Over the last few years, we have become involved in numerous cases in which boards have sought to terminate superintendents under N.J.S.A. 18A:17-15 et seq. That statute provides that superintendents no longer have tenure, but may be employed under three- to five-year contracts. In almost all of these cases, many difficult questions arise concerning how a district can divorce itself from its superintendent before the end of the contractual term. We address some of these questions below.
1. May The Superintendent's Powers Be Taken Away?
Answer: YES. In both Dunn v. Elizabeth Board of Education, 96 N.J.A.R. 2d (EDU) #279, and Harrington v. Board of Education of the Township of Clinton, 95 N.J.A.R. 2d (EDU) #535, Commissioner Klagholz emphatically held that the board of education has the right to remove all duties from the superintendent of schools. The board may not, however, appoint a different individual as superintendent, since to do so would impinge on the contractual right of the superintendent to continue to hold his title. The board need not demonstrate cause to take this step.
2. May The Board Give A Superintendent Duties Other Than Those Normally Exercised by a Superintendent of Schools?
Answer: NO. Although this question was left open in Harrington, Commissioner Klagholz made it clear in Dunn that "[W]hile the Board was free to unilaterally relieve Petitioner of his duties for the remainder of his contract, it was not free to assign him the duties of assistant superintendent instead."
3. May The Board Remove Some But Not All Of The Duties Of The Superintendent of Schools?
Answer: YES. While this question was not discussed in Dunn, common sense dictates that since the board could remove all of the superintendent's duties, it must also be able to remove some of those duties. The board may choose this course because it would seem economically preferable to keep some duties with the superintendent - such as long-range studies and other time intensive tasks - rather than paying someone else to perform those duties. This would not violate the Commissioner's decision in Dunn because a board is only prohibited from giving a superintendent the duties of an assistant superintendent or some other lesser function. The Commissioner's decision in Dunn did not preclude a board from removing some of the superintendent's duties.
4. Does It Make Sense To Pay The Superintendent A Lump Sum For His Retirement?
Answer: NO. A lump sum payment is still legal, even though such payments were the principal reason that N.J.S.A. 18A:17-15 et seq. was passed. The problem is that a lump-sum payment is always too expensive, because the superintendent, to be made whole, would need not only the payment of the remaining sums owed to him on the contract, but payment sufficient to compensate him or her for the lost pension benefits he or she would have received. A typical example works as follows. Assume a superintendent earns $120,000 a year and previously earned $100,000 a year. Assume further that the superintendent worked 23 years in the system and had two more years left on the contract. If the superintendent received a cash pay-out in lieu of foregoing the last two years of the contract, the yearly pension benefits would be 23/60ths multiplied by the average of the highest three years, or 23/60ths multiplied by $106,666, which equals approximately $40,888 per year. If the superintendent had remained for the last two years, however, the pension would have been calculated by multiplying 25/60ths times $120,000, or $50,000 per year. The difference of almost $10,000 per year for the life expectancy of the superintendent and his or her spouse might be as much as $300,000. Even discounted for present value, it would certain ly be well over $100,000. Thus, our experience reveals that it is exceedingly difficult to work out a cash payment with any superintendent.
5. Does It Make Sense To Work Out A Settlement In Which The Superintendent Gives Up Months of Employment?
Answer: YES. Several districts have worked out successful arrangements in which the superintendent accepted a lesser (but pensionable) position, remained on the payroll for part of the remaining time, and then retired somewhat sooner than he or she otherwise would have. This arrangement allows the school district to bring in someone else as a superintendent rather than as an acting superintendent, allows the current superintendent to remain on the payroll for the bulk of the remaining time, and preserves his or her pension benefits. It is, we believe, the only type of settlement which has been successfully consummated in New Jersey.
6. May Tenure Charges Be Brought Against Superintendents?
Answer: YES. Both N.J.S.A. 18A:17-20.2, and the Dunn case make it clear that the board of education may terminate a superintendent for the same reasons it could terminate a tenured employee. The same procedures (including the 120 day suspension without pay if the board so desires) and the same substantive law (the board must prove inefficiency, incapacity or conduct unbecoming) apply.
7. Does It Generally Make Sense To Bring A Tenure Case Against The Superintendent Based Solely on Inefficiency?
Answer: NO. Because of timing, it generally does not make sense to bring tenure charges against a superintendent based solely on inefficiency. First, an inefficiency case would normally not be brought until a significant period of the contract was over because of the amount of proof, like poor evaluations, that are needed to allege inefficiency. Second, the superintendent, like other employees, is entitled to a ninety-day evaluation period after an inefficiency charge is brought. Third, the average tenure case can take up to two years to complete. Therefore, a superintendent's contract will normally be over by the time an inefficiency case will be completed.
8. Does It Make Sense To Bring A Tenure Case If Dishonesty And/Or Conduct Unbecoming Is Involved?
Answer: YES. The Commissioner has stated in numerous cases that superintendents are the central ethical and moral figures in a school district and that under no circumstances can lack of integrity be tolerated in a superintendent. See In re Tenure Hearing of Pitch, School District of South Bound Brook, Somerset County, 1975 S.L.D. 763, 773. In addition, under a charge of conduct unbecoming, there is no ninety-day observation period, allowing the case to move more quickly. Thus, it makes sense to bring a tenure case against a superintendent when there are serious charges of lack of integrity, dishonesty, or conduct unbecoming.
9. Is There Other Leverage Which Can Be Exerted Against The Superintendent?
Answer: YES. A board can exert certain other pressures on a superintendent who is not performing adequately. These include a salary freeze (the superintendent's pay cannot be reduced), a written notice under N.J.S.A. 18A:17-17 that the contract will not be renewed at the conclusion of the three- to five-year period, and a reduction of duties, to let the superintendent and public know that the board is not allowing the superintendent to have unbridled power.
10. Does The Superintendent Have A Right To Be "Riced" And/Or Attend The Board's Meeting With Its Attorney to Discuss the Board's Legal Alternatives?
Answer: NO. The purposes of Rice notices are to allow employees to (a) learn that their employment is being discussed, and (b) insist on public discussion. Rice v. Union Cty. Reg. High School Bd. of Ed., 155 N.J. Super. 64 (App. Div. 1977), certif. den., 76 N.J. 238 (1978). However, the purpose of the board attorney's presence at the board meeting is to discuss legal advice and courses of action, not to evaluate the superintendent's performance. In addition, since the superintendent has the right to meet with his or her attorney privately, the board must enjoy the same right. In addition, all discussions of possible tenure charges are automatically private. See Cirangle v. Maplewood Bd. of Ed., 164 NJ Super. 595 (Law Div. 1979). We recommend a simple letter to the superintendent advising that the board is meeting with counsel in private and setting out the time and place, but not inviting the superintendent to attend.
11. Should A New Superintendent's Contract Ever Last More than Three Years?
Answer: HARDLY EVER. Based on our experience, disputes between boards and superintendents are becoming more common. With the increasing instability of the superintendent-board relationship, it is difficult to envision a situation where a five year superintendent contract would be warranted. Even four year contracts, which were at one time relatively common for out-of-state hirees, are becoming increasingly less frequent. Given the difficulty in terminating a superintendent during the term of the contract, the most prudent course of action, in most cases, is a three year contract.
