Contribute now to the Joe Vincoli Defense Fund and help me get my day in court.
I am trying to raise additional funds to pay for the ongoing legal fees associated with my pending appeal in the NC Court of Appeals.
If you are new to this page or issue read this: http://www.journalnow.com/news/local/ruling-blocks-clemmons-man-from-learning-reasons-for-firing-in/article_d7a279cb-8a15-5566-bf85-5a6dc2ee7656.html and this: http://www.newsobserver.com/opinion/opn-columns-blogs/ned-barnett/article10052315.html
June 13, 2017 Update
Vincoli's 'pro se' response to Stein's attempt to deny Vincoli from his right to due process:
STATE OF NORTH CAROLINA IN THE OFFICE OF
WAKE COUNTY ADMINISTRATIVE HEARINGS
FILE NO. 17 OSP 03161
JOSEPH VINCOLI )
Petitioner, ) PETITIONER’S
) RESPONSE TO MOTION
v. ) TO DISMISS
N.C. DEPT OF PUBLIC SAFETY. )
NOW COMES THE PETITIONER and submits a RESPONSE to Respondent’s Motion to Dismiss, and shows the following:
SUPPLEMENTAL STATEMENT OF RELEVANT FACTS
Petitioner submits that Respondent’s Motion to Dismiss should be denied for the following reasons:
1. First, it is the policy of the State that the first attempts to resolve personnel grievances should be intra-departmental through the internal grievance process. As stated in NC GS 126-34.01:
Grievance; resolution. Any State employee having a grievance arising out of or due to the employee's employment shall first discuss the problem or grievance with the employee's supervisor, unless the problem or grievance is with the supervisor. Then the employee shall follow the grievance procedure approved by the State Human Resources Commission. The proposed agency final decision shall not be issued nor become final until reviewed and approved by the Office of State Human Resources. The agency grievance procedure and Office of State Human Resources review shall be completed within 90 days from the date the grievance is filed. (2013-382, ss. 6.1, 9.1(c).)).
2. Petitioner’s Grievance did not involve Petitioner’s supervisor. In fact, Petitioner had ‘Outstanding’ reviews from his supervisor.
3. In December of 2013 Petitioner filed for a Step 1 Grievance with the Department of Public Safety (DPS) and was denied a hearing.
4. On May 3, 2017 Petitioner filed this Petition (“Petition 3”) for a Step 1 Grievance with DPS via this email:
From: Joe Vincoli [mailto:email@example.com]
Sent: Wednesday, May 03, 2017 9:19 AM
Subject: Fwd: Joe Vincoli Step 1 Grievance Filing
In December of 2013 I filed a Step 1 Grievance that DPS refused to hear.
In Vincoli v State the NC Court of Appeals ruled that I was entitled to a hearing under 126-5(h). Therefore, I am refiling my Step 1 Grievance.
Also, since I was never given notice of my appeal rights timeliness of filing is not an issue.
Please confirm receipt.
220 Epping Road
Clemmons, NC 27012
5. On May 4, 2017 DPS sent the email below to Petitioner again denying him his right to a Step 1 Grievance:
From: SVC_DPS.Employee_Grievance_Mediation <DPS_Employee_Mediation_Grievance@ncdps.gov>
Date: Thu, May 4, 2017 at 1:38 PM
Subject: RE: Joe Vincoli Step 1 Grievance Filing
To: Joe Vincoli <firstname.lastname@example.org>
Dear Mr. Vincoli:
Attached is a copy of an Order entered by OAH on your petition filed with them previously. We believe that this Order precludes your Step 1 Grievance attached to your May 3, 2017 email to me. Therefore, we are administratively closing this file. Best wishes.
Tracy S. Perry
Grievance Intake Office
6. Of note is that the email is from Tracy S. Perry of the Grievance Intake Office. Ms. Perry did not inform Petitioner that he had filed his petition to the wrong party. In spite of this, Respondent, on page seven of its Motion to Dismiss, argues that Petitioner “…served a copy of his petition on Tracy Perry, according to the certificate of service on Petition 3.” (Respondent’s Motion to Dismiss, page 7). Respondent further argues that Petitioner’s “…petition must be dismissed for insufficient service of process pursuant to 12(b)(2), 12(b)(4) and 12(b)(5) Rule 4(j)(4) of the North Carolina Rules of Civil Procedure.” (Respondent’s Motion to Dismiss, p. 7). However, Respondent fails to acknowledge that Petitioner was only seeking a Step 1 Grievance, that Ms. Perry of the DPS Grievance Intake Office was the appropriate person to whom Step 1 Grievance requests are served, and that Petitioner was not the person who submitted Petition 3 to OAH.
7. On May 6, 2017 Petitioner sent the email below arguing that since the OAH dismissal (15 OSP 07944) of his petition for a contested case hearing was currently under appeal to the NC Court of Appeals, the current law of the land is in Vincoli v. State (NC COA 15-1013). As such, Petitioner argues that he has a right to a Step 1 Grievance.
From: Joe Vincoli <email@example.com>
Date: Sat, May 6, 2017 at 8:23 PM
Subject: Re: Joe Vincoli Step 1 Grievance Filing
To: "SVC_DPS.Employee_Grievance_Mediation" <DPS_Employee_Mediation_Grievance@ncdps.gov>
Cc: rcraver <firstname.lastname@example.org>, Dan Kane <email@example.com>, Joseph Neff <firstname.lastname@example.org>, "Alexander, Ames" <email@example.com>, Anne Blythe <firstname.lastname@example.org>, "Dalesio, Emery" <email@example.com>, "Jarvis, Craig" <firstname.lastname@example.org>
Dear Mr/Ms Perry,
Judge Ward's ruling in 15 OSP 07944 is not final.
It is currently under appeal.
As such, the NC COA's ruling in Vincoli v State is controlling, not 15 OSP 07944.
I have a right to a timely hearing and will sue to get one.
Please advise as to whether or not DPS will grant me an internal hearing.
8. Respondent did not reply to Petitioner’s email of May 6, 2017.
9. Petitioner did not subsequently file for a contested case hearing in the Office of Administrative Hearings (OAH).
10. Petitioner then received documents from the OAH indicating that a contested case hearing had been requested and assigned. Petitioner does not know who requested the OAH hearing. Petitioner completed and returned the documents requested by OAH.
11. On June 6, 2017 Respondent filed its Motion to Dismiss prior to any Step 1 Grievance being scheduled for Petitioner.
Since Petitioner has never been granted a Step 1 Grievance at DPS he has been denied the critical first step in his fundamental due process rights, the right to a hearing with his supervisor. In order to provide Petitioner with access to his due process rights Respondent’s Motion to Dismiss should be denied and Petitioner should be granted a Step 1 Grievance hearing with his supervisor.
This the 14th day of June, 2017.
Joseph H. Vincoli (pro se)
Joseph H. Vincoli
220 Epping Road
Clemmons, NC 27012
Telephone: (336) 528-9639
June 8, 2017 Update
As expected, NC Attorney General Josh Stein used state resources to prepare and file on June 6, 2017 a legal document in the Office of Administrative Hearings in his continued effort to prevent a career status state employee from having a hearing in OAH to determine if the employee was appropriately reclassified by Governor McCrory's administration. Even though the NC Court of Appeals ruled that career status state employees do have a right to a 'contested case hearing', Stein's lawyers argued that my first lawyer, Michael C. Byrne, erred by not appealing my initial contested case dismissal directly to the NC Court of Appeals. (In the alternative, Byrne advised me to file for a 'declaratory judgment' in Wake Superior Court. That case was filed and was won.)
Regardless of 'legal correctness' of Byrne's advice to me, it should concern every state employee that Stein will use state resources to keep them from exercising their right to a hearing in OAH.
Truly a sad day for state employees and the Democratic Party in North Carolina.
If the Administrative Law Judge agrees with Stein, my final resort to having hearing will hinge on my pending appeal of ALJ Ward's ruling (detailed below) to the NC Court of Appeals.
As a state employee who has had cases heard in the Office of Administrative Hearings, Wake Superior Court, the NC Court of Appeals, and the federal NC Middle District Court, it has been my experience that the OAH is the least likely to represent citizens when challenging the government.
In fact, however, I did not actually file for a hearing in OAH. I filed for an initial grievance hearing with my employer, the NC Department of Public Safety (based on the NC COA's ruling that I had a right to due process and an 'initial grievance' hearing is the first step in that process). Since I was initially denied that 'first step' I have never had an 'initial grievance' hearing. To illustrate the point, what if my name was John William Smith and I was a custodian and that McCrory meant to reclassify John Walker Smith who managed a big program in state government. If John W. Smith was inappropriately reclassified, Cooper and Stein have fought to keep John William Smith from having an 'initial grievance' hearing to see if they even reclassified the right person.
Here's a copy of his filing.
Here's my favorite part of the ruling:
The duly appointed process agent of the North Carolina Department of Public Safety is Jane Gilchrist, Deputy General Counsel for Respondent. Petitioner failed to adequately NCDPS. (sic) He served a copy of his petition on Tracy Perry, according to the certificate of service on Petition 3. (pp 6-7).
(Tracy Perry was the duly appointed process agent when I was initially fired in 2013.)
Based on Judge Ward's ruling I now have to go back to the NC Court of Appeals to determine if I have a right to a hearing in the Office of Administrative Hearings even though the Court of Appeals ruled that denying me a right to a hearing would raise 'constitutional questions' (see here: http://www.newsobserver.com/news/politics-government/state-politics/article111861867.html)
I am seeking a hearing merely to determine whether or not I met the criteria to be reclassified by Governor McCrory as 'managerial exempt' (I managed no people and no program) and to determine whether or not I was fired as a result of my having tried to report information to the State that might have been able to help it recover $1.34 million in overpayments made by the State Health Plan to a hospital.
Recently, Administrative Law Judge Ward ruled that my initial counsel erred by not filing a timely appeal. As such, I also have retained counsel to address that issue.
My legal fees to date (as of 4/27/17) come to $32,000.
That is a lot of money to spend just to get a hearing to which you have a vested right.
My thanks to the many colleagues, friends, family members, and 'concerned citizens' who have donated thus far to help me fight the State and the AG's office to get that hearing.
I would also like to mention that this is not a 'personnel' issue.
The state has confirmed that I was fired 'without cause' and that I had 'outstanding' performance reviews.
In fact, before I was fired I told my wife and in-laws that I expected that I would be reclassified by Governor McCrory and then fired as a favor to the hospitals.
It turns out that I was reclassified and I was fired (two weeks before Christmas, without notice, without severance, and without a full day's pay for my last day of work). Now the question is 'Why?'.
At my hearing in Wake Superior Court Judge Donald Stephens stated: "I've just read this man's deposition and it is not clear to me whether he was fired for political reasons or for something more nefarious."
Please help me get my day in court.
Make checks payable to "Joe Vincoli"
220 Epping Road
Clemmons, NC 27012
It is hard to believe that NC AG Josh Stein continues to use the state's resources (and your tax dollars) to try to keep a former 'career status' state employee from exercising his vested right to have a hearing to determine whether or not he met the criteria to be reclassified as 'managerial exempt' by Governor McCrory.
On its face one has to wonder how an employee, on October 1, 2013 (the date I was reclassified), could be 'so important to the Governor' that he needs to be reclassified; and then, on December 9, 2013, he's dismissed because computer automation could now do his job.
Further, Asst. AG Tamika Henderson has argued in court filings that there is no evidence to support my whistleblower claim that I was fired in retaliation for having tried to report information related to overpayments made by the State Health Plan to a hospital.
I have subsequently learned that whistleblower/retaliation cases use a 'shifting burden of proof' legal process.
The first step is that I have to establish that there is reasonable suspicion as to why I was fired.
The state then has to show that I was appropriately reclassified and was appropriately fired.
Of course, the trick here is that the state (and the AG's office) does not want me to have a hearing at all so that I will never get to show evidence that confirms 'reasonable suspicion'.
So, to circumvent that, I will now post some of my evidence here.
Here is the document trail:
Sent: Tuesday, September 08, 2009 11:17 AM
Cc: MCPA (Health Insurance)
Subject: FW: DOJ Contact Us from Joe Vincoli
Case No. 26590
Dear Mr. Vincoli,
Thank you for contacting our office. Evidently, your earlier email was referred to another department. If the State Health Plan contracted discounts with Baptist Hospital, the plan administrator (BlueCross Blue Shield of North Carolina) will not pay more than the contracted amount. Patients covered under the SHP will not owe any more than the contracted amount. Baptist Hospital can bill any amount they want, but the claims will be reduced to the contracted amount.
I hope this answers your questions. If not, please email me or call me toll free at 877-867-6272.
Managed Care Specialist
Managed Care Patient Assistance Program
NCDOJ, Consumer Protection/Antitrust Division
Mr. Vincoli:You are correct that on September 13, 2012, I provided you with the attached letter stating that the State Bureau of Investigation (SBI) had not conducted any investigation into allegations regarding Baptist Hospital and the State Health Plan. Subsequent to my letter of September 13 , the SBI received a request from Forsyth County District Attorney Jim O'Neill to review this matter. The results of the preliminary inquiry were communicated to Mr. O'Neill via a memorandum from Agent Scott Williams on October 12, 2012....I have checked with our Professional Standard Division and we have no record of receiving a State Property Incident Form from anyone at DPS regarding the Baptist Hospital/State Health Plan allegations."
"Further, after you contacted this office [in March 2012], I telephoned the Attorney General's Office requesting that they adopt this matter if it was determined after investigation that criminal conduct had occurred. This office has not been privy to any investigation, research, discussions or decision related to North Carolina Baptist Hospital or their interaction with the State Health Plan."
"At your request [undated], the SBI conducted a preliminary inquiry [undated] into an allegation made by former North Carolina Baptist Hospital (Baptist Hospital) employee, Mr. Joe Vincoli, concerning the overpayment of outpatient medical claims by the North Carolina State Health Plan to Wake Forest University Baptist Hospital (Baptist Hospital)....It was the legal opinion of Ms. Crabtree that there was no legal obligation for Baptist Hospital to notify the State Health Plan of the increased charges because the contract did not require them to do so. In other words, no fraud was committed by Baptist Hospital."
If I had my day in court I would also show as evidence that my House Representative Donny Lambeth (former CEO of NC Baptist Hospital)had been forwarding emails that I had sent to him as my elected official on to MedCost (a company half-owned by NC Baptist) and to Carolinas Healthcare System (which owns the other half of MedCost).
Whistleblower on email flap: Lawmaker ‘betrayed my trust’
BY AMES ALEXANDER
When whistleblower Joe Vincoli sent emails to his state representative, he never expected them to be forwarded to officials with Carolinas HealthCare System. After all, Vincoli was responsible for bringing federal investigators to the massive hospital system’s door.
Vincoli’s emails dealt, in part, with the federal investigation into CHS. N.C. Rep. Donny Lambeth, R-Forsyth, forwarded those emails to officials with CHS and MedCost, a for-profit health benefits company that the Charlotte-based hospital system co-owns.
It so happens that MedCost’s other owner – N.C. Baptist Hospital in Winston Salem – is Lambeth’s former employer. Lambeth served as the hospital’s president from 2007 to 2011, before he was elected to the state legislature in 2012.
Vincoli says it appears Lambeth was trying to help former colleagues more than a constituent.
“He betrayed my trust,” Vincoli said. “You expect (elected officials) to have a sense of propriety and a respect for confidentiality.”
Vincoli fired off a complaint last week to the North Carolina Ethics Commission, alleging that Lambeth violated a state law requiring public servants to make a “diligent effort” to identify and avoid conflicts of interest. The commission investigates allegations of ethical impropriety by public officials.
The episode raises questions about who owns emails sent to public officials – and how often messages sent in confidence wind up getting channeled to special interests.
Lambeth, who co-chairs the House health committee, told the Observer that he couldn’t recall why he forwarded Vincoli’s emails to officials at CHS and MedCost.
“I don’t know what the intent was,” Lambeth said. “I don’t think it was a harmful intent, none whatsoever.”
Lambeth said he’s not aware of any ethical rules that would have prohibited him from forwarding the emails. He said he routinely sends the emails he receives to agencies “to make them aware of certain situations.”
“All our emails are public information,” Lambeth said. “I certainly didn’t intend to betray (Vincoli’s) trust. He’s been a good friend for many, many years.”
Battling the hospitals
To make sense of Vincoli’s current complaints, it helps to understand his penchant for keeping an eye on health care dollars.
The 58-year-old Forsyth County resident once worked as director of managed care at N.C. Baptist Hospital, where it was his job to negotiate with insurers. There, he says, he told hospital officials they were being overpaid by the public health insurance plan for state employees. He says a hospital lawyer told him to “let sleeping dogs lie.”
But in 2009, two years after he was fired by the hospital, Vincoli reported the problem to the state. That prompted an inquiry by the State Auditor’s office, which found that the health plan had paid the hospital about $1.3 million more than its contract had intended.
N.C. Baptist sued Vincoli in early 2011, contending he had provided state officials with “disparaging and/or confidential information.” The hospital later dropped the suit.
In 2009, Baptist’s employees sued the hospital. They alleged that the hospital’s choice of MedCost – the health plan it co-owned and required its employees to use – was not serving the best interests of employees.
The hospital ultimately agreed to pay nearly $5.4 million to settle the suit. The federal Labor Department later ruled that Baptist had not demonstrated that it was adequately protecting employees.
In 2010, Vincoli called the federal Labor Department to file a similar complaint about Carolinas HealthCare System, MedCost’s other co-owner. The department soon began investigating.
The federal Employee Retirement Income Security Act, known as ERISA, prohibits most employers from using companies they own to provide health benefits for employees – unless they can show the Labor Department that they’re putting employees’ interests first. Vincoli questioned whether Carolinas HealthCare’s ownership and use of MedCost violated the law.
CHS officials have contended they’re not governed by the federal law because of a provision that excludes governmental employers. CHS, one of the nation’s largest public hospital systems, is a governmental entity known as a “hospital authority.”
The Labor Department’s investigation remains open.
Vincoli’s actions in those cases were central to the the emails that Lambeth forwarded. (CHS provided those emails in response to a public records request filed by Vincoli.)
Vincoli knew Lambeth from his time at Baptist Hospital and lived in his legislative district. He said he regularly copied Lambeth on emails because he trusted him to help correct problems he was finding.
In July 2013, he copied Lambeth on two emails that concerned his efforts to report the overpayment to N.C. Baptist. Using his legislative email account, Lambeth forwarded those emails to MedCost Vice President Joel Groce. He included a note:
“Here is this weeks (sic) email from JV. Pass along to your attorney until I get him set up.”
In January 2014, Vincoli copied Lambeth on another string of emails that concerned the federal investigation into CHS.
In those emails, Vincoli asserted that Carolinas HealthCare is not under state control and speculated about what might happen if the federal Labor Department determines it is not a governmental entity. Vincoli also offered to meet with Mecklenburg County Commissioner Bill James, who has contended the public has too little say over CHS.
Lambeth again forwarded the emails from his legislative account, this time to Carolinas HealthCare President Joseph Piemont. “You and Mike may be aware if (sic) the recent efforts by Joe If not I wanted you to be aware,” Lambeth wrote.
(The “Mike” mentioned in that email referred to Michael Tarwater, Carolinas HealthCare’s CEO, Lambeth said.)
Piemont forwarded Vincoli’s email to a lawyer for the system, and to Greg Gombar, the system’s chief financial officer. Gombar responded with a single word: “Crackpot.”
While saying he couldn’t recall his specific reasons for forwarding the emails, Lambeth said:
“I’ve had relationships with folks at Carolinas HealthCare, folks at Baptist and folks at many agencies for many years.”
Lambeth has received thousands of dollars in campaign contributions from employees at N.C. Baptist and other hospitals. But public records don’t show any contributions to his campaign from officials at Carolinas HealthCare System.
CHS officials did not respond to most of the Observer’s questions about the emails, and would not say whether they are considering legal action against Vincoli.
But a spokesperson said, “it’s not unusual for our legal team to look into negative and potentially defamatory comments” made about the system.
MedCost officials declined to comment.
Jane Pinsky, director of the N.C. Coalition for Lobbying and Government Reform, said she does not think Lambeth’s actions violated state law. Almost all emails to and from state lawmakers are public record, she said, and it would be hard to prove that Lambeth expected to benefit financially from sharing that information.
Still, Pinsky said, she finds Lambeth’s actions “ethically incorrect.”
“I think he should have said, ‘If we’re going to continue this discussion, I’m going to share these emails with the other side,’ ” she said.
Read more here: http://www.charlotteobserver.com/news/politics-government/article22552143.html#storylink=cpy
So, which appears to be the more 'reasonable' explanation for why I was fired? Was I fired for cause? The state says, 'no'. The state says I was fired because 'computer automation' could do my job.
Please contribute now and help me finally get my day in court.
Make checks payable to "Joe Vincoli"
220 Epping Road
Clemmons, NC 27012
Ruling blocks Clemmons man from learning reasons for firing in whistle-blower case
By Richard Craver Winston-Salem Journal
“A citizen should never be punished for doing the right thing.”
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.”
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:
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
15 OSP 07944
N. C. DEPARTMENT OF PUBLIC SAFETY,
RESPONDENT’S PREHEARING STATEMENT AND DOCUMENTS CONSTITUTING AGENCY ACTION
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
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:
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
BY ANNE BLYTHE
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: http://www.newsobserver.com/news/politics-government/state-politics/article111861867.html#storylink=cpy
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.