Mich. Court of Appeals reverses county whistleblower lawsuit

Record-Eagle, The (Traverse City, MI)

Mar. 25--TRAVERSE CITY -- The Michigan Court of Appeals reversed part of Judge Kevin Elsenheimer's 2018 decision dismissing a former county employee's whistleblower lawsuit.

"The COA really reversed the main part of the suit," said Grant Parsons, who represents former Grand Traverse County Commission on Aging Acting Director Laura Green. "Now the whole lawsuit is back as far as I'm concerned."

Officials fired Green in February 2017 citing poor performance; Green retained Parsons, who filed a wrongful termination suit against the county in May 2017, as previously reported by the Record-Eagle.

The lawsuit contends it was actually Green's whistleblowing about an alleged 2016 plan to disband the Commission on Aging and outsource the services, which led to her wrongful termination.

"She was fired 16 hours after speaking out at a county commission meeting," Parsons said in a telephone interview Monday. "She was trying to shed some light on what was going on."

At a Feb. 8, 2017, county commission meeting, Green spoke for three minutes in a manner Parsons previously described as "nervous" and former county officials called "threatening."

Traverse City attorney Haider A. Kazim argued the case on behalf of the county. In 2017 he said officials had long-standing concerns over Green's leadership.

More than 100 pages of emails and memos critical of Green were filed as part of the county's defense, court documents show.

Kazim did not return a call for comment Tuesday and Grand Traverse County Deputy Civil Council Kit Tholen referred a reporter's questions back to Kazim.

Elsenheimer dismissed the case, citing prior court rulings stating a whistleblower claim can only be made for past actions and not those planned for sometime in the future, the Record-Eagle previously reported.

Green's initial accusations were for planned future events, though Parsons later amended the complaint.

"A few years ago the court decided you cannot claim things that are about to happen," Parsons said. "So, for example, if they're about to steal money from the Commission on Aging fund, that doesn't suffice. So we said, okay, be that as it may, she also reported other things that they did."

Green declined comment through her attorney and Parsons said, barring other arrangements, he plans to re-litigate the complaint.

"We're going to end up with a trial in front of Judge Elsenheimer unless the county does something about this," Parsons said.

Commissioner Ron Clous was on the county board when the issue arose, and said he recalled the incident at the meeting, was aware of the lawsuit and also referred questions to Kazim.

Elsenheimer declined comment, citing the suit's active status.

Green v. County of Grand Traverse has a complex backstory, stretching to 2014.

That's the year Green was hired as the county's Commission on Aging's deputy director, though was leading the organization after Georgia Durga retired.

Problems arose in 2015 after former County Administrator Tom Menzel noted the organization, which provides home and community services to county residents 60 and older, hadn't been "looked into" since its founding in the 1970s, and hired a consultant to do so, according to Court of Appeals documents.

Consultant Paul Sagala examined how the Commission on Aging was staffed and made recommendations to improve efficiency.

When Green did not submit a requested business plan, Menzel responded by assembling a quality assessment panel to perform an internal audit.

The QAP included Rodetta Harrand, then president of the Commission on Aging board, Deputy County Administrator Jennifer DeHaan, Sagala and Green.

The first meeting was reportedly antagonistic, with Green accusing the panel of trying to take over the Commission on Aging.

In March 2016 Green sent an email to DeHaan and Sagala explaining her role at the organization and stating one of her primary responsibilities was to ensure the Commission on Aging's mileage renewal was passed by voters.

This set off immediate alarm bells with DeHann and Sagala, who told Green she could be violating the Michigan Campaign Finance Act, which prohibits using public resources for political purposes. Officials can produce factual information but not explicitly or implicitly advocate for a millage.

Menzel sent Green a formal memorandum barring her from the practice. It was later discovered Green continued to use her county email account to send email to pro-millage volunteers, court documents show.

In a pre-empt, county administrators sent a letter to state Bureau of Elections officials self-reporting the possible violation.

On Oct. 27, 2016, Green was sent another memo, this one stating she was not performing at the level expected, her job was being eliminated and replaced by an office manager position.

The memo cited performance issues unrelated to campaign finance issues. Green didn't understand health privacy rules or the importance of FBI background checks on all Commission on Aging vendors, for example.

Her recommendation to not to hire someone because they had a lifting restriction could have run afoul of the Americans With Disabilities Act.

Green did not demonstrate budgeting expertise, the memo said, and when she asked the board to hold their meetings around her schedule, Menzel responded this was "not in accordance with good time management."

Green sent a Nov. 4, 2016, email to DeHaan and Sagala, thanking them for recognizing she'd been doing the work of two and a half people and was lucky she didn't "implode," as previously reported.

Also in 2016, an auditor discovered a $1.6 million Commission on Aging fund balance.

In December of that year, county commissioners voted to reduce COA's mileage from .4998 mills to .3375 mills, claiming the reduction would save taxpayers about $750,000, as previously reported by the Record-Eagle.

The plan would have sent millage funds to the general fund, award a $2 million contract to private senior home care company Comfort Keepers and share COA health records with that company, according to Green's complaint.

Green and Parsons claimed her termination followed her publicly reporting concerns regarding the millage misdirection and Health Insurance Portability and Accountability Act violation that would have resulted from the Comfort Keepers agreement.

Comfort Keepers later withdrew its service agreement.

Kazim argued Green's termination resulted from concerns with her leadership and poor performance, as previously reported.

After Green was fired, the director position sat vacant for a year before Mary Haverty was hired, then soon resigned citing family health issues.

The organization's current director is Cynthia Kienlen, who was hired in 2017. Reached by phone on Tuesday, she declined comment.

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