Elections board threatens Swain with lawsuit
“We’re not on trial here,” said Swain Commission Chairman Paul Carson.
But the commissioners’ meeting room did feel more like a courtroom once Board of Elections Chairman John Herrin took a seat in front of the board last week and laid out all of the paperwork to prove his case.
Herrin has three grievances with the county — he claims the county needs to retroactively fund retirement benefits for Elections Director Joan Weeks, increase wages for board of elections employees and grant autonomy to the board of elections.
“I’m not here today to hunt heads,” Herrin said as he prepared his documentation to present to the board. “I’m here to be a conduit for understanding and to bring about resolution to ongoing issues that have been going on at least since 2002.”
A week before the meeting, commissioners and members of the press received a hefty package of documents via certified mail outlining the board of elections’ claims. Herrin asked each commissioner individually if they had received the packet and if they had any other questions.
“We got your packet,” Carson said. “The only question I have is who paid for this?”
Herrin said the cost came out of the board of elections’ budget.
“So taxpayers paid for it,” Carson said.
“I needed assurance you received it,” Herrin replied.
Herrin said the board of elections voted unanimously to pursue a resolution with the county after numerous attempts to have the issue resolved. He said if the county doesn’t agree to pay the retirement earnings owed to Weeks, the next course of action would be to take it to court.
“Unless I can get satisfaction here from the county, I’ll approach the state election board and, with a majority vote, have them take it into consideration,” he said. “The attorney general will represent us to sue or satisfy the claim.”
The main point Herrin tried to get across was that local boards of election are a sub-unit of the state Board of Elections and not a county government department. The North Carolina General Assembly established local boards of election in July 1981 and mandated county governments to fund their budgets.
Weeks has been the board of elections director since 1983 but wasn’t enrolled in the county’s retirement plan until 2002, when it became a full-time position.
County Manager Kevin King said the county’s policy at the time was that part-time employees weren’t eligible for the retirement plan. A part-time employee was defined as anyone working less than 1,000 hours a year, which equals out to about 23 hours a week.
Herrin said the state didn’t distinguish between part-time and full-time status for elections directors and that his documentation would prove the director was due her retirement since the day she started.
“Either through ignorance or oversight, she was omitted from benefits she was supposed to get — I don’t think you can argue with that,” he said.
Herrin then asked commissioners how long they were aware of the problem. Commissioner Steve Moon said he was aware it had been a longstanding problem for at least eight years. Carson said he knew about it since 2006. Commissioner David Monteith became agitated by Herrin’s prodding questions and refused to answer.
“I’m here to listen to you give a report,” he responded.
Herrin said the board of elections had attempted to reach a resolution for several years without any official action taken by commissioners, which is why he felt it necessary to send out the packets and write a demand letter to the county.
Gary Bartlett, former State Board of Elections director, wrote a letter in 2009 urging commissioners to calculate Weeks’ retirement based upon wages earned from her initial employment in 1983 until the present.
Weeks sent a form to the North Carolina Retirement System to get an estimated cost of her retirement claim. As of 2013, the estimated claim was $76,497 for 7.5 years of service.
County Attorney Kim Lay responded to commissioners with her legal opinion on March 27, 2009. After researching Weeks’ W-2 forms and discussions with the state attorney for the retirement system, Lay determined Weeks was a part-time employee from 1983-1992 and not eligible for county retirement benefits.
According to her W-2 records, Lay said, Weeks worked fewer than 1,000 hours a year until 1990. It wasn’t until 1992 that she consistently worked more than 1,000 and became eligible for the county’s retirement benefits.
Kim Westbrook Strach, the current state board of elections director, sent the Swain Board of Elections a letter in July 2014 with a somewhat different opinion than Bartlett. She urged the county and the local board to reach a mutually acceptable agreement, but she said the decision on whether to purchase retirement time for a former part-time county elections director directly belonged to the county.
“Director Weeks is not only known for her excellent work in Swain County, but she is also respected statewide and often acts as a mentor for other less experienced county directors,” she wrote.
Herrin also claimed Swain’s board of elections’ director and employees are underpaid when compared to other counties in North Carolina.
“She (Weeks) is right now on the low side of average,” he said. “She is the second longest serving elections director in the state— she has more experience than directors in 98 other counties.”
According to county documents, Weeks is paid $40,609 and the deputy director makes $24,608. The county’s population is just above 14,000 and the number of registered voters is 9,930. When looking at other counties in the region, Weeks’ salary does fall slightly below the average. However, her salary is in line with other counties with similar populations. For example, Chowan County has a population of 14,726 and pays its director $36,802.
Commissioners argue that other counties in the region — like Haywood and Jackson — have a much higher population.
Herrin said population was only a small factor when looking at the regulatory duties that must be carried out by a director.
“We have the same responsibilities as Wake County,” he said. “If you give every raise (recommended by the board of elections) it wouldn’t be a windfall — it would only get them up to current standard.”
Herrin referred to Gilbert v. Guilford County — a case in which the elections director of Guilford County sued the county for being underpaid. Gilbert was awarded about $39,000 because the courts found his salary did not comply with state statutes. The law requires the election director’s salary to be commensurate with the salaries of directors in counties with similar populations and registered voters.
Herrin’s last assertion was that the local board of elections should have the ability to self-govern without the interference of county commissioners. The law mandates that the board of commissioners fund local boards of elections. Herrin said as long as the election board’s budget requests are reasonable and can be justified, the commissioners do not have the authority to amend the budget request.
“The board of elections can submit a budget for review by the county. If it was found unreasonable, you can’t amend it without my approval,” he said. “We can override your budget amendment as long as I present reasonable costs in the budget — that’s the end of it.”
King said he directed a few questions to Kara Millonzi with the School of Government at UNC Chapel Hill and received a reply regarding budget appropriations. Millonzi said it is ultimately up to the commissioners to determine the elections’ budget each year. However, the law requires the board of commissioners to “appropriate reasonable and adequate funds necessary for the legal functions of the county board of elections, including reasonable and just compensation of the director of elections.”
In documentation given to commissioners, King outlined how much the board of elections budget was each year and how much funding the department had left over at the end of the year. The elections board has had leftover funds every year since 2005.
In 2005-06, the elections board spent only $93,315 of its allocated $141,786 budget — leaving about $48,000 remaining. In 2012-13, the board of elections had $30,663 left over in its $200,032 budget and last year $11,987 was left over in its $192,315 budget.
Herrin said the board of elections staff shouldn’t have to “jump through hoops” every time they need an ink cartridge or an air filter.
King said the elections board could get the supplies it needs by presenting a purchase order to the finance officer per county policy.
Millonzi backed up that statement by saying that the local board of elections is treated as a county department for the purposes of budgeting and must follow county budgeting policies, including policies for credit card use and supplies.
While Herrin said the 200 pages of documentation should make it crystal clear for the county, Commissioner Danny Burns said there were still plenty of gray areas to be examined as he looked it over.
“We’ll definitely seek help from our counsel — it’s above some of our heads,” he said.
Herrin said he didn’t expect a vote on anything that night and wanted to give commissioners time to absorb all the information. He said he wanted to be placed on the next meeting agenda and expected an official vote at the next meeting.
Carson said he couldn’t promise the issue would be voted on at the next meeting but said commissioners would look into the matter.
By the numbers
Board of Elections director salary/population comparisons in Western North Carolina