Two employees at the Schuylkill County Tax Claim office were granted Unemployment Compensation this week for the time they’ve been suspended from work. That ruling was handed down on Tuesday by an appeals “ref” with the Pennsylvania Dept. of Labor & Industry.
According to a copy of the decision rendered by that appeals ref Leonard Omolecki that The Canary obtained Wednesday morning, in short, Schuylkill County government officials failed to produce any evidence that either of the suspended employees – Angela Toomey and Denise McGinley-Gerchak – were guilty of willful misconduct.
Willful misconduct is the reason the County was trying to deny these employees their Unemployment Compensation after an initial determination ruled they were eligible for this benefit while suspended from their jobs. Both women were suspended on Sept. 17, 2021, for an unspecified reason at the time.
Suspended Schuylkill County Tax Claims Employees Granted Unemployment Compensation
It wasn’t until a few weeks ago, when the Schuylkill County Commissioners tried to fire both women for a second time since their suspension, that Chairman Boots Hetherington led a public airing of the government’s grievances against its employees. They ultimately were not fired after Commissioner Gary Hess voted against the firing and Commissioner George Halcovage abstained due to a potential conflict of interest.
These 2 employees happen to be among the 4 who are suing Halcovage, the County government, and some Courthouse officials for sexual harassment by the Commissioner and a willingness to allow it to happen by the officials.
The timeline of the suspension goes like this:
- Sept. 17: Employees suspended without pay
- Sept. 19: Employees file for Unemployment Compensation
- Nov. 24: Initial determination grants employees UC
- Dec. 23: County files appeal
- March 25: UC appeal hearing held
Now, the County says Toomey and Gerchak were guilty of willful misconduct and should be denied Unemployment Compensation because they conducted a number of “unauthorized searches” using LexisNexis, an online personal records app. The County says these women, together, conducted more than 300 unauthorized searches on LexisNexis. And that somehow compromised the identities of more than 9,000 people.
The Commissioners – Hetherington and Halcovage voting in favor with Hess objecting – did approve spending at least $64,000 and up to more than $275,000 to provide credit monitoring for those 9,000+ affected individuals, according to the County’s claim.
Schuylkill County Appeal Testimony Fails to Impress Appeals Ref
Regardless of the credit monitoring, the County says these 2 employees violated its Computer Network and Internet Access policy by allegedly conducting these searches.
Unemployment Compensation law requires the employer to prove that these employees willfully violated this policy. But at the hearing on the 25th, the County provided zero evidence that this happened.
“At hearing, although the employer witness, the Schuylkill County HR Director Heidi Zula testified to the existence of a rule or policy on Computer Network and Internet Access, the witness was unable to provide testimony or evidence to establish that the claimant(s) signed and/or acknowledged that the claimant(s) were responsible to abide by the policy, or that the claimant(s) knew the policy,” Omolecki writes in his judgement.
In short, the County says the women violated the policy but can’t prove that they even knew about the policy.
Secondly, Omolecki writes that Zula testified that an agreement on use of the software between the Schuylkill County Commissioners and LexisNexis exists but again, couldn’t provide evidence of this agreement and couldn’t provide evidence that the employees knew about it.
The County says these employees were guilty of willful misconduct for violating these policies but can’t prove they even knew about them.
“The employer filed to establish the existence of a rule or policy of which the claimant(s) was aware, nor was the claimant(s) ever warned,” Omolecki determines.
Now, the County – led by Hetherington who was the ringleader of the public firing attempts and backed up by Zula and Administrator Gary Bender, who previously admitted to recommending the suspensions of these employees – had a golden opportunity to present their case that these women should, at least, be denied Unemployment Compensation. But the County brought no evidence to back up its claims.
Does the “Independent Investigation” Actually Exist?
This hearing came after these same Courthouse officials tried to get these employees fired as part of some public spectacle during a recent Commissioners meeting. At that spectacle a few weeks ago, Hetherington, Zula, and even Hess, admitted to the existence of an investigation that surely implicated these 2 employees in the alleged “unauthorized searches” but that “investigation” amounted to a hill of beans in front of the Labor & Industry official hearing the case.
At least 2 media outlets (including The Canary) have filed Right to Know requests seeking a copy of this investigation report and have each been told to wait for it with no promise of getting it. And it’s unclear who conducted the investigation, or if there was more than one done.
When the County first tried to fire these employees, it was put off pending an “independent investigation” by a third-party law firm the County hired to examine its computer and internet policies to determine if these employees were guilty of what the Courthouse officials suspected.
During the UC hearing, Omolecki referenced an investigation report. However, it was one conducted by the County, specifically Zula. He writes on this “investigation”:
“The employer witness provided hearsay testimony concerning an investigation the witness conducted utilizing a Schuylkill County computer system identified as Smart Team, which is not available to the public, and the witness’s findings as to what she learned via the Smart Team is hearsay.”
What can be gleaned from that statement? One of two possibilities:
- The County conducted its own investigation after contracting the third-party law firm and handed it a report to approve; or
- The County didn’t bring a copy of a possible investigation report prepared by that firm to the UC hearing.
If the County paid to hire this law firm to conduct an investigation, where is it?
The County has until April 18 to appeal the ref’s decision.
NOTE: “Claimant(s)” is used to cite text from the ref decision. The determination document we received is addressed to one of the two employees but that same document notes that a hearing on this matter for each was conducted jointly.
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