Gould never in favor of lawsuit against employees

By Scott Halasz
[email protected]

XENIA Greene County Commissioner Dick Gould did not flip-flop on the county’s decision to sue 10 employees over Medicare FICA payments.

The county filed the lawsuit last November, alleging that the employees owe slightly more than $90,000 in wages they were overpaid due to Medicare withholding omissions made by the auditor’s office between 2007 and mid-2018.

The two sides settled earlier this month, with the employees agreeing to pay $13,611. Gould, along with Commissioner Rick Perales voted in favor of the settlement, while Commissioner Tom Koogler voted against it, saying afterwards that “All three commissioners, prior to the changing of the guard when Perales came on board, voted to collect $90,000 from people who had gotten paid and didn’t deserve to get that money.”

In a letter to the Gazette, Gould said he was never in favor of filing the lawsuit.

“I was adamantly opposed,” he said. “I do not believe that the decision to sue was being good stewards of the taxpayers’ money. When Commissioner Perales came on board, he had looked at numerous items in the county that he perceived as issues that might need addressing. One of these was this lawsuit. He asked me why we chose to file it. I referred him to (County Administrator Brandon) Huddleson for the details but told him that I had not been in favor of it.”

Prior to filing the lawsuit, the county had been negotiating with the employees Jewel Amburgy, Richard Bowman, Michael J. Brown, Stephen K. Haller, William L. Harden Jr., Teri L. Lajeunesse, John C. La’Rock, Suzanne M. Schmidt, Terry W. Swisshelm, and Stephen Wolaver over the amount they would repay.

“The administration felt that, since it was the county’s mistake, the county should bear some of the cost,” Gould said.

Along with Huddleson, Gould met with the employees Oct. 5, 2020 to discuss concerns the employees had regarding the payments. One was the amount of the payment, and the second was the fact that the payments were made without the employee’s knowledge, Gould said.

“The group felt that I, as a certified public accountant, may have a better understanding of the nuances of Medicare FICA tax,” Gould said. “At the meeting, I was given a letter from the group’s attorney that indicated, in his opinion, that any liability for the previously unpaid Medicare FICA tax should be limited to three years, the normal statutory limit for unpaid tax. I indicated to the group that I, while a CPA, was not specifically well-versed in payroll tax matters. The letter laid out the reasoning their attorney used in reaching his conclusion. After discussions, I reiterated my understanding of the specific questions for which they wanted answers.”

Two days later, Huddleson contacted Gould and said Koogler and then-Commissioner Bob Glaser wanted to withdraw the compromise offer and sue for the full amount.

“I was taken aback by this and expressed my objection. However, with the other two in lockstep on a three-person board, my objection was irrelevant,” Gould said.

During an Oct. 22 executive session with attorneys, Gould said commissioners were told they could prevail in recovering around $30,000 of the $90,000 in dispute. But they were also cautioned that legal fees which were already around $30,000 could mount to more than the likely outcome.

”Commissioner Koogler stated that if this was a decision he had to make in his business, it was a ‘no brainer’ to seek a settlement but since it was taxpayer money, we should pursue the full amount,” Gould said. “My reply to that was, ‘It’s ludicrous to waste taxpayer money to go after taxpayer money when we have little chance to prevail.’ After further discussion it was evident that the other two commissioners were very adamant about pursuing the lawsuit and Mr. Huddleson told the attorneys, ‘I think you get the direction the board wants to proceed in.’

Days later, Gould said Huddleson was told by attorneys they were lowering the anticipated recoverable amount to $16,485. Gould said the county “wasted $17,000 more taxpayer dollars than if we had done nothing.”

“However, if we had continued to negotiate, rather than sue, and reached the same settlement amount, we would be ahead by $13,611. Plus, we would not have the $30,000 legal expense. A total difference of $43,600 taxpayer dollars. Not to mention the negative goodwill with employees that the suit brought.”

Perales lauded Gould for his explanation.

“You can’t create facts to support your narrative,” Perales said. “The public expects and deserves the truth. I’m very pleased Commissioner Gould set the record straight so all are aware of precisely how this decision came about. It was simply the right thing to do.”

Contact Scott Halasz at 937-502-4507.