Full report and recommendation issued on Biggert hearing
In The Matter of The Termination of: Charles Biggert Jr.
REFEREE’S REPORT AND RECOMMENDATION
I. PROCEDURAL HISTORY:
On September 29, 2011, the Highland County Board of Developmental Disabilities (Board) passed a resolution to consider the termination of its Superintendent Charles Biggert Jr. (Mr. Biggert). Board Exhibit 17. The Board scheduled a predisciplinary conference for October 3, 2011 and notified Mr. Biggert more then 72 hours prior to the conference by a call from Board counsel, by email and by overnight mail. Mr. Biggert was at his home near Toledo at the time of receiving this notice. Mr. Biggert did not attend the prediscip1ina1'y conference. On October 3, 2011, the Board resolved to terminate Mr. Biggert. Board Exhibit 18.
On October 13, 2011, Mr. Biggert requested a hearing before a referee to challenge the termination decision. Appellant Exhibit 13. Subsequently, Mr. Biggert requested from the Ohio Superintendent of Public Instruction (OSPI) a list of referees to consider the hearing requested by Mr. Biggert and the Superintendent submitted to the Board a list of three potential referees. The Board and Biggert agreed on the undersigned as the referee and said referee was appointed by the OSPI on October 25, 2011.
A hearing was originally scheduled for November 17, 2011 but was continued to
December 8, 2011 at the joint request of the parties. Testimony was taken on December 8, 2011. Both parties submitted written closing arguments on December 12, 2011 and the Board submitted its reply on December 13, 2011.
II. FINDINGS OF FACT:
Testifying at the hearing were Anneka Collins, the Highland County prosecutor, Deb Sansone, clerk of the county commissioners, Tom Horst, a county commissioner, Linda Allen, president of the Board, Kim Gilbert, a case manager, Tammy Hidy, a case manager, Theresa Smith, the executive secretary, Charles Emery, chairman of the SATH Board, Becky Pollard, the program nurse, Bryan Miller, the assistant superintendent and business manager, Mr. Biggert, and Mr. Reichert, the employment manager with the Ohio Rehabilitative Services Commission.
Mr. Biggert has been the superintendent of the Board, located in Highland County, since January 1, 2009, serving under a three year contract, ending on December 31, 2011. Appellant Exhibit 3. Prior to January 1, 2009, Biggert served as Interim superintendent for approximately six months.
Mr. Biggert has a master's in Education Technology with an emphasis in Human
Resources Development and training. Appellant Exhibit 2. Prior to his hire by the Board, he was most recently employed as the Superintendent of the Williams County Board of DD.
Mr. Biggert’s job duties were to serve as the chief executive officer for the Board for the administration ofthe school, adult training center, and other program components. Board Exhibit 8. In addition, he was to serve as Project Director ofthe Help Me Grow Project (HMG), a governmental project separate from the county board.
After his hire, Mr. Biggert and his spouse bought a home in Highland County, but they did not give up their permanent residence near Toledo and his spouse did not move to Highland County. Board Exhibit 12. Mr. Biggert traveled back and forth between his homes during his tenure.
The pertinent events leading up to this proceeding occurred primarily in 2011. It was undisputed that prior to 201 l, Biggert had accomplished much improvement to the financial situation of the Board, including achieving a 5-year accreditation with the state. To accomplish this he had made some tough decisions about cutbacks, pay-cuts and job layoffs. Early in his tenure, he entered into an agreement with employees that there would he an across-the-board pay cut of 5% to avoid additional layoffs.
His evaluations over the past two and a half years showed he received mostly “good, competent” to “highly effective” performance evaluations. Appellant Exhibits 5, 6, and 7. Evaluations were completed at the end of each year or beginning ofthe following year. His last evaluation was in November 2010. Appellant Exhibit 7. His highest evaluation was in 2009. His lowest ratings were in the categories of “personnel development & relationships” and “community-agency relationships.” Appellant Exhibits 5, 6, and 7. He was repeatedly advised by the Board to improve in those areas. Instead his performance trended downward in those areas.
In 2011, Mr. Biggert’s conduct deteriorated.
Biggerfs Contract
Mr. Biggert’s employment with the Board was governed by an eight page contract.
Appellant Exhibit 3. Paragraph XV of the contract addressed “Contract Termination; Discipline” and spelled out the three alternative ways that the contract may be terminated: 1. Mutual agreement of the parties, 2. Retirement, disability, or death of the Superintendent; or 3. Termination by the Board for cause in accordance with 126.23. In Paragraph XVIII, under “Notices” it was stated that any notice required to be given under the contract was to be in writing and shall be “personally delivered or when mailed by ñrst class mail, registered or certified, return receipt requested” . _ . “addressed to the parties at their respective addresses set forth at the end of this contract.” The contract was signed by Mr. Biggert but contained no address.
Another document relied on by the board in support of the termination was a document entitled “Code of Ethics and Values” and it, too, was signed by Mr. Biggert at the time of his hire. Board Exhibit 9. This document identifies the core values ofthe Board to guide the actions of staff and board members - respect for each other, conciliation, honesty and trust. This document including various codes of ethics, including those for treatment of persons receiving services, staff members, Board members, and treatment of community members. Many provisions are germane to these proceedings.
Violations of Board Directives
An incident occurred in April, 2011. Mr. Biggert had approached the Board president about his desire to terminate his administrative assistant, Ms. Morrison, who had been employed for 30 years, quit, then had been rehired to train his new administrative assistant. Because of this employee’s long tenure at Hills and Dales, the Board president had given him advice on this issue, cautioning him from terminating the employee. The matter came to a head on April 20, 2011 at the Board meeting. The Board advised Biggert to develop a plan for essentially creating a soft landing for her and to work with her on the terms of her retirement, specifically instructing him not to fire the employee before the next Board meeting (the May meeting). Nevertheless, Mr. Biggert fired her the next day.
Bullying - Intirnidation
Mr. Biggert had a reputation with many serving under him and in the community of being a bully and dictator and managing by intimidation. In late 2010 and 2011, there were a number of incidents of bullying or intimidation by Mr. Biggert.
The main center of Board activities was the Hills and Dales Training Center. In September, 2010, Mr. Biggert had proposed to a case manager that she explore moving one of her clients from one placement to another with another client as that would save the Board funds. The case manager was upset because she had found a wonderful home for this client several months earlier that Mr. Biggert had approved. The client was happy there and she did not want to move. The case manager tried to convince Mr. Biggert to consider other options. She then contacted the client’s legal representative before taking the action Mr. Biggert wanted her to take. Several days later, Mr. Biggert came into her office and when he learned of what action she had taken he became red in the face, was angry, and stormed out of her office. The case manager and another case manager in the office felt that he was so angry he was about to hit her. Mr. Biggert promptly e-mailed her and threatened her with a proposed three-day suspension without pay per the disciplinary policy. Board Exhibits 19, 22. Although the Notice of Charges erroneously characterized this incident as a removal of a child from the Help Me Grow Program, Mr. Biggert had no misunderstanding about the nature of the incident With Ms. Gilbert.
Other staff members reported feeling that Mr.Biggert was a “dictator” and “bully”, that it used to be a happy place to Work, but now people just tried to avoid the Superintendent. Staff dreaded seeing Mr. Biggert’s car in the parking lot. He treated suggestions of staff at meetings with disdain. Mr. Biggert’s own administrative assistant described his management style as “you better do it if he told you to do something,” and he was frequently “heated and loud.”
The program nurse, a 16-year employee, had several run-ins with Mr. Biggert, who
disallowed her custom of working flex hours so she could fit in her second job as a teacher, causing her to have to give up her teaching job. He cautioned her strongly to choose her words carefully when she turned down an offered teaching position. Feeling that Mr. Biggert was somewhat hypocritical about attendance, in early 2011 she decided to check his attendance and keep notes on her desk calendar of days that Mr. Biggert was not at work. Later, she provided that information to Mr. Miller, the assistant superintendent/business manager, who sought an explanation from Mr. Biggert about how to characterize his absences on those days. Board Exhibit 40.
Mr. Biggert’s management style affected client services in other ways. He discouraged the practice of providers picking up clients at workshops for leisure activities (that clients enjoyed) because it affected the county reimbursement of transportation services to the Board (better for the Superintendent’s bottom line).
Before the April, 2011 Board meeting, members of Biggert’s staff had arranged a secret meeting with some Board members to report that they believed Biggert’s conduct was unprofessional, intimidating, and led to diminished staff morale. The Board cautioned Biggert to improve his behavior that was irnpairing the efficiency of the organization.
Subsequent to the firing of Ms. Morrison, at the May 24, 2011 Board meeting, one of the Board members, Mr. Snyder, brought up an article that had appeared in The Highland County Press entitled “Harassment Report Filed on Board of DD Superintendent.” Board Exhibit 11. This article concerned a disagreement which had occurred between Mr. Biggert and Ms. Morrison’s spouse at a golf course. Mr. Morrison was unhappy with Mr. Biggert’s action in terminating his spouse and confronted him in the parking lot, using profanity. Hours later, after midnight, Mr. Biggert had sent a text to the husband stating “You will receive what you deserve. It is uncalled for but your choice. We are Friends! We need to Talk!! Please.” Mr. Morrison filed a report with the Police Department against Mr. Biggert. Biggert’s explanation that he did not intend the first line of the text as a threat was not credible.
Mr. Biggert sent a rambling email to the Board on May 25, 2011 in which he responded to the allegations that were being made about him. In that email he admitted to threatening employees with disciplinary action if they disagreed with his actions or spread rumors about him.
On August 10, 2011, Mr. Biggert called the county comrnissioner’s office and spoke to the clerk, Deb Sansone. Mr. Biggert told her to tell the commissioners he wanted them to appoint a new board member to replace Mr. Snyder before the August 16, 2011 Board meeting, as it would be better to have someone with a financial background. Further, Mr. Biggert threatened public disclosure of embarrassing information about a commissioner and Mr. Snyder. The clerk took notes on her message pad and orally communicated the contents of Mr. Biggert’s statements immediately to the commissioners. The commissioners viewed his message as a threat. As a result of this communication, the county commissioners stated they would not tolerate such “strong-arm tactics” and stated they would no longer communicate with Mr. Biggert. Board Exhibit 1.
Throughout 2011, Mr. Biggert was on good terms with the Board President, Linda Allen. Ms. Allen and all Board members serve as volunteers. That relationship soured in the summer of 2011 based on his perception that he was losing her support. Mr. Biggert told Ms. Allen that if she did not make the right choices on the Board, he would go to her employer, SATH (the Supplemental Assistance to the Handicapped program). After the Board’s vote to reassign Mr. Biggert, Mr. Biggert called Charles Emery, the chairman of the SATH Board, to report that she was overstepping her boundaries on the HCBDD and he thought he needed to know that.
Exhibit 39.
Mr. Biggert at a staff meeting cautioned staff against voicing complaints to the Board, even complaints about him. Because staff feared him based on his management style this was an attempt to curtail complaints about him to Board members in violation to the Board’s Code of Ethics.
Vendetta
Mr. Biggert was concerned that he may be in jeopardy of not having his contract renewed by the Board. Mr. Biggert also conflded in Mr. Miller that he believed Mr. Boatrnan and Mr. Snyder were “against him,” he “did not want them on the Board,” and he would seek to “remove them from the Board.” Mr. Biggert also expressed his concern about a newly appointed Board member, Karen Adams, who may be “against him” and that he would try to Íînd a way to keep her off the Board. Mr. Biggert contacted Mr. Boatman’s employer and threatened to take information public that would shed a negative light on the employer if Mr. Boatman did not resign from the Board. Mr. Boatman resigned within a matter of days.
On May 25, 2011, in his long e-mail to the Board, Mr. Biggert requested that the Board consider a five-year renewal of his contract. In the ernail, he expressed his belief that the Board members, Mr. Boatman and Mr. Snyder, and a county commissioner, Mr. Horst, had a personal vendetta against him. Board Exhibit 12. Further, he stated that he was going to take affirmative action to remove Mr. Boatman and Mr. Snyder from the Board and he described action he had already taken against Mr. Boatman. Mr. Biggert was concerned that these Board members would not support him in his bid for a renewal of his contract.
Next, Mr. Biggert focused on preventing Ms. Adams from serving on the Board. Mr. Biggert raised a question about her residency. She had been a long-time resident of another county, but had purchased a home in Highland County. On June 27, 2011, the day before the Board meeting, Mr. Bíggert spoke to Ms. Collins, the county prosecutor, to request an opinion about Ms. Adams’ residency and an opinion about who could administer the Oath of Office to a Board member. Ms. Collins agreed to research that issue.
Mr. Biggert then sent an email to Judge Greer, who had appointed Ms. Adams, suggesting, in his experience, the appointing Judge was the appropriate person to administer the Oath, that there was no time for Ms. Collins to research that issue and invited him to administer the Oath on the following day. He further advised Judge Greer that if that was not convenient he could administer it at the July board meeting. Board Exhibit 37. Later in the day, Ms. Collins responded that there was no residency issue with Ms. Adams and that either a Judge or a notary public could administer the Oath. Board Exhibit 7. If Ms. Adams was not sworn in at the June Board meeting she would not have been eligible to vote on Mr. Biggert’s renewal. Mr. Bigger't’s email to Judge Greer was an attempt to delay the swearing in of Ms. Adams.
Around the same time, Mr. Biggert also focused on removing Mr. Snyder from the Board. Sam Snyder was appointed to the Board and began serving in January, 2011. Appellant Exhibit 25. Mr. Snyder was a former school teacher, principal and administrator and was and respected in the area. Throughout his early term on the Board, Mr. Snyder questioned Mr. Biggert about topics during Board meetings and, as noted above, brought the newspaper article about him to the attention of the Board. Mr. Biggert’s contract renewal was to be voted on at the June 28, 2011 Board meeting. Mr. Biggert discovered that Mr. Snyder had not signed the Disclosure Statement required by state law prior to being sworn in. It was not disputed that Mr. Snyder had signed the Disclosure Statement in March, 2011. Appellant Exhibit 14.
Mr. Biggert and Ms. Allen sought an opinion from the Ohio Association of County Boards of Developmental Disabilities and the Association agreed with his interpretation that Mr. Snyder’s appointment was void. Appellant Exhibit 14. Mr. Biggert considered no other options as to how to resolve the issue, such as swearing him in anew. Instead he contended that Mr. Snyder had to wait a year before he could serve, showing his motivation to remove him from the Board prior to his contract renewal being voted on.
A couple of hours before the June Board meeting, Mr. Biggert notified Mr. Snyder about the issue and advised him he could not vote at the Board meeting. Mr. Snyder immediately called Tom Horst, a Highland County commissioner to report this and Mr. Horst advised Mr. Snyder to attend the meeting and he would accompany him. Mr. Horst then contacted Ms. Collins to inquire about this. Ms. Collins advised Mr. Horst that Mr. Snyder could lawfully serve on the Board if he submitted the proper paperwork. (Ms. Collins was not made aware that Mr. Snyder had taken care of this in March).
Mr. Horst went directly to Mr. Biggert’s office before the Board meeting to discuss the matter with him. Mr. Biggert told Mr. Horst that he had contacted Ms. Collins and that she had supported his position. Mr. Horst told Mr. Biggert that he had just spoken to her and she did not say that. When Mr. Horst suggested they contact Ms. Collins right then and there, Mr. Biggert became very agitated and belligerent and told Mr. Horst to “get out of his office.” This incident was witnessed by Mr. Biggert’s secretary in the outer office.
Mr. Biggert then called Ms. Collins to discuss the issue and told her he had sent her an email about the issue about Mr. Snyder. Ms. Collins informed him that she had received no such email. At the Board meeting on June 28, Mr. Horst confronted Mr. Biggert about why he raised the issue about Mr. Snyder’s eligibility to serve shortly before this Board meeting when he had served since January, 2011. Mr. Horst further asked if Mr. Biggert had contacted Ms. Collins for an opinion on the issue of Mr. Snyder. Mr. Biggert responded that he was “almost certain” that he had sent Ms. Collins an email requesting an opinion. The Board unanimously voted not to renew Mr. Biggert’s contract after it expired. Board Exhibit 14.
Dishonesty
Ms. Collins became upset when she read the account of her actions in The Highland County Press that contained statements by Mr. Biggert about his interaction with her that were untrue. Mr. Biggert told the Press that he was “almost certain” that he had sent Ms. Collins an email. He admitted later that he had not as it was still in his email “draft” folder. Standing alone, this might not have been an untrue statement, but in the context of what transpired earlier that day around this incident (that he told Commissioner Horst that he had actually obtained an opinion from her supporting his position about Mr. Snyder) and considering his motivation to convince the Board and the public that he was correct about Mr. Snyder’s inability to serve, it was a false and misleading statement about a matter of consequence. A series of emails ensued between Ms. Collins and Mr. Biggert, culminating in an email to Ms. Allen stating that she would only communicate about Board issues with her rather than Mr. Biggert as she did “not trust him.” Board Exhibit 3; Appellant Exhibit 15.
Mr. Biggert was dishonest when he falsely reported that he was attending out-of-office meetings during work hours. Mr. Biggert submitted mileage reimbursement requests to Mr. Miller for two meetings that he did not attend. Board Exhibits 30, 31, 33 and 34. On September 21, 2011, while on reassigmnent from his regular job duties, Mr. Biggert attempted to change the rules on seeking mileage reimbursements to extend the time, which beneñtted him.
Mr. Biggert kept his own calendar and did not allow his secretary to keep his calendar. He did not inform her of his whereabouts on days that he was not at the office, only that he would not be at work on given days. Mr. Biggert violated the Board attendance rules by concealing his whereabouts and he was secretive and not accountable to anyone for his attendance.
Exhibit 10.
Mr. Biggert’s management style lacked integrity. He was perceived by staff as not being trustworthy, not treating staff fairly, using his position for his own advancement. His lack of trustworthiness affected the health of the organization.
Reassignment
Based on the above events leading up to August 23, the Board passed a resolution instructing Mr. Biggert to vacate his office and work only on projects as specifically assigned to him by Ms. Allen. Board Exhibit 13. On August Ms. Allen gave Mr. Biggert a laptop, along with a draft Personnel Policy Manual, instructing him to adopt the manual to the Board’s requirements and submit a written deliverable pursuant to a schedule attached. Board Exhibit 16. The first submittal was due September Mr. Biggert did not submit any written Work in response to the assignment, although he was paid for the month of September.
Termination
During the reassignment period the Board continued to investigate Mr. Biggert’s conduct. Ms. Allen spent time at Hills and Dales, interviewing employees. She interviewed many employees and the result of the investigation was the Notice of Charges against Mr. Biggert. Board Exhibit 17. Upon receiving the notice of the pre-disciplinary conference, Mr. Biggert advised Board counsel that he could not attend because he had a previously scheduled birthday party for his grandchild, but that he could attend any other time that week. The Board did not grant Mr. Biggert’s request and proceeded to conduct the pre-disciplinary conference on October 3, 2011 in Mr. Biggert’s absence. According to the resolution, the Board believed that Mr. Biggert’s conduct constituted grounds for termination under §5126.23 and warranted termination without pay, effective immediately.
On October 5, 2011, Ms. Allen notified of his termination and requested the return of all Board property, including the laptop computer, and all records and other Board property. Mr. Biggert retumed the Board property and subsequently submitted a bill for mileage reimbursement for the trip from his home in Genoa, Ohio to Hills and Dales (428 miles round trip).
Exhibit 35.
Mr. Biggert was not credible in his response to the allegations. There was much testimony about his dishonesty both involving the above allegations and on other matters that were tangential to these proceedings.
IV. BIGGERT’S POSITION:
Mr. Biggert contends initially that the termination was invalid because of two reasons: 1. The notice regarding his termination and pre-disciplinary conference was not sent to him according to the terms of his contract, and 2. The Board proceeded with the conference after he notified Board counsel that he was unavailable. Further, Mr. Biggert contends that the Board did not prove that the termination was for “just cause” as deñned by §5126.23, claiming that it failed to put on any evidence of certain of the allegations of the Notice of Charges and the Board failed to carry its burden on the remaining allegations. Mr. Biggert argues that he should not be terminated because of his good performance reviews and what he accomplished financially. Further, Mr. Biggert argues that the decision must be based solely on grounds alleged in the Notice of Charges and not other allegations.
V. BOARD’S POSITION:
The Board contends that the conduct of Mr. Biggert warranted termination, even if all allegations in the Notice of Charges were not proven because the allegations that were proven were sufficient to support the termination. The Board concedes that it failed to prove all allegations in the Notice of Charges, specifically Items 2 (the second and third bullets), 3 (the first and third bullets), 9 and 12, but that all other allegations were proven. As to Mr. Biggert’s contention that the termination was invalid because of defects in the notice requirements and the Board’s proceeding with the pre-disciplinary conference without him, the Board contends that Mr. Biggert had actual notice of the conference more than 72 hours before the conference and that he chose not to attend. The Board argues that its failure to serve him according to the notice requirement in the contract is not dispositive because the contract requirements are just to ensure that the Superintendent does get notice and he did.
VI. CONCLUSIONS OF LAW:
Termination of superintendent contracts are governed by §5126.23 (B). According to §5126.23(B), a superintendent of a county board of developmental disabilities may be removed, suspended, or demoted in accordance with this section for violation of written rules set forth by the board or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or other acts of misfeasance, malfeasance, or nonfeasance.
§5 126.23 (B) also outlines the procedural requirements including that the board shall furnish the superintendent in writing of the charges against the employee. Not later then 30 days after receiving such notiñcation, a prediscip1inary conference shall be held to provide the employee an opportunity to refute the charges against the employee. At least 72 hours prior to the conference, the employee shall be given a copy of the charges against the employee. The pre-disciplinary conference shall be held by the members ofthe Board and the Board shall notify the superintendent Within 15 days after the conference of its decision with respect to the charges.
The Board complied with the requirements of the statute. Mr. Biggert received actual notice in a timely fashion, he chose to attend his grandson’s birthday party instead of the pre-disciplinary conference to refute the charges, and the Board conducted the hearing in his absence.
The superintendent may demand a hearing before the board or before a referee and in this case Mr. Biggert chose a hearing before a referee. The hearing was conducted by a referee agreed upon pursuant to §5126.23(B).
The Board’s adoption of a code of ethics and values constitutes written rules set forth by the Board under §5l26.23(B) and violation of those rules can be grounds for dismissal of employees, including the Superintendent.
The decision to terminate a superintendent’s contract is comprised of two parts: (1) The factual basis for the allegations giving rise to the allegation; and (2) Judgment as to whether the facts, as found, constitute a violation of the statutory grounds.
The grounds for termination contained in the notice to Mr. Biggert, excluding the allegations that the Board concedes were not proven, were all established by reliable, probative and substantial evidence and this conduct constitutes violation of the written rules set forth by the Board and constitutes dishonesty, insubordination, discourteous treatment of the public, neglect of duty, and other acts of misfeasance and rnalfeasance.
The allegations involving Mr. Biggert’s interactions with the prosecuting attorney, his submission of false mileage requests and his lack of accountability for his attendance constituted dishonesty.
The extensive bullying-intimidation conduct of Mr. Biggert referenced in the Notice of Charges constituted a violation of the written rules set forth by the Board, as stated in its Code of Ethics, and constituted discourteous treatment of the public, and acts of misfeasance and malfeasance.
The conduct that resulted from Mr. Biggert’s perception that certain Board members had a vendetta against him constituted a violation of the written rules set forth by the Board, discourteous treatment of the public, and acts of misfeasance and malfeasance.
The Board was warranted in terminating Mr. Biggert’s employment.
Mr. Biggert’s conduct that formed the basis of his termination was not a single isolated incident, but rather was a course of conduct over months during 2011. Mr. Biggert’s persistence in his course of conduct, even after the decision to reassign him for the balance of his contract year, propelled this into a termination, instead ofthe reassignment for the rest of his temi. He persisted in this conduct. Although many of these incidents would have been enough by themselves to Warrant a termination, the cumulative effect of all of them solidified the decision of the Board to terminate him.
VII. RECOMMENDATION
Based on the foregoing findings of fact and conclusion of law, the Board was warranted in terminating Superintendent Biggert.
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