State continues to fight hearing for Clemmons man to learn why he was fired
By Richard Craver Winston-Salem Journal
The state Attorney General’s Office claimed again this week 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.
Tamika Henderson, an assistant attorney general, wrote Tuesday on behalf of Attorney General Josh Stein that the third petition filed by Joseph Vincoli should be dismissed with prejudice, meaning it can’t be refiled.
Henderson said Stein supported the dismissal of Vincoli’s first two petitions, based on sovereign immunity.
Vincoli’s job with the N.C. Department of Corrections was affected directly by the Republican-controlled General Assembly’s approval of a bill in August 2013.
The bill 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 agency, attaining career status.
Vincoli has been pursuing a hearing before the state Office of Administrative Hearings since August 2014, primarily to question state administrative officials about why his job was changed from nonexempt to managerial exempt in October 2013.
The change took away Vincoli’s rights, and those of another 1,199 state employees, to appeal a termination.
Vincoli was fired on Dec. 9, 2013, he claims in relation for a whistleblower legal case he had been pursuing connected to the State Health Plan.
Former 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.”
Vincoli claims that since he was wrongfully declared as managerial exempt, he was wrongfully fired.
The N.C. Court of Appeals ruled in November that Vincoli had a statutory right to an OAH hearing.
The hearing had been set tentatively for the week of April 24.
However, before that hearing could take place, an administrative law judge, Randolph Ward, ruled against Vincoli in April.
Ward said his dismissal decision was in part because 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.”
Vincoli appealed Ward’s ruling to the appeals court May 10. He said his third petition includes claims that his attorneys were responsible for not properly filing previous appeals.
“Petitioner cannot escape the consequence of res judicata by simply repackaging and refiling a contested case petition based upon the same issue that this court has already held petitioner cannot pursue,” Henderson wrote.
Res judicata typically is defined as a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.
Henderson previously argued that Vincoli “does not have a valid whistle-blower claim” involving the State Health Plan.
Henderson has claimed 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.”
On March 30, N.C. Sen. Joyce Krawiec, R-Forsyth, filed a bill that would expand whistleblower protections for state employees to include that whistleblower communications with a local or state regulatory body are not public records.
Vincoli claims that part of his State Health Plan dispute with Wake Forest Baptist Medical Center involved Baptist officials obtaining his communications through public records requests.
Krawiec said Vincoli’s legal case served as a motivation for Senate Bill 530. The bill has not been heard in committee.
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.