Gilbert's Not Going To Take It Anymore

Guilford County Board of Elections Director George Gilbert is threatening to sue Guilford County over what he argues is the county's failure to adhere to state law, which requires the county pay its election director a salary commensurate with that of similarly situated counties in the state.

Gilbert has acquired the services of Greensboro attorney Seth Cohen, of Smith, James, Rowlett & Cohen, who has notified the county that his client, Gilbert, hasn't been compensated fairly by the county for years, and the letter requests that Guilford County provide Gilbert with a raise retroactive for three years.

Cohen's letter, which was hand-delivered to the county on Thursday, Dec. 20, requests that Guilford County pay Gilbert a lump sum of $42,103, which, the letter states, Gilbert considers a "reasonable resolution to this unfortunate problem." That sum, according to the letter, is the total of a cash settlement of $35,298 in suggested back pay combined with adjustments to Gilbert's 401(k) plan and related benefits he would have been entitled to if his salary had been at that level for the last three years.

Gilbert, who has announced that he's retiring on March 1, currently makes $99,319 a year as the county's elections director.

The letter was addressed to Chairman of the Board of Commissioners Linda Shaw, and copies were delivered to Vice Chairman Bill Bencini and Guilford County Attorney Mark Payne.

Cohen told The Rhinoceros Times that, since the Board of Commissioners is the legal body that sets the elections director's salary, that board would be the defendant named if a lawsuit is necessary.

Cohen said the matter was unrelated to a recent controversial round of raises in which Guilford County increased the salaries of 15 department heads whom county staff claim weren't being paid equitably. Gilbert was one of 15 directors who got a raise after a controversial secret backroom meeting of the Board of Commissioners, at which the raises were supposedly approved. As a result, Gilbert got a raise of $1,947 a year – the smallest of the 15 raises.

Cohen said it's important to understand that Gilbert's current action is totally unrelated to the recent equity raises county staff said were meant to create more parity among Guilford County employees.

"This has nothing to do with that," Cohen said.

Instead, he said, the action is the result of years of Gilbert not being compensated in a manner required by state law. Cohen added that he's optimistic that the matter can be settled without a lawsuit.

Cohen's letter to the county, which begins "Dear Ms. Shaw," states: "This firm represents George Gilbert, who as you know is the longtime Elections Director for the Guilford County Board of Elections. The purpose of this letter is to try to resolve an unfortunate problem with regard to Mr. Gilbert's salary over the past few years. After an exhaustive review by Mr. Gilbert, it has become clear that his salary is not commensurate with the salary paid to directors in counties similarly situated, and thus the Guilford County Board of Commissioners is not in compliance with N.C.G.S.163-35(c). Hopefully, this matter can be resolved before Mr. Gilbert's pending retirement on March 1."

The statute Cohen refers to in the letter relates specifically to the pay of county elections directors in the state. The statute states that the salary of a county's elections director shall be set by the Board of Commissioners – based on recommendations by the county's Board of Elections – and the statute also requires that the pay of the elections director "shall be commensurate with the salary paid to directors in counties similarly situated and similar in population and number of registered voters."

Cohen's letter points out that county elections directors are "unique" in county government in that they are hired and fired by state elections officials – based largely on recommendations by county elections boards – yet the election directors' salaries are set by boards of commissioners.

"If the Board of Commissioners does not comply with N.C.G.S. 163-35," the letter reads, "Mr. Gilbert has the legal right to seek redress."

Cohen's letter goes on to say: "Obviously, Mr. Gilbert would prefer to settle this matter amicably, and given Mr. Gilbert's analysis and his reasonable request, he is confident it will. Mr. Gilbert has served Guilford County for 25 years, and I believe you will agree that it would be virtually impossible to find anyone who works with Mr. Gilbert who does not speak highly of him, both professionally and personally."

According to Cohen, Gilbert has been falling out of line with comparable pay for elections directors around the state for the last six years. However, Cohen told The Rhinoceros Times that, based on the statute of limitations, three years is the maximum amount of time Gilbert would be able to collect for.

Cohen's letter to Shaw states that, given the fact that Gilbert has been underpaid since 2006, the Board of Commissioners may have "an ethical duty to make Mr. Gilbert whole beyond the three years," but Cohen added, "I do not believe there is any legal requirement [to go back further than three years]."

The county's Board of Elections has for years consistently requested that the Board of Commissioners grant Gilbert a raise based on his job performance as well as the factors Cohen cites in his letter. However, after the financial meltdown of 2008, the commissioners had been holding back raises for directors until the recent slew of raises and, according to Cohen and Gilbert, even before 2008, Guilford County wasn't keeping up with the requirements laid out by the state statute that pertains to the pay of elections directors.

Cohen's letter acknowledged that Gilbert received a "very small increase" in salary three months ago, but Cohen added that that raise – which came just months before Gilbert's retirement – didn't come close to remedying the wrong of recent years.

The retirement pay of county employees is determined by the employee's four consecutive years of highest pay – which in almost every case is the last four years that employee was with the county before retiring. A retroactive raise going back three years would therefore provide a bump in Gilbert's annual retirement pay in addition to any cash payout he receives.

Gilbert said he had been considering addressing the disparate pay issue for some time. He said that, historically, even predating his taking the Guilford County elections director position in 1988, the pay for elections directors in Guilford County had been low compared to similar sized counties.

Gilbert also said the reason behind the timing of his request is two-fold. He said that, before the presidential election, his focus was on conducting the election and there wasn't really time to address this issue. He added that his impending retirement also made this the right time to submit his claim.

Gilbert said he has been aware of the inequity in his salary for some time as other counties across the state frequently increased the salaries of their elections directors while Guilford County did not

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"After the election, I sat down and put the numbers on paper, and it was self-evident that they weren't fulfilling their obligation," Gilbert said of the Board of Commissioners.

Gilbert said that, after 25 years of running Guilford County's elections department, he was still stuck at the midpoint of the pay scale.

"That doesn't make any sense," Gilbert said. "Why have a pay scale then?"

He said that recommendations by the Board of Elections for increasing his pay have been disregarded year after year and he finally felt a need to take action.

Gilbert said this move was meant not only to address his situation, but also to create fair and legal salaries for future Guilford County elections directors.

"It's not just for me, but also for those who come after me," Gilbert said.

In December, shortly after Gilbert announced his retirement, the Guilford County Board of Elections voted to recommend that Guilford County Board of Elections Deputy Director Charlie Collicutt be named the new director of the department. Collicutt is expected to get that job.

Like Cohen, Gilbert stressed that this action wasn't related to the recent controversy about the 15 raises that went to Guilford County directors recently.

Gilbert said the history of inequitable pay for election directors in this county precedes his employment as director.

"It has traditionally been an underpaid position," Gilbert said, adding that most of his predecessors in the job had been female.

He said that, over the years, the job has evolved into one that requires a much higher level of professionalism, training and responsibility than it did years ago.

He pointed out that the elections director is not under the county manager, isn't an elected official and doesn't work for the Board of Commissioners. He said that puts him in an unusual category and reiterated that the salary parameters for county elections directors in this state are laid out by the statute cited in Cohen's letter.

Gilbert said that, though the law has been in effect for years and years, in Guilford County the Board of Commissioners has consistently ignored the statute. He said that, either due to "timidity" or due to "subservience to the county manager or the budget director," the county commissioners have failed to offer a salary for his position that is sufficient to be in accord with state law.

Gilbert also said he has studied the situations and salaries of other elections directors in North Carolina looking at factors such as complexity of the elections, the size of the counties and the length of employment of the directors. Gilbert said he focused on comparisons of the state's seven largest counties – Mecklenburg, where the elections director makes $112,000; Wake, where the salary is $110,000; Guilford, where Gilbert makes just over $99,000; Forsyth, $90,000; Cumberland, $96,000; Durham, where a brand new director is making $80,000 a year; and Buncombe County, where the elections director makes $104,000 annually.

Gilbert cites frequently that the elections director in Buncombe County, which is much smaller than Guilford County, makes about $4,000 more than Gilbert. Buncombe County has a population of about 244,000 compared to Guilford County's population of over 495,000.

Last week, the Guilford County Board of Elections sent a letter of support to the Board of Commissioners requesting they grant Gilbert's request.

Shaw said this week that, since Cohen's letter arrived during the holiday season, it was too early for the county to have formed a response. She said the commissioners would be conferring with Payne at a future date in order to determine the appropriate course of action. Evidently, the county takes off more days than most at Christmas, since 22 days seems enough time to respond to a letter.

In an email, Payne told The Rhinoceros Times that as county attorney he would take his direction from the commissioners.

"The letter sets out a legal claim and it's one that is appropriate for discussion, including discussion in closed session for the board to consult with counsel," Payne wrote. "If there is a closed session discussion on this, staff will follow the board's instruction on this."