7 Things Every Board Member Should Know About the Superintendent’s Contract Karen Haase Bobby Truhe khaase@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law @KarenHaase @btruhe
Employing School’s CEO is The Most Important Job of the School Board
1. Current Term 2. Roll-over/Renewal Date 3. Evaluation 4. Who reminds board?
5. Vacation Leave 6. Definition of Working Days 7. Defense Costs
Current Term
Current Term Majority of superintendents’ contracts are multi-year Superintendents MAY be on a one-year contract NEB. REV. STAT. 79-594: board may employ superintendent “for a term not to exceed three years.”
Roll-Over Date
Roll-Over Date VAST majority of superintendents’ contracts automatically renew in December, January or February • Check – by date or board meeting? • Check – new term or one more year? Remember: NEB. REV. STAT. 79-594: board may employ superintendent “for a term not to exceed three years.”
Superintendent Eval.
Superintendent Eval. MUST evaluate twice first semester by Rule 10 At least annually afterwards Majority of superintendents’ contracts have a month when that evaluation must occur What happens if the board forgets? What happens if the board uses the wrong form?
Who Reminds Board?
Who Reminds Board? Of Contract Renewal Date, Evaluation Details, Superintendent Pay Transparency Act Board president? • • •
When elected? How does that coincide with dates? What happens if he/she forgets?
Superintendent? • •
When remind? What happens if he/she forgets?
Vacation Leave
Roseland v. Strategic Staff Management (Neb. 2006)
Summer of 1998, 3 employees quit Spring of 2000, each demanded payment of accrued vacation leave Staff handbook: “Upon termination, employees will not be paid for unused vacation time.” The issue: Wage Payment and Collection Act says “fringe benefits” include vacation
Roseland v. Strategic Staff Management (Neb. 2006)
Roseland Court: • “We hold that accrued vacation time, which is part of an employment agreement, is due and payable as wages upon termination of employment.” • “The provision in [the] handbook stating that employees shall not be paid for unused vacation leave upon termination conflicts with state law and is void”
Awarded Vacation Pay Attorneys fees (including appeal)
Roseland v. Strategic Staff Management (Neb. 2006)
What Roseland Means: • Long-standing practices are no longer acceptable • Your district/ESU may have significant liability to current employees • Superintendents are where we have seen the most problems
Paid Time Off
Fisher v. PayFlex (Neb. 2013)
Employer had “PTO” • • • •
No separate vacation No separate sick Did provide separate funeral leave Handbook: “PTO will NOT be paid out upon separation of employment”
Two employees separated from employment, demanded payment Employer: PTO isn’t vacation
Fisher v. PayFlex (Neb. 2013)
Fisher Court • “Regardless of the Label that PayFlex attached to its PTO hours, they were indistinguishable from earned vacation time….” • Distanguished PTO and No separate vacation • No separate sick • Did provide separate funeral leave • Handbook: “PTO will NOT be paid out upon separation of employment”
Court awarded pay and fees
Fisher v. PayFlex (Neb. 2013)
What Fisher Means: • Being clever is not smart • Teacher personal days • Beware union offers to switch to PTO
Homework • Review negotiated agreement wording about personal days
Recommendations Don’t ignore this issue Eliminate “use it or lose it” wording Use “the bucket” approach (replenish to the extent days were used) Plan on paying for some unused days (work to minimize them)
Sick Leave
Sick Leave Roseland originally applied to sick Leave Unicameral amended statute § 48-1229(4) “Paid leave, other than earned but unused
vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation…”
Working Day
Working Day One response to Roseland was to define working days in superintendents'’ contracts • E.g. “Superintendent shall provide 230 days of service” • E.g. “working day shall not include Saturdays, Sundays, or holidays”
DO NOT MIX AND MATCH If you have a working day contract NO NOT include vacation leave
Defense Costs
Defense Costs Authorized by Neb. Rev. Stat. § 79-516 Having provision in contract • allows faster response • Lowers political pressures • Protects your superintendent Exception for claims or complaints filed by board
7 Things Every Board Member Should Know About the Superintendent’s Contract Karen Haase Bobby Truhe khaase@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law @KarenHaase @btruhe