We Love You, We Love You, We Hate You...Goodbye: Planning Upfront for the Unlikely Scenario that Things

Sour with Your Superintendent

By: Mary Ellen Simonson Laura Pasqualone

Lewis and Roca LLP

Background: Challenges

•  For many Boards, hiring a new Superintendent is the Board’s most important task.

•  Arizona school districts are struggling to keep Superintendents.

•  Board operates today in a “superintendent's market”: the number of people who are (a) able to do the job, and (b) willing to do the job is a shrinking, ever smaller number.

•  Due to budgeting constraints and other issues, Superintendents in Arizona have earned less than their counterparts across the country.

National Average

Salaries in Phoenix

Median: $142,107 (A little under national averages)

Total Compensation in Phoenix

Total Compensation in Tucson

Total Compensation in Flagstaff

Total Compensation in Lake Havasu

The Balance

•  How can the Board be fair to their new Superintendent while making sure the District won't have to break the bank in a buyout if things go south?

•  Employ best practices for: –  Selection –  Interviewing, Hiring & Negotiating –  Employment Contract –  Evaluation –  Termination

Selection Process

•  Consider qualified search firm: They will be experienced with the process. Interview firms and request proposals, including total # of searches conducted in past two years with location and identity of clients; total # of candidates screened; average out of pocket costs associated with Superintendent search.

•  Critically assess: Fact that a recruiting firm may have conducted nationwide searches in urban areas is not indicative of success; assess such things as if there was Superintendent selected per search and longevity on job.

•  ASBA offers consultant options

Interviewing/Hiring

•  Open Meeting Laws –  In general, the preliminary screening and interviewing

of applicants by the Board may take place in closed or executive session.

–  Once the Board has chosen a specific candidate to hire, it cannot take official action to hire a candidate unless the Board does so in open public session.

We Love You, We Love You, We Hate You: Goodbye

•  A good employment contract must offer both parties (the Board and Superintendent) security, protection, direction and FAIRNESS.

•  Well-drafted employment contracts help District and Superintendent avoid or minimize future problems, including unwanted litigation.

•  Clarity: define key terms, especially monetary issues, including buy-outs if relationship sours.

•  Strategy: pay attention to details of timing of key decisions.

Negotiating the Employment Terms

•  Begin Contract Discussions Early –  Do not wait until announcing Superintendent you

wish to employ before beginning contractual discussions.

–  Often the time between the Board’s announcement of who it plans to appoint as Superintendent and the actual appointment and contractual agreement is short, hectic, and carried out in the public eye.

Negotiations (cont’d)

•  Become Educated –  Be familiar with the compensation of Superintendents

in comparable school districts. –  Applicants will expect salaries within local standards. –  Review current Superintendent contract, short memo

that identifies and explains basic contract terms. •  Designate one person to be responsible for negotiations

(usually Board attorney works with Board president) –  This limits confusion regarding who has the authority

to speak for the district.

Negotiations (cont’d)

•  Begin Prepared –  Enter negotiations with a draft contract. This helps

the Board focus on the proposed compensation package and allows the Board to guide the negotiation process.

–  Avoid a take-it-or-leave-it approach. The draft contract should be transmitted with a cover letter stating that the attached draft is generally acceptable to the Board, inviting the applicant to review it, and directing any questions to the Board attorney.

Key Provisions: Term

•  Term: –  Cannot exceed three years. (A.R.S. § 15-503(B)) –  In May of 2013, the Governor approved an amendment

that prohibits a school Board from offering to extend or renegotiate the contract earlier than fifteen months before the expiration of the contract.

–  Requirement is intended to prevent boards from renegotiating contracts too far in advance. The statute was amended to clarify timing and to ensure that all superintendent contracts are renegotiated in the same period.

Key Provisions: Term

•  A.R.S. 15-503 (adopted May 2013)

Sample Provision: Term

Employment: The District, through its Governing Board, agrees to employ the Superintendent and the Superintendent agrees to be employed by the District for a period of three (3) years, beginning July 1, 2012, and ending June 30, 2015.

Key Provisions: Compensation

•  Compensation –  The contract must have a compensation clause--usually

defined in terms of “base salary.” –  If multi-year contract, might include provision that allows

for salary increase in Board’s discretion (usually annually) –  Up to 20% of the total annual salary included for the

Superintendent in the contract must be classified as “performance pay.” (A.R.S. § 15-341)

–  Question: What should timing be to announce selection of Superintendent?

Sample Provision: Base Salary

In consideration for the performance of the above-described duties, the Governing Board agrees to pay to the Superintendent an annual base salary (“Annual Base Salary”) of [INSERT AMOUNT] ($____) each year during the term of this Contract. For the second Contract year, beginning July 1, 2013, the Superintendent’s Annual Base Salary shall be increased by the average percentage increase received by certificated District employees, if any. In no event shall the Superintendent’s Annual Base Salary be decreased during the term of this Contract. On or after May 1, 2013, the Superintendent and the Governing Board may agree to modify or extend this Contract for an additional term pursuant to A.R.S. §15-503(B).

Key Provisions: Performance Incentives

•  Performance incentive provisions –  These provisions usually give discretion to the Board and

have cap or maximum amounts. –  Often very difficult to work out details of such provisions in

the short time between the announcement of the desired appointee and the actual contractual agreement.

–  Consider including a provision that states that the Board would welcome proposals from the Superintendent that link future compensation with the achievement of mutually agreed goals for the district.

Sample Provision: Performance-Based Compensation

In accordance with A.R.S. §15-341(A)(40), the Superintendent and the Governing Board agree that, in addition to the Annual Base Salary and other compensation and fringe benefits described in this Contract, the Superintendent shall be eligible to receive up to [INSERT AMOUNT] ($_______) per year during the term of this Contract as “Performance-Based Compensation.” Payment of Performance-Based Compensation shall be according to the terms of the Performance-Based Pay Plan that has been approved by the Governing Board for the term of this Contract, attached hereto as Exhibit A and incorporated herein by this reference.

Sample Exhibit A

EXHIBIT A PERFORMANCE-BASED COMPENSATION PLAN

A. Performance-Based Compensation: For fiscal years 2012-2013 and 2013-2014, the Superintendent shall be eligible to receive up to an additional [INSERT AMOUNT] ($________) per year in Performance-Based Compensation, above and beyond the compensation and fringe benefits referenced in the Superintendent’s Contract, dependent upon assessment by the Governing Board as set forth below.

Sample: Exhibit A

B. Determination of Criteria for Award of Performance-Based Compensation: The Superintendent and the Governing Board agree that the goals by which the Superintendent’s Performance-Based Compensation shall be measured shall be those goals identified by the Governing Board at Board meetings scheduled between July 1 and October 1 of each fiscal year. The approved goals shall each be given a relative weight, expressed as a percentage, so that the total weight of all approved goals equals 100%. If the Board fails to adopt specific weights for some or all of the goals, those goals shall be deemed to have equal weight, with the total percentage weight for all goals equaling 100%. The Superintendent and Governing Board shall each make good faith efforts to agree on the goals and the percentage weight to be assigned each goal. If, despite the earnest efforts of each, the Superintendent and Governing Board cannot agree whether or not the Board should adopt one or more of the particular goals being discussed, or cannot agree on the weight to be assigned to one or more specific goals, the Governing Board, by majority vote, shall determine the goal(s) and/or weight(s) assigned to such goal(s). In any event, on or before October 1, 2012, for the 2012-2013 fiscal year, and on or before October 1, 2013, for the 2013-2014 fiscal year, the Governing Board shall, in an open meeting, adopt performance goals for the Superintendent and assign relative weights to each goal. The goals adopted by the Governing Board shall be used to determine the Superintendent’s Performance-Based Compensation. The 2012-2013 goals shall continue in effect for the 2013-2014 fiscal year unless modified by the Governing Board in

an open meeting held no later than October 1, 2013.

Sample: Exhibit A C. Assessment of Goal Achievement and Awarding of Performance-Based

Compensation: The Governing Board shall determine, by majority vote, whether the Superintendent has achieved each of the goals adopted by the Governing Board. For each goal that a majority of the Governing Board determines the Superintendent has met, the Superintendent shall be awarded a percentage of the $_____ Performance-Based Compensation equal to the percentage weight of that particular goal. If the Governing Board determines that the Superintendent has partially achieved a particular goal, the Governing Board, by majority vote, shall determine a percentage to reflect such partial achievement. For that goal, the Superintendent’s Performance-Based Compensation shall be determined by multiplying the percentage achievement of the particular goal by the percentage weight of that goal and then multiplying that product by the $______ in Performance-Based Compensation. Except as provided in the following sentence, the Governing Board’s assessment of the Superintendent’s job performance based on the adopted goals shall occur between May 15 and June 15 of each fiscal year, and payment of the Performance-Based Compensation to the Superintendent shall occur within twenty (20) days following the Governing Board’s assessment. Notwithstanding the above, if data to assess any goal or goals is not available by the date set forth above (for example student test data), then the Governing Board shall assess the Superintendent’s performance related to such goal or goals within thirty (30) days after the data is available and payment related to such goal or goals, if any, shall be made within fifteen (15) days after the Governing Board assesses the Superintendent’s performance related to such goal or goals. The parties acknowledge that, in the final year of the Superintendent’s Contract, this obligation may extend beyond the termination date of this Contract.

Key Provisions: Benefits

•  Non-Compensation Benefits –  Non-salary compensation is seen as beneficial to

Superintendents because it can raise overall compensation without increasing the salary figure that is often published in the local newspaper.

–  Professional development through outside conferences and meetings is one of the most requested benefits by Superintendents.

Benefits: Educational Fees

Educational Membership Fees. Up to a limit of THREE THOUSAND DOLLARS and NO CENTS ($3,000.00) per year, DISTRICT shall pay one hundred percent (100%) of SUPERINTENDENT’s membership charges to the American Association of School Administrators, the Arizona Association of School Administrators and other professional and civic groups, membership in which SUPERINTENDENT feels it is necessary to maintain and improve his professional skills, as permitted by State law and as approved by DISTRICT in the annual budget.

Sample Provision: Auto Allowance

The parties agree that, due to the nature of the Superintendent’s duties, the Superintendent will engage in significant travel within the District and within _____ County for business purposes and is required to be on call 24 hours a day; therefore, a vehicle is required for the Superintendent to perform his duties. The District shall pay to the Superintendent, in addition to the Annual Base Salary and other compensation set out in this Contract, the sum of [INSERT AMOUNT] ($_____) per month as an Automobile Allowance. In consideration of the additional compensation set forth in this paragraph, the Superintendent agrees not to use a District automobile for business use within _____ County and further agrees not to submit any requests for reimbursement of business travel expenses for travel within ______ County. For business travel outside ______ County, the Superintendent may submit and receive legally authorized mileage and other travel expense reimbursement.

Sample: Automobile Allowance

•  At SUPERINTENDENT’s option to be exercised only annually, SUPERINTENDENT may lease or own his own personal automobile, and in that event, DISTRICT shall agree to pay SUPERINTENDENT an automobile allowance in the amount of [INSERT AMOUNT] per month. At the request of SUPERINTENDENT, DISTRICT may make said payments directly to seller or lessor on behalf of SUPERINTENDENT/lessee or buyer.

•  SUPERINTENDENT shall be responsible for all expenses incidental to the automobile upkeep and usage, including without limitation, acquisition or lease costs, maintenance, gas, oil and liability insurance in an amount not less than one hundred thousand dollars ($100,000). A copy of the Certificate of Liability Insurance of the SUPERINTENDENT shall be filed with the DISTRICT. The automobile shall be deemed his personal automobile.

•  Upon termination pursuant to Sections __ or __ of this Contract or non-renewal pursuant to Section __ SUPERINTENDENT shall immediately cease receiving payment of any amounts pursuant to Section __

•  It is agreed that DISTRICT shall reimburse SUPERINTENDENT for other reasonable travel expenses exclusive of automobile use, but which are related to DISTRICT business in accordance with Governing Board practices and policies.

Sample Provision: Civic Responsibility

The Governing Board recognizes that there are civic obligations and responsibilities inherent in the performance of the duties of Superintendent and that, in connection with these obligations and responsibilities, the Superintendent will incur significant unreimbursed expenses. Because the Governing Board expects and requires the Superintendent to engage in such activities to establish business, professional and social contacts in the community to help build and continue community support for the District, the District shall pay to the Superintendent, in addition to the Annual Base Salary and other compensation set out in this Contract, the sum of [INSERT AMOUNT] per month as a Civic Responsibility Allowance. In consideration of receipt of Civic Responsibility Allowance monies, the Superintendent agrees not to submit any reimbursement requests for business and/or civic responsibility expenses incurred within [INSERT COUNTY].

Benefits: Civic Expenses

Civic Responsibility Expenses. The GOVERNING BOARD recognizes that there are civic obligations and responsibilities inherent in the performance of the duties of SUPERINTENDENT. Because the GOVERNING BOARD expects and requires SUPERINTENDENT to establish business, professional and social contacts with the community to help build and continue community support for the school district, the SUPERINTENDENT shall receive TWO THOUSAND DOLLARS and NO CENTS ($2,000.00) for reasonable civic responsibility expenses. SUPERINTENDENT shall keep a current record and receipts available to the GOVERNING BOARD of all such expenses, which shall be produced to the BOARD on an monthly basis for review.

Sample Provision: Technology Allowance

In order to perform his contractual duties, the Superintendent is required to (i) have a cell phone and be available for business calls and (ii) have other technology as is necessary for the Superintendent to engage in business communications at his residence. In recognition of this requirement, the District shall pay to the Superintendent the additional sum of [INSERT AMOUNT] ($____) per month as a Technology Allowance.

Sample Provisions: Benefits

Benefits: Except and to the extent modified or supplemented in subparagraphs [INSERT] through [INSERT] below, or as modified or supplemented elsewhere in this Contract, the Superintendent shall be provided the same fringe benefits as are provided to other District administrators.

Sample Provision: Benefits

In lieu of the paid leave benefits provided to other District administrators, the Superintendent shall receive forty (40) days of paid leave each fiscal year of this Contract. Paid leave may be used for personal or family illness, personal leave, or vacation at the option of the Superintendent. Up to fifteen (15) days of unused leave may be carried over into a subsequent year, but in no event shall the Superintendent accumulate more than fifty-five (55) days of leave time. On or before June 10 of each year of this Contract, the Superintendent may request in writing to be compensated at his then daily rate of pay (“Daily Rate of Pay”) for up to forty (40) days of accumulated but unused paid leave. If the Superintendent makes such a request, payment for such accrued and unused leave days shall be completed on or before June 30. The Superintendent’s Daily Rate of Pay shall be calculated by dividing the Superintendent’s then-current Annual Base Salary, set forth in Paragraph 3(A) above by 260.

Sample Provision: Benefits In addition to the group health insurance and term life insurance benefits

provided to all administrators, the District shall pay for an additional [INSERT AMOUNT] ($_______) of life insurance coverage for Superintendent, and shall pay the premiums for short-term disability insurance for the Superintendent. The short-term disability policy shall provide coverage commencing not more than thirty (30) days after the inception of the disability, and shall cover a minimum of 66 2/3% of the Superintendent’s then-current Annual Base Salary during the period of disability. In no event shall the District’s financial obligation established by this paragraph to provide insurance coverage in excess of that provided to other District administrators exceed a total of [INSERT AMOUNT] $______ in any given year. If the cost of the life and disability insurance exceeds a total of $______, the Superintendent shall have the option of reducing the coverage or paying the difference in premium(s) himself. If the cost of life and disability insurance is less than $_______, the District shall pay the difference to the Superintendent as additional compensation on or before June 30 of each Contract year.

Sample Benefits: Annuity

Pursuant to A.R.S. §15-121(B)(2) and (D)(1), the District hereby agrees to purchase in the Superintendent’s name, for his benefit, a tax-sheltered annuity (“TSA”) in the amount of [INSERT AMOUNT] ($______) during each fiscal year of this Contract. The TSA shall conform to the Internal Revenue Code Section 457 and all applicable federal regulations and State laws. The District shall also contribute an additional [INSERT AMOUNT] ($_______) to a TSA that conforms to the Internal Revenue Code Section 403(b) during each fiscal year of this Contract. The TSA shall conform to all applicable federal regulations and State laws.

Annuity Sample (cont’d)

Annuity. DISTRICT, in accordance with applicable state and federal law, and in accordance with the request of SUPERINTENDENT, shall provide compensation to SUPERINTENDENT of TWELVE THOUSAND DOLLARS and NO CENTS ($12,000.00) annually as designated by SUPERINTENDENT for payment into a tax-deferred annuity program as selected by SUPERINTENDENT. The compensation will increase by one percent (1.0%) each year for both the second and third years of this contract.

Benefits: Life Insurance

Life Insurance. DISTRICT, in accordance with applicable State and Federal laws, shall provide compensation to SUPERINTENDENT of THREE THOUSAND AND FOUR HUNDRED DOLLARS and NO CENTS ($3,400.00) effective with Contract year 2009-2010, for contribution into a Variable Universal Life Insurance Policy.

SUPERINTENDENT, or SUPERINTENDENT’s trust, will be the policy owner, have control over the policy value and have the right to name the beneficiary of his choice. DISTRICT will report the contributions on SUPERINTENDENT’s W‑2 form at the end of each calendar year.

Benefits: Vacation/Leave Accumulation of General and Vacation Leave. The SUPERINTENDENT shall accumulate general leave and vacation leave at the same rate as other district administrators, except as expressly set forth herein. Upon SUPERINTENDENT’s retirement and/or upon leaving the district, DISTRICT will pay SUPERINTENDENT for unused vacation leave, up to a maximum of sixty (60) days, at a rate equivalent to one hundred percent (100%) of SUPERINTENDENT’s daily rate at the time of his retirement. For all general leave accrued, up to a maximum of two hundred and forty (240) days, DISTRICT will pay SUPERINTENDENT at a rate equivalent to fifty five percent (55%) of SUPERINTENDENT’s daily rate at the time of his retirement and/or upon leaving the school district. For purposes of this Section and all other references in this Contract, the term “daily rate” is based solely on the base salary amount in Section 5, and does NOT include any other amounts, including without limitation health benefits, annuity, car payments, life insurance or other benefits. During the school year, SUPERINTENDENT may request the DISTRICT to buy back earned vacation days.

Benefits: Health

Health and Other Benefits. SUPERINTENDENT shall be entitled to all the benefits applicable to the Superintendency and administrators as provided in the existing ____ agreement, and the existing assistant superintendent Contracts. To the extent the benefits set forth in the _____ agreement or the existing assistant superintendent Contracts differ from those set forth in this Contract, this Contract and not the _____ agreement or assistant superintendent Contracts shall control. Pursuant to A.R.S. § 15-121, DISTRICT in accordance with applicable state and federal law, shall provide SUPERINTENDENT the amount of TEN THOUSAND DOLLARS and NO CENTS ($10,000.00) annually as designated by SUPERINTENDENT for payment into a deferred compensation plan. (See attached).

The Contract: Key Provisions

•  Superintendent’s Duties –  Contract should at a minimum state that Superintendent

will have overall responsibility for administrative, educational, operational and financial matters.

–  Provision should require Superintendent to perform any other duties as prescribed by law or outlined in the Board’s policies.

–  The Board should be required to promptly refer all criticisms, complaints, and suggestions to the Superintendent for action and recommendation.

Sample Provision: Duties

Duties: The Superintendent shall perform the duties of Superintendent of Schools in and for the public schools in the District as prescribed by the laws of the State of Arizona and the rules and regulations of the Governing Board, subject to the Governing Board’s personnel policies and the Governing Board’s exclusive authority to hire and fire employees and to determine employee compensation. The Superintendent is authorized to organize, reorganize and arrange the central administrative and supervisory staff, including instruction and business affairs, in the manner which, in his judgment, best serves the District. The responsibility for assignment and transfer of personnel shall be vested in the Superintendent.

Duties: Outside Activities Outside Activities. SUPERINTENDENT shall devote his full professional time, attention and energy to the business of the DISTRICT. However, he may serve as a consultant to other districts or educational entities or agencies, lecture, engage in writing activities and speaking engagements, or engage in other activities which are of a short-term duration, as long as the absences do not interfere with the performance of his duties as determined by the GOVERNING BOARD in its discretion. SUPERINTENDENT may continue to draw a salary while engaged in the outside activity as described above. In such cases, honoraria paid SUPERINTENDENT in connection with these activities shall be transferred to DISTRICT. If SUPERINTENDENT chooses to use vacation leave to perform outside activities, he shall retain any honoraria paid. In no case will DISTRICT be responsible for any expenses attendant to the performance of such outside activities. SUPERINTENDENT shall keep a current record of all such outside activities for which he is absent from the school district for more than one (1) full working day, and keep the record available to the GOVERNING BOARD upon its written request. SUPERINTENDENT shall provide, during his annual evaluation with the GOVERNING BOARD, an update of his outside responsibilities and activities.

Key Provisions: Certification

•  Certification –  Boilerplate provision requiring Superintendent to be

certified as Superintendent by the Arizona Board of Education.

Key Provisions: Indemnity Clause

•  Indemnity Clause –  Indemnifies Superintendent when sued individually or

in official capacity if acts or omissions underlying suit are within scope of Superintendent's employment.

–  Exceptions for criminal acts or where Superintendent’s interests are adverse to district.

–  Include provision that states that individual Board members will not be personally liable for indemnifying Superintendent.

Sample Provision: Indemnification

Indemnification: To the maximum extent provided by law, the District shall defend, hold harmless and indemnify the Superintendent from any and all demands, claims, suits, actions, and legal proceedings brought against the Superintendent in his official capacity as agent and employee of the Board, or in his individual capacity, provided that the claim arose while the Superintendent was acting within the scope of his employment and excluding any criminal investigation and/or prosecution. In no event shall the Governing Board’s obligation hereunder exceed the authority conferred upon it by State law, nor shall its obligation extend to any situation in which the Governing Board and the Superintendent have adverse legal interests. The terms of this paragraph shall survive the termination of this Contract.

Key Provisions: Evaluation

•  Evaluation:

–  Arizona law requires the Governing Board to establish an evaluation system for the performance of “school administrators.” A.R.S. § 15-503(C)

–  Most districts have policy which requires annual evaluations.

–  Contracts usually reference evaluation process, establish timeframes, and other considerations.

Sample Evaluation Clause

EVALUATION The GOVERNING BOARD shall evaluate and assess the performance of SUPERINTENDENT at least once a year during the term of this Contract, as required by DISTRICT policy ____ and State law/

Evaluating Superintendent

–  Superintendent’s evaluations can be made in executive session.

–  Employee (e.g., Superintendent) has the right to request that any discussion take place during open meeting (A.R.S. § 38-431.03(A)(1)).

–  But what if the evaluation includes areas the Board wants the Superintendent to treat as priorities in the coming year, or goals the Board would like to see accomplished? Can a Board justify an executive session in those circumstances?

Key Provisions: Other Activities

•  Other Activities/ Professional Engagements –  Most contracts contain a provision that Superintendent will

devote his or her full time and attention to the business of the district.

–  Clause can identify permissible professional activities that a Superintendent can engage in beyond the normal scope of their work with the district, including consulting work, speaking, writing, and lecturing.

–  Some contracts require Board approval for outside activities to prevent engagements by Superintendent that could be harmful to district.

Key Provisions: Renewal

•  Renewal –  Simplest approach is to reference the procedures

contained in A.R.S. § 15-503(B), (D), and (E). –  Do not set timelines or deadlines for non-renewal that are

inconsistent with Arizona law. •  Remember: Board cannot offer to extend or renegotiate

the contract earlier than fifteen months before the expiration of the contract.

–  The ASA recommends a provision stating that failure to give notice of intent not to renew within 12 months in advance of expiration of contract automatically renews contract.

Termination Negotiate Terms = Release!

•  Types of terminations: (i) resignation; (ii) “for cause”; (iii) no cause. •  ALWAYS try to negotiate amicable departure.

•  ALWAYS weigh benefits of release to be signed in exchange for terms of termination of employment:

–  This requires “consideration” to be included in settlement agreement. –  Some benefit in addition to what the contract would otherwise require.

Termination: Mutual Agreement

Mutual Agreement. If SUPERINTENDENT desires to terminate this Agreement, he shall seek the GOVERNING BOARD’S permission at least one hundred twenty (120) days prior to his intended termination date. He shall notify the GOVERNING BOARD before applying for any other employment. If the Agreement is terminated under this paragraph, SUPERINTENDENT shall forfeit all rights to compensation under this Agreement beyond the actual termination date, which shall be the last day of employment, with the exception of compensation for unused general and vacation leave as defined in Paragraph ___ of this Agreement.

Options: Termination Clauses

•  “The Governing Board may terminate this Contract with or without cause by paying to the Superintendent an amount equal to the total remaining [Insert one of following options]”: –  Annual Base Salary due Superintendent under this

Contract. –  The total remaining Annual Base Salary, plus

performance-based compensation and tax deferred annuity.

–  The lesser of one-half of the remaining Annual Base Salary or the total remaining Annual Base Salary.

Sample: Release/No Cause

A. District may terminate Superintendent’s employment under this Agreement without Cause at any time upon written notice to Superintendent. In the event of such termination, Superintendent will receive Superintendent’s compensation then in effect for the remaining term of his or her employment contract. B. In addition, Superintendent will receive a “Severance Package” that shall include (a) a severance payment equivalent to one (1) month of compensation then in effect, which is in addition to the above amount; and (b) payment by District of one month of the premiums required to continue Superintendent’s group health care coverage for a period of one (1) month following Superintendent’s termination, under the applicable provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), provided that Superintendent timely elects to continue and remains eligible for these benefits under COBRA, and does not become eligible for health coverage through another employer during this period.

Sample: Release/No Cause (cont’d)

C. Superintendent will only receive the Severance Package if Superintendent: (i) complies with all surviving provisions of this Agreement; and (ii) executes a full general release, releasing all claims, known or unknown, that Superintendent may have against District arising out of or in any way related to Superintendent’s employment or termination of employment with District.

D. All other District obligations to Superintendent will be automatically terminated and completely extinguished as of the termination date.

Sample: No Cause Provision

•  Unilateral Termination by Governing Board. GOVERNING BOARD may, at its option and upon minimum of one hundred and twenty (120) days prior written notice to SUPERINTENDENT, unilaterally terminate this Agreement. GOVERNING BOARD and SUPERINTENDENT hereby agree that upon any such termination, DISTRICT shall pay to SUPERINTENDENT, a sum equal to the present value of all unaccrued and unpaid base salary and benefits which SUPERINTENDENT would have earned under this AGREEMENT from the actual date of termination to the expiration date of his contract term at the time of termination. SUPERINTENDENT shall also be entitled to receive the general and vacation leave compensation as defined in Paragraph ___ of this Agreement. SUPERINTENDENT understands and agrees that his acceptance of monies paid pursuant to this paragraph shall constitute his sole legal remedy relative to all compensation and benefits to which he might otherwise have been entitled under this Agreement.

Termination: For Cause

•  A.R.S. § 15-341(A)(22): “For violations that are cause for dismissal, the provisions of notice, hearing and appeal in chapter 5, article 3 of this title shall apply. The filing of a timely request for a hearing suspends the imposition of a suspension without pay or a dismissal pending completion of the hearing.”

•  If the Board wishes to terminate the contract “for cause” during the contract term, Board must provide (1) notice; (2) statement of reason/statement of charges; and (3) the right to a due process hearing.

•  “For Cause” Termination Clause Option: “Throughout the term of this Contract, the Superintendent shall be subject to discharge for sufficient cause as provided by law.”

Sample: For Cause

•  Discharge for Cause. GOVERNING BOARD may terminate this Agreement and discharge SUPERINTENDENT when the GOVERNING BOARD finds good and sufficient cause, which shall include but not be limited to: 1) unprofessional conduct; 2) neglect of duty; 3) insubordination; and/or 4) failure to follow Governing Board policies or Federal, State or local laws.

Final Advice

•  Developing clear expectations about communication, performance, and grounds for termination helps establish a working relationship that can withstand the conflict and turmoil in today’s educational environments.

•  Both sides are protected by clarifying these fundamental issues.

•  And District monies can then be spent on educational pursuits…not defending legal claims!

That’s all folks!

Any questions?