Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Duties

Does the Board enumerate the duties of the Superintendent in the employment contract?

1. Are the statutory duties of the Superintendent listed?

2. Has the Board incorporated policy references to the other duties related to the Superintendent’s employment?

See 105 ILCS 5/10-21.4 and 105 ILCS 5/10-16.7.

Full-time, Attention and Energy Clause

How will the Board address outside activities of the Superintendent?

1. How will the Board define outside activities?

2. Will the Board restrict the Superintendent from engaging in outside activities during the term of the employment contract?

3. Will the Board require approval/notification before the Superintendent engages in outside activities?

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Duration of Contract

A superintendent’s employment contract may not exceed five years. If its duration is two to five years, the contract must reference goals and suspension of tenure.

No performance-based contract shall be extended or rolled over prior to its scheduled expiration unless all the performance and improvement goals contained in the contract have been met. See 105 ILCS 5/10-23.8.

If the duration is one year or less, then the contract need not reference goals or suspension of tenure.

Salary

Special Considerations for the Board may include:

1. What is the estimated Board contribution to the Teachers’ Retirement System (TRS) for any raises above six percent (40 ILCS 5/15-155(g), amended by P.A. 101-10) prior to retirement?

2. What is the cost shift implication for the District if the Board offers or later agrees to a salary that is equal to or greater than the governor’s statutory salary of $177,412 (P.A. 100-23 now makes school districts responsible for paying the actuarial cost of the pension benefits earned on the portion of a TRS member’s salary that exceeds $177,412)?

3. Do any administrative cost cap triggers exist (105 ILCS 5/17-1.5)?

Items the Board may see the successful superintendent candidate request of it:

1. A fixed salary for each year of the contract. 

2. A guaranteed minimum salary.

3. Compensation increases.

Severance Agreements

Any contract that contains a condition of severance pay must include the following provisions required by the Government Severance Pay Act (GSPA), 5 ILCS 415/10, added by P.A. 100-895:

1. A restriction to an amount not exceeding 20 weeks of compensation; and

2. A prohibition for any severance if the Superintendent is fired for misconduct by the Board. See the Severance Pay row under the Changes to the Superintendent’s Employment Contract subhead below for a definition of what misconduct means in the context of this law.

Teachers Retirement System (TRS) & Teacher Health Insurance (THIS)

How does the Board want to address:

1. Pension contributions (TRS-THIS)?

2. Inclusion of salary and other compensation in the payment of TRS and THIS? Or, will TRS and THIS be in addition to salary and other compensation?

3. Unforeseen pension reform issues?

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Administrative License

Does the Board want to require the successful superintendent candidate to guarantee that as the future Superintendent of the District, he or she has and will maintain the appropriate licensure throughout the employment contract?

Criminal Background Check Law

105 ILCS 5/10-21.9, amended by P.A.s 101-531 and 101-643. See also PRESS sample policy 5:30, Hiring Process and Criteria and the subhead entitled Fingerprint-based Criminal History Records Information Check in administrative procedure 5:30-AP2, Investigations.

Other Background Check Laws

Does the Board want to require additional background inquiries beyond the fingerprint-based criminal history records information check required by 105 ILCS 5/10-21.9, amended by P.A.s 101-531 and 101-643, and discussed above? If yes, consult the Board Attorney and consider the following laws:

15 U.S.C. § 1681 et seq., Federal Fair Credit Reporting Act (FCRA), is a federal law that regulates the gathering and use of information about consumers by third party consumer reporting agencies, including credit information, criminal background, driving record, personal characteristics/reputation, etc. The law requires consumer reporting agencies to comply with certain procedural notice requirements when gathering information from a consumer.

820 ILCS 75/, Ill. Job Opportunities for Qualified Applicants Act, prohibits employers from inquiring about an applicant’s criminal history until the application has been determined qualified and notified that he/she has been selected for an interview (a/k/a ban the box law).

820 ILCS 55/, Ill. Right to Privacy in the Workplace Act (RPWA), prohibits employers from:

1. Requesting, coercing, or requiring any employee or prospective employee to provide a user name and password for any personal online account;

2. Requesting, coercing, or requiring an employee or applicant to invite the employer to have access to that individual’s personal online account; and

3. Taking an adverse employment action against an individual (including refusal to hire) based on that individual’s use of a lawful product off District property during nonworking hours, i.e., tobacco, cannabis, or alcohol.  NOTE: RPWA allows employers to regulate employees’ use of those lawful products that impair an employee’s ability to perform the employee’s assigned duties.  See policy 5:50, Drug- and Alcohol-Free Workplace; E-Cigarette, Tobacco, and Cannabis Prohibition, and its f/ns).

820 ILCS 70/, Ill. Employee Credit Privacy Act, prohibits employers from inquiring into an individual’s credit history or taking action against an employee based such history unless a satisfactory credit history is a bona fide occupational requirement, which is further defined in the statute. The job descriptions of superintendents generally meet this standard because they: (1) describe a managerial position that involves direction of school districts; (2) include signatory power over more than $100; and (3) involve having access to confidential and financial information. Note: Any one of these grounds alone is sufficient.

Medical Examination

105 ILCS 5/24-5 requires new employees to submit evidence of physical fitness to perform assigned duties and freedom from communicable diseases. 

The Americans with Disabilities Act allows medical inquiries of current employees only when they are job-related and consistent with business necessity or part of a voluntary employee wellness program. 42 U.S.C. §12112(d)(4). Districts may deny jobs to individuals with disabilities who pose a direct threat to the health or safety of others in the workplace, provided that a reasonable accommodation would not either eliminate the risk or reduce it to an acceptable level. 42 U.S.C. §12113; 29 C.F.R. Part 1630.2(r).

See also PRESS sample policy 5:30, Hiring Process and Criteria, specifically f/ns 23 and 24.

Tenure

Suspension of Tenure

With multi-year contracts and multi-year extensions, superintendents waive their rights to tenure in a school district, but no previously acquired tenure may be lost. 

Continued Tenure

Superintendents serving multiple one year contracts may still accrue service toward and acquire tenure.

See 105 ILCS 5/10-23.8 and the Duration of Contract row in the Employment and Compensation checkbox, above.

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Board Goals and Indicators of Student Performance and Academic Achievement for the Superintendent

105 ILCS 5/10-23.8 requires each performance-based contract to include the goals and indicators of student performance and academic improvement determined and used by the Board to measure the performance and effectiveness of the Superintendent and other information as the Board may determine.

Regarding its goals and indicators, has the Board:

1. At minimum, addressed student performance and academic achievement (105 ILCS 5/10-23.8 states “and other information as the Board may determine”)?

2. Included them in the body of the employment contract? Or as an exhibit to it?

3. Set them to be:

4. Measurable and achievable, i.e., are they within the Superintendent’s control?

5. Objective, subjective or a combination of both?

6. Set a timeline for achievement, and if so is it on an:

7. Annual basis?

8. Prior to completion of the employment contract?

9. Set them as procedural, substantive, or a combination of both?

For more information about setting goals and indicators for superintendents regarding student performance and academic achievement, see:

iasb.com/conference-training-and-event...

Contact a Field Services Director regarding the following IASB workshops and/or offerings that may set the stage for school boards to hold their superintendents accountable for district performance, including academic achievement: 

Setting District Goals and Direction (leads a board and superintendent to develop their own district-language for specific measurable, and attainable goals and indicators)

The Superintendent Evaluation Process (describes an effective method of holding the superintendent accountable)

The Board and its Superintendent (workshop assisting a board in developing an effective relationship with its superintendent).

Superintendent Evaluation

Once the Board has developed its goals and indicators (as discussed immediately above), 105 ILCS 5/10-20, 5/10-23, and 5/10-23.8 require the Board to:

1. “Direct, through policy, its superintendent in his or her charge of the administration of the school district;” and

2. Evaluate the superintendent in his or her “administration of school board policies and his or her stewardship of the assets of the district.”

How will the Board evaluate the successful superintendent candidate upon its outlined goals and indicators?

Does the Board state when it will evaluate the successful superintendent candidate upon the goals and indicators that it set? Note: Some districts do not consider the superintendent evaluation to be a one-time event and put an on-going process into place. Contrast other districts, which depending upon their preferences, generally find the best time of year to evaluate is in the winter or early springtime.

Is the Board or the successful superintendent candidate responsible to trigger the components of the Superintendent’s evaluation process?

What evaluation instrument will be used? How will the evaluation be documented?

Will an evaluation instrument be outlined by the Board in its employment contract with the successful superintendent candidate?

Is the evaluation instrument the Board will use tied to its goals and indicators of student performance and academic improvement and other information as the Board may determine?

For more information about best practices when planning for and evaluating the Superintendent, see: 

The Superintendent Evaluation Process at: iasb.com/training/superintendent-evalu...;

IASB’s Foundational Principles of Effective Governance, Principle 3. The board employs a superintendent, at: iasb.com/conference-training-and-event...; stating “the board employs and evaluates one person — the superintendent — and holds that person accountable for district performance and compliance with written board policy”.

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Expenses and Allowances 

How will the Board address expenses and allowances in its employment contract negotiations with the successful superintendent candidate?

Business

1. What standard will the Board use, e.g., reasonable, itemized, etc.?

2. Will the Board designate the Board President or another individual to review and/or approve the Superintendent’s expenses?

Transportation

Will the Board reimburse travel? If yes, what types of travel will the board reimburse? Some transportation topics that successful superintendent candidates request discussion about include:

1. Vehicle insurance reimbursement(s)

2. Vehicle repair reimbursement(s)

3. A travel allowance only at either a set amount or the District’s per mile rate

4. A vehicle

5. Out-of-district travel

Insurance

Will the Board address insurance in its employment contract negotiations with the successful superintendent candidate?

Some items successful superintendent candidates request include:

1. Insurance contributions as part of a Cafeteria Plan, or in the alternative, the Board paying the premiums.

2. Specific insurance coverages from the Board, such as health, dental, vision, life, disability, etc.

Vacation

Will the Board address vacation days in its employment contract negotiations with the successful superintendent candidate? If yes, then:

1. How many days?

2. Will vacation days accumulate? And, if so, how?

3. Will the Board designate itself, the Board President, or a Board officer to approve or receive notification from the Superintendent prior to taking a vacation? If yes, describe the process.

4. Will the Board address reimbursement for unused days?

5. Will vacation days need to be used for days off during winter or spring breaks?

Sick Leave/Days

Will the Board address sick days in its employment contract negotiations with the successful superintendent candidate? If yes, then:

1. Will sick leave be limited to annual sick leave days in the District’s teachers’ contract or will a different amount be provided?

2. How will sick day accumulation be addressed?

3. Will the Board designate itself, the Board President, or a Board officer to approve or receive notification from the Superintendent prior to taking or upon returning from a sick day? If yes, describe the process.

Professional Activities and Organizations | Memberships in Community Organizations

Will the Board address memberships in professional activities/organizations and/or community organizations its employment contract negotiations with the successful superintendent candidate? If yes, then:

1. How many organizations will the Board allow the Superintendent to join?

2. Which organizations will be allowed?

3. What is the Board’s limit for the cost of dues to professional organizations?

Retirement

Will the Board address any type of payment(s) upon the Superintendent’s retirement? If yes, then:

1. Has the Board thoroughly examined and addressed:

2. Any consequences or other penalties to it?

3. The impact of any prior salary increases?

4. Potential pension reform issues?

5. Often, a successful superintendent candidate’s attorney has interest in the following issues:

6. Available post-retirement options available, e.g., payments for sick/vacation days, post-retirement insurance, longevity annuity payment, etc.

7. Whether a potential retirement payment will be properly creditable for TRS purposes. Note: Ultimately, only TRS has the authority to determine creditability. 

Annuities and Other Deferred Compensation

Will the Board address any type of annuities and other deferred compensation issues? If yes, then: 

1. Will it offer such compensation in addition to the Superintendent’s agreed-upon salary?

2. Will it contribute creditable earnings for TRS purposes?

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Non-Renewal at End of Contract

How will the Board and successful superintendent candidate agree to address orderly end to the employment contract when the Board chooses not to renew it?

1. Will there be a non-renewal notification date? Do both parties’ attorneys find it reasonable?

2. Will the Board require the Superintendent to remind it of the non-renewal date?

3. Will there be any agreement to a clause for an automatic one-year renewal if the Board fails to provide end-of-contract non-renewal notification?

4. Will the Board agree to language in the employment contract that would provide the Superintendent with a hearing upon non-renewal?

Renewal at End of Contract

Will the Board agree to a procedure for renewing the employment contract at its end? If yes, then:

1. What date would be the earliest that the Board could renew its employment contract with the Superintendent?

2. What criteria will the Board base its renewal upon? For example, some boards base renewal upon superintendents achieving their stated goals and indicators of student performance and academic improvement and other information they required.

Contract Extensions

Will the Board agree to allow for an extension of its employment contract during its term? If yes, then:

1. Will the Board agree to extend it during its term if the Board determines that the Superintendent successfully met all of the Board’s stated goals and indicators of student performance and academic improvement and other information it required? 

2. Will the Board agree to extend a one-year contract when the Superintendent is not required to meet any goals?

See 105 ILCS 5/10-23.8.

Terminations

If the successful superintendent candidate accepts employment with the Board and becomes the Superintendent, how will the Board outline the grounds and procedures for terminating the Superintendent’s employment during the contract’s term?

1. Will the Board and the successful superintendent candidate agree to terminate it upon mutual agreement?

2. Will the Board allow retirement to be an appropriate reason for terminating its employment contract with the Superintendent? And if so, will the Board require reasonable notice from its Superintendent? 

3. Could either the Board or Superintendent terminate the employment contract without cause by providing notice to the other?

4. Will the Board terminate the employment contract for permanent disability of the Superintendent?

5. How will the Board define permanent disability in the contract?

6. Will the Board require the Superintendent to obtain a permanent disability determination through physician certification, and/or 

7. Will the Board consider duration of absence; e.g., 90-days after exhaustion of available leave, whichever is greater?

See PRESS sample policy 5:180, Temporary Illness or Temporary Incapacity.

1. What standard will the Board use to terminate the employment contract for cause? Items to consider include:

2. Any conduct detrimental/prejudicial to the District;*

3. Just cause;

4. Sufficient to dismiss a tenured teacher;

5. Material breach of contract; or

6. Not arbitrary and capricious.

*50 ILCS 205/3c, amended by P.A. 100-1040, requires a school district to post on its website and make available to news media specific information about severance agreements that it enters into because an employee or contractor was found to have engaged in sexual harassment or sexual discrimination, as defined by the Ill. Human Rights Act or Title VII of the Civil Rights Act of 1964. See Severance Pay row directly below.

1. Will the Board agree to provisions for hearing and due process for the Superintendent?

2. How will the Board address death of its Superintendent during the duration of the employment contract?

Severance Pay

Any renewal or renegotiation that adds a condition of severance pay must include the following provisions of GSPA, 5 ILCS 415/10(a)(1), added by P.A. 100-895:

1. A restriction to an amount not exceeding 20 weeks of compensation; and

2. A prohibition for any severance if the Superintendent is fired for misconduct by the Board. This law defines misconduct to include sexual harassment and/or discrimination. But 50 ILCS 205/3c, amended by P.A. 100-1040 limits sexual harassment or discrimination to instances when an employee is “found to have engaged in sexual harassment or sexual discrimination, as defined by the Ill. Human Rights Act or Title VII of the Civil Rights Act of 1964.” For more discussion about these laws, see f/n 6 in policy 2:260, Uniform Grievance Procedure.

Liquidated Damages

Will the Board agree to liquidate damages with its Superintendent if one or the other terminates the employment contract?

1. Have both the Board and the successful superintendent candidate discussed the practical consequences of a liquidated damages clause with their respective attorneys?

2. If the Board terminates the contract, has it discussed with the Board Attorney how it can avoid litigation with its former Superintendent?

Amendments

How will the Board and Superintendent agree to allow for amendments to the employment contract?

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Technical clauses (common in contracts)

If the employment contract contains any of the following technical provisions, have the Board Attorney and Superintendent’s attorney reviewed them? 

1. Notice

2. Applicable law

3. Headings and numbers

4. Complete understanding, i.e., do the Board members and Superintendent share the same understanding of the various provisions written in the employment contract?

5. Counterparts

6. Effect of Policy Amendments

7. Severability

8. Advice of Counsel

Superintendent Contract Term Considerations for the Board

Explanation, Special Considerations, and Resources

Board Obligations Under the Employment Contract 

Do all members of the Board understand the District’s obligations under the employment contract and what not complying with them will mean to the District?

Specifically, are Board members aware of the Board’s specific obligations regarding:

1. The Superintendent Evaluation

2. Goal setting

3. Required notifications/actions by each party prior to termination of the employment contract

Ongoing Monitoring of Each Party’s Compliance with the Contract

Are the Board and Superintendent actually complying with the terms of the employment contract? Has the Board Attorney explained how the Board should monitor compliance with the employment contract?

Legislative Issues

How might pending pension reform legislation or other trending legislation affect the employment contract?