• September 15, 2019

Whistleblower suit against Thornton reinstated - Ocean City Sentinel: News

Whistleblower suit against Thornton reinstated

Appeals court rules 2-1 that former county employee can sue freeholder

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Posted: Wednesday, August 21, 2019 9:43 am | Updated: 11:50 am, Wed Aug 21, 2019.

CAPE MAY COURT HOUSE – An appellate court on July 17 reinstated a whistleblower lawsuit against Cape May County Freeholder Director Gerald Thornton and the county.

Former county purchasing agent Kim Allen alleged Thornton retaliated against her when she questioned certain activities in the county. 

Though Superior Court Judge Christopher Gibson dismissed the complaint, a three-judge panel reversed those proceedings 2-1 and recommended the case be reinstated. 

Judge Jose Fuentes and Judge Scott Moynihan wrote the majority opinion while Judge Allison Accurso dissented. 

If the county appeals the decision, the case can go before a jury. 

Allen was provisionally named county purchasing agent in 2006. She obtained her certification as a qualified purchasing agent and was appointed as the county purchasing agent in 2008 and reappointed three years later. She was not reappointed in 2014.

Allen “alleged that Thornton did not reappoint her as the county’s purchasing agent after the expiration of her term in retaliation for her involvement in three” Conscientious Employee Protection Act (CEPA) whistleblowing activities.

According to court documents, the county sent out a request for proposal (RFP) for worker’s compensation legal services. Allen alleged that Jeffrey Lindsay, then-director of county human resources, favored one firm over the others and asked if they could “negotiate with them to get a per-case quote.” Lindsay approached Allen, in the presence of County Counsel Barbara Bakely-Marino, and asked if “there was any way that [the firm] could submit a supplemental proposal that [the county] could negotiate with them to get a per-case quote.” Allen told Lindsay the firm could not, and Lindsay asked if the firm could fax a new proposal page to him. Allen told him such action would be illegal.  

In the second instance, also according to court documents, Allen discussed the matter with an investigative law firm that was investigating an RFP to supply pharmaceutical supplies to a county nursing home facility after the administrator, Linda Thornton, and an assistant administrator decided to switch vendors “because of negative experience with its current vendor.” The law firm’s 2014 report included accounts by Allen, Lindsay and Bakely-Marino about the exchange Allen had with Lindsay about the workers’ compensation legal services RPF. 

The third instance, according to court documents, involved Allen’s objections to the county hiring the same law firm. Allen complained that the county failed to properly use the RPF process in accordance with local public bidding law. According to court documents, Allen brought her concerns to Assistant County Counsel James Arsenault and that the “proper process for such contracts was not followed.” 

Allen emailed Thornton, Clerk of the Board of Chosen Freeholders Beth Bozzelli, Director of Operations Michael Laffey and Arsenault that the “law firm was being engaged without its completion, ten days prior to the award of the contract, of a political contribution disclosure required under pay-to-play laws.” 

The trial court concluded that Allen “established that she reasonably believed the county’s conduct violated laws in connection with her exchange with Lindsay regarding the worker’s compensation legal services RFP, her disclosure of that exchange to the law firm investigator, on her objection to the engagement of that firm, thus satisfying the first two prongs needed to establish a prima facie CEPA case.”

County Counsel Marino is the daughter of a former Cape May County freeholder, while Linda Thornton, administrator of the nursing home, is married to Freeholder Gerald Thornton, and former Human Resources Director (now County Counsel) Jeffrey Lindsay is her son.  

Cape May County doesn’t have an anti-nepotism policy. 

According to the opinion, though the county followed the law doesn’t negate that they engaged in retaliatory conduct: “Even if they obeyed the law – action that could be attributed to plaintiff’s CEPA-protected activity – its intent could still be found to be retaliatory. Often those who act as the conscience of the community are disfavored: there was a reason Pinocchio bludgeoned Jiminy Cricket with a hammer.”

In her dissenting opinion, Accurso wrote that Thornton testified that he went “back and forth for probably a five-or-sixth-month period” as to whether to reappoint Allen and had reservations about her performance. 

“Thornton claimed a number of department heads complained to him about working with plaintiff. He, however, never documented any complaints or performance problems. He claimed he did not document the problems because none rose to the point ‘of taking discipline,’” Accurso wrote. 

Accurso noted that Allen never presented any facts or evidence that her whistle-blowing activities played a role in her not being reappointed. 

“She has not pointed to any evidence suggesting the complaints of the department heads were manufactured or a post hoc rationalization for her non-reappointment,” Accurso wrote.   

Thornton is running for re-election on the Republican ticket for freeholder in the Nov. 5 general election with fellow freeholder E. Marie Hayes. 

The freeholder board voted 4-1 to censure Hayes in July after an independent investigator found evidence that Hayes inappropriately made requests to Human Resources and department heads in an attempt to find a job for her son, a county employee, through transfers and posted positions. 

“No one employee or freeholder in the county should be put above anyone else,” Thornton said before voting to censure Hayes.

 

 

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