Attorney Explains Why Clevinger Is Suspended With Pay

The following is a letter from Carteret County School Board attorney Neil Whitford explaining why Johnny Clevinger, charged with having a nude photo of a boy and other inappropriate photos at his house, is suspended with pay.

From Attorney Neil Whitford -

Sadly, but occasionally, professional employees of public school systems across North Carolina are arrested for serious off campus crimes. The virtual universal response of a public school system is to suspend the employee with pay and begin an internal investigation. The reason is found in state law at NC General Statute §115C-325.

It should be remembered that most professional employees of public
schools in North Carolina are paid with state funds, therefore it is
reasonable that the state sets the rules regarding the discipline and
potential discharge of these employees. It should also be remembered
that every American, including public school employees, are presumed
innocent until proven guilty.

The state law lists a series of grounds to dismiss or demote a
professional employee. One is “conviction of a felony or a crime
involving moral turpitude.” Note that a “conviction” is required. An
arrest is not sufficient to dismiss an employee. In many cases where
there is an arrest, but no conviction, public schools are left in that
uncomfortable position of having an employee subject to criminal,
sometimes serious criminal, charges but no conviction. This is
unavoidable under existing law.

The state law provides that a professional employee may be suspended
with pay for an internal investigation of whether grounds exist for
dismissing the employee. The suspension is limited to 90 days and, with
the agreement of the employee, can be extended beyond 90 days. But if a superintendent suspends a professional employee without pay, state law requires the superintendent to initiate a dismissal proceeding within five days – a very short time.

The dismissal proceeding involves a hearing before either a “case
manager” appointed by the Superintendent of Public Instruction in
Raleigh, or before the local board of education, to determine if
sufficient evidence exists to justify a dismissal. The employee chooses
the type of hearing he wants. This hearing is trial-like and there are
standards of evidence to protect the accused. An arrest, for even a
serious crime, without a conviction, is not evidence that will justify a
dismissal.

A wise superintendent will not start a dismissal process until he has
evidence that will hold up during the hearing. He simply cannot put his
case together quickly enough to meet the short time for the expedited
hearing process provided by state law. Again, if the superintendent
suspends a professional employee without pay, a dismissal process must start within 5 days. If law enforcement agencies are involved,
particularly for off campus conduct, it can take weeks for a
superintendent to get evidence that will justify a dismissal and a
superintendent will want to avoid a situation where he has initiated a
dismissal but does not have the evidence that will hold up in the
hearing.

As a result, most initial suspensions across the state are with pay, to
give the superintendent time to investigate. During the investigation
if the superintendent finds that he can produce evidence that justifies
dismissal independent of the arrest, he is often permitted by state law
to then begin dismissal proceedings. With that evidence in hand, he can
change the suspension to without pay and begin a dismissal proceeding
within the required five days.

The Carteret County Public Schools, the District Attorney’s Office and
all local law enforcement offices have excellent working relationships.
It has been our experiencconcluded, and that can take weeks, the law enforcement agencies share their evidence with the superintendent. In some cases, this will allow the superintendent to begin a dismissal proceeding against an employee before the criminal trial is concluded.

To summarize, state law provides the procedures for the dismissal of
professional public school employees. All Americans are presumed
innocent until proven guilty. An arrest is not evidence of guilt. A
suspension without pay triggers a mandatory dismissal proceeding to
commence within five days. The process includes a hearing to determine if there is sufficient evidence to justify a dismissal. Particularly with allegations of off campus criminal activity, local superintendents often do not get evidence from law enforcement agencies for weeks after an arrest. As a result, most suspensions are with pay to give the superintendent time to determine if enough evidence exists to justify a dismissal.

Neil B. Whitford
Carteret County Board of Education Attorney


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