Nasb 7 things

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