NEW HANOVER COUNTY — On Friday, the New Hanover County Board of Education and Superintendent Dr. Tim Markley signed a ‘separation agreement’ that allowed the board to end Markley’s contract ahead of its June 2021 expiration date.
The agreement allows Markley to ‘resign’ — as opposed to being fired — but it does not trigger the sliding-scale repayment clause added to his contract in June 2017 that would have required Markley to pay $50,000 to the board for leaving with a year and a half left on his contract. According to New Hanover County Schools (NHCS) General Counsel Wayne Bullard, the separation agreement supersedes this clause and other contractual provisions.
Instead, the board will pay Markley around $226,000 in severance and accrued benefits; the lump sum payment is due to Markley within 20 days; it will be taxed, but will not contribute towards his state employee’s retirement fund. (You can find the complete agreement below).
The agreement also contains something of a gag order, called a ‘non-disparagement provision.’ Because of this order, the Board of Education is legally prohibited from making disparaging remarks, defined as anything libelous, slanderous, false, or misleading — a range with enough room for interpretation to likely prevent the Board from ever openly discussing why it separated from Markley beyond the token statement that it was the “best solution to move [the] system forward.”
Still, questions remain about whether paying Markley to leave was the only — or best — option.
Did the board have ’cause’?
The gag order means the board will be unlikely to discuss whether — or to what extent — they considered terminating Markley outright. But it’s no secret that the public outcry for Markley’s termination was considerable and it was clear that Board of Education wanted him gone or they would not have paid him nearly a quarter of a million dollars to separate from the district.
Some have asked, why not fire Markley, instead?
- Inadequate performance.
- Neglect of duty.
- Physical or mental incapacity.
- Habitual or excessive use of alcohol or nonmedical use of a controlled substance as defined in Article 5 of Chapter 90 of the General Statutes.
- Conviction of a felony or a crime involving moral turpitude.
- Advocating the overthrow of the government of the United States or of the State of North Carolina by force, violence, or other unlawful means.
- Failure to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of this State.
- Failure to comply with such reasonable requirements as the board may prescribe.
- Any cause which constitutes grounds for the revocation of the career employee’s teaching license.
- A justifiable decrease in the number of positions due to district reorganization, decreased enrollment, or decreased funding, provided that there is compliance with subdivision (2) of this subsection.
- Failure to maintain his or her license in a current status.
- Failure to repay money owed to the State in accordance with the provisions of Article 60, Chapter 143 of the General Statutes.
- Providing false information or knowingly omitting a material fact on an application for employment or in response to a pre-employment inquiry.
Some have pointed to Markley’s affair with his former secretary (and now wife) in 2013 as an example of ‘immorality.’ Media coverage at the time focused both on the salacious and policy aspects of the issue — noting the affair but also pointing to NHCS’s surprising lack of dating policy. Markley’s future second wife also received a considerable raise (from $35,000 to around $70,000) after she started working for Markley. She was later moved to another department and issued a further $5,000 raise based on an ‘outside experience credit’ — something that was never fully explained by either the board or the district.
Reporting by WWAY implied by juxtaposition, but did not outright state, that the unexplained promotion of Dr. Rick Holliday to the position of Deputy Superintendent — a post that had been empty for a decade — was related to Markley’s affair.
Others have pointed to ‘neglect of duty’ and ‘inadequate performance’ as apt descriptions for Markley’s failure to correct systemic issues in the school, including but not limited to civil rights violations, sexual abuse of students, harassment, and retaliation.
Then there are Markley’s own actions, including his attempt to intimidate and silence UNCW Professor Clyde Edgerton — for which the board publicly censured and suspended him without pay. There was also and an additional incident, documented in an Internal Affairs document, in which Markley contacted Sheriff Ed McMahon’s office in an attempt to restrain the actions of a deputy, a parent who had been critical of the administration’s handling of his daughter’s Title IX case.
Both federal law and NHCS’s own policies prohibit retaliation, intimidation, and bullying. The board was still deliberating the deputy’s case when it reached the separation agreement with Markley — so it will likely remain unknown if the board would have found it sufficient grounds for termination.
Why settle? What does the settlement offer?
The announcement of the settlement between the Board of Education and Superintendent Markley came after over five hours of closed-door debate, conducted with the media camped outside. It was the longest, but not the only closed-door meeting over the last two weeks.
While board members have declined to discuss what occurred during these meetings, it stands to reason that they would have debated not only what was the best option for the district, but what the potential costs of each option would be — including a potential wrongful termination suit by Markley, something that could have resulted in the board paying considerably more than they ultimately did.
While North Carolina is a ‘right to work state’ (a euphemistic way of saying employers can fire employees for nearly any reason), employees with contracts can take their case to civil court if they feel their employer violated the contractual limits for termination.
The settlement addresses this, including a “complete and final settlement” of any and all past, present, or future claims against Markley by the board, or vice versa. Among other things, the agreement indemnifies the board from a wrongful termination suit by Markley.
The agreement also addresses the legal legacy left behind after Markley’s ten-year term — lawsuits, administrative complaints, and investigations by the FBI, North Carolina State Bureau of Investigation, and the U.S. Department of Education Office of Civil Rights (OCR). While the agreement does not identify specific incidents, there have been several documented OCR complaints against the district, in addition to the civil suit brought by the victims of Michael Earl Kelly.
The agreement compels Markley to provide his full cooperation and participation in dealing with these legal issues. At the same time, the agreement extends “continued liability coverage” to Markley, provided by the board’s insurance carrier, for “acts or omissions” during his employment; it’s worth noting such coverage was apparently not extended to former Deputy Superintendent Dr. Rick Holliday, who hired his own legal counsel in the ongoing lawsuit stemming from Kelly’s arrest.
Below: Markley’s employment contract and renewal addendums, as well as the signed separation agreement.
Send comments and tips to Benjamin Schachtman at firstname.lastname@example.org, @pcdben on Twitter, and (910) 538-2001