The Town of Smithfield could potentially be liable in the hiring of new town manager Michael Scott. A month long WTSB News investigation into the hiring of the former police chief as the town manager raises questions about how the town council and mayor handled the process.
A total of 33 applicants from several states applied for the vacant position after it was advertised by Human Resource Director and Public Information Officer Tim Kerigan. All the 33 applications were received prior to the due date of November 16, 2015.
The town council and Mayor Andy Moore were reportedly unhappy with the initial pool of candidates. After the Nov. 16th deadline, Interim Town Manager Jim Freeman privately informed Mayor Moore that Police Chief Scott had expressed interest in the position but did not apply before the advertised deadline.
“Mike (Scott) had indicated that he may be interested,” Mayor Moore told WTSB News. “I put that before the board to see if they might open it up to Mike to apply and they did. In fact, I specifically said I was not trying to sway anybody. I was told by our acting town manager Mike was interested and did we want to reach out.”
According to legal experts at the NC School of Government at UNC in Chapel Hill that could be a problem. The Town did not reopen the application process to everyone, rather only one individual.
In an email, Charles Edwin Hinsdale, Professor of Public Law and Government, did not specifically address the Town of Smithfield incident, but said if a town opened up the application process to just one individual and not everyone that could potentially open up that municipality to a civil lawsuit.
Hinsdale said there is no requirement for local governments to post or advertise openings however varying from procedures can give someone the impression that “unlawful discrimination is at work – whether this is or not – and can increase the likelihood of a challenge by a disappointed applicant.”
Hinsdale added that a fair application process “… may help an employer avoid practices that are discriminatory on an unlawful basis: race, sex, color, religion, national origin, age, or disability.”
“It is simply good policy to follow your own policy,” he added.
While accepting the police chief’s application itself may not be enough to support a discrimination claim, it could be seen as additional support for a discrimination claim from one of the 33 applicants who applied before the Nov. 16th deadline.
“That is the chief legal risk that an employer runs in failing to follow its own procedures,” Professor Hinsdale said.
Asked whether he was concerned about the possibility of a lawsuit, Mayor Moore said, “There is always that potential. It is a concern but until such time I cannot really do much about it.”
Smithfield Town Attorney Bob Spence said no one on the town board expected the police chief to be interested in the manager’s job. “It got back to the town board through the acting manager (Jim Freeman). At that time he expressed some interest in the job and the board apparently investigated and decided that’s who they wanted to hire.”
Spence said he doesn’t believe the hiring process was unfair to the initial 33 applicants. “It was set up in good faith.” He pointed out the initial job application included the words “Position is open until filled” however that same advertisement specified that Nov. 16, 2015 was the deadline to apply.
WTSB News attempted to speak to Town Manager Scott about his hiring, even asking for a copy of his application and resume submitted to the town council. He has not responded to our request for the information. WTSB also asked how many weeks after the Nov. 16th deadline Scott was allowed to apply but town officials would not disclose the exact date.
Other Government Agencies Hiring Policies
Benson Town Manager Matt Zapp said if an application to the Town of Benson was accepted after the deadline for a position had already closed it would have been an honest mistake. Zapp said he didn’t recollect anytime that has happened in Benson.
Selma Town Manager Jon Barlow said the Town of Selma is very consistent with their hiring process. Barlow said if the first set of applicants was reviewed and the quality of the pool was less than desired to open up the applications to everyone again.
Johnston County Human Resources Director Lu Hickey said the county would never allow a candidate to apply for a position once it has been closed.