident report form as it related to the Wake Forest Baptist case.
DPS Secretary Frank Perry said Vincoli’s position had been made obsolete by a computer-automation system and was reclassified “as a much-needed nurse director position.”
Henderson wrote: “There is simply no evidence that petitioner can bring forth to demonstrate that the proffered reasons for ending his (state) appointment are merely a pretext.”
As it relates to the appeals court ruling of Nov. 1, Henderson claims that “while the court of appeals did hold that employees could appeal an exempt designation to OAH, it did not give petitioner the absolute right to seek review.”
“Indeed, well-settled precedent would be violated if petitioner were allowed to proceed in this matter.”
Henderson claims OAH does not have the authority to alter the contents of Vincoli’s personnel file, which he claims has inaccurate and misleading documents about his state employment. State law allows an employee to submit a letter into his personnel file that explains or challenges file documents.
She also claims Vincoli is barred “from resurrecting a whistleblower act claim in OAH” since the OAH has no jurisdiction over his claim.
The impetus behind the new state whistleblower protection in 2012 was a high-profile case that lasted from 2009 to 2011 involving Wake Forest Baptist and Vincoli, a former administrative director at N.C. Baptist Hospital.
Baptist filed a lawsuit against Vincoli in January 2011, accusing him of contacting the plan and other state agencies about his concerns that the state plan had overpaid Baptist.
A state auditor’s report determined that Baptist overcharged the state plan by $1.34 million from July 1, 2003, through June 30, 2008, because Baptist didn’t tell the state about rate increases that would have allowed the State Health Plan to ask for discounts. The auditor determined Baptist was not legally required to repay the money, primarily because the contract already had expired.
The lawsuit in Forsyth Superior Court accused Vincoli of “providing disparaging and/or confidential information” to state plan officials. It accused him of “unjustified, vindictive, malicious and gratuitous actions.”
Baptist withdrew the lawsuit in October 2011, a month after the Winston-Salem Journal ran an article about Vincoli’s whistleblower role in the investigation of the State Health Plan.
After June 2008, the state moved all State Health Plan participants to a Blue Cross and Blue Shield of North Carolina network product.
Previously, the state’s whistleblower general statute essentially had covered only state employees, not private employees, who raise concerns about state agencies and employees. The law signed by Perdue added private employees.
Wake Forest Baptist officials have declined to comment on the law.
Krawiec’s bill would classify that any whistleblower communications to a regulatory body, whether written, e-mail or other digital means, are not public records.
Regulatory bodies would be defined as any federal agency or any public board, such as a city council, board of commissioners and any subdivision of those bodies.
Vincoli claims that part of his State Health Plan dispute with Wake Forest Baptist involved Baptist officials obtaining his communications through public records requests.
SB530 also says that “a government employee who reports improper government activities (following state law procedures) in good faith is immune from civil liability if the report was made to a regulatory body as defined by (state law) solely for the purpose of reporting or investigating suspected improper government activity.”
“A government employee is not immune from civil liability if the report was made in bad faith,” it says.
Vincoli has said he has spent tens of thousands of dollars on his legal cases, although he has benefited minimally to date through a legal defense fund.
Krawiec said her decision to sponsor the bill was based in part on Vincoli.
“I believe that what happened to him was terribly wrong,” she said.
“We are always encouraging people to do the right thing, and ‘when you see something, say something.’ I want to make sure that when brave citizens speak out against errors, fraud, injustice, etc., they are protected from retaliation.
“A citizen should never be punished for doing the right thing.”