This story appeared first as part of WFAE Politics Reporter Steve Harrison's weekly newsletter Inside Politics.
The Charlotte-Mecklenburg school board made a stunning decision last week, firing Superintendent Crystal Hill in a 5-4 vote.
The termination sent shock waves through Mecklenburg County and the state, coming just five weeks after a board-led investigation cleared Hill of wrongdoing, and a week after Hill sent a 200-page document to the board detailing allegations of financial irregularities related to former board chair Stephanie Sneed.
The firing raises a host of questions, which may be answered by the State Bureau of Investigation. This newsletter will focus on two specific legal issues about the termination.
- Was Hill acting as a whistleblower when she sent board members – her bosses – that memo detailing questionable $30,000 monthly payments to consultant Raki McGregor, which Hill says were approved without her knowledge?
- Does the ability to terminate the superintendent for convenience absolve the board of responsibility for possibly violating Hill’s protected employment rights?
To fire Hill, Sneed and four other board members relied on the superintendent’s contract, which allows her to be terminated “for convenience” in exchange for one year’s salary. That’s about $340,000.
The “for convenience” clause allows the board to remove the superintendent if things just aren’t working out. Perhaps it’s a personality clash. There are many possible reasons, and the board doesn’t have to name one. (If the board fired Hill “for cause,” like wrongdoing or poor job performance, they wouldn’t have to pay her out — but again, their investigation didn’t find cause.)
What state law says
North Carolina’s whistleblower law, titled “Protection for Reporting Improper Government Activities,” says:
“It is the policy of this State that State employees shall be encouraged to report verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting:
- A violation of State or federal law, rule or regulation;
- Fraud;
- Misappropriation of State resources;
- Substantial and specific danger to the public health and safety; or
- Gross mismanagement, a gross waste of monies, or gross abuse of authority.
The statute prohibits an employer from firing employees for reporting misconduct and bars “other retaliation against state employees who report violations of law, fraud, misappropriation, danger, or gross mismanagement, waste, or abuse of authority. “
Hill worked as a K-12 superintendent. Does that make her a protected state employee? The UNC School of Government says yes. In a blog post, the school says “The statute protects only employees of the state government and, by virtue ofGS 126-5(c5), employees of public school systems and community colleges.”
Now, was Hill a whistleblower? You can make a strong case that she was.
Her 200-page memo to the board lays out her history with Sneed and McGregor, a Sneed ally. She wrote that she was pressured to reinstate a consultant contract for McGregor’s wife’s company, SYDKIMYL. She wrote that it appears Sneed then engineered a plan for McGregor to be paid $30,000 a month for a year by an outside law firm, Poyner Spruill.
Hill wrote that she wasn’t aware of the contract. She believed the $30,000 monthly payment was a waste.
“I do not know how, why, or when this program (an affordable housing project for teachers) was turned over to Poyner Spruill, Chair Sneed, and Raki McGregor,” Hill wrote. “To my knowledge, and that of my staff, Mr. McGregor has not provided any meaningful input or assistance with the At Home in CMS initiative.”
She wrote that Sneed and other allies then launched an investigation to discredit her. That report found no evidence of wrongdoing, and Hill was reinstated in August. Then, after Hill wrote her memo — much of it about Sneed and McGregor — the board, including Sneed, voted to fire her.
But does Hill’s contract negate whistleblower claims?
Hill’s contract – which she signed – allows the board to fire her for convenience. It also says she will be paid a year’s salary in severance. In return, Hill forfeits the “right to a hearing before the Board … (T)he right to appeal the Board’s actions, and the right to file any claim against the Board, its officers, members, employees, and representatives relating to or arising out of her employment with the Board shall be considered waived by Superintendent.”
That appears to be an open-and-shut case. Hill gets her money, and she can’t sue the board for any reason.
But does Hill or any employee waive all protected rights by signing such an employment agreement?
To put it another way: Would the board be absolved from claims if it announced it was firing a superintendent because they are a woman, or gay, or a minority? Would a superintendent who signed such a contract be unable to file a claim against the district if they were assaulted by a board member?
Certain federal laws barring employment discrimination clearly override any contract. And the U.S. Equal Opportunity Commission has said that employers have “non-waivable rights” that can’t be forfeited in an employment agreement.
So the question becomes: Would state-protected whistleblower status be one of those? More important: Does Hill want to sue and find out?
