Robbinsville – Graham County Sheriff Jerry Crisp has dropped his lawsuit against Graham County commissioners for $209,000 in back retirement benefits, due to lack of documentation and the fact that his primary witness was dead.
“I took a voluntary dismissal,” Crisp told The Graham Star last week, pointing out that his primary witness was dead and that the paperwork he signed to join a state retirement plan in 1991 never made it into the retirement system and could not be located.
The voluntary dismissal without prejudice was filed July 8 and ends – for now at least – Crisp’s claim for relief against the county and every member of the Graham County Board of Commissioners. The voluntary dismissal was filed by Crisp’s Murphy-based lawyer, Zeyland McKinney Jr.
“Without prejudice” means that Crisp can rekindle the lawsuit in the future, such as in the event he finds more evidence to support his case.
Crisp’s primary witness was Mitch Colvard, who was employed as an emergency medical technician by Graham County and who Crisp believes received the kind of retirement payment from the county that Crisp sought.
Knowing Colvard had died in 2016, Crisp hoped to subpoena Colvard’s retirement records, but once it became clear that Colvard’s testimony would be required, it put Crisp in an impossible situation.
31-year dispute
Crisp claims that the county has paid all contributions (both employee and employer and not just the contributions required to be made by the employer) for three county employees whose enrollment applications were sent to the Local Government Employee Retirement System in 1991. He wanted the same consideration and calculated that the amount due him was $209,000.
The lawsuit was filed in 2018, before Crisp was appointed sheriff to fill a vacancy in 2020.
Crisp started working for the Graham County Sheriff’s Department in January 1987 and worked there until June 1998, except for a three-month period from March until May 1991 when he was employed by the Buncombe County Sheriff’s Department.
While in Buncombe County, he enrolled in the Local Government Employee Retirement System and paid in contributions during the time he worked there.
In September or October of 1991, Graham County Sheriff’s Department employees were told that county law enforcement employees could participate in the retirement system.
Crisp said all law enforcement employees elected to participate in the system, signed enrollment documents and returned them to then-Sheriff Melvin Howell, who said he would take the signed enrollment forms to the Graham County manager’s office.
By letter dated October 29, 1991, Sharon Crisp informed the retirement system that the Graham County Sheriff’s Department had elected to participate in the program, with an effective date of Nov. 1, 1991. The Local Government Employee Retirement System acknowledged receipt of the enrollment forms and acknowledged that the Graham County Sheriff’s Department would be participating in the system, as of Nov. 1, 1991.
Several months after Crisp signed the enrollment form, Sheriff Howell told Crisp that the county had decided not to participate in the program, due to the cost and that there would be no contributions for law enforcement employees. (Howell died in 1998).
Crisp withdrew contributions he made to the system when he worked in Buncombe County since he had been told he could not participate in the retirement program in Graham County.
“Sometime in 2011 or 2012 I spoke with former County Commissioner Claudine Gibson who told me that in July of 2000 that she and other County Commissioners voted to join LGERS at which time Graham County paid into the system past contributions owed for current county employees to join LGERS,” Crisp said in a deposition.
Gibson told Crisp that an EMS employee, Colvard, had left county employment and then returned like Crisp, and that the county commissioners had voted to pay his past contributions for his years of service the same way that they had for current employees in July 2000.
Colvard verified to Crisp that the county had made the contributions to the system for his past years of service.
Crisp spoke with then-county Finance Officer Becky Garland, and said she verified that Colvard’s contributions had been paid through a county insurance policy that provided coverage to correct mistakes when contributions should have been made but were not.
“I then asked (Graham County Finance Director) Rebecca Garland whether the county would pay my contributions for past years of service,” Crisp said in his affidavit. “She stated to me that ‘that would only be fair’ but that the County Commissioners would have to approve it. The County Commissioners refused to approve my request.”
Crisp said former county commissioner Billy Cable (who died in 2014) came by his office and told him that the County Commissioners during his time in office had voted to make contributions to the retirement system for past years of service of County Clerk Kim Crisp, who had also left county employment – only to later return.
“I confronted Rebecca Garland about what I had found out about Kim Crisp’s contributions but Rebecca Garland would neither confirm nor deny that the commissioners had voted to contribute for Kim Crisp’s past years of service,” Crisp said in his affidavit. “I later spoke with Kim Crisp and she told me that she was going to get her retirement.”
Sheriff Crisp searched Board of Commissioners meeting minutes and discovered that the board budgeted money and amended the budget to add money to the retirement line item in the Sheriff’s Department budget for numerous years between 1989 and the year 2000, when Graham County formally became a member of the retirement system.
Crisp’s lawyer argued that the obligation or duty of Graham County to make the contributions to Crisp’s retirement account with the system for the time periods Jan. 1, 1983 through May of 1985, and from January of 1987 through June 1, 1998 is not discretionary but instead is ministerial duty. In conducting “buy backs,” if the county pays interest for one employee, it must pay interest for all employees.
Graham County Board of Commissioners contended that Graham County has no duty or obligation to make the contributions to the Local Government Employees’ Retirement System to fund the Crisp’s retirement.
Crisp – who lost in a second-primary election last week – said he is looking at retiring when his term in office ends in December. In his lawsuit, he said he can’t plan his retirement without a judgment.