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Fired NC whistleblower can challenge change in job status, court says

Joe Vincoli, a former state employee who lost his job after being reclassified as a political appointee in 2013, will have his day in an administrative law court after all.

The state Court of Appeals ruled Tuesday that state law allows workers in such positions to take their case to an administrative law judge who can decide whether the reclassification was warranted.

Vincoli tried to pursue such an avenue two years ago, but the state sought dismissal of his case, arguing that the law amended by the General Assembly in 2013 did not provide for such a challenge. After the administrative law judge sided with the state and dismissed the case, Vincoli then challenged the law in Wake County Superior Court, and a judge ruled that the law was unconstitutional.

The state challenged that ruling, which put it before the three-judge appellate panel that issued the ruling Tuesday. But instead of ruling on the legality of the 2013 law that increased the number of employees who serve at the pleasure of the governor to 1,500, the appellate panel sidestepped that question.

The three judges ruled that Vincoli’s case should have been heard by the state’s Office of Administrative Hearings.

“What they said, essentially, was that we were right,” said Michael Byrne, the Raleigh attorney who represented Vincoli.

Vincoli was hired by the N.C. Department of Public Safety in 2010 in a position that classified him as a career-status employee. At the time of his hiring, he reported to a deputy commissioner of what was then the state Department of Correction.

After Gov. Pat McCrory’s election in 2012, that department became part of the newly formed Department of Public Safety.

In June 2012, Vincoli was rated “outstanding” on his performance evaluation, and in July 2013 he again received another “outstanding.” His supervisor wrote: “Thank you, Joe!” on his last performance review.

On Oct. 1, 2013, Vincoli was reclassified as “managerial exempt,” though he did not manage or supervise any employees, according to his complaint in state court. On Dec. 6, he was fired on the stated grounds that “a change in agency staff is appropriate at this time.”

Vincoli, who still wants to know why, contended in a 2014 lawsuit that it was because he pursued a whistleblower claim.

Vincoli, a former worker at Wake Forest Baptist Medical Center in Winston-Salem, identified overpayments by the state while working there and urged the hospital to adjust its charges. He was ignored there and fired from that job.

After becoming a state employee, Vincoli continued to press for a reimbursement. He persisted to report to his superiors what he believed to be misuse of state Health Plan money at Baptist Hospital.

Public safety officials repeatedly told Vincoli to stop his pursuit on state time, arguing that it had nothing to do with his department. His attorneys contend that state law requires him to report any misuse of state funds regardless of the department.

Vincoli tried to appeal his termination, but the Department of Public Safety and the Office of State Human Resources refused to process his grievance.

Byrne said Tuesday it was unclear how much impact the appellate court ruling would have on other state workers whose jobs had been reclassified from career-status to political appointments.

“What it does mean,” Byrne said, “is they have the right to appeal.”

Anne Blythe: 919-836-4948, @AnneBlythe1

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