State Politics

Lawsuit raises questions about protections for political appointees

Donald van der Vaart
Donald van der Vaart N&O

It’s a tense time for state government workers.

Whenever a new governor takes office the process of replacing the previous administration’s political hires with hundreds of new employees roils the state workforce.

For up to 425 people who can be hired and fired at will, that day comes on Sunday when Gov.-elect Roy Cooper takes over. He has already notified dozens of people their services are no longer needed and will be letting others go in the coming weeks.

The ramifications are disruptive to the individuals, of course. But a lawsuit that arose out of Gov. Pat McCrory’s administration when it took over four years ago poses broad questions about protections for state employees. Recently, state employee and law enforcement organizations have filed briefs with the state Supreme Court in the case supporting an officer who contends he was fired because of his political affiliation.

“This is one of the most significant state personnel cases to arrive at our Supreme Court in many years,” said Michael McGuinness, attorney for the police organizations. “The most essential fundamental rights of police officers and state employees are at stake.”

Echoing that case is last week’s announcement by Donald van der Vaart that as of Sunday he would no longer run the state’s environmental regulatory agency. He demoted himself to section chief in the air quality division, where he had spent 20 years before rising to the top under the McCrory administration. The move puts him in a position that affords state personnel protections.

But van der Vaart is not the first high-ranking state official to flee the chopping block just ahead of a new administration.

John Ledford had the same idea in 2013, when he left his position as director of the state Alcohol Law Enforcement and received permission to demote himself to agent – moving an open slot from a division near the coast to the one where he lives in the mountains, taking a pay cut that still gave him annually $10,000 more than the average salary for that level ALE agent.

Ledford was fired for those machinations. He contested his dismissal by saying that it was a pretext for firing him because of his longtime party affiliation as a Democrat. He had been an agent when he was elected sheriff of Madison County, where he served for 11 years before Gov. Bev Perdue appointed him to ALE director.

There was testimony in a court hearing suggesting that the incoming administration was focused on getting rid of Ledford. Then-state Sen. Tom Apodaca, a Republican from Hendersonville, had complained to the Department of Public Safety that Ledford should not have been allowed to reassign himself, and that the legislature would “fix that even if they have to just get rid of the position in the budget.”

Ledford sued in state and federal court to be reinstated, and his case has been reviewed by five judges in his favor. Ledford has been winning, but the state continues to appeal. It is now before the state Supreme Court waiting for oral arguments to be scheduled.

In the state’s most recent filing, in October, special attorney general Joseph Finarelli wrote that Ledford’s dismissal had nothing to do with politics but was because of the improper way he went about trying to save his job.

“Ledford lived by the political sword when he assumed his political appointment,” Finarelli writes in the brief. “Ledford maneuvered and manipulated using his own political influence to avoid the consequences following a change of administration of being a political appointee.

“After using his prominent status and political affiliation to obtain a position for himself as ALE director, he then used that same political affiliation as a shield in an effort to regain his position as an ALE advanced agent. Ledford should not be permitted to wield his political affiliation as both a sword and a shield.”

Ledford’s case took on greater implications last week when the State Employees Association of North Carolina, the N.C. Fraternal Order of Police and the Southern States Police Benevolent Association filed friend-of-the-court briefs.

Two veteran attorneys who specialize in state employee cases, Michael C. Byrne of Raleigh and McGuinness of Elizabethtown, represent the organizations. They contend that Ledford was a member of the rank-and-file and no longer a political appointee and was improperly fired because he was a Democrat. An administrative law judge found that Ledford was “a marked man, politically, following the 2012 election for governor.”

Bryne says van der Vaart is doing the same thing that Ledford tried to do.

“The administration, spending taxpayer dollars to take Mr. Ledford’s case to the Supreme Court, now has a senior official creating non-exempt positions for himself as Governor McCrory leaves office — a practice the same administration describes in the Supreme Court as unethical,” Byrne said Friday.

A spokeswoman for van der Vaart said his 20 years of experience in the air quality division makes him suitable to return to the ranks. He was the first secretary to have been part of the regulatory agency.

McGuinness said on Thursday that the fact that all of the judges have ruled in Ledford’s favor means it’s time for the state to stop fighting.

“The unanimous findings by all five judges in this case demonstrates that the North Carolina law enforcement community remains at risk of being discriminated and retaliated against due to their political party affiliation,” he said. “These practices were held unconstitutional since the 1950s, but North Carolina police officers still have to put up with this outrageous abuse.”

Byrne, in a brief filed with the Supreme Court, contends that it was the McCrory administration that has politicized the process by reducing workers’ rights to appeal disciplinary actions by state agencies and by expanding McCrory’s political hires to 1,500. The Republican-controlled General Assembly lowered that to 425 after Cooper defeated McCrory in November.

“SEANC and FOP can think of few other practices causing more danger and uncertainty in the public workforce than dismissal based on whether one is politically in favor (or out of favor) with the political party of the moment,” Byrne wrote.

Craig Jarvis: 919-829-4576, @CraigJ_NandO