June 14, 2012A $61,000 bonus for Guilford County Manager Brenda Jones Fox and bonuses for other Guilford County employees who have worked for the county for 30 years or more were shot down on a 9-to-2 vote of the Guilford County Board of Commissioners at their meeting on Thursday, June 7. However, the vote by the board hasn't put a halt to the fallout or to the threat of a lawsuit.
The bonus issue has been one of the most heated controversies in recent county government history – which is saying something given that this is Guilford County and given the county's recent history – and there are many lingering questions, as well as a lot of finger-pointing and a threat of lawsuits in the wake of the controversy.
There are 22 longtime employees who notified the county by the deadline of Tuesday, May 1, that they planned to possibly take advantage of a bonus of four months pay, subject to no cap, by retiring between August 1, 2012 and Feb. 1, 2013.
One of those employees was County Manager Brenda Jones Fox who's already threatened to sue the county that she runs.
On Wednesday, May 30, Fox's attorney, Seth Cohen of Smith, James, Rowlett & Cohen LLP, sent a letter to County Attorney Mark Payne, "to put the County on notice that, if the Board of Commissioners rescinds its March 1, 2012 Voluntary Enhanced Retirement resolution ('VER'), Ms. Fox (and possibly other County employees) will seriously consider litigation against the County for breach of contract and violation of Art. 1, Sec. 10 of the United States Constitution."
Payne said on Thursday night, after the commissioners rescinded the enhanced retirement bonuses on the 9-to-2 vote, that he believed the county commissioners were on solid legal ground when they voted to do so.
Payne said he didn't know if he would be the one who would defend the board in case of a lawsuit, since, while he is the attorney for the Board of Commissioners, he also has a close working relationship with the county manager and with other county employees who were eligible for the increased bonuses. Payne said that, if a lawsuit is filed, there was a possibility that – either by order of a judge or through Payne's own decision – the county's defense against a lawsuit could be taken on by outside council.
When Commissioner Billy Yow was told of that possibility shortly after Payne suggested it, Yow had an unambiguous response.
"Oh, hell no," Yow said.
Yow said Payne had been stating for weeks that he could defend the board against potential lawsuits in this matter, and Payne, Yow said, is going to be the one to handle the case if the county gets sued.
"There's no way we're now going to hire some outside firm to come in and handle this," Yow said.
Yow was one of the commissioners who voted to do away with the enhanced bonuses. However, he said, he had reservations about doing so because of fears the county would be sued and also due to questions of fairness when it came to those 22 employees considering retiring.
According to Yow, before the June 7 meeting, Payne had asked him and the other commissioners to endorse requesting that county employees sign a statement that they would not sue if the board retroactively reinstated the bonus cap. Yow said he told Payne that the board wouldn't support asking the employees to sign that since Payne had already told the commissioners they had a legal right to reverse the vote.
The commissioners first learned about the bonuses when the removal of the cap was revealed in the May 10 Rhinoceros Times and, for three weeks leading up to the June 7 meeting, they had been getting irate emails, phone calls and letters from county residents who were vehemently opposed to Fox receiving the $61,000 bonus. With the cap in place, Fox would only get $16,500.
Of the 11 commissioners on the board, only Chairman of the Board Skip Alston and Commissioner Bruce Davis said publicly they thought the bonuses were a good idea, and the two lobbied unsuccessfully to keep the bonuses at the elevated levels.
At the June 7 meeting, Alston was critical of the other commissioners for not reading their agendas before voting three month's earlier. The chairman said that any commissioner was always free to ask questions about items on the agenda and that Fox had earned that large bonus because of all of the money she had saved taxpayers over the years.
"I asked if there was anything you would like to have removed," Alston said. "Not one person pulled that one item."
Alston said that, every time he asks that question at a meeting, he's assuming the other commissioners have done their due diligence and read their agenda packet.
"For me to second guess you is like second guessing the people who elected you," Alston told his fellow commissioners.
That night Alston said it was a mistake for the board to view the issue as something that only pertained to Fox. Alston said the March 1 lifting of the cap on bonuses applied to every county employee with 30 years or more with the county.
"Mrs. Jones is one of 45 people," Alston said.
Actually, 46 county employees were qualified to apply for the enhanced retirement plan.
Alston said others stood to benefit as well and Fox would only get more money than the other retirees because she was higher paid than the rest. "She does not make minimum wage," he said.
Alston went through a litany of reasons as to why he thought paying Fox and the other longtime county employees the larger bonuses was a good idea. He said some positions would be filled by lower paid workers and some would go unfilled for a period of time, thus saving the county money.
These arguments in favor of the large bonuses only came out after the fact, after The Rhinoceros Times exposed the removal of the cap and revealed that Fox was in line to get $61,000. At the June 7 meeting, Alston didn't address why county staff never made any arguments in favor of removing the cap before the board voted on it – or even mentioned the idea.
According to Alston, the controversy was only the result of commissioners and others pushing their own personal agendas.
"That's what it was all about," he said. "Now we get a chance to beat up on Brenda Jones Fox again – let's go ahead and do that," he said sarcastically.
Alston said she had found the county tens of millions of dollars in savings during her three years as county manager, and the board was treating her with disrespect. "What a way to say thank you," Alston said.
He said Fox had shown amazing resilience through all of the unfair criticism from the commissioners and the media.
"Mrs. Fox, you're still smiling," Alston said, smiling himself while looking directly at Fox.
Davis is the only other commissioner who voted to keep the enhanced bonuses for 30-year plus employees, and Davis spoke immediately after Alston did.
Davis said the bonus plan had been in place for three years. "This is not a new thing," Davis said several times.
Davis said the press was to blame for the controversy.
"The news made a big deal out of it," he said. "It's certainly not a new thing."
In reality, the March 1 removal of the cap on bonuses was a brand new thing. Guilford County government has had a plan in place for three years to encourage longtime employees to retire, but the bonus controversy wasn't about that plan. It was instead about the recent, furtive, temporary suspension of a cap on bonus pay – a pay cap suspension that applied only to those employees who, like Fox, had been with the county for 30 years or more, and something that applied only to those who retired at the same time Fox did.
The cap wasn't lifted for employees who have been with the county 20 years or 25 years, and the ability to apply for the enhanced bonuses expired on May 1, before the commissioners did away with the possibility entirely on June 7.
"The news had made it seem as if the commissioners didn't do their homework," Davis said. He said that, before every meeting, Fox calls the commissioners individually and goes over the agenda items.
There's no question that Davis first learned about the removal of the cap on May 10 after The Rhino Times came out – so presumably Fox didn't highlight this item in her pre-meeting discussion with Davis before the March 1 meeting when commissioners passed the item on the consent agenda.
Commissioner Carolyn Coleman said that Alston's criticism of the other commissioners was way off base. She said the item was buried in the documentation and was worded in a way that made it unlikely anyone would discover its implications.
"Anyone who reads that section may not understand that," Coleman said.
She said the wording of the item on the consent agenda was vague and ambiguous and she added that the item was lumped in with another motion for the continuation of benefits for spouses of those who had passed away. Coleman said that, when she read the vague sentence that lifted the cap, she thought it was merely a continuation of the previous clause regarding spouses of deceased county employees.
Coleman said she only found out about it when The Rhinoceros Times contacted her and told her of the increased bonus for Fox and the other affected employees.
Coleman also said that, after her conversation with The Rhino Times, she called the county's clerk to the board as she began to understand the ramifications of the March 1 vote.
"Staff made me a copy," Coleman said, adding that, even after she read it again, she thought it still lacked enough clarity for an "average person" to understand what was being enacted.
Coleman said that if she had known it was included on the agenda she voted to approve that night, she would never have supported it. "Most of us have gotten nothing for retiring, except our last paycheck," she said.
She said she had a great deal of respect for all Guilford County employees, but she added that they weren't entitled to large payouts for doing their jobs.
"Any money they saved us, they were paid for that as employees," Coleman said.
Before the meeting, Cohen sent Payne and the commissioners a second letter that included a court case that, Cohen stated, supports his argument that the county doesn't have the right to withdraw the bonus offer after having made it at the March 1 vote.
Cashion asked Payne about the new email from Cohen and she asked if that had changed Payne's mind.
"The email you're referring to did materially change my opinion," Payne said – or at least that's what it sounded like he said, and his surprising comment caused many in the commissioners' meeting room on the second floor of the Old Guilford County Court House to prick up their ears. Payne had either misspoken or had said "didn't" so fast that it sounded just like "did."
A surprised Cashion asked him to repeat his answer, and this time Payne said, "It did not materially change my opinion."
At the June 7 meeting, Commissioner Linda Shaw wanted to be sure that the county employees who had signed up for enhanced bonuses for early retirement would be allowed to continue working for the county even if they had previously said they might retire.
Payne said that, from the start, the plan had been set up that way and all county employees had ever done was express "an interest in retiring."
Payne added that an employee's statement of his or her interest in retiring had not put any obligations on that employee.
"It has always been something that is revocable," Payne told the board. "They can change their mind up until 9 a.m. on the day they retire – until they actually walk out the door and retire."
Shaw said she would support Gibson's motion to retroactively reinstate the bonus cap. "It's our time now to make a wrong right," Shaw said.
Commissioner Paul Gibson said an item of this importance should never have been placed on the board's consent agenda.
"I don't think this should have ever been on there," Gibson said.
Commissioner Kirk Perkins said he was going to support Gibson's motion to retroactively reinstate the cap on the retirement bonuses for 30-year employees.
Perkins said he wasn't convinced of the wisdom of early retirement incentives in the first place. He said that, when it comes to retirement bonuses for employees who have been with the county 30, 35 or 40 years, the county seemed to simply be "giving them money to do something they were going to do anyway."
Perkins also said he thought it was very difficult to discern from reading the March 1 meeting materials that the lifting of the cap was part of the consent agenda.
"Even the paper had it wrong for a couple of weeks," Perkins said of the News & Record.
The three votes against the March 1 consent agenda were from Commissioners Gibson, Yow and Bill Bencini; and Yow was the only one of those who claimed that he knew about the bonuses. Those three routinely vote no on the consent agenda no matter what's on there.
"If you vote no on this board all the time, occasionally you are going to be right," Perkins said.
Perkins also said the matter didn't come up at the agenda meeting he attended with Alston and Fox in the week prior to the March 1 meeting.
Perkins and Yow got into a little back and forth at the June 7 meeting, as did Shaw and Yow, after Yow was highly critical of those who he said had not read their meeting materials.
Shaw said at the June 7 meeting, "Billy, I don't think you knew about it or you would have been screaming up and down and hollering that night."
Yow responded to Shaw that he did know about it and, he added, he had spoken with Assistant County Manager Sharisse Fuller at length about the cap and other issues related to changes in the retirement incentives plan.
Perkins made a motion at the meeting that any items regarding a payout of money to staff in the future be placed on the full agenda and never on the consent agenda, and the board approved that motion as well in hopes of keeping something like this from happening again.