STATE OF NORTH CAROLINA - NC



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 10 OSP 08215

)

BARBARA JENKINS )

Petitioner, )

v. )

) DECISION

DEPT. OF COMMERCE/ NCIC )

Respondent. )

)

)

This matter came before Senior Administrative Law Judge Fred G. Morrison Jr. on

April 25, 26, and 27, 2011, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Michael C. Byrne

Wachovia Capital Center

Suite 1130

150 Fayetteville Street

Raleigh, NC 27601

For Respondent: Dorothy Powers

Special Deputy Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

Bethany A. Burgon

Assistant Attorney General

N. C. Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

ISSUE

Whether Respondent’s decision regarding employment of an Accountant/Compliance Officer should be affirmed or reversed?

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge (“ALJ”) makes the following Findings of Fact. In making these Findings of Fact, the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.

1. Petitioner Barbara Jenkins filed a Petition for a Contested Case Hearing on November 29, 2010, alleging that Respondent improperly filled the position of Accountant/Compliance Officer by, among other things, not giving her priority consideration.

2. Counsel Michael Byrne filed a Notice of Appearance on her behalf on January 21, 2011.

3. At all times material, Petitioner Barbara Jenkins (“Petitioner”) was a career state employee and was subject to the provisions of the State Personnel Act.

4. At all times material, Petitioner was employed at Department of Commerce (“DOC”), North Carolina Industrial Commission (“IC”) in the Fraud Unit. Petitioner has been employed by the Respondent for six years. Petitioner’s supervisor is Sam Constance (“Constance”).

5. Constance is employed as the chief investigator for the Fraud Unit at the IC. He was first employed by the IC in 2004. His job duties include investigating alleged criminal acts involving the Workers’ Compensation Act, N.C.G.S. Chapter 97. Constance also supervises others in the Fraud Unit, including three investigators, one paralegal, and two staff members working with medical fees issues.

6. Constance received training from the National FBI headquarters in Quantico, Virginia. He was trained in a three month program on the Marine Corp base at Quantico. The training specialized in investigations, crime scene processing, collecting evidence, forensic testing, and management training. Constance also trained at ground zero approximately a month after 9/11.

7. Prior to his employment at the IC, Constance was employed at the Buncombe County Sheriff’s Department for ten years. He supervised approximately 40 people, was sworn for this position, and has been sworn since 1992.

8. Constance being a sworn law officer means that he may investigate criminal activities in relation to the Workers’ Compensation Act. He may obtain, swear to, and serve search warrants and arrest warrants, along with collecting evidence.

9. Constance was not sworn in for his duties with the IC until November of 2007. It was a long but necessary process to get the IC investigators sworn in. Once sworn, the investigators had much more authority to do a thorough investigation. The investigator position was also reclassified at this time and advanced two salary grades.

10. Constance has hired four or five people at the IC. Prior to his employment at the IC, he was involved with the hiring and promotional process at the Buncombe County Sheriff’s Office.

11. Petitioner holds the paralegal position in the Fraud Unit. She was hired by Constance as a temporary employee in 2004 and again when she became a permanent employee in 2005. Constance recommended her for both positions. Constance has completed the Performance Plans for Petitioner as her supervisor.

12. Petitioner’s job duties are to help with issues involving companies and people who are operating without the required workers’ compensation insurance. She gathers information for an assistant attorney general relevant to hearings on these matters. Constance rated Jenkins as a very good employee. He views Petitioner as a very hard worker.

13. Petitioner has a four year degree in Psychology from NCCU and has earned a paralegal certification from ECPI. She has not completed 12 hours of accounting or an equivalency.

14. The Fraud Unit has for the most part always operated separately from the IC. The only information that crosses between the IC and the Fraud Unit is the non-insured cases and non-insured hearings. This separation went further when the Fraud Unit investigators became sworn. Once the investigators became sworn, the evidence gathered for the criminal investigations had to be kept separate from the civil side of the Fraud Unit because of federal laws and regulations. The criminal and civil aspect of the Fraud Unit must be kept separate in order to comply with the requirements of the Division of Criminal Information (“DCI”). The Fraud Unit must have the certification in order to use the information system of DCI. A Chinese wall was formed within the unit as a safeguard to ensure the criminal evidence did not cross over to the civil side.

15. Petitioner was the paralegal for the entire Fraud Unit prior to the investigators being sworn in. Once the investigators became sworn officers, Petitioner could not help with the criminal investigations and the civil non-insured cases because of the potential for the information to cross over. Petitioner was thereby assigned to the civil duties only as a safeguard.

16. Constance knows very little about the hiring process at the IC as it relates to the DOC. He knows that the Department screens the applications and then sends over the qualified applicants to the IC. He then gets the applications and based on what he receives, he decides who to interview, compiles interview questions and proceeds.

17. The job openings for the IC are posted on the 6th floor of the Dobbs Building. The 6th floor is where the bulk of the IC is located, including the Chair, the Commissioners, Personnel, and the Executive Secretary’s Office. The Fraud Unit is located on the first floor. The jobs are also posted on the OSP internet site and the IC intranet site. Everyone on the first floor has access to a computer and can view the job postings on the internet and intranet.

18. Ever since Constance was employed at the IC there has been talk about hiring a compliance officer/ investigator to follow up on non-insured employers. Petitioner was involved in these conversations, but it was not her idea. The idea was that the compliance officer would proactively identify the non-insured and reactively investigate.

19. The Compliance Officer /Accountant position in question that was developed by the IC involved duties relating to non-insured, but also had some additional duties centered on accounting. Constance did not develop the idea for the accounting duties.

20. The additional accounting duties would involve external work with the medical fees billing section to analyze medical fees disputes and resolve the disputes, including evaluating financial documents and records that were obtained during discovery. In addition, the compliance officer would identify any criminal activity to refer back to the criminal investigation unit. These duties would initially be 50 percent of the job.

21. Chet Mottershead (“Mottershead”) is the Human Resources (“HR”) Director for the DOC. He oversees the HR functions for the Department, including the IC since 1997 and has worked in HR for twenty years. Approximately 775 people work for the DOC, with approximately 130 working for the IC specifically. Mottershead supervises a staff of six.

22. The IC is a Type II agency of the DOC which means that the chairperson of the agency reports directly to the governor. The HR Office of the DOC performs the human resources functions for these Type II agencies, including hiring, separations, disciplines, and training. The DOC HR Office is in the Public Instruction Building and the IC in the Dobbs Building.

23. The DOC HR staff work with the IC regarding HR issues, including position classification and postings. The hiring manager works with Linda Kirby (“Kirby”), the HR contact for the IC, to put together a posting request. The DOC HR staff is sent this request for posting information and enters the data into BEACON. The minimum training and requirements for the position are built into the BEACON system. The training and experience are established by the Office of State Personnel (“OSP”) and are automatically determined for a posting. The DOC HR and the IC do not make these determinations.

24. After this information is put together, the job is posted for a minimum of five days. The applications are then screened by the DOC HR staff. The staff screens the applications into not qualified, qualified, and highly qualified, and EEO and veterans’ preference categories.

25. The applications are sent to the hiring manager at the IC to conduct the interview process. Once a candidate has been selected, the information is sent back to the DOC HR staff through Kirby. The DOC HR takes the information and sends a request for approval to OSP.

26. Many times a back and forth will occur between the hiring manager, HR DOC, and OSP. There is typically some tension involved with what is considered related experience. Ultimately, OSP determines what is considered related experience. OSP makes the final decision. They confirm the salary and the start date.

27. Carol Robbins (“Robbins”) is employed as the Deputy Director, Personal Analyst II, for the DOC HR. Her duties primarily consist of classification and position management. She establishes, reallocates, and reclassifies positions. Robbins uses the state personnel manual, the classification specifications, and the profile to help perform these duties. The DOC uses career banding and graded classification for the compensation structures of employees. The career banding includes three levels of contributing, journey, and advanced.

28. Robbins will reclassify a position when management determines a position should be changed to meet a business need. When Robbins studies a position to create a new description, she refers to the OSP classification specifications and a position description which describes the new duties of the position she is studying and analyzing.

29. The classification decisions made by Robbins are reviewed, and if appropriate, approved by the OSP. The training and education is also approved by the OSP. The training and experience requirements as required by OSP are the same for all like jobs.

30. Staci Meyer (“Commissioner Meyer”) is a Commissioner for the IC. She has been licensed to practice law in North Carolina for fourteen years. She has experience with personnel matters. Currently, she hears workers’ compensation cases at the appellate level. Each Commissioner works as a liaison with a particular area of the IC. At all times relevant to this matter, she was the liaison to the Fraud Unit of the IC. Commissioner Meyer deals with any issues that come up in the Fraud Unit.

31. Commission Meyer was contacted by Pamela Young (“Chairperson Young”), the Chairperson of the IC around September of 2009. Chairperson Young informed Commissioner Meyer that she had a position she wanted reallocated in the Fraud Unit. She asked Commissioner Meyer to take care of the necessary work to reallocate the position. The position in question was vacant for approximately 12 months before being reclassified.

32. Based on the instruction to reallocate the position, Commissioner Meyer assessed the needs of the Fraud Unit to determine what the position should become. She looked at the needs of the section, how many people were on the unit, the duties of the various people on the unit, and the deficiencies on the unit, prior to making a decision.

33. Commissioner Meyer started to work on a job description, spoke to Constance about the needs of his unit, and contacted Mottershead who sent her numerous job descriptions to review. Commissioner Meyer focused on a civil position, non-sworn, with an accounting background.

34. The IC, with the help of Commissioner Meyer, made a determination that they needed a different type of investigator to analyze, compare, and research various types of bank statements from hospitals, doctors, and insurance companies. Once decided, Kirby contacted Robbins with the request for the new job classification. As a result, the job was first reclassified as a Compliance Officer, Non-Sworn.

35. At first, management wanted the position posted as a non-sworn position. Mottershead became involved in the process of establishing the Compliance Officer position. The DOC HR posted the position this way and went through the process of recruitment and selection.

36. The IC’s Compliance Officer, Non-Sworn position was posted from September 2, 2009, through September 11, 2009. Compliance Officer, Non-Sworn was the working title. The name of the position was Investigator-Insurance.

37. Constance was the hiring manager for this position. His intent was that the position would identify and investigate non-insured employers who were not in compliance with Chapter 97. Robbins was helping by studying the position to reallocate the job from a field investigator to someone who would conduct financial investigations in the office.

38. The September 2, 2009, to September 11, 2009, posting for a Compliance Officer–Non- Sworn was in error because this classification does not exist within OSP’s classification system. As such, what Constance was trying to accomplish in this position vacancy could not occur. The position was never filled and the process of filling it stalled because of these issues.

39. Petitioner applied for the Insurance-Investigator, Compliance Officer Non-Sworn position which was posted in September of 2009. Constance did not do anything to preclude Petitioner from being considered for the position.

40. Commissioner Meyer contacted Constance to help develop a description for a position that did exist and filled the needs of the IC. Commissioner Meyer told Constance she would be working on developing a new posting.

41. Commissioner Meyer then started having extensive conversations with Mottershead about how to reallocate the job. Mottershead discussed making the position into a paralegal or an accountant. Commissioner Meyer stressed that she wanted the position to be an accountant. Mottershead pulled different options of job descriptions from different agencies for Commissioner Meyer to review.

42. Mottershead sent Commissioner Meyer some job descriptions for a paralegal. Commissioner Meyer did not think the job should be reallocated to a paralegal because the unit already had a paralegal. Constance and Mottershead sent Commissioner Meyer five or six job descriptions. Commissioner Meyer took various pieces from the descriptions and merged them together to create the new position.

43. Mottershead knew it would be easier to find an already existing job classification because it would have to go through the OSP. Mottershead and Commissioner Meyer specifically looked at a description for a financial investigator position for the Secretary of State. Commissioner Meyer though that the salary range was too high for this job. Commissioner Meyer wanted a position that was more equitable in terms of classification to the other investigators.

44. Commissioner Meyer determined that she wanted the salary range of the position to be around the $50,000 mark. Commissioner Meyer determined that the most closely related band for this was at the journey level. She asked Mottershead to help her get the job descriptions that would be commensurate with this salary and band.

45. Commissioner Meyer fashioned the job into an Accountant position because the medical fees section needed someone with the ability to analyze numbers from an accounting perspective. She wanted someone who could perform forensics type accounting by analyzing numerical data and applying the data to the law. The unit had many insurance fraud cases where the examination of numbers is critical. She believed the skills set of accounting would be beneficial to the unit.

46. Commissioner Meyer developed the idea to reallocate the position to an Accountant with accounting skills to do financial analysis. The unit did not have anyone who could do financial or numerical analysis. Commissioner Meyer believed that these skills would help the unit.

47. Once the determination was made that the job would be an accountant type position, Constance, Commissioner Meyer, and Mottershead worked on developing a job description for the position. Constance was not involved in the determination to make it an accountant position.

48. The position was posted again with changes from the September 2009 posting and given a new vacancy number. The new posting was posted in April of 2010 as a vacancy announcement for an Accountant position with the working title of Compliance Officer. The position was posted as an accountant job considered at salary grade 69 with work at the contributing level, PENDING OSP APPROVAL. The position of Accountant requires 12 hours of accounting per OSP.

49. Commissioner Meyer developed the new posting/wording for the Compliance Officer/Accountant position. It was posted from April 21, 2010, through May 3, 2010. Constance did not have any input in writing the posting.

50. The Description of Work in the posting was “compliance officer with the Industrial Commission must have the ability to analyze the workers’ compensation laws, rules, and regulations, as well as related legal documents, court decisions, facts and evidence collected during investigations. The position must perform professional accounting work with responsibility for accounting and/or budgeting functions, applying knowledge of theory and practice of recording, classifying, examining, and analyzing data and records of financial transactions; work requires knowledge of the theories, principles, practices, and terminology of accounting, including the ability to examine and analyze records and detailed reports, extract important functional data, relate the data to the evidence collected and present the findings in a form that will clearly demonstrate any violation of the Workers’ Compensation Act.”

51. The Training and Experience Requirements for the position as described in the posting were, “Bachelor’s Degree with 12 credit hours of accounting coursework; or associates degree in accounting; or associates degree in business or related discipline with 12 credit hours of accounting coursework; or equivalent combination of training and experience. All degrees must be received from appropriately accredited institutions.”

52. Petitioner did not apply for the April 2010 Compliance Officer/Accountant position. She knew about the position listing, but did not apply because she did not meet the minimum qualification of 12 hours of accounting. Petitioner told Constance she was thinking about filing a grievance because the position listing was posted on the 6th floor and not on the first floor. She did not say she was going to grieve the 12 hour accounting requirement.

53. Constance documented his conversation with Petitioner. He noted that she said she did not know of the listing until three days prior to the closing. She said she decided not to apply because she did not meet the accounting qualifications. She said she was considering filing a grievance and that Constance would possibly have to terminate the potential applicant. Petitioner indicated that she would not cooperate with the new employee. Petitioner also voiced some frustrations with the investigators.

54. Constance responded to Petitioner and told her that the position was going to be helping the medical fees section. He explained that the September 2009 posted position was not approved by OSP or DOC and that the position had to have additional requirements to be so approved.

55. Constance did not screen the applications from the April 2010 vacancy posting. HR screens the applications. Constance was sent the highly qualified applications from HR. The Selection Decision Log listed the highly qualified applicants and listed required interviews as established by personnel at DOC. Tiffany Byrd (“Byrd”) was a required interview. Constance was not informed of why Byrd was a required interview. Byrd is an African American.

56. Constance reviewed the applications sent from HR and specifically reviewed the application of Byrd. Based on her application, Constance would have interviewed Byrd even if she was not a required interview. Constance believed Byrd’s qualifications and experience were consistent with the needs of the unit related to medical fees. The posting required 12 hours of accounting and Byrd exceeded that requirement.

57. Constance only sees the applications for the highly qualified applicants. He never sees the applications for the qualified and non-qualified applicants. Constance only saw the applications which were filed by applicants who had the required 12 hours of accounting. If an applicant did not have 12 hours of accounting, Constance did not see that application.

58. Commissioner Meyer did not participate in the screenings or in the interviews. Commissioner Myer did not develop the questions for the interviews and did not participate in making the hiring recommendation.

59. The interview panel for this position included Joe Lynch (“Lynch’), Angela Hayes (“Hayes”) and Constance. Lynch and Hayes are also sworn investigators for the IC. Constance is the supervising investigator. Each investigator covers a region of the state which includes 33 to 37 counties.

60. Hayes worked for the Alcohol Law Enforcement Agency for fourteen and a half years prior to coming to the IC. She oversaw the application hiring process for sworn officers in the Division of the Alcohol Law Enforcement Agency for approximately eight years. She was involved in approximately 40 to 50 employment decisions during that time.

61. Five applicants were selected to be interviewed for the Compliance Officer/Accountant position. The interview panel reviewed the contents of the candidates’ applications and conducted the interviews with the applicants for the position on July 7, 2010. All of the applicants interviewed for the position had the 12 hours of accounting listed in the position’s Training and Experience Requirements. All of the candidates interviewed for the position had an accounting background and advanced degrees.

62. The interview panel developed a set of questions to ask the applicants. They started with a standard set developed for interviews and accounting positions. Hayes developed some additional questions which were incorporated into the interviews. The three members of the panel collectively interviewed the applicants with specific assignments of questions to ask. The applicants were all asked the same questions. Hayes typed the notes for all of the interviews. All of the members of the interview panel had the chance to ask follow-up questions.

63. All three interviewers individually formed an opinion and rated the candidates. At the end of the interviews, the interview team collectively reviewed each candidate and selected the one best suited for the position. The panel collectively decided that Byrd was the best applicant for the Compliance Officer/Accountant position. Constance made this decision based on Byrd’s experience with her previous employer, Myers & Stauffer, in medical compliance and her strong academic degrees in accounting. Byrd was also able to answer the questions more directly than anyone else in the pool and had a good personality.

64. Lynch felt that Byrd stood out among the five applicants who were interviewed. Byrd was very well educated and had a Master’s Degree in Accounting. She had a very pleasant personality and she was consistent in her responses. Lynch selected Byrd as the most qualified applicant.

65. Hayes also selected Byrd as the most qualified applicant. She felt that Byrd had a good understanding of the IC and the initiative to do research. Byrd also had Medicaid experience in doing audits with Medicaid cases and she was prepared to sit for the CPA exam.

66. Byrd had experience in medical compliance while she was employed at Myers & Stauffer. She had experience with Medicaid audits at nursing homes. Constance contacted Byrd’s current supervisor at Myers & Stauffer to confirm her employment. Her supervisor confirmed her employment and described her as an outstanding employee. Constance was familiar with this firm and their process of auditing medical facilities. Constance was impressed with Byrd’s experience with this firm.

67. Constance requested and received Byrd’s official transcript from NC State to confirm her education. Her transcript showed her completion of several accounting classes including: Introduction to Accounting, Accounting I, Fundamentals of Accounting, Intermediate Financial Accounting I, Intermediate Accounting II, Business Law Accounting, Advanced Personal Financial Management, Advanced Financial Accounting, and Advanced Auditing. Byrd had a Bachelors of Science in Accounting and a Master’s Degree in Accounting.

68. The other applicants interviewed for the position had less experience examining medical billing fraud and failed to answer questions in a clear and concise manner.

69. Constance, Lynch, and Hayes presented Byrd as the selected applicant to Chairperson Young. Chairperson Young is the direct supervisor of Constance. Chairperson Young approved the recommendation to hire Byrd.

70. The reasons listed for selecting Byrd for the position were, “She has an MBA in Accounting from NC State University, experience analyzing medical compliance issues, a critical skill needed in the unit. Applicant Byrd answered the questions in an organized and concise manner and possesses excellent communication skills.” This decision was signed off on by Chairperson Young and Constance on July 21, 2010. Their decision was ultimately approved by the OSP, but when the job was informally offered to Byrd it was still pending OSP approval.

71. The documentation was sent to OSP for approval. Getting the approval can take awhile so the job was posted “Pending OSP approval” to speed up the process. Posting this way allows the supervisor time to generate a recruitment pool and start interviewing while the position is being reviewed. During this time period there was communication between OSP and DOC about what level the job can be approved at and what salary can be offered. A formal offer cannot be made and an employee cannot be put on the payroll until the process is completed.

72. Robbins reviewed the OSP class specifications for an accountant while putting together the package for OSP. The package included examples of an accountant at the contributing, journey, and advanced levels. The level of financial monitoring and analysis associated with the position at hand is appropriate for an accountant at the journey level.

73. The analyst notes sent to OSP by Robbins included a comment about the banding level. Robbins determined that the position at hand, based on comparison to class specifications, should be reallocated to an accountant at the journey level. The DOC had no accountants at the contributing level to compare this new position to. Somehow, there was a communication breakdown between the DOC and the IC about the vacancy posting in April 2010. The vacancy was supposed to be posted at a journey, not contributing, level with a higher salary grade.

74. Constance reposted this job position on August 20, 2010, through August 24, 2010. It had the same working title of Compliance Officer and the same Accountant position. The position was only reposted to make corrections to the work level and salary grade. The position was first posted at a contributing level and was reposted at a journey level. It had to be reposted because there was an increase in duties. The intention was to get the accountant position to the same pay level as the investigators because both positions involved complex duties. The job was reposted at a salary grade of 75 and work at the journey level. It was posted as a repost pending OSP approval. Chairperson Young gave Constance permission to offer Byrd the job, but OSP still had to approve the position and the salary. This job was reposted after an informal offer for the position had been made to Byrd. The informal offer was made contingent upon OSP approval. The reposting stated, “Previous applicants will be considered.” This was done so previous applicants would not re-apply and have to be rescreened. There is no requirement to re-interview the previously interviewed candidates.

75. The Description of Work for the position was, “compliance officer with the Industrial Commission must have the ability to analyze the workers’ compensation laws, rules, and regulations, as well as related legal documents, court decisions, facts and evidence collected during investigations. The position must perform professional accounting work with responsibility for accounting and/or budgeting functions, applying knowledge of theory and practice of recording, classifying, examining, and analyzing data and records of financial transactions, work requires knowledge of the theories, principles, practices, and terminology of accounting, including the ability to examine and analyze records and detailed reports, extract important functional data, relate the data to the evidence collected and present the findings in a form that will clearly demonstrate any violation of the workers’ compensation act.”

76. The Training and Experience Requirements for the position were, “Bachelor’s Degree with 12 credit hours of accounting coursework; or associates degree in accounting; or associates degree in business or related discipline with 12 credit hours of accounting coursework; or equivalent combination of training and experience. All degrees must be received from appropriately accredited institutions.”

77. The training and experience required for the posting in August of 2010 was the same as the training and experience required for the posting in April of 2010. Petitioner still did not have the 12 hours of accounting as required in both postings. Petitioner applied for the August 2010 posting because the posting stated that an equivalent combination of training and experience could be considered.

78. When Petitioner applied for the August 2010 posting, she indicated that she had three hours of Statistics I, three hours of Statistics II, and three hours of Business Law. This did not meet the required 12 hours of accounting course work, nor is it equivalent to that requirement.

79. Petitioner analyzes the laws, rules and regulations associated with workers’ compensation law in her current position. Petitioner does not perform professional accounting work with responsibility for accounting and/or budgeting functions.

80. Constance did not screen the August 2010 applications, as that is a HR function. Mottershead screened the applications for the August 2010 posting to see if the applicants met the minimum qualifications. He separated the applications into highly qualified, qualified, and not qualified categories. Only highly qualified applications were sent to Constance, who was the hiring manager for the position.

81. Mottershead learned to screen application pools through salary administrative training at OSP. He has screened hundreds of application pools. He uses the job posting document and the applications to conduct screenings.

82. Mottershead reviewed Petitioner’s application from the August 2010 application pool. He determined that Petitioner was not qualified for the job in the initial screening. This determination was based on Petitioner not having the required 12 hours of accounting. Mottershead marked Petitioner’s application with a “NQ” in the right top corner to note she was not qualified. Petitioner was therefore not interviewed or selected for the position.

83. OSP will not allow an equivalent combination of training and experience to substitute the 12 hours of accounting coursework requirement for an accounting position. A business law class cannot substitute as an accounting class. The class must be an accounting class or it will not be considered. The Office of State Personnel will not authorize the hiring of someone as an accountant unless they have at least 12 hours of accounting coursework.

84. Mottershead sent the highly qualified applications for the August 2010 vacancy to Constance. There were no required interviews out of this application pool. Constance had already made an informal offer for the job to Byrd, so he did not interview any of the applicants from the August 2010 posting. No one who applied for the position in August of 2010 received an interview. None of the applicants were required interviews and Byrd had already been selected for the position on July 23, 2010.

85. Constance is required to give promotional priority to a state employee with substantially equal qualifications as a non-state employee. The hiring manager is not required to interview every state employee that would be receiving a promotion if hired for the position.

86. The job description for the position of Compliance Officer/Accountant went through approximately 12 drafts. The first draft was from July 16, 2010, with the final draft being completed on August 26, 2010. The job description was evolving during this period. The final draft had financial monitoring and analysis as the largest portion of the job. The job description was finalized after the informal offer had been made to Byrd.

87. The final job description was signed by Constance on August 26, 2010. The description was developed with input from Constance, Commissioner Meyer, and the HR Office of the Department of Commerce. Job descriptions from other agencies were utilized to develop the language of the Compliance Officer/Accountant position. This position was originally intended to go out into the field and investigate in a non-sworn capacity. The position was changed to not working in the field for safety reasons shortly after an incident of violence with a Department of Insurance employee.

88. Commissioner Meyer reviewed the final job description developed for the vacant position for the Accountant/Compliance Officer and decided that 60 percent of the duties should be financial monitoring and analysis.

89. Robbins prepared analyst notes associated with the position. When Robbins requests reallocation she sends OSP a package that includes a copy of the description, the latest organizational chart, and analyst notes. All postings for the position in question were pending OSP approval because the package was not sent to OSP until August 27, 2010. The process was not complete until after all postings had expired.

90. This time crunch commonly happens at DOC. Robbins received the final position description from the IC on August 26, 2010. Robbins had to have the final job description before she could send OSP the package.

91. The final job description was sent to OSP for approval on August 27, 2010, with the hopes of the position being reallocated to an Accountant at the journey level, salary grade of 75. The position was approved by OSP on September 24, 2010, with a September 1, 2010, effective date.

92. Petitioner contacted Robbins after the vacancy had been posted in August of 2010. She was concerned that she had not been interviewed and that the job had not been posted in her work space. Robbins informed Petitioner that the job had been posted on the DOC intranet and explained that OSP considered this to be posting the job in the workplace.

93. On July 22, 2010, Constance had a conversation with Petitioner about the Compliance Officer/Accountant position. She asked him why the job required 12 hours of accounting . He told her that the decision had been made by management and he was not involved.

94. Constance did not know that Petitioner had applied for the August 2010 position until she filed a grievance on October 18, 2010.

95. Petitioner went to talk to Mottershead about some concerns with the position on October 10, 2010. She was concerned that she had not been interviewed. Mottershead explained the minimum training and experience requirements to Petitioner and told her that filing a petition at OAH was an option if she still had concerns.

96. On October 18, 2010, Petitioner filed a grievance with the Department of Commerce HR. She sent Constance an email informing him that she wanted to meet. He met with Petitioner in the law library on the 6th floor of the Dobbs Building and she gave him a copy of her grievance.

97. Petitioner requested a reclassification of her job because she believed her duties were similar to the duties of the Compliance Officer/Accountant. Petitioner had previously been reclassified to a paralegal. Constance did not feel the duties of the two positions were similar.

98. Constance gave a copy of the grievance to Administrative Officer Kirby and discussed the issue with Chairperson Young. Constance had no other conversation with Petitioner about the position in question between the July 22, 2010, conversation and the grievance conversation in October of 2010.

99. Constance forwarded the grievance to Mottershead who responded to Petitioner in a memo dated October 26, 2010, setting forth the details of why she could not be considered for the position. He told her that she was not qualified as she did not meet the minimum training and experience because of the required 12 hours of accounting. Mottershead reiterated that training and experience are set by OSP and no applicant is exempt from the criteria.

100. Mottershead also responded to Petitioner’s request for a salary adjustment. He explained that the Director of OSP would not allow his office to conduct a reclassification request based upon equity.

101. Hayes noted that Petitioner’s demeanor had changed in the office after the postings of the position. Petitioner was no longer talkative or friendly when Hayes came to the office. Hayes asked Constance if everything was okay with Petitioner. Constance remarked that Petitioner had filed a grievance, but he could not talk about it.

102. Byrd is no longer employed at the IC. She worked there for only three or four months. She was terminated during her probationary period due to time and attendance issues.

103. While employed at the IC, Byrd worked on a caseload of approximately 100 cases with the Medical Fees Unit involving the additional duties developed for the Compliance Officer/Accountant position. Byrd was able to resolve half of the cases and identified one case that was referred over to the criminal unit for investigation. Additionally, Byrd developed a policy and procedures manual for the medical fees unit and rewrote the work plans. Byrd also put in place a tracking system and process to collect information that had not existed for the unit. She complied and generated a manner of tracking the cases. Byrd’s ability and understanding of collecting information greatly improved the unit. Byrd’s accounting background added the different perspective that helped with the improvements to strengthen the unit. .

104. The Compliance Officer/Accountant position was evolving as Byrd was employed by the IC. Byrd’s accounting background helped in compiling the voluminous, complex financial records involved in the non-insured cases.

105. The IC had legitimate business reasons for requiring 12 hours of accounting. Commissioner Meyer fashioned the job into an Accountant position because the medical fees section needed someone with the ability to analyze numbers from an accounting perspective. She wanted someone who could perform forensics type accounting by analyzing numerical data and applying the data to the law. The unit had many insurance fraud cases where the examination of numbers is critical. She believed the skills set of accounting would be beneficial to the entire unit.

106. Petitioner is not an accountant and does not have the 12 hours of accounting required for the Compliance Officer/Accountant position. She did not take any accounting classes to obtain her college degree. Her qualifications for the Accountant job were not substantially equal to Byrd’s. Petitioner does not know general accounting principles and has never performed professional accounting work.

107. Petitioner does not meet requirements for the Compliance Officer/Accountant position, which was filled by Byrd. The final job description dated August 26, 2010, allocates 60 percent of the duties as financial monitoring and analysis. Changes made to the job description were not designed to exclude Petitioner from getting the position

108. Constance did not do or say anything to prevent Petitioner from being considered for the Compliance Officer/Accountant position.

109. At all times relevant to this issue, Tracy Curtner (“Curtner”) was the Assistant Attorney General to the IC. Curtner worked on the same cases with Petitioner at the IC and there was not any accounting involved in the work she did with her.

110. Lynch is not aware of anyone at the IC who helped Byrd get the position. Lynch has no reason to believe that the 12 hours of accounting was designed to exclude Petitioner from qualifying for the position. Hayes has no reason to believe that the 12 hours of accounting requirement was designed to exclude Petitioner from qualifying for the position.

111. Mottershead asked the people at the IC if they had anyone in mind for the position and was told that there was no one in mind. No one told Mottershead that he should exclude Petitioner from the position. Mottershead did not tell Constance Petitioner had applied for the job.

112. Commissioner Meyer did not develop the job description with the idea or plan of trying to exclude Petitioner from the position.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 126 and 150B of the North Carolina General Statutes and has the authority to issue a Decision to the State Personnel Commission (“SPC”), which shall render a Final Agency Decision. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law contain Findings of Fact, they should be so considered without regard to the given labels.

2. The parties have been given proper notice of the hearing.

3. Petitioner has the burden of proof.

4. G.S. Section 126-7.1 provides that a current State employee who applies for a position shall receive priority consideration over the applicant who is not a State employee if the position would constitute a promotion and if the State employee has substantially equal qualification as the applicant who is not a State employee. “Qualifications” consist of training or experience, years of experience and other skills, knowledge, and abilities that bear a reasonable and functional relationship to the abilities and skills required in the job vacancy applied for.

5. The Compliance Officer/Accountant position which is the focus of this action is superior to that of Petitioner’s current position and therefore would have been a promotion for her.

6. Petitioner is a career State employee as defined by G.S. Section 126-1.1.

7. Petitioner is entitled to State employee preference in the hiring decision pursuant to G.S. Section 126-7.1 upon showing by the greater weight of the evidence that her qualifications were substantially equal to the applicant’s who was selected.

8. Petitioner did not persuade me that she has substantially equal qualifications to Byrd. The lack of 12 hours in accounting justified the conclusion that she did not meet the minimum qualifications for the position and was therefore not considered among the highly qualified.

9. Petitioner’s qualifications mainly relate to paralegal, not accounting, duties. Her work processes are not representative of the accounting duties which management envisioned when creating the new position. Petitioner also does not possess an equivalent combination of training and experience for the Accountant position.

10. Respondent properly posted the vacancy as required. If it be found that errors were made in posting, it would have no effect on Petitioner’s claims to the job, and in a manner this would be a moot issue as Ms. Byrd was terminated during her probationary period and the job reposted.

11. No evidence was presented at hearing to show that Respondent violated the requirement for open and fair competition as outlined in G.S. Section 126-14.3(1), (2), and (5).

12. No evidence was presented at hearing to show that Respondent violated the confidentiality

of Petitioner’s personnel record as outlined in G.S. Section 126-24.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge renders the following:

DECISION

Petitioner is not entitled to any relief from Respondent’s employment decision.

NOTICE

The Decision of the Administrative Law Judge in this Contested Case will be reviewed by the agency making the final decision according to standards found in N.C. G.S. §150B-36(b),(b1) and (b2). The agency making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Decision and to present written arguments to those in the agency who will make the final decision, in accordance with N.C.G.S.§ 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

The State Personnel Commission is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

This the 15th day of August, 2011.

____________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

A copy of the forgoing was mailed to:

Michael C. Byrne

Wachovia Capital Center

Suite 1130

150 Fayetteville Street

Raleigh, NC 27601

ATTORNEY FOR PETITIONER

Dorothy Powers

Special Deputy Attorney General

Bethany Burgon

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

ATTORNEY FOR RESPONDENT

This the______ day of August, 2011. _________________________ Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919) 431- 3000

Fax: (919) 431- 3100

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