The Pennsylvania Department of Labor and Industry’s Unemployment Compensation Board has determined that Schuylkill County could not prove that Tax Claim Director Angela Toomey and Assistant Director Denise McGinley-Gerchak engaged in “willful misconduct” and so are eligible for unemployment compensation.

The county has until April 18 to appeal the ruling. County Administrator Gary R. Bender on Wednesday said he could not comment yet on whether the county would appeal.

County commissioners suspended the women without pay on Sept. 17, 2021, contending they conducted improper searches on county owned software, LexisNexis, in violation of the county’s Network and Internet Access policy.

But the board found that they did not know of the policy, and had not signed off on it.

The Times News has obtained a copy of the board’s determination.

The women applied for unemployment compensation, and the board initially granted benefits on Nov. 24, 2021.

The county appealed on Dec. 23, 2021, and a joint hearing was held on March 25.

Neither woman has been fired.

Privacy policy

“The reason for the suspension is the employer contends the claimant conducted improper searches of the records of eight individuals,” Wilkes-Barre Unemployment Board referee Leonard Omolecki wrote.

“The date that the Computer Network and Internet Access policy became effective is unknown. The claimant did not sign any statement or document acknowledging the existence of the policy. The claimant did not know the policy,” Omolecki wrote.

Neither Toomey nor McGinley-Gerchak signed off on the county’s agreement with LexisNexis, nor were they asked to agree or acknowledge the terms of the agreement.

Further, Omolecki wrote, neither woman was aware of any rule or policy on Computer Network and Internet Access or computer and internet use.

They were “never warned about improper use of the LexisNexis system” or “about improper use of the county’s computer network and internet access,” he wrote.

Under the law, the burden is on the employer to establish that the claimant’s discharge from employment was for reasons which rise to the level of willful misconduct.

At the March 25 hearing, “county Human Resources 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 signed and/or acknowledged that the claimant was responsible to abide by the policy, or that the claimant knew the policy. Additionally, the employer witness attempted to impugn knowledge of a contract entered into between the Schuylkill County Commissioners and LexisNexis for access to the LexisNexis system, but again, there is no competent evidence or documents to establish that the claimant(s) knew or should have known of any terms or conditions of the contract or of the use of the LexisNexis system,” Omolecki wrote.

“Even if the undersigned referee had found and concluded that the claimant knew and/or should have known the policy, the employer witness failed to provide competent evidence to establish that the claimant violated the policy. 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,” he wrote.

“Once again, the undersigned referee emphasizes that the employer failed to establish the existence of a rule or policy of which the claimant was aware, nor was the claimant ever warned. As such, while the Referee in no way questions the employer’s right to discharge (Toomey and McGinley-Gerchak) from employment, the Referee cannot conclude that the employer has presented sufficient, competent evidence to meet its burden of proof in establishing the (women’s) discharge from employment was for reasons which rise to the level of willful misconduct in connection with the work. Accordingly, there can be no denial of benefits under Section 402(e) of the Law,” Omolecki wrote.

Searches

Commissioners have said the searches, of some 300 people, included Halcovage and his family.

On Nov. 4, the board hired Eckert Seamans Cherin & Mellott, LLC, Harrisburg, to investigate “various data protection statutes and the improper use of third party information search software” allegedly conducted by county employees.

On March 9, a move proposed by Commissioners’ Chairman Barron L. Hetherington to fire Toomey and Gerchak failed when Commissioner Gary J. Hess voted no and Halcovage abstained due to a pecuniary conflict of interest.

The proposed terminations were based on the results of the investigation, which have yet to be made public.

Toomey and Gerchak are among four women who on March 16, 2021 filed a sexual harassment lawsuit in U.S. Federal Court, Scranton. The women’s lawsuit contends that the harassment in some cases began in 2012, the year Halcovage was first elected.

Although all four are identified only as Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, two of them, through a series of public comments made by citizens and Hess have been revealed as Toomey and McGinley-Gerchak.

Halcovage, along with County Administrator Gary R. Bender, and assistant county solicitor Glenn T. Roth Jr., interim Human Resources Director Doreen Kutzler and current Human Resources Director Heidi Zula were named as defendants.

Halcovage has steadfastly denied the allegations.