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Monday, January 9, 2012

UPDATE: DSS investigation: legal missteps, unfair salaries and benefits, and possible cronyism

Posted by on Mon, Jan 9, 2012 at 5:46 PM

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UPDATE, 1/9
To update our previous report, Durham County Internal Auditor Richard Edwards confirmed today that the unnamed commissioner he mentions in his report as asking department heads to consider hiring specific people is Commissioner Joe Bowser.

According to Edwards, Bowser approached the director of The Durham Center, which provides mental health services for county residents, as well as the head of the Durham County Health Department. Both incidents happened some time within the past two years, he said.

It was the head of The Durham Center who felt uncomfortable receiving the recommendation from Bowser, Edwards said. Ellen Holliman, director for the center, didn't return a call seeking comment.

Gayle Harris, director of the health department, confirmed what was in Edwards' report—that she didn't feel awkward or pressured when Bowser approached her about a potential hire.

Bowser hasn't returned messages from the Indy seeking comment, but took the microphone at Monday's regular meeting of the Board of Commissioners to say that he did call Holliman in 2009 to recommend a well qualified, unemployed Durham County resident for a new position that the county had opened.

"At no time did I do any coercing or thought that I was putting any pressure on the director, as she has stated, to hire this woman," Bowser said. He added,"Our citizens should have the right to contact us for help. I will continue to try to help them, even in situations like this."

Edwards said he doesn't believe Bowser's actions violate the Board of Commissioners' ethics policy (PDF). At the commissioners' meeting Monday, County Attorney Lowell Siler gave the same opinion.

But late last week, Commissioner Michael Page, chairman of the Board of Commissioners, said he thought the move was inappropriate.

"If somebody asks me what can I do to help them get this job ... I will serve as a reference," Page said. "But I do not call a department head to say 'so-and-so is submitting an application'."

It's unclear what, if anything, the commissioners will do or say to address the apparent impropriety.

"I would say, as a rule, that that’s not a good thing, but I wasn’t around for the events surrounding this controversy," Commissioner Pam Karriker, who took her seat on the board in October, said about Bowser's requests. "But I know that there are two sides to every story."

Page says the commissioners sought the answers, and it's the public that should decide what comes next.

"It's not my place to figure out what do you do about it, and who did it," Page said last week, before Edwards confirmed that Bowser was the unnamed commissioner. "You've got citizens in Durham to demand an answer about it."

ORIGINAL POST, 1/3
Investigative reports by Durham County’s internal auditor (report 1, PDF) and an out-of-town attorney (report 2, PDF)—two long-awaited reviews finally released Tuesday—answer some of the myriad questions surrounding the departure last summer of former Social Services Director Gerri Robinson and the subsequent appointment of Interim Director Gail Perry.

The reports fill in some details of Robinson’s messy departure in July, and expand on accusations that her cool manner with employees caused several to leave their jobs. The findings also look into an accusation by Michael Page, chairman of the Board of County Commissioners, that fellow Commissioner Joe Bowser might have pressured county department heads to hire friends or associates.

Although commissioners pushed for this investigation last fall as an attempt to clear the air on Robinson’s firing and restore public faith in county government, the findings paint an unflattering picture of the management of the social services department, of Robinson and of relationships among commissioners. All five of their seats will be up for election this year.

Among the findings released in Tuesday's reports:

— A county commissioner (unnamed in the reports) has asked at least two heads of county departments to employ a specific person, and at least one of the department heads who was approached felt uncomfortable or pressured about it.

87 employees left during Robinson’s tenure as the director, 54 of them resigning. (This might not be excessive compared to other directors.)

— Based on available information, Robinson overpaid an employee who worked for her directly, and who other DSS employees described as Robinson’s personal assistant.

— Since August, the county has been paying for benefits and/or for holiday leave for Perry, but as a temporary county employee, she is not eligible for such benefits, and the county now has to recoup that money.

Perhaps the weightiest finding by one of the investigators, New Bern attorney Jimmie Hicks Jr., was that a state conflict-of-interest law might have been violated when Perry was appointed in July to become the interim director of the Department of Social Services. Perry didn't return calls for comment Tuesday.

An illegal appointment?

Perry should have resigned from the DSS board prior to being appointed as interim director to avoid any conflict, Hicks concluded. But the legal misstep was unintentional, Hicks’ report said. It’s also unlikely to leave the county social services board vulnerable to any viable legal ramifications, according to Assistant County Attorney Kathy Everett-Perry, one of several county attorneys who represent the DSS board.

When the DSS board met in a closed session on July 27 and fired Robinson, the board just minutes later appointed Perry—one of its own members—as Robinson’s replacement. And although Perry sat out the vote, not participating in the action technically wasn’t enough, the report said.

According to Hicks, who has 20 years experience in municipal law, Perry should have resigned from the DSS board before the board appointed her to the interim director position, which she currently holds at an annual salary of $129,000. Without having done so, Perry likely violated a section of state law that prohibits public officers or employees from benefiting from public contracts, Hicks said, even though Perry did turn in her resignation shortly after the vote.

Perry and the board acted in good faith

According to Hicks' report, there “is no indication that Ms. Perry or the Board of Social Services acted in any way with the intent to violate this statute. … Likewise, it appears that the Board was not aware of the applicability of G.S. Section 14-234 under the very unique (and fluid) way and manner in which this matter progressed, as this statute is almost always applied in the context of a contract for construction, equipment, supplies or third-party services.”

The blunder was the only problem Hicks found in the three questions he was asked to investigate by Durham County commissioners. The two other issues he was supposed to study: county commissioners’ appointment of Perry to the DSS board and accusations of an illegal meeting between Perry and two board members, County Commissioner Joe Bowser and DSS board Chairman Stan Holt.

According to Hicks, there is no evidence of legal violations in the way Durham County commissioners acted when they appointed Perry to the DSS board in June, pushing out incumbent board member Gloria Green. Green was an ally to Robinson, the director who was fired a month later.

On the second matter, the meeting between Perry, Bowser and Holt was legal, Hicks wrote. Perry was not yet sworn in, so this could not have been an illegal private meeting by a majority of the five-member board, he concluded. The accusation of a private meeting was originally leveled in a report from the John W. Pope Civitas Institute, a conservative think tank and one of several Raleigh outfits funded by Republican activist Art Pope.

Does the error leave the county vulnerable?

Everett-Perry, an assistant Durham County attorney, said she doesn’t see the timing of Perry’s resignation last summer from the DSS board as legally troublesome, particularly if Robinson, the former DSS director, pursues legal action against Durham County for wrongful termination.

“I don’t see that being the case at all,” Everett-Perry said. “[Perry’s appointment] was completely different from [Robinson’s] separation from the county.”

Robinson has leveled a charge against the county through the U.S. Equal Employment Opportunity Commission, but hasn’t yet actually sued the county.

Everett-Perry also noted that the DSS board attempted to correct any perceived conflicts of interest with Perry's appointment to the director's position by voting again Tuesday to appoint her to the job, effective from August to the present. This time, Perry clearly was not on the board, and there was no real or perceived conflict, or any technical question of whether Perry was appointed through proper procedure.

"It doesn’t remove the first mistake, so to speak," Hicks said late Tuesday. "It doesn’t undo the potential violation of the statute, but it does make it clear that she is the interim director going forward, and it gives validity to any actions that she’s done as well, as interim director."

Hicks’ report, which will cost the county a little over $12,000, examined just three questions that commissioners raised when they decided last fall to launch an investigation into Robinson’s firing.

The Edwards report

The other portion of the investigation, conducted by Durham County’s internal audit director Richard Edwards, addresses questions about the county commissioner who might have pressured a county supervisor to hire someone, mentions Perry’s erroneous benefits and offers details about one of Robinson’s overpaid employees.

Edwards researched a total of 20 questions (see Appendix 1, page 10), addressing points of fact as well as rumors.

On the suspicion that one county commissioner asked a county department head to consider hiring a specific person for a job, Edwards writes, "It is common practice to pass along resumes and tips regarding job positions and potential employees. Because it is common, we looked at factors that would make the practice inappropriate. Based upon discussions with the involved department heads we determined that the practice was inappropriate when the department head felt pressured to consider or hire the person." (page 9)

Edwards wrote that three unnamed department heads were interviewed, and two of the three said they had been approached by a commissioner to hire a specific person. "One said uncomfortable feelings arose at the time and still linger; however, the department head has no knowledge of any negative effects as a consequence," Edwards wrote (page 9). The other said they didn't feel pressured. It's unclear from the report whether both department heads were approached by the same commissioner. And although the report does not name the commissioner(s) involved, the question was originally—and publicly—directed at Bowser from commissioners board chairman Page, both in a commissioners' meeting and in a newspaper article. Bowser could not be reached for comment Tuesday evening.

Another of Edwards' questions regarded the circumstances of the employment of Catherine Simmons, a consultant Robinson hired and who appeared to work closely with Robinson. According to the investigation, Simmons was a DSS employee who retired and became a temporary consultant. As a county employee, Simmons earned about $64,500 in salary and benefits, which was roughly $33 an hour. Under her contract as a consultant, Simmons earned about $56 an hour. "Without further information, it appears the salary was excessive when compared with the duties of the job," Edwards found. (page 5)

Yet another issue Edwards probed was the salary and benefits for Perry and for Jovetta Whitfield, who was also named an interim director for DSS for a week prior to Perry taking over in August. Last fall, the DSS board recommended a salary of $129,000 for Perry, plus leave and benefits. But as a temporary employee, Perry is not entitled to those benefits. Her salary was approved early Tuesday in a work session of the county commissioners. But prior to Tuesday's meeting, "Ms. Perry received benefits," Edwards wrote. "She was paid for several holidays for which she is not entitled under the temporary appointment policy. The County has made provisions to recoup the erroneous payments," the report said. (page 1)

UPDATE, 1/9 - Perry received pay for three holidays and no other benefits, according to Assistant County Manager Deborah Craig-Ray.

Other revelations from Edwards' report:

— A performance evaluation of Gerri Robinson was amended last year, but the details surrounding the change could not be revealed by the auditor. The DSS board's former chair, Gladys Dunston, refused to cooperate with the investigation, so the auditor couldn't answer questions about whether Dunston had a relationship with Robinson prior to Robinson hiring in 2010, or why the performance evaluation was changed. (page 3)

— Compared to the last two years of employment of the two DSS directors preceding Robinson, staff turnover rates were not unusually high. (page 3)

— As had been mentioned several times after Perry's appointment, Perry did, as a supervisor at DSS 10 years ago, use small gifts, gift cards and free coupons to the fast food restaurant Chick-fil-A to reward employees. Gift cards constitute compensation; taxes should have been withheld from the compensation but were not. "The former County Attorney said he didn’t know how or if the issue was resolved," Edwards wrote. (page 2)

The DSS board, which re-reviewed Perry's credentials and voted again to appoint her as the DSS interim director (in case there is any legal question about the first vote), released a statement saying it welcomed the review of the board's actions and fully supports Perry moving forward.

"With Ms. Perry’s leadership, the Board has worked with urgency to fill long-standing vacancies in the department, recommended approaches to improve access to services such as child-care, understand the complexities associated with the disproportionate number of African Americans in the court system, and developed strategies to help individuals and families deal with the unprecedented challenges of the current economic crisis," the statement read. Holt, the board's chairman, couldn't be reached Tuesday for further comment.

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