Former top lawmaker loses political discrimination case at state Appeals Court

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  • A unanimous state Court of Appeals panel has rejected a political discrimination claim from Bill Culpepper, who was fired in 2022 as general counsel at the Office of Administrative Hearings.
  • Culpepper had served as the powerful Rules chairman under Democratic state House Speaker Jim Black for seven years.
  • Culpepper claimed that OAH Director Donald van der Vaart fired him because of his prior role at the General Assembly.

The state Court of Appeals has rejected a political discrimination claim from Bill Culpepper, the former high-ranking Democratic lawmaker who was fired in 2022 from his job as general counsel at the Office of Administrative Hearings.

Culpepper alleged that OAH Director Donald van der Vaart dismissed him because of Culpepper’s former role in the General Assembly.

Appellate judges agreed that Culpepper “failed to establish Respondent’s alleged discriminatory intent as a matter of law,” according to the opinion from Judge April Wood. Culpepper was the petitioner in the case. OAH was the respondent.

Culpepper based part of his claim upon a conversation between van der Vaart and Senior Administrative Law Judge Fred Morrison shortly after van der Vaart’s arrival at OAH. Van der Vaart asked Morrison why Culpepper was working at the office.

“According to Petitioner, Judge Morrison apparently interpreted Director van der Vaart’s inquiry as displaying concern regarding Petitioner’s loyalty because Judge Morrison assured Director van der Vaart that Petitioner was no longer involved in politics and was loyal to OAH,” Wood wrote. “Judge Morisson’s response to Director van der Vaart is not evidence of Respondent’s discriminatory intent when there is a total absence of context surrounding Director van der Vaart’s question to Judge Morrison.”

“To conclude that Director van der Vaart’s question held discriminatory intent would require looking beyond his question and speculating about his motive based on Judge Morrison’s seeming interpretation of his question,” Wood added.

Appellate judges also rejected Culpepper’s argument that a special state budget provision for OAH job reclassifications targeted him. “After Judge Morrison stated to Director van der

Vaart that there was one person who felt the Special Provision was meant for him, Director van der Vaart responded, ‘that might be right,’ or words to that effect, without identifying Petitioner by name, leaving any effort to determine whether Director van der Vaart had targeted Petitioner based on political affiliation merely speculative,” Wood wrote.

“Moreover, even if Petitioner were the person to whom Judge Morrison referred, the conversation could just as easily, and perhaps even more logically, be interpreted to mean the General Assembly, rather than Director van der Vaart, had targeted Petitioner with its Special Provision,” Wood added.

“The Record does not show whether Plaintiff was the subject of their conversation, and we will not rely upon mere conjecture to reach a conclusion,” Wood wrote.

Van der Vaart changed the job classifications of three other employees at the same time that Culpepper saw his classification change. At least one was a registered Republican, according to the court opinion.

“The Record does not provide an explanation for the designation or evidence that amounts to more than mere speculation,” Wood wrote. “We are unpersuaded that it is more likely than not Director van der Vaart designated Petitioner’s position as exempt based on political discrimination, especially in the light of the fact that Director van der Vaart designated three other positions as exempt, including at least one of which was occupied by a registered Republican.”

“The General Assembly vested Director van der Vaart with statutory authority to designate five employees at OAH as exempt. The Record does not establish a prima facie case that Director van der Vaart did so with political motivations in Petitioner’s position,” Wood concluded.

Judges John Tyson and Allegra Collins joined Wood’s opinion.

Culpepper served as a Democratic member of the state House of Representatives from 1993 to 2006. That tenure included seven years as the powerful Rules Committee chairman under House Speaker Jim Black. Democratic Gov. Mike Easley appointed Culpepper to the state Utilities Commission in 2006. Culpepper served in that role until 2013. He joined OAH as general counsel in 2015.

Van der Vaart fired Culpepper from the post last year after redesignating the job as exempt from career status protections tied to the State Human Resources Act.

An administrative law judge ruled in December 2022 that Culpepper should have his career status restored. The judge also awarded Culpepper back pay and benefits. But the judge ruled in OAH’s favor on the political discrimination claims.

Culpepper spelled out for Appeals Court judges in May why he believed he should be allowed to proceed with his political discrimination case.

“Respondent provides no evidence or contention of any deficiencies with or criticism of Culpepper’s work performance,” according to the brief. “In Culpepper’s OAH Job Performance Evaluations for the two most recent years before his separation, … Culpepper’s supervisor rated Culpepper ‘3-3 Exceeds Expectations’ on all of his Goals and Organizational Values. Throughout the time Culpepper was employed with OAH, Culpepper was never disciplined in any way, either by any Director/Chief ALJ or anyone else.”

The brief highlighted Culpepper’s political history.

“As Chairman of the House Rules Committee, Culpepper was the top lieutenant of House Speaker James B. Black and controlled the flow of legislation in the House,” according to the brief. “As stated by Mark Johnson on July 5, 2005, in his Charlotte Observer newspaper article entitled Culpepper makes House play by rules, Culpepper was ‘one of the General Assembly’s most powerful members.’ Johnson further noted that ‘Lawmakers who want their legislation to survive avoid making him an enemy,’ because ‘He and Speaker Jim Black of Matthews determine whether bills live or die.’”

“As further stated by Johnson: To Democrats, he is Black’s fiercely loyal chief engineer, the man who makes the House machinery run, and can work its intricacies to his party’s advantage.”

Culpepper’s brief also noted Republican legislators’ assessment of him as “Black’s ruthless enforcer, who has a ‘heavy hand and does the dirty work that needs to be done.’”

The brief described van der Vaart as a “registered Republican,” appointed by Republicans to leadership positions at the state Department of Environmental Quality, Environmental Management Commission, and OAH.

Culpepper also referenced van der Vaart’s prior work with the John Locke Foundation, which oversees Carolina Journal. “Prior to receiving his appointment, Director van der Vaart served as senior fellow at the John Locke Foundation, an organization heavily associated with North Carolina Republicans and partisan Republican Party politics.”

(The reference was incorrect. The John Locke Foundation is a nonpartisan nonprofit public policy organization. The foundation has no role in Republican Party politics.)

Culpepper’s brief asserted that van der Vaart played a role in securing a provision within the 2021 state budget. The provision allowed van der Vaart to designate five OAH employees as exempt from career status protections. Culpepper was one of four employees who had career status removed after Democratic Gov. Roy Cooper signed the budget into law.

“Respondent does not contend that Culpepper held a policy-making position, or
that his political affiliation was in any way a requirement or otherwise related to his
position as General Counsel for Respondent,” according to the brief. “It is undisputed that Culpepper has a long record of service and activity as a Democrat in the North Carolina Legislature. It is also undisputed that Director van der Vaart is a Republican and actively involved in Republican politics.”

“Director van der Vaart admits that he knew of Culpepper’s political affiliation,” the brief continued. “The record makes clear that he also knew of Culpepper’s political activity and service to James B. Black, a well-known Democrat, while Black was Speaker of the North Carolina House of Representatives. Director van der Vaart has been appointed by a Republican Governor and a Republican Supreme Court Chief Justice as the head of two separate State agencies.”