State pays former Commerce lawyer $80,000 after firing her

lbonner@newsobserver.comSeptember 27, 2013 

— The state Department of Commerce has paid its former in-house lawyer $80,000 after reclassifying her job and firing her.

The department reached the settlement with Karen A. West, 57, who was fired in June after Commerce Secretary Sharon Decker reclassified West’s position, stripping it of civil service protections. She appealed, saying the reclassification of her job was improper.

In a July administrative hearing, the lawyer representing the Commerce Department argued that other in-house lawyers for Cabinet agencies were exempt from state personnel protections, and that West’s job was properly reclassified.

The two sides reached a settlement before the administrative law judge made his final ruling. As part of the settlement, the department also agreed to change the reason for the job termination to resignation. West signed the settlement agreement Sept. 18.

“We’re pleased that the department chose to resolve this amicably,” said Michael C. Byrne, West’s attorney. “We believe that both parties are looking forward to moving on.”

The settlement limits what Commerce can say about West. Under the agreement, the department must say “she resigned under a reorganization initiated by the new administration.”

West worked at Commerce since 2005 and was promoted to general counsel from the job as deputy in 2009. According to information the department released when she was promoted, West came to the department with two decades of domestic and international experience and is a Harvard Law School graduate.

West tried to reach a settlement with the department after she learned that her $113,299-a-year job was being reclassified, but no agreement was reached before Decker fired her June 4, according to court documents.

No N.C. law license

In a July 1 affidavit, Decker said she determined in January that she wanted to replace West because she wanted to pick the department’s lawyer and because West does not have a North Carolina law license.

“I preferred to have a general counsel of my own choosing who would be uniquely loyal to the new administration and to me and who would be entirely dedicated to my new goals for Commerce, as well as those of the new administration,” Decker’s affidavit says.

“I preferred to select a general counsel who I was assured had mastered North Carolina law sufficiently to pass the North Carolina State Bar Examination and who had been and would continue to be subject to the ongoing standards the Bar requires of North Carolina attorneys.”

After deciding to replace West, Decker said she learned the job had civil service protections and worked to have it reclassified as “exempt policy-making.” In such jobs, “a loyalty to the governor or other elected department head in their respective offices is reasonably necessary” to implement agency policies, according to state law.

During a July 10 administrative court hearing on West’s complaint, Terence Friedman, the special deputy attorney general representing Commerce, said the department checked with the Office of State Personnel and found that in-house lawyers in other Cabinet agencies are exempt from civil service protections.

“The fact is, under the United States Constitution, a general counsel position to a Cabinet of state government is exactly the sort of position that is policymaking and which the secretary was entitled to choose her candidate for,” Friedman said.

Byrne argued at the hearing that West did not have a policymaking job and that she did not have the authority “to commit the agency to a final course of action.”

The position was exempt from personnel protections years ago, when the job description was more expansive and included working as a liaison to the legislature, Byrne argued. Later, the job was changed to fall under the protections of the State Personnel Act. Byrne said West wanted to keep it that way.

Last year, former Commerce Secretary Keith Crisco offered West two job options that would have led to salary increases but would have meant her position would lose civil service protections.

West chose the third option: to keep her salary and the protections.

More positions exempt

It is routine for new people to take top jobs in state departments when the governor’s office changes hands. In two waves, the legislature opened up state law to allow Gov. Pat McCrory more power to hire and fire by giving him 1,500 positions exempt from civil service protections.

About 400 exempt positions were allowed during Gov. Bev Perdue’s administration, and she designated about 330 at-will jobs. McCrory has assigned 974 jobs to at-will status so far.

The legislature this summer repealed the section of state law that allowed state employees to appeal if they thought their positions were improperly classified as exempt from civil service protections.

Bonner: 919-829-4821

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