Terminated for whistleblowing? Former Davison County VSO considering legal action after being fired
Davison County's former veterans service officer believes she was terminated for "whistleblowing" on the South Dakota Department of Veterans Affairs, which she said upset state Veterans Affairs Secretary Larry Zimmerman, who then recommended she be fired.
Jessica Davidson, who was terminated Nov. 29 via a letter signed by Davison County Commission Chair Brenda Bode, is pursuing legal action against Davison County for wrongful termination, according to Davidson's Sioux Falls-based attorney, R. Shawn Tornow.
The South Dakota Department of Veterans Affairs and Bode declined requests to comment on Davidson's termination, calling it a personnel matter.
Audry Ricketts, public information officer for the South Dakota Department of Veterans Affairs, only briefly responded.
"SDDVA does not hire, fire, or evaluate county/tribal veterans service officers, as they are county and tribal employees," she wrote in an email to The Daily Republic. "We train and certify them for accreditation."
But the breakdown between being a county employee while working with the state is where some of the problems occurred, said Davidson, who was the county's VSO for nearly three years. In multiple interviews with The Daily Republic, Davidson stated she contacted Davison County Commissioner Dennis Kiner about problems she had with the South Dakota Department of Veterans Affairs office.
In one instance, Davidson said she sent an email to state Veterans Affairs Deputy Secretary Aaron Pollard about 12 veteran files that either had errors or were taking multiple weeks to be processed.
"Anytime I tried making known my issues with the state to the county, my commission liaison kept telling me that (state Field Officer) Kevin Bowen and the South Dakota Department of Veterans Affairs was my boss, they were my supervisors," Davidson said, "which no, I kept saying, 'The commission, the five individuals who hired me or appointed me as service officer was my boss.' "
South Dakota Codified Law states supervision of county veterans service officers "shall provide, within the county or counties employing the officer, local contact between fieldmen of the Department of Veterans Affairs and persons in the armed service or those discharged from such service, and the dependents of such persons."
So rather than working through the state Veterans Affairs office, Davidson said she directly submitted claims and applications to the federal Department of Veterans Affairs.
Kiner on Thursday morning confirmed he told Davidson to work with Bowen.
"That's her chain of command on the military side of things," Kiner said.
He later added, "Because it's a military matter, a military position, she gets her direction through a computer system called VetraSpec, and that's controlled by the state."
VetraSpec is a secure, online, veteran claims management software solution built for veterans service officers and state departments, the state veterans affairs office explained. The program is compatible with federal Veterans Affairs programs.
South Dakota began using VetraSpec in 2010, and Ricketts said counties, tribes and state departments can purchase the software. Training is administered through manuals, programs and by field service officers.
Davidson said her log-in for VetraSpec was deactivated the morning she was terminated, Nov. 29, the day after the Davison County Commission held an executive session in which Davidson said a letter from Zimmerman was read to the commissioners.
Davidson said she contacted VetraSpec thinking her computer or log-in had a glitch.
"They said, under Deputy Secretary Aaron Pollard, from South Dakota Veterans Affairs, my account was closed," Davidson said. "Their reasoning was, it's a state program. But the county pays for the program. We pay to be under their license.
"The county didn't terminate me like they wanted, so they closed the online applications," Davidson said.
Later that day, Davison County Deputy State's Attorney Jim Taylor, along with Auditor Susan Kiepke, delivered Davidson the letter informing her she was terminated.
When asked if a county veterans service officer could do their job properly without the use of VetraSpec, Kiner responded, "In my opinion, no. That's how a lot of her information is forwarded through the chain channels."
Pollard and Zimmerman both declined requests to be interviewed for this story.
Davidson said the "final nail in the coffin" was when she reported on the state's alleged misuse of military insignia on a commemorative coin to be distributed for all World War II veterans.
In a letter to South Dakota's county and tribal veterans service officers dated Nov. 14, Zimmerman said the state had secured coins for living World War II veterans, and that veterans service officers needed to submit names and addresses for shipment of the coins.
But there was a problem, Davidson said.
She cited trademark guidelines about the use of Department of Defense seals, logos, insignia and service medals. Any non-federal entity using the insignias — which she said were on the back of the coin — needed proper authority to be used and are protected by law from unauthorized use.
Davidson said she contacted Ricketts about the alleged infringement.
"She said because they got them off the internet and they've used them before, 'It's fine,' " Davidson said. "Well, I know per the Department of Defense, you cannot use them. So, to make sure I did not get in trouble and the county did not get in trouble, I contacted the trademark offices, which then that was the final straw for the South Dakota Veterans Affairs."
Davidson said she sent emails to trademark offices to ensure she wasn't breaking the law nor would face legal action for handing out the state coin.
One response, from the Air Force Branding and Trademark Licensing office, Davidson said, did not approve of the production or use of the coin and asked that they would not be distributed and the remaining coins be destroyed.
The following week, Davidson was pulled into an executive session with the Davison County Commission.
"What stuck out to me was Commissioner Kiner told me, 'It's not what you did. It's how you did it,' " Davidson said of the multiple complaints she made.
Bode read aloud to Davidson and the commissioners the letter written by Zimmerman, but Davidson was not able to get a copy, she said. The Daily Republic requested the letter via the Freedom of Information Act, but Zimmerman denied it, citing personnel laws.
The day following the executive session, Davidson was fired.
Davidson said she has no remorse over her actions leading to her termination.
"I cannot knowingly allow something illegal to be done," she said. "I know those seals are trademark protected. Ignorance is no excuse for the law to be broken."
Tornow, her attorney, said there will be legal action in the "relatively near future."
He stated Davison County didn't follow procedures "in seeking to arguably retaliate with a termination that was unjustified."
Though, the Davison County Personnel Policy Manual — last updated in 2006 — says the county and the employee are free to terminate the employment relationship at any time for any or no reason. As a disclaimer, the manual also states the county recognizes South Dakota is an employment at-will state and the intent of this county is to maintain that employment at-will status of all employees.
State law also allows for county veterans service officers to be removed "by the board or boards of county commissioners upon the recommendation of the state secretary of veterans' affairs or for cause."
Tornow's office is still exploring options, but he noted a new statue, South Dakota Codified Law 3-16-9, which protects employees of local governments from retaliation "for reporting violations, abuse, or danger to public."
Known as the whistleblower act, the law was passed during the 2017 session and went into effect in July.
"When you look at this action from the proverbial 10,000 feet, something stinks," Tornow said. "And when something stinks, that's when legal actions are commenced."