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Eruption of democracy

When the Moore County School Board voted 5-3 to unilaterally terminate Superintendent Dr. Bob Grimesey’s contract, there was an eruption of democracy that led to his reinstatement. It was an extraordinary reminder that while a superintendent may be hired and fired by a board of education, the community cares and wants a voice.

Here is what happened in Moore County:

  • Monday, June 1, the Board meets in closed session without the superintendent.
  • Tuesday and Wednesday, Dr. Grimesey — known as Dr. Bob — does not go to work, pursuant to the request of the board.
  • Thursday at 8:00 a.m., the Board meets briefly in open session before going into closed session. Dr. Bob’s supporters fill the board room and lobby. While the board is in closed session, the fire marshal determines that the large number of people exceeds fire code regulations.
  • Supporters of Dr. Bob are told to go to the larger room of the county commissioners in the historic courthouse. At 10:30 a.m., in a room filled wall to wall with supporters, the Board votes 5-3 to prematurely end Dr. Bob’s contract and pay him one year’s salary — the amount due by the contract for a unilateral termination. Dr. Bob gets standing ovations. The Board majority gets jeers and boos. The board also votes to hire Larry Upchurch as an interim superintendent.
  • Thursday, later in the day, the Moore County Commissioners send out an amended meeting notice for a June 10 special meeting to include proposed board of education recall legislation.
  • Friday, Judge James Web grants a temporary restraining order to plaintiff Representative Jamie Boles to prevent the hiring of a permanent superintendent in order to give time to pass local legislation that would provide for a recall election of the board of education. Representative Boles posts a letter on Facebook to the community to explain that he will introduce the legislation unless the board members that voted against Dr. Bob resign by noon on Monday.
  • Saturday, three of the board members who voted against Dr. Bob resign: Kathy Farren, Ben Cameron, and Sue Black.
  • Monday, June 8, the Board meets at Union Pines High School. The auditorium is at capacity and includes county commissioners and board members of the Sandhills Community College. The board goes into closed session and when they return they vote, 4-1, to reinstate Dr. Bob. The crowd erupts in applause and cheers. Dr. Bob is reinstated with an amended contract that eliminates the unilateral termination provision that was used on Thursday. Larry Upchurch relinquishes his 6-month contract and refuses any compensation. The board takes a break. When they return, board chair Bruce Cunningham announces one more board resignation, Becky Carlson, who had voted on Thursday to terminate the contract and voted on Monday for reinstatement. Dr. Bob joins the board, back at his seat, as superintendent.
  • Tuesday, the Moore County Commissioners cancel the specially called meeting with a message from Chairman Nick Picerno, noting the “overwhelming support of our community to reinstate Dr. Bob.”

I had the great privilege of representing Dr. Bob through this process. It is a career highlight to see a leader so deeply embraced by his community. He had been in Moore County for less than a year. It is stunning that he had garnered such wide support in such a short amount of time.

 

Because of this support, the sequence of events is in some respects unique — one that I have never seen even though I have been involved in numerous contract terminations. This eruption of democracy — a community and its commissioners and legislators unwilling to stand idly by — is a model I wish we would see across this state on many public education issues. On Monday night, Representative Boles’ letter to the community, read at the board meeting by his wife, said as much:

I ask you to stay involved not only now, but in the future, as this has brought unity and strength to our community. It has also been a great act of democracy and hopefully a lesson to us all; we must all stay involved. I thank you for commitment to our community and especially to our schools.

This has been a great civics lesson for our county and a reminder that we are never too old to learn. I hope too that the students in our school system have recognized that our democratic system can work to benefit the greater good of its citizens.

There are other aspects of this process that are all too familiar. And that is execution of unilateral termination provisions in contracts that leaves the superintendent and the community out of the loop. To understand how this occurs, it is helpful to begin with the concept of employment by contract. By law, superintendents are hired on contracts for one to four years.1 A board can remove a superintendent “who is guilty of immoral or disreputable conduct or who shall fail or refuse to perform the duties required of him by law.”2 This is a high standard — a difficult standard — presumably because the General Assembly recognizes that the position of superintendent is subject to considerable political pressures. If a board chooses to pursue dismissal for cause, there will be some sort of notice of charges and a hearing where there is an opportunity to respond.

By law, superintendents are hired on contracts for one to four years. A board can remove a superintendent “who is guilty of immoral or disreputable conduct or who shall fail or refuse to perform the duties required of him by law.”

If a board cannot meet this standard and it terminates the contract before it is over, then the board has “breached” the contract. That is, it has not kept its part of the bargain of continued employment. By law, the remedy for a breach of contract is the full value of the contract remaining but with a duty to mitigate the damages. Translated to a superintendent contract, this means that the superintendent is due all the value of the contract, including salary, benefits, and impact on retirement accounts but must attempt to mitigate the damages by seeking other employment.

All of this is messy and difficult. Determining the value of the remainder of the contract can be contentious. Deciding what constitutes good faith efforts at finding comparable employment can be disputed and will certainly require the superintendent and board to remain in contact well after the employment relationship has ended.

Because of this messiness, boards and superintendents will agree in the contract to a unilateral termination provision.

Instead of following the remedy provided by law, there is some agreed upon “buy-out” if the board chooses on its own — without establishing cause — to end the relationship.

But there are problems with this. Most of the problems are evident in the Moore County case.

One problem is that the negotiated cost of the buyout may be so low that it leads to rash decisions. For example, the Moore County superintendent contract provided for one year’s salary. This is much lower than the remedy at law for a breach of contract. While a year’s salary might sound like a lot of money if you are on the receiving end, it is too easy for a board to find this amount in its fund balance or other local funds. A higher amount — closer to what is legally required — could slow a board down.

In these cases, there is no obligation for the board to tell the superintendent why it is terminating the contract and the superintendent has no opportunity to respond. There is no requirement to inform the public of its decision until it makes its vote in open session and then there is no requirement to give the public the opportunity to speak out.

Another problem is that it seems wrong for a board to end a relationship with its CEO without explanation or process — to the superintendent or the public. In these cases, there is no obligation for the board to tell the superintendent why it is terminating the contract and the superintendent has no opportunity to respond. There is no requirement to inform the public of its decision until it makes its vote in open session and then there is no requirement to give the public the opportunity to speak out. And indeed, these decisions are often made at inconvenient times without clear notice of the purpose of the meeting. Here, the board met on a Thursday morning at 8:00 on the first day of testing.

And third, it is hard for this not to be a blight on the superintendent’s employment record. People want to know why a board would do this and there’s no answer. Only lots of speculation and rumors. My hope is that so long as these arbitrary actions are allowed, that at least other boards and communities will see it for what it is and not penalize the superintendent for board behavior.

What are the solutions?

The interests of the board and superintendent need to be balanced. The lesson from Moore County is that the interests of the community also need to be considered. It is not easy to consider all of these interests so I offer the following suggestions not as a sewn up package, but rather as a starting point for a conversation.

First. We need to consider recalls of elected board members.3 When a board acts clearly in contradiction to the will of the majority, recall makes some sense. How to provide for a recall is a much more complicated question and will require great care to address electoral issues.

Second. We need to consider putting back into law a provision that allowed the State Board to remove board members for failure to discharge duties or for immoral or disreputable conduct. In 2007, legislation sailed through the General Assembly that eliminated this authority.4 From a constitutional perspective, how does the State meet its obligation to provide an equal opportunity to a sound, basic education if it does not have the authority to remove local board members who are impeding progress? The State is not absolved by simply having set in place a structure for local boards. Here is how the North Carolina Supreme Court articulates this issue in Hoke v. State (Leandro II, 2004):

By holding the State accountable for the failings of local school boards, the trial court did not limit either: (1) the State’s authority to create and empower local school boards through legislative or administrative enactments, or (2) the extent of any powers granted to such local school boards by the State. Thus, the power of the State to create local agencies to administer educational functions is unaffected by the trial court’s ruling, and any powers bestowed on such agencies are similarly unaffected. In short, the trial court’s ruling simply placed responsibility for the school board’s actions on the entity — the State — that created the school board and that authorized the school board to act on the State’s behalf.5

Third. Perhaps boards should not be allowed to execute unilateral termination provisions in contracts without notice to the public and an opportunity for response from the superintendent. It seems lacking in integrity that we would allow elected officials to take such drastic action without providing for some dialogue. It does not have to be as extensive as a hearing to establish whether there are grounds for dismissal. But surely some modicum of process is warranted for a decision with implications so great as removing the top leader. One has to wonder if the Moore County Board members would have voted in the first instance for termination if they had been more in touch with the sentiments of their community.

In the exuberance following the Board’s vote to reinstate Dr. Bob, a woman came over and gave me a big hug and said thank you. Lawyers don’t get hugs like this often so I was pleased and I wish I knew her name so that I tell her thank you for being there and supporting Dr. Bob.

And really, I wish I could say thank you to all of the community for the way that they stood up for their public schools. So here it is. Thank you.

Ann McColl

Ann McColl is an attorney practicing in the field of education law since 1991. She currently serves as co-founder and president of the Innovation Project.