Cabarrus Cheap Seats

Over the past year, a common rant among Coy Privette and His Acolytes (writing “Cabarrus Taxpayers Association” and “Cabarrus Men’s Club” time and time again is wearing me down) is that the County Attorney, Fletcher Hartsell, has failed the county with lousy legal representation and charged a lot in the process of doing so. One specific matter that is brought up is a case involving a $130,000 settlement with a DSS employee. The settlement text is available on the August 16, 2004 Board of Commissioners Meeting Minutes.

Harold’s Greatest Hits

On http://www.goharoldsmith.com/, Fletcher-bashing qualifies as a recurring theme. The latest came from his latest “address” to the Board of Commissioners. From August 15, 2005:

Harold Smith Speaks to Cabarrus Commisssioners on Monday Night (8-15-05).
There are several things that trouble me.
First, Mrs. Carpenter, be honest with the citizens. Do you plan to ask Fletcher Hartsell to repay the county $130,000 he promiced to pay for his legal negligence representing the county. Be honest! Answer the question. It’s a simple question. 

Yes, the $130,000 question is so simple, it doesn’t even need a question mark. On Feburary 5, 2005, he complained about the fees that Fletcher Hartsell amounted to “milking” the taxpayers:

I have just reviewed the details of all the invoices for legal services from Hartsell and Williams law firm for the county for the fiscal year from July 2003 to June 2004. The total amounted to $275,000 for the year. I had head that the total was approximately $300,000. The $275,000 was the amount actually paid during the year. There may have been some additional invoices paid later to make up the difference. This amount total was in spite of the fact that Marilyn Porter became the county attorney in February, 2004. Please visit special section “Fletcher Hartsell Milkes County in Legal Fees” for my comments, observations and conclusions from my review. 

He goes into a deeper analysis that goes a bit flat, in my opinion. On July 26, 2004, Harold gave us this critique:

“In my hand is a list of all payments to Fletcher Hartsell’s law firm from 7-23-98 to 6-1-04. The total payments amount to $1,051,000 for the period. The hiring of a county attorney was a wise decision.” 

Is it just me, or when someone is making a public address with “something in their hand” does it bring to mind Chamberlain or McCarthy?

Assuming the figure is correct, $1,051,000 divided by 6 years is $175,166 per year which divided by a rate of $180 per hour (the rate was $195 per hour in 2004, so $180 seems like a reasonable average) works out to about 900 hours per year. Of course, my analysis is a bit elementary when you think about it. That total sum includes the total of all of the invoices, including court fees passed through the firm, administrative work, and all of their overheads. A staff attorney gets paid $90,000 base, plus benefits…juicy State benefits. In addition to that, the County is now in the business of maintaining a law library, hiring additional administrative staff, and still hiring outside counsel. It doesn’t take much imagination to get to $175,166 per year when all that is factored in. The staff attorney option also puts the legal representation into one individual. Hiring from a firm gives a greater range of expertise. In addition to that, Cabarrus County also benefits from their State Senator having an in-depth and unique perspective into their matters as he acts as the County Attorney.

The $130,000 Question

Now, we get to Harold’s first article on the matter. The funny thing is - he didn’t write it, Coy did. Here’s the text from that post from July 16, 2004:

The Truth behind the Firing of the County Attorney
A letter to the Editor you may never See
It is unfortunate that County Commissioner Bob Carruth is making a political issue out of the County replacing Senator Fletcher Hartsell as our county attorney (Independent Tribune June 11th). What Mr. Carruth failed to do is tell you, the taxpayers, why the majority of the Board of Commissioners voted to make a change.
The county consulted Senator Hartsell in his capacity as County attorney regarding the merits of dismissing a county employee prior to the dismissal. The County was advised that we were on solid footing. The county paid for this legal advice and the employee was dismissed. The employee then appealed the dismissal. Due to time constraints attributable to his senatorial duties, Mr Hartsell did not have time to represent the County in this matter and designated a member of his law firm to do so. The terminated employee and the County appeared with their respective counsel at the initial appeal hearing before an Administrative Law Judge. The Judge asked both attorneys to file recommended orders for him to sign. The Judge eventually adopted the orders drafted by the employee’s attorney.
At this point in such proceedings, if either party is not pleased with the Judge’s findings, the party can appeal to the State Personnel Commission. The County attorney allowed an appeal filing deadline pass without action. However, the SPC assured a County representative that should the County’s attorney appear at the hearing, he would be heard. The County representative passed this information to the county attorney and was assured by the attorney that he would appear on behalf of the County. However, the attorney failed to appear before the Commission as promised. This failure by the attorney to appear and to appeal on behalf of Cabarrus County was a major factor in a $130,000 settlement award against the County. We later learned that Mr. Hartsell’s stand-in to represent the County allegedly played golf the day he should have appeared at the appeals hearing.
Also what Commissioner Carruth did not discuss is his effort to sweep this entire matter under the rug as if it did not happen and let the taxpayers pay this $130,000 settlement without asking Senator Hartsell’s firm to assume any responsibility or accountability for failure to appear at the hearing. As a result of this and other issues, the majority of the Board decided the County needed a full-time attorney who would be fully committed to the County: no other clients, no moonlighting. Ideally, someone who doesn’t play golf.
It is the contention of the majority of the Board that the Hartsell firm has responsibility in this settlement award, because we maintain the county was not properly advised and represented by Mr. Hartsell’s law firm from the very beginning. Indeed, Mr. Hartsell has promised the Commissioners that this entire episode would not cost the taxpayers a penny. As of this date, the law firm has not reimbursed the county any of this $130,000 settlement award. So you got stuck with the bill.
As Mr. Carruth is so fond of quoting to the public and the Board, you can delegate accountability but you cannot delegate responsibility - yet when it comes to Senator Hartsell, for some inexplicable reason, Mr. Carruth seems to favor shielding Mr. Hartsell from both accountability and responsibility.
Coy C. Privette, Cabarrus County Commissioner 

Here’s the awful truth: it is true that a partner, Merritt White, in Hartsell, Hartsell, and White was handling the case in question, and it is also true that he was not present when he was expected for one hearing. Not showing up at this hearing would lead any reasonable person to conclude that the County probably didn’t get adequate legal representation in this matter. In light of all of the available facts, coming to the conclusion that Fletcher Hartsell is personally responsible for reimbursing Cabarrus County $130,000 is a bit more of a stretch.

Findings of Fact

Given that this is settled legal matter between the County and the former employee, I’m going to not get into the particulars of the case; because that wouldn’t really be productive. However, I did take the time and expense of obtaining documents which are in the public record from the Cabarrus County Superior Court and studying them to get a perspective on this issue. I am not a lawyer – I’m Justin Thibault, EI (EI = Engineering Intern…AKA “one who is waiting to take their PE exam”). Legal professionals would probably find my analysis a bit pedestrian; but I hope it’ll shed some light on the subject for all of the rest of you.

Here are the basic parameters, chronology, and references to the case. On September 12, 2000, a Cabarrus County Department of Social Services (DSS) employee who was a Level III Social Worker (that is a supervisory position)º was dismissed from her job. She challenged the dismissal, and an Administrative Hearing (Case 00-OSP-1506) was held before an Administrative Law Judge (ALJ) on June 26-27, 2001. Merritt White represented the Cabarrus County Department of Social Services. The ALJ made his Recommended Decision on April 18, 2003 and determined that the employee had been terminated without just cause and recommended that she be reinstated to her former position, receive back pay, and be compensated for attorney’s fees. The ALJ’s recommendation was received by the State Personnel Commission (SPC). At the SPC hearing on June 19, 2003, the documentation of the meeting stated that neither the employee nor the county had filed supporting documents or objections to the ALJ’s Recommended Decision and that neither party appeared for oral argument. The SPC followed the recommendation of the ALJ and added a discrimination charge. On July 30, 2003, Cabarrus County DSS challenged the findings of the SPC, specifically the discrimination charge, in Cabarrus County Superior Court (Case 03 CV 01923). In this case, Fletcher Hartsell represented the Cabarrus County Department of Social Services. On December 8, 2003, a settlement was reached where the charge of discrimination and the order for reinstatement was dropped. The settlement was reported in the August 16, 2004 Board of Commissioners Meeting Minutes as $130,000.

Judgment Day

Trying to get Coy’s letter to the editor and the actual chronology of this case to line up would be much like trying to fit a square peg into a round hole. So, let’s wrap up what he said into a single statement. Here’s the statement:

Fletcher Hartsell and his firm are fully liable to the County for a $130,000 settlement. The County has to pay this money only because the firm provided inadequate legal services. 

First, let’s address the liability question. For Senator Hartsell and his firm to be fully liable for the $130,000, there must have been a reasonable opportunity for the County to completely absolve itself of liability. This opportunity must have been missed solely because County legal representation was inadequate when that opportunity arose.

Given that every grievance stated by Coy Privette or his allies either on Harold Smith’s website or at the Board of Commissioners meetings had either to do with the failure of counsel to be present or at the aggregate amount of money spent in fees over the past decade, it is safe to assume that the quality of the legal representation was satisfactory when counsel is present. For the sake of this analysis related to this matter, inadequate legal representation only occurred when counsel failed to appear at hearings, court dates, etc.

The only point at which counsel was not present during the entire process was at the June 19, 2003 State Personnel Commission meeting. So, this is the only point at which legal counsel was inadequate. Before the matter went to the State Personnel Commission, the Administrative Law Judge had already called for the reinstatement of the employee and compensation for attorney’s fees and back pay, and that happened in spite of adequate legal counsel. So, even with adequate legal counsel, the County is liable for back pay for about three years (on a supervisor’s salary), attorney’s fees, and they have to reinstate the employee ASAP. At this point, $130,000 in liability isn’t too much of a stretch in back pay alone: $43,000 and change per year for three years.

What is deemed for this scenario as inadequate legal counsel lead to the finding of discrimination. However, that charge had been dropped in the settlement later that year. Coy implies that at the SPC hearing, the decision of the Administrative Law Judge could have been overturned. That would have been highly improbable.

From what I understand, Fletcher Hartsell handled the Superior Court case without charging the county any fees. He got the additional damage done during the SPC hearing reversed, in addition to getting the reinstatement order from the Administrative Law Judge dropped. In the end, the quantifiable, net result of the SPC hearing mishap was nil.

Of course, Coy still argues that a good showing at the hearing could have made a difference in the settlement or given a better position to make a strong appeal in Superior Court. Maybe, but the idea that County would get a full dismissal of all liability and achieve that for less than $130,000 in costs by appealing in Superior Court is around Four-Of-A-Kind probabilities (using one deck). Also, Coy and the people who did what he told them to on the board kept the County Attorney very busy with legal issues with the rest of the community.

There is another possibility. Maybe Coy and Harold Smith believe that they can assemble a legal staff that always avoids judgments of any kind. If that’s the case, these recent retirees they have too much free time in the afternoons to watch Matlock reruns.