Where there’s smoke, there’s firing

“Public employment, whether you like it or not … is not Joe’s Burger Shack.”

— Asheville attorney John Hunter

When Buncombe County Budget Director Ken Goble was fired in June 2000, the news hit with a splash. When he sued, claiming he’d been illegally dismissed, it created a few more waves — especially since the suit was filed during the heat of the county commissioners’ election campaigns that fall.

By the time the case actually came before Judge Zoro Guice Jr. on Feb. 25, however, it caused barely a ripple. Other than Xpress, no one unconnected with the suit watched it play out in Buncombe County Superior Court.

Admittedly, the case had become a lot less juicy in the interim. Goble and his lawyer, John Hunter, had already agreed to accept the dismissal of a major allegation in the lawsuit: that Goble had been fired because he’d disagreed with County Manager Wanda Greene‘s handling of the county’s medical-insurance budget.

In his lawsuit, Goble had charged that Greene had chosen to ignore the $2.3 million medical-insurance-fund deficit that Goble had projected for fiscal year 2000-01. Greene had upped the previous year’s budget for the fund by just $600,000 — which amounted to “masking” the deficit for political reasons, Goble claimed in the lawsuit.

The county denied Goble’s allegations. And Greene told the Asheville Citizen-Times in October 2000 that the county was expecting a $2 million increase in those costs, which it planned to cover by delaying benefits to new employees and relying on the fund balance to make up the difference.

Despite the dismissal of that part of the lawsuit, however, the medical-insurance issue still lingers. Hunter said later that he and his client want to sort out a puzzling nugget of information that had come to light just before the trial. During Greene’s deposition a week or so earlier, she revealed that she’d recommended budgeting $9 million for the insurance fund in fiscal year 2000-01. But the commissioners, said Hunter, had appropriated $7.6 million.

“We are going to find out how that happened before we go forward with that claim,” Hunter commented, noting that since he had agreed to a dismissal of that charge “without prejudice,” it could be refiled within a year.

With that possibility in mind, Greene declined to say much about the matter later, other than to note, “It’s not at all unusual between the time you recommend the budget and you have a budget adopted that you do more analysis and the figures change.”

Meanwhile, stripped of the medical-insurance-fund issue, the case became one that would intrigue two types of people: hard-core political junkies fascinated by behind-the-scenes turmoil in local government, and theorists interested in governments’ responsibilities to their employees.

In essence, the case boiled down to whether Goble had been insubordinate and whether his right to due process had been fully honored when he appealed his firing. Goble is seeking back pay, medical insurance and retirement contributions totaling about $78,000.

The “stupidity” e-mail

The day-and-a-half trial afforded a glimpse of the inter-office conflict that led up to the adoption of the county’s budget in June 2000.

It also brought together a collection of current and former county employees, including former Finance Director Nancy Brooks (who fired Goble), former Budget Analyst Stan Mull, Personnel Director Rob Thornberry, Goble and Greene (who upheld the firing). One of them later acknowledged how awkward it had felt to be compelled to testify against a former fellow employee.

According to Brooks, Goble was fired for his “continuous questioning of most assignments,” which she called insubordination. Four specific examples were dissected at length during the trial, as was Goble’s professional demeanor, which everyone who testified seemed to agree had tended to be standoffish and abrupt. (By the trial’s end, even Hunter had admitted to the judge that his client was “a crusty old guy” who was moody and not well-liked.)

For his part, Goble (a county employee for eight years) testified that he had never done anything that constituted insubordination. He didn’t refuse to carry out assignments, he contended — he simply wanted to give his supervisors more information so they could make better decisions.

Matters had come to a head just before the commissioners voted on the budget that year. Greene wanted Goble to make changes to the budget book (a thick document detailing all the departmental budgets), but he balked because he thought the changes had been prompted by Buncombe residents Mike Morgan and Gerald Dean, frequent critics of county government.

In an e-mail reply to Brooks, Goble wrote: “Wanda is reacting to stupidity. This is a good budget document!”

During the trial, Goble clarified that his e-mail hadn’t been meant to suggest that Greene was stupid — and that he had only later learned that the changes hadn’t, in fact, been prompted by Morgan and Dean. (In a surreal moment, Hunter at one point referred to the message as the “Wanda-is-reacting-to-stupidity e-mail.”)

Greene also recounted an exchange in which, after she’d asked him to make changes to the budget book, Goble had inquired: “I just want to know: Who’s running this county? You or Mike Morgan and [Morgan’s business associate] Peter Dawes?”

Greene replied that she was running the county, telling Goble that the changes she wanted weren’t negotiable. Goble had tossed the book into a corner, Greene recalled, and she’d left his office.

Greene later testified that Goble hadn’t told Brooks about Greene’s nonnegotiable request for changes to the book — an omission that Greene saw as dishonest. Brooks (who found out about the requested changes only later, in a meeting with Greene) said the lapse on Goble’s part had been the last straw that had led to the firing.

While questioning Brooks, however, Hunter managed to elicit another bit of information that had previously remained elusive. With a catch in her throat, Brooks reluctantly testified that she had retired last year because the county commissioners were planning to ask for her resignation on the grounds that other county departments felt the Finance Department wasn’t serving them adequately — a point with which Brooks disagreed.

Fixing responsibility

Another key aspect of the case hinged on whether the county had properly informed Goble of the parameters of a hearing Greene held to consider his appeal of his firing.

Goble said Thornberry had told him that the purpose of the hearing was to consider new information that hadn’t been covered in Goble’s pre-dismissal hearing. Thornberry, however, testified that Goble had asked him how he could change Greene’s mind; Thornberry said he had advised Goble that he’d better give Greene something new to consider.

Goble also said he hadn’t realized that he could call witnesses at the post-termination hearing. And in closing arguments, Hunter insisted that it was the county’s responsibility to let fired employees know what was allowed.

But the county’s lawyer, William A. Blancato of Winston-Salem, cited case law saying that the county’s responsibility is limited to letting employees know they have the right to appeal. Nobody had said witnesses couldn’t be called, he said, and none were offered at that hearing. Blancato also noted that Goble had had the presence of mind to hire an attorney — and that it had been up to Hunter to contest any alleged procedural errors at that hearing, rather than waiting until now.

Hunter countered that employees in the public sector can be fired only for “just cause” relating to either job performance or personal conduct. Goble’s job performance hadn’t been an issue, argued Hunter. The attorney also insisted that there hadn’t been a shred of evidence presented that Goble’s conduct had been insubordinate, which Hunter said is defined as willful failure or refusal to carry out a reasonable order from a supervisor.

“Public employment, whether you like it or not … is not Joe’s Burger Shack, and it’s not a basketball team,” Hunter declared.

But Blancato suggested that case law gives public employers latitude in using their best judgment to handle personnel matters, proclaiming, “It’s not the business of the courts to be personnel officers for cities and counties.”

Guice (who took voluminous notes throughout the trial) said he would rule on the case within a month.

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