A Columbia attorney with experience in open meetings and open records law says Sumter school board's vote Monday night to end the superintendent's employment was illegal because it was not stated on the meeting agenda.
Jay Bender, legal counsel for the South Carolina Press Association, told The Sumter Item on Tuesday that a motion by a member of the district's Board of Trustees to modify Superintendent Penelope Martin-Knox's contract end date from June 30 needed to be a specific agenda item in order to vote on it.
After returning from executive session behind closed doors, the trustees voted 5-4 to pay the superintendent the remaining balance of her contract and allow her to walk away, effective immediately. The motion was brought by Daryl McGhaney and immediately seconded by Sherril Ray. Others voting in favor of the motion were Matthew "Mac" McLeod, Johnny Hilton and Frank Baker, who is vice chairman of the board.
Those against were Chairwoman Barbara Jackson, Brian Alston, Shawn Ragin and Gloria Lee.
In open session, Martin-Knox said Monday she is not in agreement with the terms.
According to Martin-Knox's contract, her termination must be approved by a super-majority of the full school board. The board on Monday fell one vote shy of that six-member threshold.
Bender said the board effectively terminated Martin-Knox's contract, even though "termination" was not used in the motion.
"They accelerated the date she was leaving," Bender said, "which looks, walks and talks like termination. If her contract expired June 30 and the board without having the item on the agenda voted to accelerate the end date of her employment and pay her leave time and whatever else, then that was a termination, and it had to be on the agenda. Since the contract expired June 30, had the board taken no action, then she would have been paid through June 30, and the contract would have ended."
Bender said the appointment of the assistant superintendent, Brenda Hafner, as the leading district administrator was also illegal because that was also not an agenda item.
It is unknown if Hafner has been contacted on filling the post or if she is even interested.
While in executive session, the full board discussed with attorney David Duff proposed contractual arrangements and personnel matters related to the superintendent, per the meeting agenda.
Duff left the board meeting, held at Manchester Elementary School in Pinewood, before the trustees returned to open session and apparently was not aware of McGhaney's impending motion on Martin-Knox.
After Ray immediately seconded the motion and several comments were made by board members on the matter, Jackson - the board chair - called Duff on his cellphone for guidance.
Duff told The Item on Tuesday morning that his cellphone reception was not clear from the Pinewood area, and he did not offer any advice to the board.
He then said he could not really clarify what transpired.
"I wasn't there," Duff said. "I don't know exactly what happened; so, I am just not able to provide you any information."
Bender said even the board's stated purpose for entering executive session on the agenda was inadequate as a matter of law, according to the state Supreme Court.
That statement read, "Enter into executive session: Receipt of legal advice related to a potential claim or other matters covered by the attorney-client relationship, and discussion incident to proposed property contractual arrangements and personnel matters related to the superintendent."
Bender said such a broad statement is inadequate to meet the requirement of the statement of a specific purpose.
"The recitation of those items that are included in the statute is not specific," he said. "So, the statement of the purpose of the executive session was illegal and inadequate, and nothing in that statement places on the agenda the modification of the superintendent's contract and the payment of money to the superintendent.
"It was illegal on the executive session and on the vote to end the superintendent's employment immediately and to place someone in her position immediately. Those items needed to be on the agenda in clear terms, and they weren't, and the vote to do so was illegal."
Eight current members of the nine-member board voted unanimously to name Martin-Knox its superintendent in March 2019, and she officially began in her role on July 1, 2019.
In her first evaluation in October 2020, she received the top score possible from the board.
The performance evaluation for her second year in the district - July 1, 2020, to June 30, 2021 - was conducted in December.
During that evaluation, Martin-Knox said she was not seeking an extension past June 30 of this year, and the evaluation was never formally completed.
At the Jan. 10 board meeting, the trustees voted 5-4 to not extend her contract beyond that date. The board's vote that night was the same as Monday's vote. McGhaney, Baker, Ray and McLeod are a consistent voting bloc and have been joined by Hilton on this issue. Jackson, Alston, Ragin and Lee have voted on the other side, with Alston and Ragin being consistent outspoken supporters of Martin-Knox. Following the Monday night vote, Alston packed his meeting materials and left the meeting before it formally ended.
Following the Jan. 10 vote, Martin-Knox said she would have been receptive to an extension if it had passed because it would be a sign to continue to move forward.
There has been no public statement, whether from an individual or group, about what created the rift between the board majority and the superintendent.
On Feb. 19, Raytown School District in Raytown, Missouri, a suburb of Kansas City, named Martin-Knox its incoming superintendent, effective July 1.
"The school board is trying to hide its actions from the public, and unless somebody calls the board's hand on it, it will continue to happen," Bender said. "It's another example of people on the school board believing they are not accountable to the public and not obligated to follow the law."
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