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Negotiating Superintendent Contracts – Legal Issues,
Practical Solutions
Celynda L. Brasher October 2, 2015
MSBA Fall Conference Breakout Session
Tan-Tar-A
Purpose of the Contract
• Establish clear, mutually agreed-upon terms
• Create and maintain good relationship between board and superintendent
• Prevent disagreements that lead to litigation
• Provide for orderly and harmonious operation of the district
Unique Issues
• New superintendents often hired in early calendar year to begin July 1
• April election may change composition of board in minor or major part
• Subsequent elections frequently result in changes to composition of board, maybe even reversal of majority
• Important to have unambiguous, legally-binding contract that properly protects legal interests of school districts and superintendents
Who Is the Client?
• Board of Education is the client, even if the members have never seen the attorney
• Board President should lead negotiations with superintendent
• Superintendent may have own counsel to negotiate initial contract (but is rare)
Who Is the Client?
• Superintendent may convey terms of continuing contract to attorney if no disagreement exists
• If disagreement regarding continuing contract, superintendent may need separate attorney (rare, but can occur)
• Board may communicate directly with attorney regarding initial or continuing contract
Who Is the Client?
• Superintendent contracts are legal documents
o Profound (sometimes unintended) consequences
o Be sure parties (board and superintendent) are comfortable with all terms of initial or continuing contracts before signing
Missouri Law
•Requires contracts be issued to specific instructional and administrative employees – including superintendents
•Must set forth term of employment, salary, and all other essential terms of employment
Missouri Law
•Section 162.301 – all contracts must be approved by a majority of the whole board of education
•Section 432.070 – all contracts must be in writing and signed by the board president
•Oral promises are not enforceable
Missouri Law
• Important provisionso Background checks
o Initial and continuing contractso Due process
o Require compliance with and enforcement of board policy
o As existso Thereafter amended
Missouri Law
•Multi-year contractso Must be written carefully
o Salary should not be open-ended
o Must include sufficiently definite salary provision
o Specific dollar amount
o Range expressed in dollars or percentage
•Multi-year contracts (continued)o Indefinite provisiono Potential failure in second and/or
third yearo Federal case suggesting otherwiseo Not binding on Missouri courtso Not appealed in federal courts
Missouri Law
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Missouri Law
•Administrative contracts (general)o Wise to be generico Avoid guaranteeing specific positionso Reserve right to reassign at same
salaryo Not advisable or practical for
superintendents
Missouri Law
•Tenureo Superintendents cannot obtain or
retain tenure while serving as superintendent
o Not even if tenured in district immediately prior to becoming superintendent in that district
Missouri Law
•Certificationo Require superintendent to obtain and
maintain certification as superintendent prior to commencement of contract
o Important for accreditation and related issues
o Failure = cause for dismissalo Due process still required
Missouri Law
•Missouri Open Meetings Acto All employment contracts with public
schools are open records
o Includes superintendent contracto Never include anything in an
employment contract – especially the superintendent’s contract – that you would not want the public to see
Additional Legal and Practical Concerns
•No person may be employed or contract approved unless majority of whole board votes to approve employment or contract
•Applies to all employees and all contracts for employment – including superintendents
Additional Legal and Practical Concerns
•Order of signatureo Superintendent, first
o Board, second – only after formal vote to approve
o Issuing with board signature before vote = litigation
o Appears to have been approved, but has not – and could be rejected
Additional Legal and Practical Concerns
•Compensation increase – public employeeso Governed by Missouri Constitutiono May not increase compensation of
public employee after contract executed in whole or in part
o Unless employee is required to perform new or additional duties
Additional Legal and Practical Concerns
• Compensation increase (cont.)
o Contingency language may allow for increases with additional funding
o Must be part of the contract
o Must be set forth in specific, objective terms
o Simplified example: If district receives X additional funds by Y date, the base on the salary schedule will be increased by Z dollars
Additional Legal and Practical Concerns
•Compensation increase (cont.)o New and additional duties – superintendent
o Difficult to add due to scope of duties
o Has been done when had to add duties from specific positions
o Technology director – left districto Professional development coordinator – bed rest
majority of year
Additional Legal and Practical Concerns
• Buy-out of contract
o Authorized by law
o Common term of superintendent contracts
o Does not apply to other positions
o Can be expensive – especially multi-year
o Extinguishes breach of contract claim
o Does not extinguish other potential claims
Words of Wisdom
• Do not index salary increases to a future standard not currently in existenceo Example: The superintendent’s
salary for 2016-2017 shall increase by the same percentage as the increase in the teachers’ salary schedule.
Words of Wisdom
• Do not include automatic non-renewal or automatic extension provisions
o Example: The superintendent’s contract shall be extended by one school year, unless the superintendent is notified in writing to the contrary by January 31 of the then-current contract year
Words of Wisdom
• Do not include opportunity to “cure” provisionso Example: Except in the case of
immoral conduct or criminal conduct, the superintendent shall receive written notice of potential causes for dismissal and shall have not less than sixty days to remedy any deficiencies.
Words of Wisdom
• Do not include descriptions of job duties that conflict with the authority of the Board under the lawo Example: The superintendent shall
select and assign all employees, and shall have the authority to execute all contracts on behalf of the school district
Words of Wisdom
• Do not include inappropriate limitations on the evaluation processo Example: The superintendent shall be
evaluated in accordance with an instrument jointly agreed to by the Board and the superintendent. Such evaluation shall occur one time during the school year, but not earlier than January 1, and not later than February 15.
Words of Wisdom
• Do require prior Board approval of and documentation for memberships, travel, and conference expenseso Example of what NOT to include: The
superintendent may join such organizations, attend such conferences, and engage in such travel as the superintendent deems appropriate to his duties. The Board shall pay all expenses for such endeavors.
Words of Wisdom
• Do require original signatures (not stamps) on all administrator contracts, including superintendent contracts
o Comment: Do strictly define by Board policy and/or resolution who may use specific signature stamps and under what circumstances they may be used.
Additional Considerations
• Statutory and case law changes frequently in this area
• Seek advice of your trusted school district attorney when you have questions regarding negotiations process or contract preparation
• Except as otherwise advised herein, BEWARE OF LAWYERS (unless they are representing your own district, and even then, a little caution would not hurt!)
Additional Considerations
• Remember the goal!!• Contract formation is not an exercise in
ambush – by either party.• The purpose is to promote agreement and
establish understanding.• It is a template for good relationships.•Good fences (contracts) make good
neighbors (working relationships).
Importance of Boundaries
I let my neighbor know beyond the hill;And on a day we meet to walk the lineAnd set the wall between us once again.We keep the wall between us as we go.. . . . One on a side. It comes to little more:There where it is we do not need the wall: He is all pine and I am apple orchard. My apple trees will never get across And eat the cones under his pines, I tell him. He only says, 'Good fences make good neighbors'.
- Excerpt from “Mending Wall” by Robert Frost
Discussion of Sample Contract
• Provided at workshop session – for discussion purposes only
•Many ways to climb the mountain (or write the contract!)
• Seek legal advice before entering into any contract for employment
•Questions and answers regarding sample contract and entire presentation
By:
Celynda L. BrasherTueth Keeney Cooper Mohan & Jackstadt, P.C.
34 N. Meramec Avenue, Suite 600St. Louis, MO 63105314.880.3600 - main
314.880.3602 – direct dial314.880.3601 - facsimile
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