Grand Forks United Way President and CEO Pat Berger, who was terminated after more than 24 years of service, has instructed her attorney to begin making plans for civil litigation against the United Way and possibly individual board members involved in the decision.
However, as of Friday afternoon, Berger’s attorney told the Herald that Berger had not yet decided whether to pursue the case.
“Pat feels very wronged,” said David Thompson, the Grand Forks attorney representing Berger.
The firing, according to Thompson, was the result of criticism by the Herald. Berger was placed on administrative leave with pay on Dec. 21, according to a Jan. 14 letter from Thompson to the attorney representing the United Way, Beth Alvine, an attorney with Vogel Law Firm.
A column written by Herald Publisher Korrie Wenzel, Thompson said, is what triggered Berger’s firing. Wenzel used a comment Berger made on Facebook as a point in his Dec. 6 column that appeared with the headline “Still here, reporting the news.”
Thompson said grounds exist for a case as Berger was acting as an individual and not as a spokesperson for the United Way. In the Jan. 14 letter, Thompson cites North Dakota court case “Jose v. Northwest Bank ND,” saying “it is a discriminatory practice for an employer to discharge an employee because of participation in a lawful activity off the employer’s premises during nonworking hours.”
In the letter, Thompson said, this doctrine applies to Berger’s case.
“If ever there is to be such a case, this is it, in my estimation,” Thompson said in the letter.
In a letter from Alvine to Thompson on Jan. 21, the United Way board outlined performance issues as the reason for firing Berger, including a “pattern of unprofessional behavior over the past 15 months,” financial concerns and for not meeting fundraising goals.
Thompson said the United Way board is making an after-the-fact attempt to generate “phony” performance issues and terminated Berger for “false and defamatory reasons.”
“This had everything to do with Pat’s comments,” Thompson said. “This is not about Pat’s performance.”
In a Jan. 24 letter from Thompson, he states Berger was never notified or disciplined for the alleged performance issues.
A Dec. 6 email between executive board members showed dissatisfaction with Berger’s recent behavior. The email was obtained through a records request by the Herald.
The United way is not a public entity and therefore its emails are not necessarily open to public view. However, several board members maintain government email accounts, which are considered open to public view, and the Herald requested emails sent and received by those government accounts.
In the Dec. 6 email, chairwoman of the board, Nikki Jackman said, “The United Way has received some not so great press today in response to comments Pat made on Facebook.”
Jackman, also on Dec. 6, wrote that she would be addressing the Facebook post with Berger in greater detail.
“I did email her right away to let her know that I would be responding to the Herald and that she should not comment any further,” Jackman said in the email.
According to a Jan. 14 letter from Thompson, Jackman and 2018 United Way Campaign Chair Tony Telken entered Berger’s office at the United Way on Dec. 7. The letter said Jackman “berated” Berger for her Facebook comments and “ordered” her to remain silent about the comments.
Thompson said Berger’s firing is a “retaliatory response” for the Facebook comments she made. In late November, Berger, responding to news that WDAZ-TV was merging with WDAY in Fargo, asked on Facebook: “So Fargo is the only thing of interest in ND?”
“Wow. I guess they don’t really care about GF or the northern valley. … Feel like soon we will only have a Fargo Forum as our ‘local’ newspaper, too!”
In response to criticism of the merger and Berger’s online comment, Wenzel defended Forum Communications Co., which also owns the Herald. Wenzel said the media company has made a substantial commitment to Grand Forks and the Red River Valley over the years, citing contributions by the company to the United Way.
“The contributions of this company to the Grand Forks United Way - literally thousands upon thousands of dollars each year in cash and nearly the same again in free advertising - have been great, portraying in just one way much how this company cares about Grand Forks and the northern valley,” Wenzel wrote in regard to Berger’s comments.
Jackman wrote a letter to the editor, published Dec. 8, apologizing on behalf of the entire board for Berger’s comments.
Another email from Dec. 8, obtained through a records request from the Herald, said the executive board had “several meetings on how best to grow the campaign and we have run into several roadblocks that have led us to determine that the organization is not led well.”
The group met to discuss those “roadblocks” later that week, according to emails between the board given to the Herald.
The Herald reached out to every member of the United Way board of directors: Brandon Baumbach, Tricia Berg, Carol Brakel, Terry Brenner, Denny Elbert, Todd Feland, Steve Gander, Mark Hall, Chris Johnson, Phyllis Johnson, Marty McDonald, Cheryl Ramberg, Jodi Sorum, Tony Telken and Penny Zola.
Those who did respond said all inquires about the situation are being handled by Jackman, who did not respond to several phone calls or emails.
The Herald also reached out to Alvine, the attorney representing the United Way. She responded via email saying, “The United Way does not comment on private, confidential personnel matters.”
According to Thompson, following the publication of Jackman’s letter to the editor, nothing else was said to Berger on the topic until Dec. 21. That day, according to Thompson, Jackman told Berger she was under investigation and Berger was “unceremoniously escorted” from the United Way office premises.
Berger’s termination was scheduled for Feb. 12, but the United Way stopped paying her on Jan. 21, according to Thompson.
According to the United Way’s federal 990 tax filing from 2016, Berger’s salary was $70,880.
Board Vice Chair Phyllis Johnson updated the CEO job description and sent it to the board for recommendations on Jan. 10 via email. The job description mentions generating financial support for the organization and cultivating relationships both in and outside of the United Way.
According to Thompson’s letter, Berger said there was no written documentation of any of the incidents of “unprofessional” behavior in her personnel file before her “forced” departure on Dec. 21. Thompson said these incidents were not brought to her attention before that date, either.
Her fundraising performance was also never brought to her attention or criticized, Berger said via Thompson’s letter.
Berger on Jan. 17 reached out to the entire board of directors via email, attaching a letter from Thompson to Alvine. In the Jan. 17 email, Berger wrote, “I am confused as to the origins of the current difficulties, nor do I know how much each board member knows.”
In Thompson’s Jan. 24 letter Berger said she believes the executive council is now “running the show” and not fully disclosing decisionmaking where Berger was concerned to the full board since December of 2018.
“Pat Berger is devastated,” Thompson said. “She was a good, loyal employee.”