Posted on Thu, Apr. 24, 2008

'Whistle blower' settles over firing

WILL GET $500,00O, ANOTHER STATE JOB

By Jack Brammer

JBRAMMER@HERALD-LEADER.COM

FRANKFORT --

One of the most prominent lawsuits connected to a state hiring investigation that marred former Gov. Ernie Fletcher's administration has been settled at taxpayers' expense for $500,000.

Sarah Missy McCray, a former personnel officer in the state Transportation Cabinet, filed her lawsuit against the cabinet in 2005 under the state's Whistleblower Act. She claimed then-Secretary Bill Nighbert had threatened her because she cooperated with then-Attorney General Greg Stumbo's investigation of hiring practices in the Fletcher administration.

Besides the $500,000 owed McCray within 15 days, her settlement with current Transportation Secretary Joe Prather -- signed April 18 -- calls for McCray to be reassigned to the state Personnel Cabinet.

At the Personnel Cabinet, McCray will hold a non-merit -- or managerial -- position and is expected to work on a project to improve the cabinet's performance and customer satisfaction at an annual salary of $62,500. Her salary will increase 5 percent after six months.

In return, McCray agreed to drop her charges.

Chuck Wolfe, a spokesman for the Transportation Cabinet, and David Tachau, a Louisville attorney who represented McCray, said the deal was cost-efficient, since they think the state probably would have had to provide a much larger payment if the case had been decided by a jury.

The trial was supposed to have started May 12 in Franklin Circuit Court.

"When we looked at the history of jury verdicts in whistle-blower cases in Frankfort, we found that juries often express severe frustration in these cases -- and award damages that are much greater than this settlement," Tachau said.

He noted that a Frankfort jury awarded $836,780 earlier this month to a former Kentucky Association of Counties employee who sued for wrongful termination.

Under Fletcher, the state already has spent a large sum in legal fees to defend against the lawsuit, Tachau said. The cabinet could not immediately say how much had been spent.

McCray was not available for comment about the settlement, but Tachau said she is "relieved to have the long ordeal over."

"It's been very difficult and stressful for her and she has stuck with it for the last 21/2 years, mostly because she felt that she wanted to be a positive example for other people in her position," he said.

Nighbert, who now works as an aide in the office of Senate President David Williams, said he was not consulted about the settlement.

McCray's initial lawsuit listed Nighbert as a defendant in his official state capacity, but he was removed from the suit last January with the change in administrations.

Nighbert repeated that he had done nothing wrong.

But Tachau said Nighbert admitted in his deposition for McCray's lawsuit "that he had blocked an employee award that had been prepared by her supervisors" because she testified before a grand jury during the hiring probe.

"That's a clear violation of the whistle-blower law," he said.

An indictment against Nighbert also alleged that he told McCray "that if it were 20 years ago, 'I probably would have come back there and socked you in the mouth.'"

Nighbert said Wednesday that he had witnesses who would have testified that he had told her that "if it were 20, 30 years ago, I might have hit somebody in the mouth."

The charges against Nighbert and 14 others indicted in the hiring investigation never went to trial. Fletcher pardoned everyone but himself, and later settled those charges.

Democratic Gov. Steve Beshear, who defeated Fletcher in last year's race for governor, applauded McCray for her "pursuit of justice."

"It's no secret that many state employees were mistreated over the past four years," he said in a statement.

"This case is one of the most egregious examples of how many state workers came to work each day fearing for their jobs," he said. "It left us with the task of cleaning up the mess created by the previous administration."

Fletcher could not be reached for comment. State Republican Party Chairman Steve Robertson said he does not know why Beshear felt compelled to comment on the settlement.

"He's quickly becoming the meddler-in-chief," Robertson said. "It seems like Gov. Beshear is hell-bent on trying to shift the focus on anything rather than his extremely poor performance in the General Assembly this year and his administration's violation of the Kentucky Constitution by running off fine folks like Stan Cave and Virginia Fox."

Robertson was referring to a decision earlier this week by the Beshear administration to declare invalid Fletcher's appointments of Cave and Fox to state panels.

Another lawsuit against Nighbert and his former communications director, Doug Hogan, is pending in Franklin circuit court.

Shaunee Lynch, a former employee in the Transportation Cabinet, filed a $1.9 million harassment and discrimination lawsuit in January 2007 against Nighbert and Hogan.

Lynch, who served as deputy executive director of the cabinet's office of public affairs, claims in her suit that she was first harassed, then fired, partially as "reprisal for her spurning the sexual advances of Bill Nighbert."

Lynch, who is black, also said she was repeatedly discriminated against and harassed based on her race and gender.

And the suit alleges that Lynch lost her job in part because of her role in calling attention to "mismanagement" and "stealing of time by her supervisor, Doug Hogan."

Nighbert and Hogan have said the lawsuit is baseless and contains totally false allegations.