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A three-judge panel at the North Carolina Court of Appeals has ruled that the Transylvania County Department of Social Services must give Child Protective Services supervisor Renee Crocker her job back more than a year after firing her, even though she did exactly what she was accused of doing.
County officials told Carolina Public Press on Thursday that they have not yet decided on a legal course of action. They have not allowed Crocker to return .
Crocker was the subject of a scathing state Department of Health and Human Services review released shortly before her dismissal that DSS Director Tracy Jones testified was the worst she had ever seen. But that didn’t help the county’s case, because Jones also testified that it wasn’t one of the factors she considered in terminating Crocker.
The appellate panel agreed that the county’s alleged primary reason for dismissing Crocker, conducting an inappropriate meeting with a judge, constituted serious personal misconduct that she should have known was wrong, to which she has admitted.
The panel also found that this could potentially be an offense resulting in termination and also agreed with the county that an administrative law judge erred on some points of fact in his ruling on the case. But the appellate judges decided that the county had not shown evidence of having considered enough other factors when deciding to dismiss her in September 2015, considering that she had worked there for more than 15 years.
Ex parte, recusal and termination
The county fired Renee Crocker after she contacted a judge for legal advice about a custody dispute in which her daughter’s boyfriend, Marquis Swarn, was involved. According to the Court of Appeals decision filed on March 21, that judge, Emily Cowan, was the presiding judge for Swarn’s custody dispute with Brevard resident Lauren Brown.
Crocker, a supervisor with the DSS child protective services division at the time of her termination, contacted Cowan by text message in August 2015 to ask her about taking Swarn’s daughter out of state on vacation, and whether that trip would constitute a criminal violation of a judicial custody order. According to the Court of Appeals filing, Cowan called Crocker and gave her legal advice, though “the record is unclear as to what Judge Cowan told (Crocker).”
Cowan then decided to recuse herself from any further involvement in the case. Transylvania County claimed the recusal was the result of the communication between Cowan and Crocker, though Cowan invoked judicial immunity when asked about the recusal in a hearing for Crocker’s wrongful termination lawsuit against the county. The county cited the recusal as the reason for Crocker’s firing in court filings and in Crocker’s termination letter.
In September 2015, at a Department of Social Services meeting, Brown’s mother, Sandra Brown, told the members of the DSS board of directors about the communication between Crocker and Cowan. According to the Court of Appeals filing, county attorney Tony Dalton interviewed Cowan and she told him that she recused herself because of her communication with Crocker. In October 2015, Crocker met in a conference with Jones, who had been hired by the county in the summer of 2015.
At that meeting, Crocker admitted to contacting the judge and that she should have known better. After the meeting, Jones decided to fire Crocker.
Both the reason for the recusal and its role in her termination were in question before the courts.
Challenging the termination
Crocker filed a grievance for wrongful termination with the state Office of Administrative hearings, which ruled in May 2016 that, although Crocker’s communication with Cowan was “improper,” it didn’t affect the outcome of the custody dispute and the communication didn’t rise to the level of just cause for Crocker’s termination.
The administrative law judge ruled that the county’s decision to terminate Crocker was improper, in part because the county “failed to consider the totality of all the facts and circumstances” of the case.
While Swarn’s attorney, Mack McKeller, testified during the administrative hearing that he thought Cowan recused herself because of the ex parte meeting with Crocker, he also thought that her friendship with Crocker, both person and professional, contributed to the decision.
Crocker claimed that Jones fired her, not just because of the ex parte meeting, but also because of “unfounded allegations” against Crocker, apparently referencing multiple complaints from Sandra Brown that Crocker’s ongoing activity in Swarn’s case against Lauren Brown, in relation to Crocker’s position with the county, was inappropriate. In its findings of fact, the administrative court agreed with Crocker that these accusations also played a role in Crocker’s dismissal.
Jones told the administrative court that she decided to terminate Crocker primarily because of the recusal incident, though she also described some role for the allegations, which related closely to Crocker’s actions in the ex parte meeting. Essentially, the existence of Crocker’s meeting with the judge suggested that previous DSS administrators might have inappropriately dismissed the earlier allegations as unfounded.
Jones also told the court that she did not consider Crocker’s performance reviews in making her decision. While she did testify that about the horrible report from DHHS, Jones said it was not on her mind when she decided that Crocker had to go.
Transylvania County appealed that administrative ruling to the Court of Appeals. Besides the key question of whether the firing was justified, the county also appealed the original ruling on several other grounds, including findings of fact and whether McKeller should have testified despite not being on the list of witnesses.
On the crucial question of whether the firing was justified, the appellate panel found that state law required DSS to consider “the severity of the violation, the subject matter involved, the resulting harm, … work history, or discipline in other cases involving similar violations” when deciding the level of discipline for a career state employee.
The Court of Appeals ruled that, because Crocker’s communication with the judge didn’t result in any harm, because Crocker had “engaged in this unacceptable personal conduct only once” and because Jones didn’t consider Crocker’s entire work history, that the firing was unwarranted.
Regarding McKeller’s testimony, the panel found that the witness could have been prevented from testifying, but the decision wasn’t one the panel could review. The panel noted that McKellar’s testimony, while conflicting with other evidence, did not undermine the basic point that the judge recused herself at least in part because of the ex parte meeting.
The panel agreed with the county that the administrative court erred on several findings of fact, including those influenced by the contested witness, but generally found that none of those points were consequential in the outcome of the case.
The judges rejected the county’s arguments about several other findings of fact.
On the question of the allegations against Crocker and the role they played, the county contested the administrative judge’s factual findings in its appeal and the appellate panel agreed with the county. The panel found that there was no evidence that the allegations were a primary cause for the dismissal, since the county did not hire Jones until after the allegations. However, since Jones had testified that she did consider the allegations, the appellate judges rejected the county’s claim that the allegations played no role.
The appellate court did not address whether the administrative court ruling should have characterized the allegations as “unfounded.”
Since Jones had testified that the serious pattern of misconduct DHHS discovered in its review of Crocker’s department was not part of her decision to fire Crocker, the appellate court was not able to examine whether that review would have given the county sufficient reason to take action.
Sandra Brown told CPP on Wednesday that she believes the county mishandled the case, especially in regard to her complaints about Crocker.
“DSS did a horrible job in court,” she said in an email. “They should have had Lauren or I there to talk about the history. They should have developed a reoccurring pattern of behavior that was complained about years ago and continued on. Instead, they have been trying to dodge us suing them for all this.”
Brown filed multiple grievances against Crocker over her involvement in the child custody case on behalf of Swarn, a convicted felon who served time for drug trafficking.
Brown also cast doubt on a finding of the courts about the harm done by forcing the judge to recuse herself. According to an email about the situation that Brown addressed to DHHS on Wednesday, the recusal “has extended our court time for at least a year.”
Transylvania County Manager Jaime Laughter told CPP Thursday that the court of appeals panel may not be the last word in the situation. She said Crocker has not been allowed to return to work while the county is “considering its legal options in light of the recent court decision.” Laughter said the county “considers it to still be pending litigation.”
Laughter would neither confirm nor deny that the county expects to appeal the decision. Asked whether Crocker was expected back at work in the immediate future, Laughter said, “No comment.”
Editor’s Note: This article, which first published on March 29, 2017, was updated at 1 p.m. on March 30, 2017, to reflect new information from Transylvania County officials, who had not previously responded to calls. Carolina Public Press Managing Editor Frank Taylor also contributed to reporting for this article.