Rhino4_4_13 by The Rhinoceros Times

The Rhinoceros Times Greensboro

Thursday, April 4, 2013

Page 5

Commissioners Just Say No To Gilbert by Scott D. Yost county editor

On Friday, April 5, Guilford County is expected to file a motion to dismiss the lawsuit brought by former Guilford County Elections Director George Gilbert, who has asked the county for more than $42,000 in back pay for his last three years in the position, to compensate him for what he claims are three years when his salary was illegally low. Late last year, Gilbert hired Greensboro attorney Seth Cohen, of Smith, James, Rowlett & Cohen, and, two months ago, on Wednesday, Jan. 30, Gilbert filed suit against the county. By law, Guilford County must respond to that suit by April 5, and Guilford County Attorney Mark Payne said this week that the county’s next move will be to offer a more detailed response to the claim – as well as a motion to dismiss, a motion for summary judgement or both. “It’s not one or the other,” Payne said. “We could file both.” The expectation is that the county will file the motion to dismiss and that may be followed by a motion for summary judgement later. Payne said Guilford County needs to file a motion to dismiss by April 5. However, a motion for summary judgement could be filed later. Both motions would call for the judge to decide against Gilbert’s claim

without a trial. Payne said the motion to dismiss “takes the complaint as it is and the law as it is” and proposes that that is everything a judge needs to decide against Gilbert. “It says to the judge, we think you can decide the issue without putting on any evidence,” Payne said. Payne added that Guilford County may also file a motion for summary judgement – a motion that would bring in some additional evidence, but, like a motion to dismiss, would call for a judge to decide against Gilbert without going to trial. Motions for summary judgement typically come after the discovery phase of the proceedings and before the actual trial. Gilbert said that, whether the county files a motion to dismiss the case or files that motion and a call for summary judgement, the message is clear. “Either way, they are telling me, ‘No,’” Gilbert said. Payne said he has taken Gilbert’s charges against the county into consideration and has discussed the case with the commissioners in closed session. He said that, every step of the way, it’s the Board of Commissioners that makes the decision. “I’m their attorney,” Payne said. “I give them my legal opinion but they make the final call.” Cohen said that attorneys routinely throw

in a motion to dismiss at the beginning of the process, whether there’s any grounds for the request or not. He said he’s very interested to see Payne’s answer to the charges later this week. The battle between Gilbert and the commissioners began late last year, on Thursday, Dec. 20, when a hand-delivered letter from Cohen to the county requested Guilford County pay Gilbert a lump sum of $42,103, which, the letter stated, Gilbert considers a “reasonable resolution to this unfortunate problem.” The letter stated that that sum is the total of a cash settlement of $35,298 in back pay that Gilbert is entitled to, plus retroactive adjustments to Gilbert’s 401(k) plan and related benefits he would have gotten if his salary had been at an adequate level over the last three years. Gilbert, who retired on Friday, March 1, was making $99,319 a year as the county’s elections director when he stepped down. Cohen’s initial letter said that, after an “exhaustive review” by Gilbert, it became clear to Gilbert that his salary was not commensurate with the salary paid to directors in other counties, and the Guilford County Board of Commissioners, therefore, was not in compliance with N.C.G.S.163-35(c) – a state statute that calls for elections director pay to be in line with the pay of other elections directors in

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similar counties across the state. This week, Gilbert said he was unaware of the county’s intention to file to dismiss until asked about it, but he said he has a great deal of confidence in his case since the hard numbers paint such a clear picture. According to Gilbert, when he took the job as Guilford County’s elections director in 1988 for less than $30,000 a year, he was one of the lowest paid department heads in Guilford County government. He said that, at that time, in many counties across the state, the elections director was thought of basically as a clerk. “When I took the job I didn’t get a parking space,” Gilbert said. “I was in the park-as-you-can lot.” He said that the attitude of treating elections directors as second-class employees didn’t do justice to the vital importance of elections directors and the need to have a highly capable person in that position. He said that, in the past, in some counties, the pay for elections directors has been nearly half what some other department directors were making. “Times have changed,” Gilbert said. “Elections directors are no longer at the bottom of the totem pole.” He said that former Guilford County Managers Hector Rivera and Roger (Continued on page 42) MARCH 14 – APRIL 15, 2013

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