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P: 910.762.1990 | F: 910.762.6752 | 800.762.1990 | www.shipmanandwright.com
Gary K. Shipman
Jennifer D. Scott
Board Certified Civil Trial Specialist
National Board of Trial Advocacy
Certified Real Property Specialist
NCDRC Certified Superior Court Mediator
William G. Wright
Angelique Adams
James T. Moore
Gregory M. Katzman
Jennie R. Glish
NCDRC Certified Superior Court Mediator
W. Cory Reiss
Kyle J. Nutt
Writer’s email: gshipman@shipmanlaw.com
March 4, 2015
VIA FIRST CLASS AND ELECTRONIC MAIL
Jason C. Harris
Chair, Cape Fear Community College Board of Trustees
317 Colonial Drive
Wilmington, North Carolina 28403
jason.c.harris@wellsfargo.com
jharris@cfcc.edu
mlee@cfcc.edu
Re:
Our Client: Dr. Ted Spring
Our File No.: 15-018
NOTICE OF RESCISSON OF RESIGNATION AND DEMAND FOR
REINSTATEMENT
Dear Mr. Harris:
On January 22, 2015, during a closed session of the Board of Trustees of Cape Fear Community
College, without any prior notice, you, as Chair of the Board of Trustees, informed Dr. Spring
that it was the Board of Trustee’s intention not to renew his contract in November, 2015, and that
you and the Board wanted to offer Dr. Spring the opportunity to resign so that he could get a job
elsewhere, and then informed Dr. Spring that if he did not resign, the Board of Trustees intended
to return to open session and fire him. Dr. Spring then asked you whether he could have until the
next morning to make a decision, and you informed him that if he did not resign “now”, the
Board of Trustees would return to open session and fire him that night. When Dr. Spring
inquired of you what he had done to warrant termination, the only explanation provided by you
was: “you did not do what we asked you to do”, without any further elaboration.
Dr. Spring’s employment with Cape Fear Community College is subject to the provisions of an
Employment Agreement dated August 16, 2012, the relevant provisions of which provide for an
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March 12, 2016
Page 2
“annual evaluation of the President during the spring semester of each year” and provide for
termination of his employment “for cause” or at Dr. Spring’s request, with “no less than sixty
(60) days’ notice.” Dr. Spring’s Employment Agreement also entitles him to due process in the
event of a “for cause” termination, requiring the Board of Trustees to provide Dr. Spring “with a
written notice explaining the basis for the termination and the President’s right to a hearing if so
elected.” After being provided with this written notice, Dr. Spring was entitled to a period of
five (5) days to respond, and to thereafter “appear before the Board” for a hearing, be represented
by a “legal representative”, and the right to “confront and cross-examine any adverse witness.”
Only after being provided those protections would the Board issue a “written decision and
determination based on evidence adduced at the hearing.”
Thus, the statements that you made to Dr. Spring on January 22, 2015 were false. The Board of
Trustees could never have lawfully undertaken to terminate Dr. Spring on January 22, 2015, in
open or closed session, as he had not been provided with the due process to which he was
entitled, under the express provisions of his Employment Agreement and the law. It is our belief
that you, other Board Members, and others in attendance in the closed session, knew these
statements to be false, and intended Dr. Spring to rely on these false statements. Despite Dr.
Spring’s request to have until the next day to consider his options, that request was refused.
As ordered, Dr. Spring left the closed session to begin the preparation of a letter of resignation.
Dr. Spring was then summoned back into the closed session, whereupon you offered Dr. Spring
six (6) months of severance pay; a “neutral recommendation”; and a confidentiality/nondisparagement agreement so that neither party would make any negative comments against the
other. Dr. Spring accepted that offer, and in reliance thereon, left the closed session, completed a
letter of resignation and provided that letter of resignation to you.
On or about February 4, 2015, Dr. Spring attended a meeting with you, at the office of Ward &
Smith, P.A., and was provided a document entitled “Resignation and Release.” As you know,
and as Dr. Spring pointed out to you that day, that document contained provisions that were not
part of your offer of January 21, 2015, nor Dr. Spring’s acceptance thereof. Specifically, that
agreement contained a provision requiring that the Board would be entitled to deduct from Dr.
Spring’s severance “the amount by which the independent auditor in published findings
determines to be in excess of the reasonable amount to which Spring was due under the
Employment Agreement and applicable law.” That provision had never been discussed with Dr.
Spring, much less agreed upon by him. The “non-disparagement” provisions contained in
Paragraph 5 were likewise not mutual, requiring only that Dr. Spring not disparage the Board or
the College, and not vice versa. Similarly, the release provisions were not mutual. As Dr.
Spring was advised to do, he sought counsel, and after consultation with me, minor edits, in
accordance with your offer of January 21, 2015 and Dr. Spring’s acceptance, were provided to
Mr. Norment by our office on Friday, February 20, 2015.
That same day, as you now know (but publically denied), Louie Burney, a member of the Cape
Fear Community College Board of Trustees had both written and oral communications with Ben
David, New Hanover County District Attorney, asking that the District Attorney have the State
Bureau of Investigation undertake an investigation of Dr. Spring based upon allegations made by
Shipman & Wright, L.L.P.
March 12, 2016
Page 3
an employee. On February 24, 2015, the local media reported that call, and on that date, I sent
Mr. Norment an email, questioning the conduct of that member of the Board of Trustees, given
especially the Board’s request for a “non-disparagement” agreement. It was in response to my
communications to Mr. Norment of February 24, 2015 that I was informed that the Board
considered my edits transmitted on February 20, 2015 to be a “counter-offer”, and that
accordingly, the severance offer made and accepted by Dr. Spring on January 21, 2015 was
withdrawn.
Please consider this letter as Dr. Spring’s Notice of Rescission of his resignation of January 21,
2015. Dr. Spring’s resignation was obtained by the misrepresentation and/or deception of you
and the Board of Trustees, and likewise forced by your duress and/or coercion. Dr. Spring’s
reliance upon your misrepresentations was reasonable. Dr. Spring was not given an alternative
to resignation, nor was he given a reasonable time to make a decision about resigning. Dr.
Spring was furthermore not permitted to select the effective date of resignation, being informed
that his resignation must be effective that evening.
Dr. Spring had a constitutionally protected “property” interest, arising from his contract, in his
continued employment with Cape Fear Community College. Dr. Spring’s employment could not
be involuntarily terminated without affording him due process. Dr. Spring likewise has a
constitutionally protected interest against any stigma inflicted upon him by the Board of
Trustees, all without due process. Dr. Spring’s resignation was not voluntary; it was involuntary,
and based upon your false statements that if he did not resign, the Board would return to open
session and fire him. The Board of Trustees cannot avoid its constitutional obligation to provide
Dr. Spring with due process by the simple expedient of forcing an involuntary resignation. If the
Board of Trustees is desirous of undertaking a proper termination, for cause, of Dr. Spring, we
respectfully request that he be afforded the procedural protections afforded in his Employment
Agreement.
We accordingly respectfully request his immediate reinstatement, pending further proceedings.
This notice is being provided to you without prejudice to any other remedies which Dr. Spring
reserves as against all involved. We trust that the Board will do the right thing, and attempt to
avoid the litigation that will follow, with the resultant embarrassment, both personally and
professionally, to all involved.
Sincerely yours,
Gary K. Shipman
GKS/gks
cc:
Dr. Ted Spring
James W. Norment