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State files answer for Mecklenburg D.A. in fired prosecutor’s suit

By PAUL THARP, Staff Writer

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The N.C. Department of Justice filed an answer last week on Peter S. Gilchrist’s behalf in a suit brought against the former Mecklenburg County district attorney in December by Sean P. Smith, an assistant D.A. Gilchrist fired last year.

In his answer, Gilchrist denied that he “acted outside the scope of his official duties” or is subject to any personal liability. He denied violating Smith’s rights.

Smith, who is now a district court judge, alleged that Gilchrist violated his state and federal constitutional rights when Gilchrist fired him last July after the former assistant prosecutor gave an interview on Charlotte’s FOX affiliate that Smith said angered Gilchrist (see “ADA’s firing shines light on traffic school ‘arrangement'” in the July 26, 2010, issue of Lawyers Weekly).

Gilchrist retired from his post Dec. 31 after 36 years as district attorney.

The suit was filed against Gilchrist in his individual capacity, alleging that his actions “were outside the scope of his agency … [as well as] malicious and/or corrupt … such that he is personally liable for the violation of [Smith]’s rights.”

The attorney general’s office in January filed a notice of appearance, two motions for extension of time, as well as an answer on Gilchrist’s behalf. The signatory to the notice, motions and answer was Special Deputy Attorney General Grady L. Balentine Jr.

In the answer, Gilchrist argued that because his decision to terminate Smith’s “employment was within the scope of his official duties as the elected district attorney … he is … entitled to public official and or qualified immunity.” Gilchrist asked the U.S. District Court for the Western District to dismiss the suit.

Smith became a district court judge Jan. 1 after defeating Tyyawdi Hands in the November election.

In the July 9, 2010, FOX interview, Smith voiced concerns about the relationship between the district attorney’s office, the Charlotte-Mecklenburg Police Department and the Safety and Health Council of North Carolina, a nonprofit organization that offers defensive-driving courses to ticketed drivers.

Then-District Court Judge Timothy Smith (no relation to Sean Smith) wrote to the attorney general and the State Bar expressing concerns about the program a month later (see “District court judge inquires about propriety of driving school” in the Aug. 23, 2010, issue of Lawyers Weekly). Timothy Smith questioned whether officials were “following the law with respect to the entry of prayers for judgment continued.”

Balentine wrote in an Oct. 19, 2010, advisory letter addressed to Timothy Smith that chief district court judges have the authority to enter administrative orders allowing clerks to “record a standing order for a PJC when the person charged is eligible and the conditions of the standing order are met.”

But, Timothy Smith said Mecklenburg County has never had an administrative order signed by a judge giving the clerk the authority to enter a PJC, and officials were “absolutely not” following the law (see “Allegations leveled against driving school” in the Nov. 1, 2010, issue of Lawyers Weekly).

Sean Smith told Lawyers Weekly he couldn’t figure out why his interview “rattled [Gilchrist], because the driving school is not a D.A.’s office program.”

But in an interview with Lawyers Weekly last November, Gilchrist took ownership of the program.

“I don’t think every case needs to come into court and be tried,” Gilchrist said at the time. “One of the hallmarks of my administration is that we have tried to develop a series of programs to handle the business of the court.”

Gilchrist said the public policy behind establishing the defensive-driver program was to provide an educational component to driver infractions and tickets with the hope that it would improve driving habits among ticketed drivers.

Both Gilchrist and Safety and Health Council President Charles F. McDonald told Lawyers Weekly the program started in the early 1990s.

Mecklenburg County Chief District Court Judge Lisa Bell supplied Lawyers Weekly with letters from then-Chief District Court Judge James E. Lanning to other district court judges from 1991 and 1992 that referenced the driving school program, but Judge Bell told Lawyers Weekly an order authorizing clerks to administratively enter PJCs had not been found (see “Investigation into Mecklenburg PJC arrangement begins” in the Aug. 30, 2010 issue of Lawyers Weekly).

Gilchrist said he recalled speaking with Judge Lanning about the program at the outset, adding that support among district judges at the time was unanimous. Regarding an order, Gilchrist said that “no one has been able to lay hands on a copy. I don’t have one in a file. I always assumed there was one, but I don’t have a copy.”

Sean Smith alleged in his suit against Gilchrist that raising concerns about the driving school publicly and his subsequent termination were connected.

In his complaint, Smith alleged that he met with Gilchrist and told him he planned to run for district court judge. Gilchrist told him he would have to resign as assistant district attorney and take an unpaid leave of absence until the election.

Smith then presented to another ADA a copy of G.S. § 126-13(b) which he said “would make it a criminal offense (Class 1 misdemeanor) for [Gilchrist] to require a resignation or leave of absence of [Smith] during the time leading up to the election,” according to the complaint.

Smith alleged that Gilchrist then telephoned him and told him he could run for district court judge without resigning or taking a leave of absence.

Deputy District Attorney Bart Menser then distributed to D.A.’s office staff a memorandum describing G.S. 126-13 “and discussing the appropriate political activities of state employees,” according to the complaint.

In his answer, Gilchrist contended that G.S. § 126-13(b) did not apply to Smith’s “position as an assistant district attorney … and that pursuant to G.S. § 126-5(c1), judicial branch employees are not subject to the provisions of G.S. § 126-13(b).”

After giving the interview on July 9, Smith was summoned to Gilchrist’s office, where he told Gilchrist and Menser that the interview was part of “a campaign strategy which entailed spreading information about his candidacy, his qualifications and issues of public concern,” according to the complaint.

The next day, in a second meeting with Gilchrist and Menser, Gilchrist told Smith “he was an at-will employee and his employment as an assistant district attorney was terminated effective immediately.”

Smith alleged that Gilchrist terminated him because of his public comments about the driving school.

Gilchrist told Lawyers Weekly he would not comment on any personnel matters. But in his answer, Gilchrist alleged that Smith had an “insolent and insubordinate attitude” and that “interactions with others both inside and outside the [prosecutor’s] office … had an adverse impact on his performance as a prosecutor and his ability to effectively represent the [office].”

In his answer, Gilchrist said he wished to discuss his decision to terminate Smith in more detail, but Smith cut the meeting short “by making to leave.” When Menser and another attorney escorted Smith to his office, the answer said, Smith “had already packed the majority of his belongings and took very little time” leaving the office.

Smith’s attorney could not be reached for comment. The attorney general’s office did not reply to Lawyers Weekly’s requests for comment.

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