A county’s board of commissioners is required to provide “reasonable and adequate funds necessary” to support the functions of the county board of elections, “including reasonable and just compensation of the director of elections.” G.S. 163-37. In Gilbert v. Guilford County, No. COA14-523 (Dec. 16, 2014), the North Carolina Court of Appeals recently affirmed a trial court ruling that Guilford County had failed to set an appropriate salary for its elections director. The facts and procedural history of the case make it somewhat unique. The opinion, however, provides some guidance to a county board of commissioners about the contours of its authority to set its elections director’s compensation. This post summarizes the court’s holding and details factors county commissioners should consider in determining an appropriate salary.
Relevant Statutory Provisions
Before turning to the court of appeal’s opinion, it is helpful to layout the statutory provisions relevant to setting an elections director’s salary. In addition to the statutory language cited above, G.S. 163-35(c) states that:
Compensation paid to directors of elections in all counties maintaining full-time registration (five days per week) shall be in the form of a salary in an amount recommended by the county board of elections and approved by the Board of County Commissioners and shall be commensurate with the salary paid to directors in counties similarly situated and similar in population and number of registered voters.
The Board of County Commissioners in each county, whether or not the county maintains full-time or modified full-time registration, shall compensate the director of elections at a minimum rate of twelve dollars ($12.00) per hour for hours worked in attendance to his or her duties as prescribed by law, including rules and regulations adopted by the State Board of Elections. In addition, the county shall pay to the director an hourly wage of at least twelve dollars ($12.00) per hour for all hours worked in excess of those prescribed in rules and regulations adopted by the State Board of Elections, when such additional hours have been approved by the county board of elections and such approval has been recorded in the official minutes of the county board of elections.
In addition to the compensation provided for herein, the director of elections to the county board of elections shall be granted the same vacation leave, sick leave, and petty leave as granted to all other county employees. It shall also be the responsibility of the Board of County Commissioners to appropriate sufficient funds to compensate a replacement for the director of elections when authorized leave is taken.
There are three distinct requirements related to setting an elections director’s salary.
- All counties must pay the director a minimum salary of $12 per hour.
- All counties must provide the same vacation leave, sick leave, and petty leave to the director as are granted to all other county employees.
- Counties that maintain a full-time registration (defined as five days per week), must pay the director a salary “in an amount recommended by the county board of elections and approved by the Board of County Commissioners” and that is “commensurate with the salary paid to directors in counties similarly situated and similar in population and number of registered voters.”
It is this third statutory directive that was at issue in Gilbert v. Guilford County.
Facts of Gilbert v. Guilford County
George Gilbert served as the director of elections in Guilford County from 1988 until 2013. After retiring, he filed suit against Guilford County claiming that the county breached his employment contract because his salary had not complied with the statutory requirement in G.S. 163-35(c). Specifically, he argued that his salary was not commensurate with that paid to directors in counties of similar size and population and that were similarly situated. (Guilford maintains full-time registration.) At the trial Gilbert presented evidence about the salaries paid to directors in the seven most populous counties in the state, including Guilford. Gilbert claimed that only a subset of these counties also was “similarly situated” in other respects for purposes of G.S. 163-35(c). According to Gilbert’s amended complaint, “comparing the relative complexity of elections in the seven most populous counties, including factors such as staff size, number of ballot styles, number of precincts and number of early voting sites, Guilford County ranks first, second or third in each of these complexity factors.”
Gilbert also introduced evidence that he had received the highest rating in his performance reviews from 2008-2012. The former Executive Director for the North Carolina State Board of Elections testified that Gilbert was the best county director in the state. He opined that Guilford County was similar in complexity to Wake and Mecklenburg Counties. He also testified that, in his opinion, Gilbert’s salary was much lower than it should have been. The county did not present any evidence at the trial.
The trial court ruled in favor of Gilbert and awarded him back pay of $38,503 plus interest, for FY2010- FY2012. (Although Gilbert claimed that the county had not properly compensated him since FY2007, recovery was limited to this three-year period because of the statute of limitations.) That placed Gilbert’s three-year total salary and vehicle allowance at $332,566.36, second only to the total salary and vehicle allowance paid to the Mecklenburg County’s elections director during that same period. It is not clear how much of the award was allocated to each year in the relevant period.
Court of Appeals’ Holding
The county appealed. Among other things, the county argued that the statute (G.S. 163-35(c)) delegated authority to set the election director’s salary to the board of county commissioners, subject only to the $12.00 per hour minimum requirement. The county further argued that it had, in fact, paid Gilbert a salary that was well above the statutory minimum and commensurate with similarly situated counties. The county claimed that the salary figures presented by Gilbert at trial did not represent his entire salary because they did not include his vehicle allowance (which was paid as part of his salary).
In addressing these arguments, the court of appeals found that the key issue was whether the trial court erred in concluding that Gilbert’s salary was not in accord with G.S. 163-35(c). Although the court purported to give effect to the plain meaning of the relevant provisions in G.S. 163-35, after deeming that subsection (c) was “clear and unambiguous,” it actually analyzed the legislative intent behind the text to discern the meaning of the phrase “similarly situated” The court agreed with the trial court’s finding that the “intent or purpose of N.C.G.S. Sect. 163-35(c) is to ensure the integrity of elections in North Carolina by preventing fluctuations in election directors’ salaries based on political reasons by requiring that the election director’s salary be based on the salary of election directors in similar counties . . . .”
To effectuate this purpose and flesh out the meaning of “similarly situated,” the court adopted factors that had been articulated in a 1987 Attorney General’s opinion letter. According to the court, a county board
should consider—in addition to comparison of county population and registered voters—other factors, which may include the county’s electoral situtation[,] including the percentage of population registered; the unusual degree of transience of population; the relative strength of political parties and the level of dissention between or among them; and the complexity of the electoral districts for state, county and municipal offices; and generally speaking, the comparable sophistication, politically and otherwise, of population and the degree of experience, effectiveness of work, and level of dedication exhibited by particular affected supervisors in this and in all future situations. (internal quotations omitted)
The court of appeals noted that the trial court did not making specific findings of fact related to these factors; instead the trial court simply recited evidence presented by Gilbert. Generally a court of appeals in this situation would remand the case to the trial court for additional findings. The court did not remand this case, though, because the county had not presented any conflicting evidence at trial. Thus there were no factual disputes left for the trial court to resolve, and the court of appeals applied the relevant factors to the evidence presented by Gilbert.
Gilbert presented evidence that
- Guilford County ranked third in both population and voter registration, behind Mecklenburg and Wake counties.
- Guilford County ranked first in election complexity.
- Gilbert ranked highest in years of service among the seven county directors.
- Gilbert was deemed the best county director in the State.
- Gilbert was paid at the midpoint of the salary range of the seven comparable counties. Election directors in five of the seven counties were paid above the midpoint range.
- Guilford County ranked last in annual average salary growth between FY2007 and FY2013.
The court of appeals determined that this was sufficient evidence to support the trial court’s judgment and award of back pay to Gilbert.
Prospective Guidance for County Commissioners
As I stated at the outset, the facts and procedural history of this case are unusual. Because the trial court did not make specific findings of fact regarding the similarly situated factors, the basis of its award is not entirely clear. It appears that both the trial court and the court of appeals were heavily influenced by testimony of the former Executive Director for the North Carolina State Board of Elections that Gilbert was “the best county director” in the state and “was paid much lower than [he] should have been paid.” In this manner the case may be an outlier. By definition not every elections director can be classified as the best in the state. It is also worth mentioning that based on Gilbert’s amended complaint it appears that at least some of his frustration stemmed from not receiving any raise (or a very nominal raise) during the period of years that encompassed the great recession. Finally, because the county did not present evidence at trial, the court of appeals relied entirely on testimony and other evidence presented by Gilbert. It appears from the county’s court of appeal’s brief that it actually disputed some of this evidence. (For example, the county included the vehicle allowance in its comparison of similarly situated counties; Gilbert did not.)
Despite these anomalies, the Gilbert case does provide some important guidance to a board of county commissioners about the contours of its authority to set an election director’s salary in a county that maintains full-time registration.
First, it is important to remember that a county board of commissioners still has discretionary authority to determine the amount of the salary each year. The court of appeals recognized that “a county is afforded some measure of discretion in that the statute does not provide the specific salary or a definitive formula for fixing the salary.” A county board is not required to simply adopt the salary requested by the local board of elections.
A county board of commissioners does not have unfettered discretion, though. It must consider the amount requested by the local board of elections. And it must pay its elections director a salary that is commensurate with that paid to elections directors in counties of similar population and number of registered voters. These remain the primary comparison factors.
A county board should consider additional factors where appropriate, including:
- The percentage of population registered;
- The unusual degree of transience of population;
- The relative strength of political parties and the level of dissention between or among them;
- The complexity of the electoral districts for state, county and municipal offices;
- The comparable sophistication, politically and otherwise, of population; and
- The degree of experience, effectiveness of work, and level of dedication exhibited by particular affected supervisors in this and in all future situations.
The first five factors might be viewed as derivative of the primary factors—related to the size and complexity of election operations in the county. The sixth factor relates to the experience and skill demonstrated by the particular individual who serves as the election director at any point in time. Presumably not all of these factors will be relevant in every county and not all of them will necessarily be weighed equally. A county board, however, must be prepared to defend its ultimate funding decision.
What about including vehicle allowances as part of an elections director’s salary? Guilford County granted Gilbert a vehicle allowance that was paid as part of his salary. Gilbert presented evidence at trial of his salary minus the vehicle allowance. For example, Gilbert claimed that his salary in FY2013 was $95,719. According to the county’s court of appeals brief, the actual amount paid as salary to Gilbert was $99,319. The difference was the $3,600 vehicle allowance. The court of appeals based its analysis on the lower salary amount presented by Gilbert. But the court did not specifically address whether or not it is appropriate for a county board of commissioners to consider a vehicle allowance as part of an elections director’s salary.
The statute mandates that “compensation paid to directors of elections in all counties maintaining full-time registration (five days per week) shall be in the form of a salary . . . .” G.S. 163-35(c). It seems reasonable to interpret this provision to allow a county board to include a vehicle allowance that is paid as salary to an elections director. In looking at comparison counties, though, a county must look at the actual salary appropriated/paid to each elections director, whether or not it includes the vehicle allowance. In other words, the comparison should be of the actual salary amounts appropriated/paid.