Remove ImagesDithering Mike Gets Free Lunch
July 12, 2012
Guilford County Commissioner Mike Winstead is a very popular man these days. He's the deciding vote in whether Guilford County Manager Brenda Jones Fox gets to keep her job or not and, last week, Fox invited Winstead to lunch, which the two had at Anton's Restaurant. Commissioner Paul Gibson, a leading advocate of firing Fox, has asked Winstead to have coffee with him on Thursday, July 12.
Winstead said this week that he hadn't made a decision.
"I really don't know what I'm going to do," he said.
In the Guilford County Board of Commissioners' current war to either keep Fox or get rid of her, the board is split right down the middle: The joke going around is that there are five and a half votes to fire Fox and five and a half votes to keep her.
The five commissioners who have stated publicly that they are ready to fire Fox are Commissioner Kirk Perkins – who made the motion to do so at the last commissioners meeting on Thursday, June 21 – along with Commissioners Billy Yow, Bill Bencini, John Parks and Gibson. Even though those commissioners talk big about wanting to fire Fox, none of them seconded his motion that night so the matter could be discussed publicly.
The five who want to keep Fox as manager until she retires as planned on Feb. 1, 2013 are Chairman of the Board of Commissioners Skip Alston, and Commissioners Carolyn Coleman, Bruce Davis, Kay Cashion and Linda Shaw.
Parks said that, in the current situation, everything rests on Winstead's shoulders.
"It hinges on Mike," Parks said.
The Board of Commissioners discussed whether or not to fire Fox in a very heated closed session at the June 21 meeting, and, afterward, Winstead was the object of criticism from other county commissioners and other county officials because he wasn't willing to fire the manager that night.
"We came as close to getting rid of her as we ever have," said one commissioner who asked not to be identified.
Several county officials have said it is strange that Winstead can't make up his mind when there is so much clear evidence that Fox should be fired.
After that closed session, Winstead said, he didn't want the decision to be made in a rash way with everyone arguing and screaming at each other. He said he had learned from running his property development business that that's not the right environment in which to make major decisions.
Winstead said that, before he had lunch with Fox, he had the impression that she might want to go ahead and retire voluntarily. He said he thought that was perhaps why she had asked him to lunch – to tell him she was going to retire shortly.
"It seems I was wrong about that," Winstead said.
He said she clearly has no inclination to leave county government before Feb. 1.
Winstead said Fox told him she wanted to keep her job. He also said the two didn't spend much time discussing the specifics of her long list of controversial actions.
"I didn't want to rehash that," he said.
According to Winstead, while the two were at Anton's, they ran into Greensboro Mayor Robbie Perkins and many other well-known Greensboro residents.
"I think everyone was there," Winstead said.
Winstead said he's keeping an open mind and said he is anxious to hear what Gibson will have to say when they meet on July 12.
Winstead said he does feel like the man in the middle these days.
"I guess it does look like it comes down to me," Winstead said.
He said Fox picked up the tab for lunch.
One reason, Winstead said, not to fire Fox is because her contract calls for her to collect four months salary – about $61,000 – if she's fired by the board. Winstead said that, before the meeting, he had some hope that she would be willing to agree to some compromise, but he said now he knows that is not a possibility.
County managers "serve at the pleasure of the board" and can be fired by the board at any time for any reason. However, one of the things that has helped Fox hang onto her job is that her contract has a clause that states she gets $61,000 if she's fired by the board without cause.
The contract that made Fox county manager was signed on April 16, 2009. It states, "Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Board of Commissioners ('Board') to terminate the services of Manager at any time, as provided by law and provisions contained herein."
It also states that nothing in the contract should be construed as preventing Fox from resigning at any time with the benefits that she is entitled to as a longtime county employee. Fox has been an employee with the county for over 40 years, and, when she leaves Guilford County government, she will be paid about $143,000 a year every year for the rest of her life in addition to receiving other attractive government retirement benefits.
The contract states that, if Fox chooses to resign, she is required to give the board 30 days notice of her intent to step down. It states that, if Fox leaves without providing the required 30-day notice, she would owe Guilford County "damages" in the amount of one month's salary, or just over $15,000.
That clause is clearly irrelevant right now.
Then there's what has now become the most important clause in Fox's contract: "In the event the manager is terminated from employment by the Board and Manager is willing and able to perform her duties under this agreement, Employer agrees to pay Manager her then existing salary together with all other benefits including eligibility for sick and annual leave for a period of four (4) months, during which period the manager will on request provide reasonable consultative or other services to facilitate operation of the County. However, if the Manager is terminated because of her conviction of a crime directly or indirectly involving her employment, due to an illegal act involving her employment, due to an illegal act involving personal gain arising out of her performance of this position, or due to an act of moral turpitude occurring after her appointment as County Manager which directly or substantially impairs her ability to reasonably perform her duties, the Employer shall have no obligation to pay said salary and benefits for said period."
It's that last part regarding moral turpitude that has more and more been a key element in the discussion about Fox lately. Some commissioners say that Fox's long list of deceptive, conniving, secretive and highly questionable moves clearly constitutes cause and the board should just fire her and, if she wants to sue to try to get that money, then let her sue.
One county official said, "If her actions over the last two years don't constitute cause – then what in the world would?"
Commissioner Perkins said he wished the clause wasn't part of the contract and that, when the contract was being drawn up, he fought against Fox being entitled to four months pay if the board fired her without cause.
"I didn't want that in there," Perkins said. "She would have taken the job without us putting that in."
But, like it or not now, the four-month buyout clause is in the contract.
Several months ago, Gibson said that if the county did fire Fox it would be the best $61,000 Guilford County ever spent.
Gibson said some commissioners argue that she will be gone soon anyway, but he said she can do a lot of damage in six months.
Perkins said he thinks she needs to go now as well. He said the final straw for him was when, after not being able to get a $61,000 bonus – one that he felt she tried to sneak past the board – she threatened to sue.
Perkins said it has just been one thing after another. He said he tried to give Fox the benefit of the doubt at first but, following one controversy after another, it became evident that she had to go.
Perkins was privately expressing his doubts about Fox as early as January 2011, right after Fox's role in the purchase of a building in High Point came to light in an article in The Rhino Times which is the way the commissioners have found out about many of Fox's questionable activities.
Perkins said his recent move to fire Fox came as a result of too many straws on the camel's back.
"I didn't tell anyone before I made motion to fire her," Perkins said, of his June 21 motion that surprised all of his fellow commissioners and failed to even get a second.
"I considered a lot of scenarios that might come from that but not one of those was that the motion wouldn't get a second," he said.
Like the other commissioners who want her gone, he would rather not see her get four months pay for being fired.
Guilford County Attorney Mark Payne was asked about the meaning of "moral turpitude." He said there was a lot of legal precedent that offered guidance on that definition.
"It's a high standard," Payne said, adding that it includes, for instance, action that "shocks the conscience."
A 5th Circuit Court of Appeals ruling gave the following guidelines: "Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se [wrong or evil in itself], so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind."
Those who argue that Fox has acted with moral turpitude point to the fact that she let Wachovia Bank change its bid after a bid process had closed – a move that cost the county about $200,000 with no benefit to the county; and that, at a time of cutting county employees left and right, Fox created a high-paying county job for her friend and political ally, former Commissioner Steve Arnold; that Fox signed away the exclusive rights for the county to find property to a real estate agent (who Fox claims she had never met before) who walked into her office one day on a cold call – and who happened to be a good friend and former employee of Arnold's.
Fox kept that contract a secret and, after it was exposed by The Rhinoceros Times and became the subject of a great deal of controversy, Fox sent out a memo that instructed county employees not to communicate with the county commissioners about county business or concerns but instead go to the county manager's office.
Fox then was the center of a highly questionable deal with Arnold's former business associate, Wayne McDonald, in which the county bought a building in High Point from McDonald with – for the first time in county history – no appraisal of the building and no negotiating. According to former Guilford County Property Management Director David Grantham, Fox just instructed staff to accept McDonald's asking price.
Fox also severely damaged relations with the cities and towns in the county and ended a water and sewer contract with the City of Greensboro that had stood for decades, and she also destroyed relations with Moses Cone Health System over a contract dispute on another contract that had stood for over a decade.
Fox failed to share vital information about a fuel contract with the board, which caused them to enter into a contract that put county citizens at risk in the event of an emergency, and which led the board to enter into a contract that they would not have otherwise approved.
Fox stopped the county from paying rent on a Sheriff's Department substation without bothering to tell the sheriff, who then got notice of rent past due.
Fox started a move for the county to run a new DMV office, but didn't tell the commissioners, who, four months later after much staff time and effort had gone into the deal, voted down the idea unanimously; and that debacle meant the county would go about a year with two severely overcrowded DMV offices.
Fox also put some fine print on the board's consent agenda earlier this year that allowed her a $61,000 retirement. Then she threatened to sue the board when the commissioners informed her that they were going to rescind the bonus program that gave her the bonus.
There are many more highly questionable occurrences as well, like the mysterious unwritten deal – there was no written contract – with XMG Online that cost the county about $50,000 with nothing to show in return.
Those are some of the complaints that some commissioners have about the way Fox has been running the county.
According to Fox's contract, if there's a dispute over whether Fox has been fired justly or unjustly, Fox would be responsible for paying for her legal defense.
There has been an effort by some on the board to reach a compromise, in which Fox retires and gets two months salary if she voluntarily retired. But now it's clear she will not retire before early next year.
Many are surprised that Fox even wants to stay around given the fact that she is such a constant target of criticism.
Yow said that in Fox's mind, there is no problem.
"She thinks she is well liked in her mind," Yow said.
He said that employees may criticize Fox to each other and to the commissioners and the press, but they never dare utter a word of criticism to her directly.
Yow added that Fox wasn't in the heated June 21 closed session, and Yow said that, when Perkins made the motion to fire her in the public portion of that meeting, Fox saw that the vote didn't even get a second.
In addition, Yow added, Alston, the chairman of the Board of Commissioners, tells her constantly that she is the best county manager the county has ever had. Also, Yow said, every chance Alston gets, he claims that the dissatisfaction with Fox comes only from a couple of commissioners and one disgruntled former employee, and the members of the media who make public those complaints.
The county has contacted Asheville-based search firm of Young & Associates. It wasn't legal for the county commissioners to discuss hiring a search firm in a closed session, but that didn't stop them from doing so on June 21 in the same closed session that was officially held to consider a personnel issue – whether or not to fire Fox – as well as a discussion of economic incentives.
According to several sources, the commissioners are expected to enter into an agreement with Young & Associates at their next meeting on Thursday, July 19.