Management Services Newsletter December 2011

Transcription

1 Management Services Newsletter December 2011 December 2, 2011 NEGOTIATING A NEW SUPERINTENDENT EMPLOYMENT CONTRACT: RELEVANT LAW, EMPLOYMENT CONTRACT LANGUAGE, AND BEST PRACTICES by Sandy Gundlach, MSBA Director of School Board Services Based on the number of phone calls received and the type of questions asked, a seemingly large number of superintendents are in the final year of their employment contracts. State statute and specific provisions in a superintendent s employment contract provide guidance when considering a subsequent contract. This article reviews relevant laws and employment contract language and offers best practices for holding the contract-related discussions. Relevant Laws Several Minnesota laws that directly impact superintendent employment contracts are highlighted below. 1. The continuing contract provisions provided teachers under the law do not apply to superintendents (M.S. 122A.40). 2. The statutory authority for employing a superintendent is found in M.S. 123B.143. Pursuant to that statute, a school board may enter into a subsequent contract with a superintendent for a period of time no longer than three years. The employment contract must provide that the school board, at its discretion, may or may not enter into a subsequent contract. Such an employment contract may not be extended during its term. During the last 365 days of the employment contract, a school board may negotiate and enter into a subsequent contract to take effect upon the expiration of the existing contract, and such subsequent contract must be contingent upon the superintendent completing the terms of the existing contract. 3. Per M.S. 13D.03, no exception exists in Minnesota s Open Meeting Law or any other Minnesota statute allowing a school board to close school board meetings or school board committee or subcommittee meetings to negotiate or discuss the superintendent s employment contract or salary. Additional information may be found in the February 2011 issue of the MSBA Management Services Newsletter and in the MSBA publication, Superintendent s Employment Contract Handbook. A copy of the handbook may be downloaded from the Members Area of the MSBA home page at 4. Minnesota law does not require school boards to evaluate their superintendent s performance; nevertheless, superintendent performance evaluation is an important activity that should be conducted at least annually as a best practice. Pursuant to M.S. 13D.05, Subd. 3. (a), a school board may close a portion of a meeting to discuss the performance evaluation of any employee subject to its authority (including the superintendent); however, the meeting must be open at the request of the subject of the meeting (for example, the superintendent), and the closed meeting must be recorded. 5. The superintendent s evaluation, like any evaluation, generates private, personnel data that are intended for the hiring and supervising authority (the school board) and the superintendent only (M.S. 13D.05), and, as a result, the school board must protect the privacy of that information. Superintendent Employment Contract MSBA provides its members with a Model Superintendent Contract (Model) as a starting place for superintendent contract language and negotiations. The Model is a joint effort of the MSBA and the Minnesota Association of School Administrators (MASA). The specific provisions included in the Model provide the basis for negotiating superintendent employment contracts and meet basic hiring and employment-related needs of both parties. The Model may be found in Chapter 3 of the MSBA Service Manual, which can be downloaded from the home page previously provided. Superintendent employment contracts should include a provision limiting the contract term to a maximum of three years (M.S. 123B.143) language allowing the contract to continue or roll over is legally prohibited. Many superintendent employment contracts include language suggesting a time line for notifying the superintendent of the school board s intent to offer or not offer a subsequent contract (formerly, Section 2. of the Model). Two years ago, MSBA and MASA representatives and legal counsel reviewed the Model and agreed to remove the subsequent contract language because that language created problems for both school boards and superintendents. Because Minnesota statute does not include a requirement for school boards to notify their superintendents of their intent to offer or not offer a subsequent contract, the language in question proved to be confusing, contradictory, and difficult to implement. Superintendents and school board members typically believed that the superintendent would be given a subsequent contract if the school board failed to meet the subsequent contract language

2 time lines; however, the fact of the matter is that M.S. 123B.143 provides: (1) superintendent employment contracts expire at the end of the term specified in the contracts; (2) school boards may not extend the term of an existing superintendent employment contract; and (3) a subsequent employment contract is contingent upon the successful completion of the existing contract. While language included in the employment contract may be interpreted to bind the school board, such language cannot supersede statute. Even so, if the superintendent s existing employment contract includes subsequent contract language, the school board is encouraged to follow the contractual language because they agreed to it, even though failing to do so does not guarantee a subsequent employment contract will be offered, because other consequences such as monetary damages may result if the contract terms are not followed. To date, no law suit has been filed against a school board for failing to follow the subsequent contract language because the parties understand that the law supersedes said language, but school boards are strongly urged to avoid subsequent contract language when negotiating a subsequent superintendent employment contract and when hiring a new superintendent. Now, the issue of when the superintendent s employment contract expires is addressed in Section 2. of the Model. That expiration language specifies that (1) the existing employment contract expires at the end of the term specific in it; and (2) at the end of the contract term, neither party has any further claim against the other, and the school board s employment of the superintendent ceases unless a subsequent employment contract is entered into per Minnesota statute. Two years ago when MSBA and MASA reviewed the Model, the parties agreed to add new language to this section providing that Three (3) to six (6) months prior to the expiration of this Contract, at the Superintendent s written request, the School Board shall conduct a performance evaluation of the Superintendent pursuant to M.S. 13D.05, Subd. 3. That language provides a means of beginning the process of deciding whether a school board intends to offer its superintendent a subsequent employment contract that is triggered by the superintendent three to six months prior to the expiration of his/her existing contract. As an aside, that language does not prevent a school board from conducting other performance evaluations, and school board members are cautioned to follow the requirements of M.S. 13D.05, Subd. 3. (a). Best Practices As the hiring entity, school board members, whether new or veteran, should be familiar with the terms and conditions of their superintendent s employment contract. Because the majority of superintendent employment contracts are for more than one year, the school board s decision-making process should begin soon enough to ensure that a new employment contract will be in place by July 1 or, if applicable, conduct a search for a new superintendent and allow the existing superintendent to seek employment elsewhere. If subsequent contract language is included in the superintendent s existing employment contract, the school board should be familiar with the time line. For instance, does the employment contract specify (1) who is responsible for initiating the discussions regarding a subsequent contract; (2) when must the school board s final action be taken, etc.? As an aside, commenting in this article about every possible time line is not practical; however, if questions about the subsequent contract language exist, school board members should contact MSBA or the school board s legal counsel for help. The school board should schedule a closed meeting for purposes of discussing the superintendent s performance evaluation. To follow the most common practice, the school board chair would distribute the evaluation form to the other school board members a week or two prior to the scheduled meeting. The board members completed forms will be kept confidential and returned to the school board chair, who would then prepare a single evaluation summary document comprised of all the school board members numeric ratings and comments. The chair would then bring that summary document to the evaluation meeting, and said document will form the basis for the board s discussion. Again, school board members need to remember that the performance evaluation must be conducted in compliance with M.S. 13D.05, Subd. 3. (a). The school board s discussions concerning a subsequent superintendent employment contract must occur in the public. Many school board members struggle to balance meeting the spirit of the Open Meeting Law with the logistics of holding an honest discussion about the needs of the school district and the superintendent s performance and making a decision in an open meeting. School board members would be wise to review their public participation policy, including the requirement to rule out of order any discussion by any person, including school board members, which would violate an individual s statutory data privacy rights. Ultimately, the less said about the superintendent s performance during this discussion, the better, even though saying little or nothing will likely frustrate some school board members, the superintendent, and some members of the public. Following these laws and best practices can lead to a smoother, less troublesome transition from one superintendent employment contract to another.

3 PERCENTAGES VS. DOLLARS by Gary Lee, MSBA Associate Director of Management Services The format and content used to report settlement costs have been argued since negotiations between management and unions began. For the Master Agreement period, MSBA has requested settlement dollar amounts from each school district and will not be providing settlement results using percentages. That decision was preceded by an extensive discussion among MSBA staff and included the following points/discussion. Percentages represent a calculated value, so, to understand what a percentage represents, the reference point of the percentage must be known. For example, which of the following jobs sounds like a better paying position, a waitress who averages tips of 25% or a waitress who averages tips of 15%? If the waitress in the first job works at a small breakfast diner and the waitress in the second works at a high-end dinner restaurant, the percentages will be very misleading. A 25% tip on a $6.00 breakfast is $1.50, while a 15% tip on a $50.00 dinner is $7.50. Similarly, the pay and benefits reference points for school districts across the state are remarkably different. On average, teachers in the metropolitan area have a higher rate of pay than out-state teachers, so, a 5% increase in the metro area will generate more than a 5% increase in a small, rural school district. Consequently, the practice of using the same percentage increase across all school districts will have the undesirable effect of creating larger and larger gaps. Even within a single school district, percentages are not comparable. A 2% schedule increase for a 20-year, masters lane teacher is a significant dollar amount. The same percentage increase for a 2nd-year, bachelors lane teacher, however, will be considerably less and, as stated above, creates a larger gap between the top and the bottom of the salary schedule a fact that can have a significant impact on hiring. Percentages can be manipulated. For example, an employee gets a raise from $100 per day to $125 per day. The employer claims that the employee received a 25% increase in pay, but the employee claims that he/she received a 20% increase. In reality, both the employer and employee are correct. The employee is right because $25 is 20% of $125 (post-raise). The employer is right because $25 is 25% of $100 (pre-raise). On the other hand, reporting an increase of $25 per day for a new total of $125 is difficult to manipulate. Percentages are ignored by the public for at least two reasons. First, percentages are irritating; they require the user to do a mathematical calculation. Second, users have become immune to percentages, which is why a 10% reduction in a sales price rarely works. Consumers tend not to react until they see a reduction of 30% of more. James Dion reported this study finding in Retail News in January of this year: An online retailer offered two separate discounts: a $50 coupon and a 15% discount offer that worked out to be mathematically equivalent to the $50 coupon. The $50 coupon had a 72% higher conversion rate than the 15% discount because customers understood the value. Even the use of a percentage to report the findings of this study reinforces the discussions above. What is the reference point for 72%? I ll spare readers the misery of digesting the various possibilities and simply state, 72% means the retailer received a bunch more of the $50 coupons. Percentages do not provide the public, the staff, the administration, or the school board with meaningful data. Can the public relate a 2% increase in compensation to the amount they pay in taxes? Does 2% provide data to the public which allows them to decide if school district staff are adequately compensated for the work they perform? Does 2% tell staff how much money will be available for their home budgets? For the administration and the school board, does 2% tell them the impact on the school district s annual budget or how compensation in their school district compares to that in neighboring school districts? The school board, administration, and staff can only make an educated decision on a Master Agreement proposal if the cost of said proposal is used instead of a calculated number based on differing reference points. Negotiations between management and labor are the basic foundation of local control for school districts. With the proper information, all local parties can reach local decisions that are best for their school district, as opposed to making decisions based on an irrelevant, calculated statistic. Various individuals will continue to negotiate using percentages because they always have or because they are looking for an easier methodology. However, MSBA staff are hopeful that the discussions in this article will perhaps result in the use of a more accurate methodology dollar-focused bargaining.

4 REHIRING RETIRED TEACHERS by John Sylvester, MSBA Deputy Executive Director Over the past two weeks, MSBA staff have received a large number of contacts regarding rehired retired teachers, so I would like to make several quick points to identify MSBA s positions relative to such rehires. The rehired retiree s first year is a probationary year, so, if the hiring school board does not act to non-renew him/her before the statutory deadline (July 1, 2012, or any earlier date if negotiated into the teachers Master Agreement), the rehired retiree will be tenured. School districts should negotiate language into the teachers Master Agreement to stipulate how the Agreement will apply to rehires and should also modify rehires individual teaching contracts accordingly (sample Agreement language may be found in Chapter 3 of the MSBA Service Manual). When a teacher resigns, he/she loses his/her seniority, so a rehired retiree will start in the hiring school district with no seniority, and, if he/she should gain tenure, will then have one year of seniority (so the rehired retiree would most often only be able to bump probationary teachers). The compensation and fringe benefit package for a rehired retiree should be determined by the school district; he/she has no legally granted right to be placed on the salary schedule as though he/she had been teaching continuously without having retired. Because neither Minnesota statutes nor case law specifically addresses the nuances involved in hiring back a retired teacher, many unknowns exist. In addition, because most rehired retirees are also collecting their TRA benefits, they are putting some unneeded pressure on an already struggling TRA program. Consequently, school districts should very carefully consider the value in rehiring retirees. Understandably, finding properly licensed and qualified teachers to fill certain positions may be a problem, and the quick solution may be to hire back a retiree; fortunately, because a rehired retiree has a year of probation, the school district will have a full school year to recruit another properly licensed teacher and will be able to non-renew the rehired retiree. For further discussion of this issue, please check other articles in archived issues of this Newsletter (an index is available on the page listing the archived issues). CHRISTMAS DAY 2011 AND NEW YEAR S DAY JANUARY 1, 2012 by Sandy Gundlach, MSBA Director of School Board Services As the year comes to a close, school districts are reminded that both Christmas Day (December 25, 2011) and New Year s Day (January 1, 2012) fall on a Sunday. M.S provides, in pertinent part: Holiday includes New Year s Day, January 1; and Christmas Day, December when New Year s Day, January 1; or Christmas Day, December falls on Sunday, the following day shall be a holiday. As a result, no public business, including operating schools or holding school board meetings, may be transacted on Monday, December 26, 2011, and Monday, January 2, As a reminder, M.S. 123B.14 addresses a school board s organizational meeting and also takes into consideration the fact that the first Monday of January may be considered a holiday by saying, On the first Monday of January of each year, or as soon thereafter as practicable, the board must meet and organize.... NO SCHOOL BOARD MEETINGS SHOULD BE SCHEDULED AFTER 6 P.M. ON TUESDAY, FEBRUARY 7, BECAUSE OF PRECINCT CAUCUSES by Greg Abbott, MSBA Director of Communications Because of political party precinct caucuses, no school board may hold meetings after 6 p.m. on Tuesday, February 7. Also, no public school-sponsored events should be scheduled after 6 p.m. on a caucus day (M.S. 202A.19, Subd. 1. and Subd. 5.). ELECTION DATES FOR SPECIAL ELECTIONS, MAIL BALLOT ELECTIONS WILL BE LIMITED IN 2012 by Greg Abbott, MSBA Director of Communications Because of redistricting, dates will be limited for school districts to conduct a special election for building referenda or a mail ballot. For school districts without townships, special elections and mail ballot can only be conducted from January 3 through April 3, August 14, November 6, and from December 17

5 through December 31. For school districts that do contain townships, special elections and mail ballot can only be conducted from January 3 through February 21, April 3, August 14, November 6, and from December 17 through December 31. School districts looking to do operating levy referenda can only go to voters on November 6, unless the school district is in statutory operating debt or the school district holds a mail ballot operating levy election. MSBA STAFF WOULD LIKE TO TAKE THIS OPPORTUNITY TO WISH ALL NEWSLETTER READERS AND THEIR FAMILIES A WONDERFUL HOLIDAY SEASON!