By Greg Oliver
Courtesy The Journal

goliver@upstatetoday.com

PICKENS — A five-year contract extension for Pickens County school superintendent Danny Merck approved last month by school board trustees remains a source of contention for trustee Alex Saitta, who voted in opposition.

In fact, Saitta said last week he recently corresponded through email with South Carolina Press Association attorney Jay Bender concerning the legality of the measure.

In his response to Saitta, Bender cited rulings by the South Carolina Supreme Court in Newman v. McCullough and Cowart I and Cowart II. The attorney said that without knowing the terms of the Pickens County School Board, he could not say whether the five-year contract could be void or the severance package disallowed.

But Bender did say that, “at first glance, it seems the contract extension violates Newman and Cowart.”

“It is my opinion that the board cannot lawfully enter into a contract with a superintendent that extends beyond the term of the board members, even if the board members have staggered terms of office,” Bender said when contacted later.

In June, the board voted 4-1 to extend Merck’s contract through June 30, 2021. Voting in favor were board chair Judy Edwards and trustees Brian Swords, Phillip Bowers and Dr. Herbert Cooper, while Saitta voted in opposition and vice chairman Henry Wilson abstained.

Saitta said at the time that while he supports Merck and voted for his initial contract, he voted against the long-term extension. Last week, Saitta again said the school board is responsible, by law, for hiring the superintendent, and can only direct the superintendent, rather than department heads, principals or employees.

What particularly concerns Saitta is that board members face election in 2016 and 2018, meaning that the five-year extension “binds future school board members in the most important decision they make.”

Saitta said he was informed by Bender that rulings by the South Carolina Supreme Court in the cases of Newman vs. McCullough and Cowart I and Cowart II stated that “the appointment of a public officer cannot be impaired by an employment contract extending beyond the term of the members of the government body.”

“It appears the school board cannot give the superintendent a contract beyond November 2018,” Saitta said. “My hope is the school district’s attorney will now review the cited case law presented against the latest contract that extends out to June 2021.”

In the case of Newman v. McCullough, Bender said “the Supreme Court of South Carolina held that a governmental body could not enter into a contract for the performance of a government function if the contract extended beyond the term for which the members were elected.”

The attorney stated the Newman case “involved a resolution adopted by Greenville City Council for the reemployment of returning World War II service members, with the court holding that the resolution was void because it extended beyond the term of office for the council.”

Bic Halligan, whose Columbia-based firm represents the School District of Pickens County, did not respond to a request for comment.

Wilson said that as a school board member, he would defer legal considerations to the board attorney. However, the Dacusville representative said he voted to abstain for several reasons, including the length of the superintendent’s contract extension, which exceeds the term of current board members.

“In my view, the contract extension terms effectively bind current and future boards to the current superintendent in a practical and operational sense,” Wilson said, adding, “Our schools operate in a dynamic, rapidly changing environment, and school boards need both operational flexibility and across-the-board accountability to ensure effective governance.”

But Bowers, who voted in favor of the extension, said the district “is blessed to have a man of Dr. Merck’s character and strong Christian faith in charge of our schools.”

“I wish we could bind him forever, but he will eventually retire,” Bowers said. “The extension is reasonable to me. Unfortunately, there are lawyers and a certain board member who will do anything to rid our schools of strong-principled leaders like Dr. Merck. They are egotistical leeches eager to skim money from taxpayers through frivolous lawsuits and feed their massive egos at taxpayer expense.”

None of the other board members responded to requests for a response to Saitta’s complaint and Bender’s legal opinion. However, when the extension was first approved by the board, Edwards issued a statement of support.

When Merck was initially named superintendent in April 2014, he was awarded a four-year contract at $120,000 annually. Prior to the board’s approval of a five-year extension, the board had voted in Oct. 2015 to extend Merck’s contract by one year to June 2019.

In addition to the same 3 percent cost-of-living increase given to all classified and administrative employees, the superintendent’s five-year contract extension also includes a unilateral termination clause increased to three years or the balance due on the contract, and specifies a procedure for event administrative leave.