"I’m Gonna Make Him an Offer He Can’t Refuse”

1. "I’m Gonna Make Him an Offer He Can’t Refuse” The Legal Implications of Forced Resignations

2. Typical Community College Employment Scenario • Employees employed on annual or multi-year contracts • Employee non-renewed at the end of the contract period – some level of procedural due process • Employee dismissed during the contract period – some level of procedural due process but likely more than for a non-renewal

3. Dismissal during the Contract Period • 14th Amendment – No deprivation of life, liberty or property without due process of law • An employment contract is a constitutionally protected "liberty" and "property" interest that cannot be terminated without some level of due process • Level of due process and actual procedures vary from college to college • A forced resignation deprived the individual of their liberty and property interest without due process

4. Case Study – Leardini v. Charlotte Mecklenburg Board of Education • Jeffery Leardini sued the Charlotte Mecklenburg Board of Education on a civil rights theory that he was wrongfully forced to resign from this teaching position from Charlotte-Mecklenburg Schools in the wake of sexual misconduct allegations lodged against him by several students. • Jury verdict in favor of Mr. Leardini against CMS for $1.1 million (later settled for $680,000). • Probably could not been avoided.

5. Resignations Must Be Voluntary • If the employee "voluntarily" resigns, no deprivation of a constitutionally protected right. • Involuntary Resignations can be proved using two theories: • Obtained by employer’s material misrepresentation or deception; or • Forced by employer’s duress or coercion.

6. Material Misrepresentation • Material misrepresentation means that a false statement concerns either: 1) the consequences of the resignation (e.g., "You will lose your retirement if fired"); or 2) the alternative to the resignation (e.g., "Quit or be fired"). • Reliance on the false statement must be reasonable under the circumstances.

7. Duress or Coercion Duress means that the: • Totality of the circumstances demonstrate that the employer’s conduct took away the employee’s free choice to resign.

9. Duress or Coercion Duress means that the: • Factors to consider in analyzing possible duress: • Whether the employee was given some alternative to resignation; • Whether the employee understood the nature of the choice s/he was given; • Whether the employee was given a reasonable time in which to choose; and • Whether s/he was permitted to select the effective date or resignation.

10. Duress or Coercion Duress means that the: • Mere "unpleasant choice" of "resign or face legal or disciplinary action" does not establish a due process violation.

11. Ten Things to Consider Regarding Employee Resignations • If serious allegations are made against an employee, use suspension with pay to allow time to investigate. • Meet with the employee as soon as you know the facts to get their side of the story. Sometimes this requires multiple meetings with the employee. • Do not bring up resignation at the initial meeting or during fact-finding meetings with the employee.  Let the employee ask about resignation.  • Do not offer opinions regarding the outcome of the investigation. • Do not make promises or offers to entice an employee to resign unless it is part of a written resignation agreement.

12. Ten Things to Consider Regarding Employee Resignations • If the employee insists on resigning, do NOT offer favorable terms such as positive reference, removal of documents from the personnel file, no further action, etc.  In other words, allow the employee to resign without making any promises. • Encourage the employee who wants to resign immediately to take time to consider the decision and to contact an attorney or other representative.  If they decline, put that fact in writing for their signature and make no other promises or deals! • If the employee wants to negotiate their resignation, involve your board attorney to get the terms of the resignation or employment separation in writing. • Always involve a witness who can support what happened in the meeting and write-up your meeting notes immediately after the meeting. • Don’t be in a hurry to get a resignation!  If there is good reason for s/he to resign, s/he will.

13. Sample Resignation Letter I hereby voluntarily resign my employment with Tar Heel Community College effective as of September 30, 2014. I hereby affirm that I was not asked, coerced or forced to resign by my employer but hereby choose to resign on my own free will. I hereby agree that my employer has made no representations regarding the effect of my resignation on any pending or future investigation and/or matters arising from such investigations, if any, including but not limited to: possible reports to and/or cooperation with law enforcement. I simply wish to resign and believe that such action is in my personal best interest. I had ample opportunity to consult with an attorney or represen-tative prior to signing this form. Employee: ____________________________ Date: _____________________ Witness: ______________________________ Date: ___________________ Acceptance of Resignation President: ____________________________ Date: ___________________

14. Chad Ray DonnahooCampbell Shatley, PLLC674 Merrimon Ave Suite 210Asheville, NC 28804(828).398.0064chad@csedlaw.com