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January 18, 2013

County appeals former DSS director Scott’s court ruling

TARBORO — Edgecombe County officials have filed an appeal of a North Carolina Administrative Law Judge’s ruling in favor of former Department of Social Services Director Marva Scott.

Judge Augustus B. Elkins II ruled on the case in Dec. 20, 2012, ordering Scott’s reinstatement to her former position as the county’s DSS director, after failing to find “just cause” for her termination on Feb. 29, 2012. Elkins not only ordered that Scott be hired back at the same rate of pay, but also that she be compensated the pay she would have been entitled dating back to her termination. He also ruled that $62,750 in attorneys’ fees be awarded to Scott.

The petitioners, which include  the Edgecombe County Commissioners, DSS Board and County Manager Lorenzo Carmon, filed a judicial review and “motion to stay,” meaning the status quo will be maintained and Scott will not be reinstated pending a hearing on the petition for judicial review, according to Mary Craven Adams of Womble Carlyle Sandridge & Rice, LLP, in Winston-Salem, attorney for the petitioners. Adams said the hearing is “likely to be the week of Jan. 28.”

“There will not be a trial absent a reversal of the Office of Administrative Hearings’ decision, on appeal,” said Scott’s lawyer, Kyle Nutt, of Shipman & Wright LLP, Attorneys at Law in Wilmington, in a statement made after the judge’s ruling, but before the county’s appeal.

The appeal states that summary judgment in favor of Scott, without a formal trial involving the testimony of witnesses, was “inappropriate” in light of the evidence against Scott. The petitioners contend that Scott displayed “unacceptable personal conduct,” giving “just cause for any discipline, up to and including dismissal.”

Scott was terminated after a two-month investigation by Carmon, which began when she was placed on administrative leave in Dec. 20, 2011. Since that time, Carmon has acted as interim DSS director.

Petitioners presented evidence to the judge of Scott’s “unacceptable personal conduct,” contending that she violated a “known and written work rule” by accepting a late employment application for an open Social Worker II position, doing so because she “knew the applicant personally” and that the two went to church together.  The petitioners also contend that Scott later lied to the DSS Board by telling them the application had been submitted on time but was lost.

Elkins ruled Scott “made no intentional decision to select the applicant over any other qualified candidate” and that she did not take part in the decision to select Brown for the position, except to “sign off” on the interview team’s decision, as was her customary practice in all previous hiring processes. The decision came after Scott contended at an Aug. 29, 2012 summary judgment hearing that the petitioners did not have “just cause” to terminate her.

Nutt stated on Dec. 28 that Scott looked forward to the “opportunity to get back to work serving

the people of Edgecombe County and maintaining the success the Department of Social Services has experienced under her leadership,” and that she hoped to return to her duties without “further distraction.”

Despite the judge’s ruling, Carmon stated in an affidavit to the appeal that Scott’s “conduct and insubordination” would “severely curtail her ability” to perform the role of DSS director effectively.

“Further, the Board’s trust and confidence in her abilities and integrity has been destroyed,” Carmon stated in the affidavit. The county said in its appeal that the court erred in its decision not to review another instance of “unacceptable personal conduct” by Scott, as cited by the DSS Board in a dismissal letter dated Feb. 29. The letter states that Scott “preselected” a person for a position subject to posting requirements and that Scott was in the process of training the individual for the position until she learned they had told a former employee about Scott’s decision. After learning that her “secret” was out, Scott told the individual she was no longer eligible for the position, the letter states. 

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