May 17, 2012There's a strong movement among the Guilford County Board of Commissioners to prevent Guilford County Manager Brenda Jones Fox from receiving a payout of over $61,000 upon her retirement early next year.
Fox would receive the lump sum payment as a result of the removal of a cap on benefits in a voluntary retirement plan – a change the commissioners unknowingly approved at their Thursday, March 1 board meeting.
With the cap in place, Fox, along with other employees who have 30 years with the county, would have been entitled to a maximum of $16,500 as part of the county's early retirement plan incentives. That plan was put in place to encourage early retirement of longtime – and therefore higher-paid – county employees. However, with the temporary removal of the cap, just in time for Fox to retire, Fox now stands to receive over $61,000.
Fox, 69, has 42 years with Guilford County – for most of that time she has served as the county's finance director. At the Board of Commissioners March 1 meeting, the commissioners who voted to approve the consent agenda that night approved an exception to the county's retirement policy that would give Fox four months pay when she retires in February of next year. Fox makes $183,200 annually as county manager, and four months of her pay is equivalent to $61,066.
The fact that Fox could now receive over $61,000 at a time when county employees haven't had a raise in over three years and county citizens are struggling financially – not to mention at a time when Fox has been preaching the need for the county to save every dime it can – has outraged citizens and commissioners alike.
The change that would allow Fox the money was buried in the fine print of the paperwork that modified the county's retirement plan policy. A non-descript and ambiguously worded item was on the board's consent agenda for its March 1 meeting. Fox plays a key role in deciding how the agendas are worded and structured.
Most importantly, in this case, Fox, along with Chairman of the Board of Commissioners Skip Alston, also decides which items are placed on the main agenda and intended for a discussion of the board and which ones are relegated to the consent agenda – a list of items that is supposed to be reserved for routine non-controversial housekeeping matters.
Items on the consent agenda are grouped together for presumed approval in one vote by the Board of Commissioners, and the board almost always passes the consent agenda with little to no discussion – though from time to time the commissioners do pull an item from the consent agenda if it raises red flags or if they simply have questions about it.
Many commissioners said that, if they had known the removal of the pay cap was included within the many pages of county business they approved in a quick vote with no discussion at the March 1 meeting, they certainly never would have approved the move.
Several commissioners said this week they thought Fox intentionally orchestrated the removal of the cap on early retirement incentives pay, then put it as an item on the consent agenda and purposely didn't alert the board to the fact that the change was in that paperwork.
Commissioners, who may now start paying attention for a change to the details in their agendas, say they therefore didn't know what they were voting on, allowing Fox to open up a window of time where no pay cap was in place for retirees, giving Fox a chance to exit county government through that window with a large lump sum of taxpayer money in hand. It makes you wonder what else has been slipped by the commissioners on their agendas in recent years.
This week, Commissioners Paul Gibson, Bill Bencini and others said that it was a travesty, pure and simple, and added that, though the board may have been fooled on March 1, that doesn't mean they have to let the highly unpopular bonus for Fox stand.
Several commissioners said it was a conflict of interest for Fox to create the plan, sneak it past them in the fine print, and then turn around and take advantage of a financial windfall for herself that the commissioners didn't even realize they had voted on. In the commissioners' defense, they have had a lot on their minds lately with important tasks such as coming up with a name for just about every building and meeting room the county owns.
After the financial meltdown in fall 2008, Fox and Assistant County Manager Sharisse Fuller, who's also the county's human resources director, put forth a voluntary retirement incentives plan, which the two said, was meant to encourage the early retirement of some high-paid county employees in order to fill those positions with lower-paid employees and thus save the county money in salaries each year.
Under that early retirement incentives plan, the highest amount any retiring county employee could receive was $16,500; however, the change approved in March removed the $16,500 limit on 30-year-plus employees who retire in the coming months. It allowed them to collect four months pay with no cap in place – which would mean that Fox would get the $61,000 as part of her last paycheck in February.
In light of the vote to temporarily remove the retirement plan cap, and the prospects that Fox will get that large sum, the Guilford County commissioners have come under criticism from citizens for passing something they were unaware they were voting on.
It is the commissioners job to read through the material before voting on it and to ask questions about anything they don't understand. Many commissioners have been lax in that responsibility on past votes. However, that said, in this case the change would have been difficult to catch even if they had read the entire packet of material.
Even after The Rhinoceros Times discovered Fox would be getting the large payout, it took extended research and several phone calls to county officials to find the lone sentence in the March 1 paperwork that removed the cap. The change was on the second page of a graph that detailed various benefits for retiring employees and one had to know exactly what he or she was looking for to find it – and even then it was difficult.
Normally, when a change in county policy of this sort is made, the old language is included and struck thru, with the new language written next to the old – but there was nothing like that done in this case.
Also, in well-run local governments, staff calls attention to any significant changes of this sort, no matter how clearly it is stated in the written material. That way, staff can be certain the commissioners or the city councilmembers know what they're approving.
The change that was in the paperwork of the March 1 meeting didn't apply to all employees who were participating in the voluntary retirement plan – only to those employees, such as Fox, who have 30 years or more of employment with Guilford County or have an equivalent amount of time in qualifying state and local government retirement plans. Caps for those employees who retire early with 20 or 25 years of county service were not removed by the March 1 motion.
Gibson said it was absolutely outrageous that Fox might get the money and he added that he's going to do everything he can to see that she doesn't get her hands on the $61,000.
Many commissioners learned about the large payout for Fox by reading it in the Thursday, May, 10 Rhinoceros Times and, that afternoon, commissioners and other county officials were buzzing about the news as word spread quickly.
Gibson was just one commissioner who was irate and who stated he wanted to see the payout undone.
"I'm going to make a motion to rescind if someone doesn't beat me to it," Gibson said. "She's grabbing all she can grab on the way out, which is typical of who she is."
Gibson, along with Commissioners Billy Yow and Bencini voted against the consent agenda that night. The consent agenda passed 7 to 3; Commissioner Mike Winstead was absent.
Yow almost always votes against the consent agenda on principle, and he did so at the March 1 meeting as well.
Yow has said in the past that the reason he doesn't vote for the consent agenda is because it's difficult if not impossible to know exactly what's being voted on, and it's too easy, Yow has said, for county staff to sneak items past the Board of Commissioners using that agenda.
"This is Nancy Pelosi politics," Yow said this week, referring to a now famous 2010 statement by the minority leader of the US House of Representatives: "We have to pass the bill so you can find out what is in it."
Gibson and Bencini also voted against the consent agenda at the March 1 meeting for similar reasons – though both Gibson and Bencini said they had no idea there was an item on the consent agenda that would allow Fox to grab $61,000 on her way out the county door.
They both said they were relieved that they happened to vote against that consent agenda. At first, Gibson was distraught because, he said, he thought he had deviated from his usual practice and had voted for that consent agenda. However, Gibson called the clerk to the board and was relieved to find out that he was one of three commissioners who voted no.
Many commissioners said this week that, if the board had been aware of, and had discussed, a proposed $61,000 payout to Fox, the idea would have been shot down as soon as it was suggested. However, since they hadn't caught the change by reading their agenda packets in detail, they didn't know.
Like Gibson, Bencini was also outraged at the idea Fox could get the money through what he said was subterfuge.
Bencini served for 11 years on the High Point City Council before becoming a commissioner in 2010 and, according to Bencini, the difference between agendas for Guilford County and High Point City Council meetings is the difference between night and day – with the county's agenda, of course, being the night part of that analogy because it's often unclear what the commissioners are voting on.
Bencini said High Point city staff would never do something like this. He said that, in his years on the City Council, High Point staff always went out of its way to make clear what the council was voting on. He said the agenda language was crystal clear at council meetings, and if there were important items that could be considered controversial, Bencini said, those were specifically identified. He added that if a High Point manager tried something like this then he or she would be fired in no time.
Bencini said that, if the Guilford County commissioners had known it was on the agenda it would have unquestionably been voted down. Bencini added that there's no way Fox should be allowed to benefit from this type of subterfuge and chicanery.
Guilford County Attorney Mark Payne said that, in his opinion, the Guilford County Board of Commissioners could vote to undo what it did at the March 1 meeting.
Payne said no county employee has actually retired yet as a result of any change in the retirement incentives plan made in March, and, even if they had notified human resources that they planned to retire as a result of removal of the cap for 30-year employees, those employees could still simply alter their plans if the board votes to put the cap back in place.
"They could always choose not to retire," Payne said.
Guilford County has just under 2,500 employees, and 45 of those have 30 years employment with the county, or the equivalent amount of time working in a qualifying state or local government plan, which entitles them to attractive retirement benefits.
On Friday, March 30, the 45 county employees who have 30 or more years in county service or other qualifying years were sent a letter saying that they would be entitled to the four months pay – with no $16,500 cap – if they notified the county's Human Resources Department by Tuesday, May 1 of their intent to retire by Feb. 1 of next year; and 22 employees notified the county they were interested in taking advantage of the early retirement plan.
However, that number probably isn't a good indicator of how many employees actually plan to retire because they are free to change their mind at any time – and there was absolutely no downside to notifying human resources.
Payne agreed there was no reason, under the terms of the change in the plan, for a county employee who had 30 years with the county not to notify human resources.
He said that the county did derive some information from the response – namely, Payne said, the county now knew that those employees who didn't submit their names had no intention of retiring anytime soon.
Fuller said neither Fox nor other qualifying employees had to notify the county in writing of plans to retire in order to get the payouts. She said they just had to notify the Human Resources Department verbally.
Fuller also said there was no stipulation that the employee notify her – the director of human resources – and Fuller added that she didn't even know the names of all the employees who planned to take advantage of the temporary removal of the pay cap.
"I could find out if I wanted to," Fuller acknowledged.
When Payne was asked if it wasn't unusual for something as important as large retirement bonuses to be granted based on nothing other than a verbal notification, he said that, as an attorney, he would prefer a requirement of this sort be put in writing.
As it is now, if an employee says that they notified human resources before the May 1 deadline, and there is a dispute, it would be the word of the retiring employee against whatever human resources worker he or she supposedly told of an intent to retire.
Also, that announcement of intent is non-binding, and there's absolutely no downside for an employee to inform the county he or she plans to retire.
One county official who asked not to be identified said it appeared to her that Fox had set up the retirement plan modifications so that Fox could change her decision about retiring if the new Board of Commissioners, which will be in place after the election this year, was willing to keep her on in December.
That way Fox would have the best of both worlds, and there wouldn't be even so much as a written statement of her intent to resign.
Alston, Fox's big supporter on the current board, chose not to run for reelection this year, and he will not be on the board to watch Fox's back after the first Monday in December when the new board is sworn in.
Alston has been a constant defender of Fox since she became interim county manager in December 2008 and county manager a few months later.
This latest scandal is no exception. After the news of the payout for Fox spread to county commissioners, Alston said that he knew perfectly well what he was voting on and the other commissioners were falling down on the job if they didn't.
"If they didn't read their material then shame on them," Alston said.
When asked if he was aware of the change, when the vote was taken on March 1, he said absolutely.
"Of course I knew" Alston said. "I do my homework. As chairman I read through everything."
Commissioners Linda Shaw and Bruce Davis said Thursday, May 10 after a budget work session that they didn't know they had voted to remove the cap and give Fox the $61,000. They had not yet seen The Rhino Times that day and they were informed of the payout by reporters who were trying to get their reaction to the fact that Fox would be getting that much money.
After hearing the news, and asking reporters if they really had voted to approve that, and taking a moment to absorb the information, Shaw and Davis – who were standing together in the commissioners meeting room of the Old Guilford County Court House – both said they felt Fox was entitled to the $61,000.
However, other commissioners had a reaction of alarm along the lines of Bencini and Gibson.
Commissioner Kirk Perkins, for instance, asked how any Guilford County commissioner expected to justify paying out $61,000 to Fox at a time when the county is in dire straights, and with a budget coming up that fails to fund many vital county interests. Of course, Perkins did vote to do just that.
"That's a lot of money," Perkins said. "You could fund the Gibsonville library with that money."
Well, they could have if Perkins and the six other commissioners hadn't vote to give Fox the money.
Gibson represents much of eastern Guilford County and each year the library in Gibsonville requests some county funding to cover some of its operating costs. In the 2012-2013 budget Fox proposed, she cut out all money for the Gibsonville library – something area residents say is a vital community resource – while including money in the budget for the $61,000 payout to herself.
Perkins said Fox and county staff failed the commissioners by not informing them of the details of the consent agenda that night. The only reference on the agenda, listed under "Miscellaneous," was "Modify fiscal year 2012/2013 Voluntary Enhanced Retirement Resolution (previously approved) to offer incentive for 30-year employees to provide early notification of intent to retire."
"They didn't give us enough information," Perkins said.
Perkins said the county has a lot more pressing priorities than making sure that Fox gets a giant lump sum to start off her golden years.
Commissioners Carolyn Coleman and John Parks also said they had serious questions about what had transpired without their knowledge at the March 1 meeting, and they added that they had grave reservations about Fox getting the $61,000 that the change allowed.
Coleman and Parks said it would be very hard to justify giving Fox that large lump sum at a time when the county is struggling to such a degree – but, again, the two voted to do just that.
Alston said that Fox deserves the money and has been the object of highly unfair criticism. Alston said that Fox was probably the best county manager that Guilford County had ever had, and he added that the criticism of her over the last two years had been the result of complaints by a few commissioners who don't like Fox – and, to a large extent, Alston added, the media creating smoke where there was no fire.
The next meeting of the Guilford County Board of Commissioners is on Thursday, June 7, where the matter of Fox's $61,000 lump sum payout is expected to be reconsidered by the board.