COVINGTON, Ga. — A hearing officer has denied former Newton County recreation director Anthony Avery’s appeal of his firing.

The decision, released Friday afternoon, upholds the decision by the Newton County Recreation Commission, and eventually the Board of Commissioners, to terminate the employment of the longtime director.

Avery appealed the decision and Cumming attorney E. Logan Butler served as the designated hearing officer in a March 9 hearing. Butler heard testimony and considered evidence presented by attorneys representing Avery and the Recreation Commission.

Avery had worked for the Recreation Commission since 1995 and was named the director in 2013.

In the decision, Butler said Avery had a burden to prove the Recreation Commission’s 2017 decision did “not substantially comply with sound management principles and is not consistent with the policies and procedures of Newton County,” that the facts leading to Avery’s termination were incorrect, and the decision was unreasonable given its severity.

Allegations

The Recreation Commission alleged seven policy violations as reason to terminate Avery’s employment:

• Negligence in performance of actions
  
• Inefficiency in performing assigned duties
  
• Inability or unfitness to perform assigned duties
  
• Insubordination
  
• Misconduct
  
• Conduct reflecting discredit on the county or department
  
• Careless, negligent or improper use of county property or equipment
  

Butler wrote that County Commissioner Stan Edwards sent an email to an unidentified member of the Recreation Commission with a list of concerns about the Recreation Commission. The email made its way to Danny Stone, who then was the chairman of the Recreation Commission, who in turn met with Avery and county Human Resources Director Keyra Fray on Nov. 1, 2017, to discuss the issues.

Avery apparently asked if his job was in jeopardy, and Stone said he couldn’t answer as he was just one vote on the commission.

Stone alleged Avery directed Senior Administrator Tammy Cheek to write off about $4,880 from accounts with past-due balances. One of the tardy accounts belonged to Avery’s brother. Cheek testified she did not recall Avery directing her to charge off the accounts, but it was discussed in a meeting with Avery and others. Cheek testified she took it upon herself to complete the charge-offs so it would be done when Avery asked her to complete them, and Avery and Cheek both testified they did not follow the policy on unpaid balances and fees.

Butler also found Avery did not complete annual employee evaluations by November 2017 as required by the Recreation Commission.

Two staff members, Cheek and Fiscal Officer Greg Sullivan, said they had not been made aware of new policies on conflicts of interests and tournaments. Avery told Stone in the Nov. 1 meeting he had distributed the policies.

Butler did find that low morale among recreation employees was not necessarily due to employees losing faith in Avery’s ability to lead them. Instead, he attributed low morale to budget shortfalls, pay issues and workload. But, Butler found evidence the Recreation Commission and its employees felt Avery’s leadership skills and practices were “insufficient.”

Sullivan testified Avery had no leadership or vision and had failed to conduct budget meetings in the past few years. Sullivan and Cheek testified to a lack of communication among various departments in the Recreation Commission. Butler said these facts and others supported a finding of Avery exhibiting inefficiency in performing assigned duties.

Stone testified Avery regularly used his personal vehicle for county business even when a county-owned vehicle was available, and he was reimbursed an average of $300 a month for mileage. Avery said a maintenance truck often was available when he needed to drive on county business, but he left the truck in case it was needed.

Avery also was found to wrongly have approved mileage reimbursement for county Athletic Manager Horace Stroud in driving a personal vehicle to tournaments in Gulfport, Mississippi, on at least two occasions when a county van was available.

“This evidence supports a finding that Mr. Avery was not truthful when initially confronted about Mr. Stroud’s personal vehicle use for these Gulfport trips,” Butler wrote.

Butler found insufficient evidence of Avery failing to tailor recreation programming to the wants and needs of Newton County citizens.

Butler also cleared Avery of an alleged violation of the county vehicle policy related to his reservation of a 55-passenger bus for travel to a Louisiana tournament when only eight people took the bus.

Confrontation

A week later, at a called meeting of the Recreation Commission, Avery addressed board members but did not provide documentation about the allegations. Butler wrote that many of the issues raised by Edwards related to practices in place before Avery’s 2013 promotion, some of which may have violated the policy of the Recreation Commission.

Stone said he was not aware the prior director had allowed the policy violations, but other members of the Recreation Commission board said they apparently were aware of the policies of Avery’s predecessor. As a result, with Avery’s urging, members of the commission interviewed 12 employees on Nov. 15-16 to discuss Avery and the allegations in the list.

The Recreation Commission members continued their discussion on Nov. 27. That’s when Stone said Avery fell under the county’s civil service guidelines and he recommended a “performance improvement plan” for Avery.

Avery also refused to resign at the same meeting.

Board member Josh McKelvey then made a motion to terminate Avery’s employment. Tim Fleming seconded it and the vote was unanimous with Stone abstaining.

However, the county’s human resources office and the county attorney said the Recreation Commission board did not follow proper procedures. Stone and Board of Commissioners Chairman Marcello Banes later testified there were issues but neither elaborated.

The county HR office gave Avery a pre-deprivation hearing on Dec. 7 in which he was given the chance to respond to the allegations against him, and in which he was placed on administrative leave pending a review.

On Jan. 30, the Board of Commissioners told Avery he was terminated effective immediately. Avery appealed the decision.

The decision

Butler ruled Avery was not provided a written notification of his proposed termination, but was given a copy of the email with a list of issues in the Nov. 1, 2017, meeting and given the chance to respond. He was not, however, told he was subject to termination at those meetings and Butler wrote that the required written notice was not properly provided.

Butler said the legal requirements of Avery’s due process were met due to the fact Avery had a chance to be heard at the meetings on Nov. 1 and Nov. 8, 2017, and at the March appeal hearing.

“Since the requirements of due process have been met in this case, the failure of the NCRC to follow their procedures correctly does not give rise to a situation that would require the reversal of the termination,” Butler wrote. “However, the NCRC is strongly encouraged to follow the correct procedure regarding employee discipline.”

Butler also found “sufficient” evidence Avery violated county policies and that he failed to provide proper leadership, comply with policy and follow Recreation Commission directives.

Claim filed

Attorney Stephanie Lindsey issued notice to nine people on March 19 of her intention to sue them over Avery’s dismissal. Lindsey sent the notice on Avery’s behalf to Banes, Covington Mayor Ronnie Johnston, Edwards, Stone and former Recreation Commission members Fleming, Julius Hays, Scheree Howard, McKelvey and Steve Rhodes.

Lindsey claims “general and special damages, both past and future, including but not limited to lost wages, pain and suffering and any other damages allowed” under state and federal law. She said the claim may exceed $2 million.

The Newton County government rejected a previous settlement offer of $750,000, and she has increased it since to $1.5 million. Lindsey gave 30 days to respond.