Attorney General Josh Stein continues to use state tax dollars to wage legal battle to deny vested state employee his right to a hearing at OAH

I am a former state employee with 'career status'.

One of the benefits of career status is that if you are reclassified as a 'political appointee' of a new administration you have a right to a hearing in the Office of Administrative Hearings (OAH) if you feel that your position did not meet the criteria for being designated a 'political appointee' (this designation is referred to as 'exempt' because a political appointee is 'exempt' from the state regulations that prevent a Governor from firing any state employee without cause).

As detailed below, I was reclassified in 2013 and denied a right to a contested case hearing in OAH.  

Ultimately, the NC Court of Appeals ruled that I did have a right to a hearing in OAH.

In spite of that ruling, Josh Stein recently filed this in OAH:


15 OSP 07944



NOW COMES Respondent, North Carolina Department of Public Safety (“NCDPS”), by and through its counsel Josh Stein, Attorney General of the State of North Carolina, and Tamika L. Henderson, Assistant Attorney General, and files the following:


Respondent files its Pre-Hearing Statement in the numerical order set forth in the Order for Pre-Hearing Statements.

1. Issues to be resolved:

Whether the Office of Administrative Hearings has subject matter jurisdiction over
Petitioner’s claims?

Whether Petitioner’s claims, in whole or in part, are barred by the doctrine of sovereign

Whether Petitioner’s claims are timely?

Whether Petitioner’s claim is barred by the doctrine of res judicata?

Whether Petitioner’s contested case petition is procedurally defective?

Whether Petitioner is exempt from the provisions of N.C.G.S. 126?

2. Statement of Facts and Reasons Supporting Respondent's Position on Matters in

Petitioner’s position was designated as managerial exempted on October 1, 2013 in accordance with N.C.G.S. § 126-5(d)(1).   Petitioner’s appointment as Special Assistant to the Secretary was ended on December 9, 2013.   Petitioner filed a contested case on January 14, 2014 which was dismissed.   Petitioner failed to appeal that order and thus is barred from attempting to collaterally attack the same.   Petitioner’s position on this matter will be fully set forth in a dispositive motion.

Any attempt by the Petitioner to assert any claim for discrimination, retaliation or a violation of the whistleblower act are time barred as will be fully set in Respondent’s dispositive motion.

Finally, Petitioner’s petition is procedurally defected in so much as the Court of Appeals did not remand to OAH and in fact reversed the trial court order which directed Respondent to provide Petitioner a hearing.

4. List of Respondent’s Proposed Witnesses:

At this time, Respondent is able to identify the following proposed witnesses:

a. Petitioner, Joseph Vincoli;
b. Frank Perry;
c. Mary Stephenson, Personnel Analyst;
d. Terry Catlett, Deputy Director, NCDPS Health Services;
e. Jeannie Lancaster;
f. Drew Harbison;
g. Karina Fuentes;
h. Rhonda Miller, Director of Financial Services, NCBH;
i. McLain Wallace, NCBH Chief Counsel;
j. Gina Ramsey, NCBH CFO;
k. Liz Riley;
l. Ralph Hise
m. James R. O’Neill;
n. Angel Gray;
o. Sarah R. Cobb;
p. Paula Smith;
q. Any witness listed by Petitioner;
r. Any witness necessary for impeachment or rebuttal;
s. Any witness identified in discovery;

Respondent reserves the right to list other witnesses as they may be identified at
which time Respondent will notify Petitioner in writing.

This the 18th day of January, 2017.

This in spite of this clear language from the NC Court of Appeals in Vincoli v. State:

V. Conclusion 

Because we hold that Vincoli is entitled to a contested case hearing before OAH pursuant to N.C. Gen. Stat. § 126-5(h), we need not address his claims based upon his right to due process under Article I, Section 19 of the North Carolina Constitution.  See State v. Crabtree, 286 N.C. 541, 543, 212 S.E.2d 103, 105 (1975) (holding that appellate courts will not pass upon constitutional questions if some other ground exists upon which the case may be decided). We reverse the trial court’s order denying the State’s motion for summary judgment and granting Vincoli’s motion for summary judgment. Nothing in this opinion shall be construed to prejudice any right Vincoli may have to seek a contested case hearing under N.C. Gen. Stat. § 126-5(h). 

Further, the OAH has stated:

"Consistent with its position, Respondent [the State] has not given Petitioner a notice of rights to appeal to OAH, so timeliness is not an issue."

​From Vincoli v State:

DIETZ, Judge, concurring.

I agree with the majority that the plain language of N.C. Gen. Stat. § 126–5 permits Vincoli to contest whether his position properly could be designated exempt under the State Personnel Act. Indeed, the statutory language hardly could be clearer. The title of Section 126–5 is “Employees subject to Chapter; exemptions.”

The statute then states precisely which positions can, and cannot, be designated as exempt positions that are not subject to the provisions of the chapter. Then, in subsection (h), the statute provides that “[i]n case of dispute as to whether an employee is subject to the provisions of this Chapter, the dispute shall be resolved as provided in Article 3 of Chapter 150B,” which is the portion of the General Statutes governing contested cases filed in OAH.

The rub, of course, is that the General Assembly recently repealed N.C. Gen. Stat. § 126–34.1(c), a more specific statutory provision authorizing employees to challenge their exempt designation in OAH. If the general language of Section 126– 5(h) already permits employees to challenge their exempt designation in OAH, then the repeal of the more specific language in Section 126–34.1(c) was meaningless.

Ordinarily, we do not interpret the law in a way that renders actions of the General Assembly meaningless. See Town of Pine Knoll Shores v. Evans, 331 N.C. 361, 366, 416 S.E.2d 4, 7 (1992). But this is not an ordinary case.

Vincoli argues that, if we interpret the repeal of Section 126–34.1(c) as depriving him of any opportunity to contest his exempt designation in OAH, it would violate his constitutional rights.

Whether meritorious or not, his argument certainly is not frivolous.

And it is a long-standing principle of statutory construction that courts should “avoid an interpretation of a . . . statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989).

Interpreting N.C. Gen. Stat. § 126–5(h) according to its plain meaning, notwithstanding the repeal of N.C. Gen. Stat. § 126–34.1(c), is a “reasonable alternative interpretation” of the statute.

I therefore join the majority in reversing the trial court’s judgment.

Under the plain language of N.C. Gen. Stat. § 126–5(h), Vincoli and other employees like him can challenge their exempt designations in a contested case at OAH.

Fired NC whistleblower can challenge change in job status, court says



Joe Vincoli, a former state employee who lost his job after being reclassified as a political appointee in 2013, will have his day in an administrative law court after all.

The state Court of Appeals ruled Tuesday that state law allows workers in such positions to take their case to an administrative law judge who can decide whether the reclassification was warranted.

Vincoli tried to pursue such an avenue two years ago, but the state sought dismissal of his case, arguing that the law amended by the General Assembly in 2013 did not provide for such a challenge. After the administrative law judge sided with the state and dismissed the case, Vincoli then challenged the law in Wake County Superior Court, and a judge ruled that the law was unconstitutional.

The state challenged that ruling, which put it before the three-judge appellate panel that issued the ruling Tuesday. But instead of ruling on the legality of the 2013 law that increased the number of employees who serve at the pleasure of the governor to 1,500, the appellate panel sidestepped that question.

The three judges ruled that Vincoli’s case should have been heard by the state’s Office of Administrative Hearings.

“What they said, essentially, was that we were right,” said Michael Byrne, the Raleigh attorney who represented Vincoli.

Vincoli was hired by the N.C. Department of Public Safety in 2010 in a position that classified him as a career-status employee. At the time of his hiring, he reported to a deputy commissioner of what was then the state Department of Correction.

After Gov. Pat McCrory’s election in 2012, that department became part of the newly formed Department of Public Safety.

In June 2012, Vincoli was rated “outstanding” on his performance evaluation, and in July 2013 he again received another “outstanding.” His supervisor wrote: “Thank you, Joe!” on his last performance review.

On Oct. 1, 2013, Vincoli was reclassified as “managerial exempt,” though he did not manage or supervise any employees, according to his complaint in state court. On Dec. 6, he was fired on the stated grounds that “a change in agency staff is appropriate at this time.”

Vincoli, who still wants to know why, contended in a 2014 lawsuit that it was because he pursued a whistleblower claim.

Vincoli, a former worker at Wake Forest Baptist Medical Center in Winston-Salem, identified overpayments by the state while working there and urged the hospital to adjust its charges. He was ignored there and fired from that job.

After becoming a state employee, Vincoli continued to press for a reimbursement. He persisted to report to his superiors what he believed to be misuse of state Health Plan money at Baptist Hospital.

Public safety officials repeatedly told Vincoli to stop his pursuit on state time, arguing that it had nothing to do with his department. His attorneys contend that state law requires him to report any misuse of state funds regardless of the department.

Vincoli tried to appeal his termination, but the Department of Public Safety and the Office of State Human Resources refused to process his grievance.

Byrne said Tuesday it was unclear how much impact the appellate court ruling would have on other state workers whose jobs had been reclassified from career-status to political appointments.

“What it does mean,” Byrne said, “is they have the right to appeal.”

Anne Blythe: 919-836-4948, @AnneBlythe1

Read more here:


State appeals court says Clemmons resident has right to hearing on firing

·         By Richard Craver Winston-Salem Journal

The state Appeals Court gave a Clemmons resident a legal victory Tuesday, ruling that he has a statutory right to a state hearing about his firing from his state job in 2013.

The court's ruling came in a decision that ended Joseph Vincoli's attempt to challenge the constitutionality of a state law affecting the career status of certain state employees.

Vincoli has been pursuing since August 2014 a hearing before the state Office of Administrative Hearing (OAH) to ask state administrative officials about the circumstances of his firing in December 2013.

Specifically, Vincoli wants answers to why his state job was changed from non-exempt to exempt in 2013.

Since a state law was passed in August 2013, exempt state employees are not subject to state personnel and state human resources acts regarding civil service protections. The change gave the governor more power to hire and fire state employees.

The court determined that N.C. General Statutes 126-5(h) "provides Vincoli with a statutory right to a hearing before OAH as to whether he is subject to the state Administrative Procedure Act, which would implicate addressing whether his exempt designation was proper."

Although the ruling directly affects only Vincoli, it appears from Judge Richard Dietz's concurring opinion that it could affect an additional 1,199 state employees who also were shifted from nonexempt to exempt career status.

"Under the plain language" of N.C. G.S., 126-5(h), Vincoli and other employees like him can challenge their exempt designations in a contested case at OAH," Dietz wrote.

As to the case before the appellate court, the judges reversed a Wake County Superior Court decision of June 2015 that ruled in favor of Vincoli's constitutionality complaint.

The judges determined "we need not address (Vincoli's) claims based upon his right to due process under Article I, Sect. 19 of the N.C. Constitution. ... Because we conclude that (the general statute) does provide for the right to such a hearing, we reverse."

Dietz wrote that "as a result, Vincoli's constitutional challenge, premised in his inability to contest his exempt designation, is meritless."

Vincoli responded to the appellate court decision by sending the Winston-Salem Journal an email that he titled "We lost but we won."

Vincoli was pleased that the ruling "has restored my right, and other state employees' right, to a hearing in OAH. I have always felt that due process rights are a key foundation to our democracy."

Noelle Talley, a spokeswoman with the state Attorney General's Office, deferred comment on the rulings to the N.C. Department of Public Safety.

Part of the law change passed by the Republican-controlled General Assembly made "no provision for appeal of exempt designations at any level, through any process." Nonexempt employees with career status can be terminated, but have a right to a hearing.

Gov. Pat McCrory chose to raise the total of exempt state positions from 300 to 1,500. Some legislators said they approved of the change in part as a means for getting rid of state employees considered unproductive.

Vincoli worked for more than three years in an administrative role with the state Corrections Department, attaining career status before being terminated Dec. 9, 2013.

Vincoli's complaint claims that because of the law change, his job was made "managerial exempt" Oct. 1, 2013, by the Corrections Department even though he did not supervise or manage subordinates or co-workers.

Vincoli said he was told that "a change in agency staff is appropriate at this time." He said he discovered his position has been kept, rather than being eliminated through a reduction in workforce.

Vincoli pursued a petition for declaratory judgment, which is a court decision in a civil case that tells the parties what their rights and responsibilities are without awarding damages.

In June 2015, Wake Superior Judge Donald Stephens ruled in favor of Vincoli, and the state was ordered to have OAH give Vincoli with a hearing.

Attorney General Roy Cooper, the Democratic nominee for governor, as well as two senior members of his office were listed as appealing the decision. No reason was listed for the appeal. The AG's office could not be reached for immediate comment Tuesday.

Stephens ruled the law change "is unconstitutional ... to the extent it impairs plaintiff previously vested contractual and due-process rights with respect to appealing his exempt designation."

The state Supreme Court "has held that the right to appeal an exempt designation is an entitlement," Stephens wrote.

Stephens said the OAH hearing is "the most proper and reasonable way to correct the constitutional violation in this case." It gives both parties the opportunity to appeal the office's final decision.

"It is beyond dispute that the plaintiff, upon obtaining career status, had a property interest to continued employment with the state," Stephens wrote.

Vincoli said he offered a settlement of reinstatement at his old pay or a new job at lower pay after the judge's June 2015 ruling, but received no response from the state.

In May 2014, Vincoli sued the N.C. Department of Public Safety and Secretary Ellis Boyle in his role as department secretary. The lawsuit has been put on hold pending the OAH ruling.

Vincoli is requesting a money judgment in excess of $25,000 from Boyle and from the agency under the state whistleblower act, and for breach of contract.

The act allows a whistleblower to receive damages from individuals who violate the statute.

If you are a state employee who was recently reclassified by Governor McCrory you should file an appeal in the Office of Administrative Hearings.

If you sent me $10 it would help me pay for the legal bills I have incurred in this fight.

Also, if you would like to appeal your reclassification please feel free to contact me for free advice.



Make checks payable to "Joe Vincoli"

Mailing Address:

Joe Vincoli

220 Epping Road

Clemmons, NC  27012