Former Albemarle staff sue county to get their jobs back

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Albemarle County office building. File photo Albemarle County office building. File photo

Imagine your boss approaches you one day, takes you aside, thanks you for your many years of dedicated service to the company, and then offers you a chance to retire early with increased retirement pay. Doesn’t sound too bad, does it? Now imagine that you accept the offer, taking early retirement in reliance on the specific amount of the offer, only to learn a few months later that your stipend amount was incorrectly calculated, resulting in an overpayment of benefits.

Worse yet, your former company decides to immediately correct your stipend amount resulting in a reduction of your monthly payments. Uh-oh. You confront your boss, but to no avail. While he sympathizes with your position and apologizes for the error, he says the company’s board of directors determines retirement benefits and the amounts can’t be increased by a calculating error. Now what?

A few years ago, 13 former Albemarle County employees found themselves in that exact situation. Each employee decided to retire in 2009, after the county offered them an incentive to do so. That incentive, provided by the Voluntary Early Retirement Incentive Program (VERIP), was in addition to their retirement benefits under the Virginia Retirement System. Unfortunately, a clerk in the county’s human resources department made a mistake in calculating the amount of the offer given to the employees and, upon discovering the error, the county reduced the employee’s agreed upon retirement compensation under VERIP.

After the Board of Supervisors disallowed payment on the promised retirement benefits in 2010, the retirees appealed to the circuit court of Albemarle County where a jury ultimately found that the county breached its contracts with the employees and awarded them their full promised benefits. The retirees’ success proved to be short-lived, however, as the Supreme Court of Virginia reversed the jury award and entered final judgment in favor of the county earlier this year due to a procedural error in the retirees’ original appeal. While a major setback, the Supreme Court’s decision was not the end of the story for the former county staff.

The former employees’ attorney, Edward Lowry, has brought a new complaint against the county and Board that argues for rescission of the retirement contracts because of a mutual mistake of fact—the amount of the stipend—and a declaration that the contracts are void. The fight isn’t over yet, and the remedy the plaintiffs are seeking is reinstatement to their prior positions at their previous salaries.

Jim Guynn, the attorney representing the county, maintains that the retirees’ new complaint is identical in all material respects to their original appeal and complaint. Accordingly, the State Supreme Court’s dismissal of the retirees’ original claim invalidates the viability of the new complaint, even though the dismissal was based on the retirees’ procedural error rather than on the merits of their claim.

“The county takes the position that the Supreme Court’s decision extinguished any claims the employees had,” Guynn said.

Illegal procedure 

Whether the retirees will be successful with this new complaint is for the court to decide. Regardless of the outcome, there is an important takeaway from this case: If you plan on suing a Virginia county, be sure you follow the correct statutory procedure. To perfect their appeal to the Board, the retirees were required by law to execute a bond to the county and file a separate written notice of appeal on the clerk of the Board. They did not file the notice of appeal.

Virginia counties, being governmental districts of the Commonwealth, enjoy sovereign immunity against many types of lawsuits, which means a doctrine prevents the government or its political subdivisions from being sued without its consent. There are certain exceptions from immunity involving other civil disputes that allow citizens to sue counties but strict rules apply.

One such exception allows citizens to appeal the disallowance of their claims against a county by the governing body of that county, like the Board of Supervisors. However, the claimant must fulfill the bond and written notice of appeal requirements mentioned above. The retirees’ failure to file the notice was ultimately the reason the county prevailed at the Supreme Court.

The only question that remains is whether the Supreme Court’s dismissal of the retirees’ original appeal bars their current claims. Whatever the outcome, the retirees have made it clear from the start of this case that they intend to keep fighting for their promised benefits.

“[W]e remain disappointed in the county’s unwillingness to honor its commitments to its employees who relied on the county’s offer of a supplemental retirement payment when they chose to retire at the time they did,” said Lowry.

The county court is expected to issue a ruling on their appeal soon.

Lori H. Schweller. Staff photo

LAW STAR

Lori H. Schweller,
Partner at LeClairRyan

What type of law do you practice? 

Primarily real estate law–both transactional and land use/zoning.

What is one case you’ve worked on that is particularly meaningful to you?

It’s always meaningful to me to help someone accomplish something or solve a problem. It’s particularly satisfying to come up with a creative solution to a difficult problem and then make it work. I’ve enjoyed working with several Virginia localities to help them amend zoning ordinance provisions relating to wireless communications towers because the work requires balancing my industry client’s needs and pertinent law with the concerns of local officials and citizens. It’s also very rewarding to complete a complex deal with lots of moving parts just because of the sheer volume of work and the energy it requires to pull everything together to meet a deadline.

What advice would you give newly graduated law students?

Law practice can vary greatly from firm to firm, public sector and in-house, so explore to find the type of work you like to do, the type of client you like to serve, and people with whom you enjoy working. Keep in mind that landing a job can be a matter of timing – so make your availability known so you’re called when needed.

What is one thing you like about practicing law in the Charlottesville/Albemarle community?

The real estate attorneys in our community are collegial and conscientious. We’re always learning from one another to improve our practices.

  • Bill Marshall

    The jury ruled on the fairness as they should have. The county should never have appealed on a techjnicality.
    If you bought a new car and the dealer offered you a trade in amount, you took the car home, they resold your old car and then later called you and said that they made a “misquote” and that you need to pay a higher payment you would fell and have been cheated. The fact that it was a clerical error is irrelevant because the trade amount was a definitive factor in your decision whether to take the deal or not.
    I believe the taxpayers would be fine with paying for the mistake no different than if a snowplow driver ran into someones car.
    This group should prepare a mailer making their case and ask the taxpayers to check “yes” or “no” and mail it to the council.
    It is WRONG for the Council to use lawyers to get them out of doing the right thing.

  • democracy

    Albemarle County has a long history of ripping off its employees.

    For example, the county created a contrived”competitive market” for teachers that is made up mostly of localities that are poorer and much poorer than Albemarle, and designed primarily not to offer “competitive” salaries but to keep salaries lower than a real market would require. Not surprisingly, at the upper half of the salary schedule, the county is significantly behind what even its bad “market” would require that teachers be paid.

    The “bad” market is only part of the cheating. The county refuses to make adjustments for tiered salary schedules, it collects inaccurate salary data, and it refuses to add into salary data the longevity stipends many school divisions pay veteran teachers, even though those stipends are considered part of base pay and are vested in VRS. The salary numbers are purposely distorted to the distinct disadvantage of hundreds of veteran teachers. Chicanery, pure and simple. The fact is that the longer a teacher stays in the county, the more she falls behind a bad “market” and the more her retirement benefits are degraded.

    Why does the county do this? In a nutshell, so that its wealthiest landowners get big taxpayer subsidies through the land use tax program.

    No locality in Virginia uses the land use tax subsidy more than Albemarle County does, and fully 60 percent of all the land in the county reaps the subsidy. There are those who falsely suggest that the program is necessary to protect “the farmer,” yet agricultural production accounts for a tiny sliver of the county’s economic activity and agricultural production and agriculture-related jobs have steadily declined. The land use tax subsidy for the affluent is paid for by county employees, and by regular citizens.

    Go to the county’s property records website and you can find a 1.84 acre parcel home on Taylor’s Gap Rd assessed at more than $65,000 an acre for the land, and go to Blandemar Farm Estates and find a 21-acre home, a million-dollar-plus property, assessed at only slightly more than $11,000 for the land (others pay far, far less). That’s because the county gives a hefty land use tax subsidy to big landowners for their properties.

    I wish the county employees all the best in the quest for their jobs…but I have one question: why do they want to work for a county government that will try to hose them at any opportunity? And a question for county “leaders” (if they can be called that): Why don’t you just do the right thing by your employees?

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