In a series of three decisions handed down in April, the North Carolina Court of Appeals held that despite working within a department supported by county funds, sheriff’s deputies—and others hired by the sheriff—are not county employees.
In holding so, the court’s ruling means that those employees are not entitled to relevant statutory protections and are not shielded from termination based on political conduct.
Ivan McLaughlin and Timothy Stanley, the plaintiffs in the lead case, McLaughlin v. Bailey, worked for former Mecklenburg County Sheriff Daniel Bailey. Stanley was a deputy sheriff who served mainly as a bailiff, and McLaughlin was a juvenile counselor.
In June 2009, more than 1,300 sheriff’s office employees received a letter announcing Bailey’s intent to run for reelection and saying he would appreciate campaign contributions. Neither Stanley nor McLaughlin, both Republicans, contributed to the campaign or attended a fundraiser Bailey sponsored. Bailey was nevertheless reelected in November 2010.
Both men were terminated in 2011; McLaughlin in January and Stanley in November. Up to that point, according to court documents, both men had received favorable performance reviews.
Before he was fired, McLaughlin, who admitted to violating department rules on several occasions (and was also caught on video), received a memorandum setting forth those violations. Among them was a failure to conduct pod tours as required to ensure the safety of the facility’s juvenile inmates, and allowing inmates to watch TV outside of their cells while they were supposed to be locked down.
Bailey testified in a deposition that Stanley had been terminated for being disruptive during morning briefings. According to court records, shortly before the election, Bailey had been informed that Stanley caused disruptions by talking in the back of the room and “expressing support for Bailey’s opponent.”
Stanley and McLaughlin filed suit in January 2012, claiming their terminations violated public policy and the state constitution because they were wrongfully terminated after failing to volunteer to work in Bailey’s campaign or contribute financially. Bailey and the department’s insurer filed for summary judgment in June 2013, a motion that was granted in January 2014.
On appeal, the plaintiffs argued that they were “county employees” as defined by state law and that their firing violated a state law which provides that county employees should not be restricted from affiliating with partisan or political organizations, or supporting the candidates of their choice. In 1996’s Vereen v. Holden, the Court of Appeals had noted that if a county employee were fired for his political affiliations and activities, it would “contravene rights guaranteed by the State Constitution.”
The statute says that a county employee is “any person employed by a county or any department or program thereof that is supported, in whole or in part, by county funds.” While the court found it undisputed that sheriffs’ departments are funded in whole or in part by the county, the crucial question was whether individuals hired by a sheriff are employed by a county department.
The court concluded that they are not, that they are employees of the sheriff individually. The court cited a 1937 case, Styers v. Forsyth County, which established that deputies—the sheriff’s representatives and “alter ego”—are the sheriff’s employees and noted that subsequent cases followed that precedent.
“The fact that the county is the source of funding to pay deputies does not change their status as employees of the sheriff,” wrote Judge Sanford Steelman, writing for the court’s majority.
Steelman cited state law that says sheriffs have “substantial independence” from county government and ultimately control hiring, supervising and discharging personnel within their offices.
“Our common law as well as the relevant statutory and state constitutional provisions clearly establish that plaintiffs, who were hired by the sheriff, are employees of the sheriff, and are not employed by the county in which the sheriff is elected,” Steelman wrote.
In the court’s view, the plaintiffs relied primarily on a 1998 advisory opinion of the state attorney general, and nothing cited in that opinion—or otherwise cited by plaintiffs—persuaded the court that state law established a new definition of a county employee. While those opinions are entitled to ‘respectful consideration,’ Steelman said, they are not compelling authority.
Plaintiffs’ attorney Harvey Kennedy said his clients’ claims are supported by more than an advisory opinion.
“That was just one thing. We relied on existing precedent from the North Carolina Supreme Court,” he said. “Specific prior decisions.”
Even if Stanley produced evidence that he was terminated for expressing his political views, the court held his termination didn’t violate his constitutional rights. It cited several cases in ruling that though government employees are generally protected from termination because of their political viewpoints, many courts have repeatedly held that deputies and clerks of court may be fired for political reasons such as supporting their boss’s opponents.
And while McLaughlin, not a sworn officer, could not lawfully be terminated for exercising free speech, the court found that he failed to offer evidence that he wouldn’t have been fired for violating sheriff’s department policies.
“We are not unsympathetic to the plaintiffs’ circumstances,” Steelman wrote. “However, this Court is not in the position to expand the law. Rather, such considerations must be presented to our Supreme Court or our Legislature, who have the power to rectify any inequities … This Court is an error-correcting court, not a law-making court.”
In her partial dissent, Judge Martha Geer wrote that she found no authority supporting the majority’s approach that the General Assembly, which included a specific definition in the statute, intended to adopt the common law definition of an employee.
“Indeed, the majority’s incorporation of the common law definition overlooks an obvious question: Why would the General Assembly need to include a definition of “county employee” if it intended that phrase to refer only to county employees as defined by the common law or employees undisputedly employed by the county under current law?” Geer wrote.
Geer added that while statutes give sheriff’s the right to hire and fire at-will, they also specify that the county determines the number of salaried employees and pay their wages.
Kennedy said his clients—including plaintiffs in the two similar cases and rulings—plan to appeal to the state Supreme Court.
“The issues in this case are vitally important to the jurisprudence of North Carolina,” Kennedy said. “Our position is that no employee of a sheriff’s department in this state should be terminated from employment for political reasons without legal recourse.”
The 48-page decision is McLaughlin v. Bailey (Lawyers Weekly No. 15-07-0305). The full text of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher