Steve Grant, right, the former policy and governance manager at the N.C. Office of Human Resources, won a wrongful termination lawsuit against Gov. Roy Cooper’s administration in September. Grant is pictured here, on the job for a state government recruiting event, in March 2016 at Marine Corps Air Station Cherry Point. Grant served 20 years in the Marines before starting his own state government career. NC Office of State Human Resources
Steve Grant, right, the former policy and governance manager at the N.C. Office of Human Resources, won a wrongful termination lawsuit against Gov. Roy Cooper’s administration in September. Grant is pictured here, on the job for a state government recruiting event, in March 2016 at Marine Corps Air Station Cherry Point. Grant served 20 years in the Marines before starting his own state government career. NC Office of State Human Resources

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Gov. Cooper must give fired state workers their jobs back, judge rules

October 26, 2017 01:43 PM

RALEIGH

The legislature’s recent moves to limit Gov. Roy Cooper’s power led to Cooper illegally firing multiple state workers during his first days in office, a judge has found.

If the rulings are upheld, taxpayers will have to pay thousands of dollars to those employees, and Cooper will have to offer them their old jobs within the governor’s office back. They were hired under former Republican Gov. Pat McCrory.

It’s the latest development in the battle between the Democratic governor and the Republicans who control the N.C. General Assembly.

The cases involve at least three people fired from the Office of State Human Resources days after Cooper was sworn in, who then went to court to get their jobs back.

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One of them, Veronica Wright, won her case Wednesday afternoon. Another, Steve Grant, won his case last month. The third, David Prickett, hasn’t received a final ruling yet.

The state appealed the ruling in favor of Grant earlier this month. It wasn’t immediately clear Wednesday if the attorney general’s office would also fight Wright’s legal win; the state has 30 days to decide.

The cases are connected to a different, broader lawsuit Cooper has filed calling several new laws unconstitutional. It was dismissed by the N.C. Court of Appeals earlier this year but is now being reviewed by the N.C. Supreme Court.

Government power struggle

After Cooper defeated McCrory in November, the General Assembly began passing new laws to limit the power of the governor’s office. One of those changes came in December, when the General Assembly slashed the number of “exempt” state employee jobs from 1,500 to 425.

Exempt employees are those who don’t have the same strict protections from being fired or demoted that most of the state’s 81,000 employees are guaranteed. Those 425 exempt jobs typically involve politics, high-level management duties or both.

“An exempt state employee is an at will employee who may be terminated at any time, for any reason or no reason, with limited public policy exceptions,” the state explained in one legal filing.

The people in those unprotected jobs often turn over with each new administration, as the incoming governor changes up who’s in power in order to implement the policies he or she ran on – or in some cases, simply to serve as political patronage.

The legislature’s post-election changes meant Cooper would have less influence over state government than McCrory did – and also would have to potentially continue employing hundreds of people McCrory picked for influential jobs.

Grant, Wright and Prickett were just some of the people hired by McCrory and then fired by Cooper. Grant and Wright were both managers in the state’s HR office, and Prickett was the office’s spokesman.

The rulings in favor of Wright and Grant say they can get their old jobs back, and that the state must also give them back pay and attorney fees. Wright was making $100,000 a year and Grant was making $85,260.

“In both cases, the judge ruled that the Governor did not have the authority to designate the employees as exempt and then summarily fire them,” said their lawyer, Michael C. Byrne.

A constitutional fight

Cooper’s spokesman, Ford Porter, said he wouldn’t comment due to the ongoing legal actions.

But legal filings outline Cooper’s argument.

Until December, North Carolina’s governor could hire and fire who he wanted within the governor’s office. But the legislature changed that after Cooper won, forbidding the governor from making any employee exempt in the state’s HR or budget offices. Both offices are divisions of the governor’s office.

That change was part of the same law that cut the total number of exempt jobs from 1,500 to 425.

In a separate lawsuit, Cooper called that new law unconstitutional, arguing that the legislature didn’t have the power to give job protections to more than 1,000 exempt positions that had existed under McCrory.

He has similarly challenged other recent laws, including changes in the partisan makeup of election boards and several provisions in the new state budget that he said also unconstitutionally seized power from the executive branch.

Grant challenges his firing

In the Grant case, lawyers for the state said when Grant joined the HR office during McCrory’s tenure he was automatically exempt, and so he should have remained exempt under Cooper, too.

Barbara Gibson, a longtime state HR manager whom Cooper appointed as director of the Office of State Human Resources, backed up the state’s argument that Cooper needs to have control over who works for him.

“Exempt positions are crucial for providing a governor with the ability to trust that his employees will support, and work to implement, the governor’s agenda,” she said.

But administrative law judge Melissa Lassiter disagreed with the state’s argument.

It “lacks merit for several reasons,” she ruled.

For one, she said, courts must consider the legislature’s intent – which in this case was quite clear.

“The most recent act of the General Assembly was to remove, as opposed to enhance, the governor’s authority,” Lassiter wrote.

Lassiter cited that same reasoning in her ruling in Wright’s favor, and she also called it “an illogical statutory interpretation” to argue that Cooper had the power to fire Wright, given the legislature’s recent action to reduce Cooper’s influence on the state HR office.

The Office of State Human Resources oversees hiring for state jobs, handles worker’s compensation claims and also works with the HR departments for individual state agencies, public universities and local governments.

Wright had been the office’s diversity and inclusion director. Grant was the policy and governance manager. Prickett was the communications director. Prickett has since gotten a job as the spokesman for a new Republican-backed program to have charter school companies take over some low-performing traditional schools.

All three of them are being represented by Michael C. Byrne, a Raleigh attorney who specializes in state employee issues.

He said one of the three, Grant, has continued working in the HR office throughout this legal fight – but in a lower level job.

In December Grant was making an annual salary of $85,260. As of early October he was working in a position officially known as a human resources partner with an annual salary of $56,000.

“It seems to me that resolving his case would be fairly easy on (the state’s) part,” Byrne said.

Unprotected jobs still held by McCrory appointees

No matter how these three cases – or others – turn out, Cooper’s office will at least have a more concrete picture of which jobs he can put his desired people into.

Nearly a year into his four-year term, he still hasn’t made many changes to positions that are unprotected by personnel laws.

As of Oct. 6, according to the Office of State Human Resources, Cooper’s administration had ended the employment of 29 people in exempt jobs. Others left on their own.

“Many employees in exempt jobs had already accepted other positions prior to January 1, 2017,” when Cooper was sworn in, said OSHR spokeswoman Melody Hunter-Pillion.

In total, she said, Cooper has put 135 of his own people into exempt positions so far, out of the 425 he’s allotted.

That means there are nearly 300 more positions he has yet to address. Most are filled with people hired under prior administrations, but about 20 percent of them are currently vacant, according to OSHR data.

If Cooper wins in his broader constitutional battle over the December law that reduced the number of exempt employees from 1,500 to 425, he might find himself with hundreds more jobs to fill with his own people.

Doran: 919-836-2858; Twitter: @will_doran