Fayetteville School Board explains Wendt termination timeline

FAYETTEVILLE -- School Board members said the process of firing Superintendent Matthew Wendt took a fairly standard amount of time for what is a fairly uncommon circumstance.

The board unanimously voted to terminate his contract June 18 after an employee sexual harassment claim was made March 14. The district investigation into the claim ended April 13. He was placed on paid leave April 8.

"In cases involving a teacher hearing, I don't remember it ever taking less than three months," said board president Justin Eichmann, who has served on the board since 2010 and is a partner at Harrington Miller Attorneys.

Board member Tim Hudson, executive director of the Washington Regional Medical Foundation, said he has seen only a handful of employee hearings in his 14 years on the board.

"There's no typical or usual. I'd say it's unusual that we have employment hearings at all," Hudson said. "These hearings are at the request of the employee. It's far more common for someone to choose to resign."

The board cited a breach of contract by violating the School District's sexual harassment policy. Wendt violated the policy through his derogatory and offensive conduct and communication with a female subordinate employee, said Susan Kendall, the School Board's legal counsel.

Some, including Suzanne Clark, the employee's lawyer, said the board should have acted quicker. On March 15, Clark presented the School District with voice recordings of Wendt and copies of text messages between her client and Wendt.

Clark's client has a pending sexual harassment complaint with the Equal Employment Opportunity Commission against the School District and board. She said they'll wait until they receive a right to sue letter before deciding how exactly how to move forward, but plan to file a lawsuit, she said. The complaint was filed May 25, and it could take months to hear back from the commission.

School Board secretary Nika Waitsman said, "I think the public is frustrated because grievances like this are handled so differently in a public vs. corporate environment. I feel good about the way we handled it even though it, unfortunately, was interpreted to and by the public as an imbalanced concern for one employee's rights over another's. From my perspective, that wasn't at all the case."

It's important in these cases to make sure the accused is afforded due process under the 14th Amendment of the U.S. Constitution to avoid a potential civil rights claim against the district, according to School Board members and Clark.

The board -- under legal guidance from Kendall, the Arkansas School Board Association and others -- decided to follow procedures laid out in the Teacher Fair Dismissal Act, which affords the employee under investigation a notice the board is considering termination and 30 days afterward to request a hearing to defend himself.

Kendall provided notice April 25 to Elizabeth Robben Murray, Wendt's lawyer, the board was considering disciplinary action against Wendt based on the findings, Kendall said.

Wendt waited until the end of the 30 days to request a hearing, Eichmann said. Wendt then waived his right to a public hearing at the June 18 special meeting called for the hearing.

"If we would have been able to schedule the hearing the week before or the week before that, we would have done it," Eichmann said. "If we had not afforded that process, I think we would have had a difficult due process claim to defend. Any other process we would have done that would have shortened that would have put the district in jeopardy. The last thing we want to do is put the district at risk."

The Teacher Fair Dismissal Act doesn't apply to superintendents, but in the absence of set statute that specifically does, the act has been used in other cases to afford proper due process, Eichmann said. In short, the board didn't create a new procedure but followed the "very clear case law" available, he said.

Board member Bob Maranto said he couldn't discuss any particular case but said as a University of Arkansas professor who researches public personnel management that, "I can say I used to teach and publish in public personnel management, and from that, generally speaking, the courts have ruled that public employees have property rights in their jobs and contracts. Constitutionally, you cannot take away property without due process. That can be awfully frustrating because the rule of law takes time."

One such case took place in Mississippi after Superintendent Montrell Greene was fired without an opportunity to address the Greenwood Public School Board. Greene had a three-year contract through June 2018 but was fired effective Jan. 4, 2016, after three members of the board called a special meeting and voted to terminate Greene's contract.

Greene appealed. The U.S. Fifth Circuit Court of Appeals found although Mississippi law stated a school superintendent terminated for cause "did not have the right to request a hearing before the school board or hearing officer," the board still had the discretion to grant a hearing. Moreover, the law had no effect on the viability of Greene's federal due process claim.

"The Fourteenth Amendment required defendants to afford Greene a pre-termination hearing; a state law prohibiting such a hearing would not diminish Greene's rights under federal law," according to the ruling.

The Mississippi case illustrates that term-contract educators are entitled to notice and an opportunity for a hearing prior to termination regardless of what state laws exist.

Eichmann pointed out it can take time and the timing can be just as much up to the employee. It took about eight months to investigate and schedule a hearing regarding the termination of Tim Hollis, a teacher and debate coach. Hollis was put on leave in May 2012, and three hearings were scheduled and postponed at Hollis' request because of health concerns. He was fired in February 2013.

NW News on 07/08/2018