The Hamilton County Board of Education remains divided on tonight's vote regarding Superintendent Rick Smith's future.
The nine-member board is expected to vote whether to keep Smith as the leader of Hamilton County schools, fire him or agree to the buyout he's proposed.
School board Chairman Jonathan Welch hopes the board will arrive at an agreement, whatever the outcome.
"We have to come to some type of resolution so we can move forward," Welch said.
But getting five votes for any decision will not be easy. At least two board members are adamantly against a buyout, others say they will vote for it and some believe Smith should stay on as superintendent.
Since the Dec. 22 rape of an Ooltewah High School freshman, allegedly by three of his basketball teammates, Smith has been deluged with criticism from the public and some board members for his handling of the situation. Smith asked the school board in January to negotiate a separation agreement with him.
Voting to buy out the contract, which was renewed last year to run through the summer of 2019, lets Smith walk away with about a half million dollars.
He would be paid $269,000 — about 35 percent of his contract — and step down immediately. Separately, Smith is entitled to an annual pension of about $95,000, more than $234,000 in vacation pay and about $6,800 in sick pay, school system figures show.
The school board's attorney, Scott Bennett, said the separation agreement does not expose the board to additional liability because it already is responsible for negligent acts and omissions of all its employees, including the superintendent.
The agreement requires Smith to cooperate in any investigation and the defense of any claims against the school board, regardless of whether he is named as defendant, Bennett said.
It also limits the board's responsibility to protect and defend Smith against claims made against him in his official capacity. Bennett said that obligation is more restrictive than his current contract, which also protects Smith individually.
But two local attorneys told the Times Free Press the proposed buyout could be more restrictive to protect the board from future payouts. They suggested having an external party review the agreement to ensure there is no conflict of interest relating to Smith and Bennett, who have worked closely together for years.
Attorneys and a few school board members also have noted there is no "clawback" provision that would require Smith to return the buyout money if he were to be indicted in connection with the Ooltewah case.
Bennett said the board could try to add such a provision but Smith would have to agree to it and negotiations would delay any resolution.
School board member David Testerman, a retired longtime educator and Smith supporter, blames the whole conversation about a buyout on a "witch hunt."
"Some folks jumped the gun and because of what took place in Gatlinburg we are lashing out with words, and I feel our school system is getting a bad rap right now," he said. "Superintendent Smith has done nothing to be fired over."
Testerman wants Smith to stay on, but if Smith wants to leave he is likely to vote for a buyout.
Retired educator and school board member Joe Galloway did not return a request for comment, but told the board last month Smith has done a great job leading the district and he isn't sure Smith should leave.
School board member George Ricks said he thinks the buyout offer is morally right.
Donna Horn, also a retired educator, said she will follow the will of her constituents, who have been calling and emailing her, almost all sharing the same opinion.
She wouldn't say how she will vote but described the last couple of months as a roller coaster
"I want to see the end of the ride," she said.
School board member Steve Highlander, a retired educator, said he also has been polling his constituents. He wasn't ready to say what he will do.
School board members Karitsa Mosley did not return requests for comment.
Mosley, a social worker, suggested last month the board approach the decision from a business perspective, adding that the board's "buyout culture" needs to be questioned.
School board members Rhonda Thurman and Greg Martin both work in business and say they absolutely will not vote for a buyout.
Martin said Smith can resign and leave with the pension he has earned, along with his accrued vacation and sick days, or can be retained by the board.
"I think if Rick wants to leave he should leave," Martin said. "I don't think he should leave and we give him half a million dollars and $100,000 a year."
Martin said he and his constituents would never be paid that much money to leave a job, and those who do are "the 1 percenters of Hamilton County."
Thurman said she would vote for Smith to stay and finish out his contract rather than support a buyout.
If Smith stays, Thurman said, things will have to be different moving forward.
"We're going to have to have a come-to-Jesus meeting about him keeping the board in the dark, and the failing test scores," Thurman said. "If he still wants to stay after we talk about all that it's fine by me."
Contact staff writer Kendi Anderson at email@example.com or 423-757-6592. Follow on twitter @kend_and.