What's inside your contract? Details do matter ... until the day a superintendency becomes a permanent fixture.

One of the first contracts I analyzed taught me a valuable lesson: Superintendents are prone to practice law and sometimes practice it badly.

The superintendent proudly asked for my review of his already signed retirement agreement that he had written himself. The superintendent took this exercise on as a way to update the contract for his successor. In the process, he changed the wording of the paragraph addressing vacation accumulation in the new contract to provide that vacation days were not cumulative even though they had been in the past.

Imagine his sinking feeling when I explained to him he had effectively altered the contract in such a manner as to waive his accumulated vacation pay--a substantial sum of money to which he was legally entitled upon retirement.

The bright side to the story is that the school board did compensate the superintendent for part of his previously earned vacation days upon his retirement.

Because school leaders, and superintendents in particular, are take-charge people, they want to function as armchair lawyers. (If you don't believe me, tune in to watch "Boston Public.") In other words, they have just enough legal experience to be dangerous. My advice: If you don't have a law degree, don't practice law. Advice No. 2: In contract negotiations, especially when it concerns your employment, be careful what you ask for--you just might get it.

Mutual Benefits

The well-worded employment contract will operate for the benefit of both the school district employer and the employee. In 10 years of advising superintendents, I've come up with a few helpful tenets:

* Don't be afraid to talk about it.

If you have a specific need or if there is a clause in the proposed contract that makes you uneasy or seems unusual, ask why. Maybe the school board has a need or you have a need that can be addressed in a fair manner.

For example, if the board has a clause in the contract that requires the superintendent and the superintendent's family to live in the district on the effective date of the employment contract and you own a home in another district that might be hard to sell, it is best to discuss this with the board before you agree to the contract terms as presented.

I never have had a board refuse to allow a grace period once the prospective employee explains the depressed housing market, the family situation with a professional spouse who needs to find comparable employment and who presents a plan as to how the family believes they can move to the new district within the first year of employment.

If the board isn't going to be reasonable, do you really want to work in that district in the first place? And, out of fairness, shouldn't you as their CEO be forward thinking enough to talk about issues that might embarrass them or make them look foolish in public? After all, that's a big part of your job--keeping board members informed so they don't look foolish or uninformed to their constituency.

* Do your homework on the district.

If the school board has a history of churning superintendents, ask yourself if you really want to go there.

Secondly, ask yourself whether there is contract language you might need to protect yourself, given the district's history. If the board terminated its last superintendent in mid-year, a contract clause that prohibits a mid-year dismissal unless the superintendent has committed illegal acts or has his or her certification revoked might be in order. What do you have to lose when you enter into that situation by addressing the board's prior bad behavior and your need for some protection? If the board doesn't want to talk about accommodating your legitimate concerns, do you really want to be there?

* Remember that superintendencies aren't permanent.

My boss has a saying that when he was a superintendent he always was looking for the next job. He would either be looking with a lower-case "l"--asking what's out there, am I qualified, is it the next position on my career path or a new challenge?--or be looking with a capital "L"--saying "I gotta get outta here!" To that end, my advice is to keep your credentials current and keep yourself open to new possibilities when they arise.

Given the current job market and dearth of quality school administrators, the jobs are going to find you before you find them, The headhunters recognized the shortages a long time ago, and they are becoming more aggressive with respect to finding the talented individuals out there and asking them to apply for available positions.

Likewise, I'm getting more reports of school board members becoming aggressive in soliciting candidates for a superintendent vacancy. These boards are pursuing those in neighboring districts and a sitting superintendent now working elsewhere who once worked as a principal or athletic director in the district with a hiring need. The point is this: The next job opportunity just might come knocking on your door without you ever leaving your office.

Termination Advice

This phenomenon called contract termination just doesn't happen all that often. Like a big high-rise fire that puts all building dwellers on edge, we hear about superintendent firings because they make the news and because such a situation hits close to our professional home. Consider this: Out of approximately 900 superintendents in Illinois, I am aware of only four or five situations a year involving superintendents and their school boards that rise to the level of "this could really blow up and become ugly." That's less than 1 percent of the superintendents I deal with who wind up relocating involuntarily.

Admittedly, even in a state association that maintains close contact with its members, there are situations I don't know about in which a superintendent has opted to move on to a new position or retire before the board could take public action to terminate the contract. The point remains: The risk of termination for a superintendent is probably no greater than it is for an attorney's career--or anyone else in a highly skilled career path.

The well-worded and readable employment contract may not make you impervious to termination or protect you from a board that is hell bent on making your life miserable. But a poorly worded and confusing contract will definitely make the process much more painful. By way of illustration, I'd like to describe several specific clauses that are sometimes unclear in superintendent contracts I've reviewed.

* Termination or Discharge Clause.

State law protections and tenure issues aside, does the discharge-for-cause clause provide that you could be discharged for "just or good cause" or does it provide a discharge for "actions that are detrimental to the best interests of the school district ?" The second version is a vague standard. What constitutes the best interest of a school district?

Consider the case of the school district that went from providing its own student transportation to contracting with an outside firm to transport students. The public wasn't happy about the conversion and as fate would have it, during the first week of the new year, a young student fell asleep on the back of the bus and overstayed his scheduled ride by three hours. Once the newspaper coverage died down, the board considered terminating the superintendent because his actions (recommending XYZ student transportation company) was an action considered detrimental to the best interests of the school district (negative newspaper coverage).

If for some reason the "good cause" for discharge standard is rejected, would a standard that provided for discharge for actions that are "seriously prejudicial to the school district" or "for acts or a failure to act on behalf of which constitute a breach of the duties of the superintendent" be a better standard? Would you have more protection if the discharge clause provided that "the board will not arbitrarily or capriciously" call for discharge? Would you have more protection if the clause provided you (in the absence of state law) with a pre-suspension or pre-termination hearing? Should that hearing be in front of the school board or should it be in front of a hearing officer selected by the two parties?

* Termination for Irreconcilable Differences.

Termination for irreconcilable differences clauses read something like this: "In the event the board determines to unilaterally discharge the superintendent for irreconcilable differences ... the superintendent agrees to accept as liquidated damages a monetary amount not to exceed the compensation due and owing under the remaining term of the contract in full release of any and all legal or contractual rights he or she might have."

I find this discharge standard particularly troublesome because of its arbitrary nature and because no particular qualifications of decency or objectivity accompany the office of school board member. That prejudice aside, I do have empathy for the board that has suffered from a series of bad superintendent/board relationships (maybe as the result of a faulty search process). However, you cannot be in the position where your superintendency is a day-to-day proposition.

Should you be presented with such a clause, you need to talk directly to the board about how offensive the clause is ("I have less job protection than the janitor around here") and how having a day-to-day contract is not in anyone's best interest. You need to either refuse to work under such conditions or modify the clause to be less offensive.

If the school board wishes to retain the clause, would they consider providing notice of 180 days before the effective date of such termination? (Remember, this is not a termination because you have done something wrong--this is simply a "we don't love you anymore" situation for them, but it's your livelihood and income!).

Should there be a provision that the parties will agree to a joint press release concerning any such situation? Will the board agree that in the event of a termination for irreconcilable differences you will get a favorable letter of recommendation? Will the board agree to more favorable buyout terms, including the cash value of fringe benefits, for example? Or should there be punitive damages so the clause is not so quickly triggered?

Again, I empathize with board members who have been burned in the past, but they haven't had you as their superintendent yet. Accordingly, if you are stuck with such a clause, maybe the best bet is to propose that the clause automatically sunset at some point--perhaps two or three years down the road.

* Liquidated Damages.

While I personally favor a clause that allows a superintendent to buy his or her way out of the contract, I have clients who prefer to know that if they don't fulfill the contract term, it will cost them only a defined number of dollars to move on their merry way (and if the new employer wants you badly enough, maybe he or she will pay the fee).

Likewise, I can understand the position of the school board that goes through the expense and hassle of a superintendent search, only to be used as a stepping stone and have superintendent after superintendent move on to greener pastures.

Those thoughts aside, my suggestion is that the liquidated damages clause be reasonably related to the cost of a new search. (Why agree to a percentage of your salary when a search to replace you is less?) Should the clause be limited to your terminating the contract during its term to take a new position versus you paying if you resign for health reasons?

Would the board consider having the clause sunset after you fulfill the initial term of your agreement? Here's where I liken your position as superintendent to an apartment lease. Certain costs are associated with renting an apartment, including advertising, painting and cleaning when the old tenant moves out. If you move out before the lease is up, then it is only fair to pay some of those costs. But you are only renting the apartment, not buying it, so why agree to pay to replace yourself ad infinitum?

* The Buyout.

My job is to give legal advice, not to tell my clients whether they should go to work for a given district. Personally, I feel that a contractual buyout contained in the marriage contract suggests to the board that the agreement is terminable before the end of the contract. Who wants to suggest that? Also, it has been my experience that one has greater leverage when the buyout is eminent because, if they want you gone badly enough, they will pay for it. Many of the buyouts I've handled have been for reasons of "falling out of love" versus legal cause for contract termination.

My personal feelings aside, I do respect clients who establish up front they don't want a big fight on their hands if the unlikely happens. Many clients have buyout clauses in their contracts and they confide they would rather know exactly what the settlement to terminate the contract will he upfront rather than endure sometimes protracted negotiations if a board doesn't want to honor the contract to its end.

The issues you should consider when thinking about a buyout clause or a contract buyout include these: What impact does a buyout have on your status in your state retirement system? Will the buyout amount be subject to state retirement system contribution? If I'm on leave or buyout status, will that time count toward my retirement or am I losing that time? What are the tax ramifications of the buyout? If something happens to me when I'm not an active superintendent (death or disability), what impact will that have on any benefits I could draw from the retirement system or my own disability insurance?

Another concern with the buyout clause: Will the school board honor it? I recently dealt with a superintendent who had a very clear buyout clause in his employment contract. However, when the board decided they wanted him gone before the end of the contract term, they refused to honor the buyout clause. The board attorney stated very clearly: We want him gone, we're not buying him out, and if you want to enforce that clause, you are going to have to sue.

Guess what? The successor superintendent's contract does have the buyout clause and a provision that says should the board fail to honor the clause the board must pay the superintendenr's legal fees to enforce the agreement.

Be Prepared

The bottom line about contract language and clauses: Read the contract closely. The language should be in plain English and understandable. If it is not, a little rewriting on the author's or downright stubbornness on your part may be in order.

My final piece of advice: Save a little money for a rainy day. The superintendency is a tough but important job with many wonderful people filling those positions. Like all top-level jobs in the public or private sectors, stress and uncertainty is abundant. Go forth to do great things, and remember this is the toughest job you'll ever love.

RELATED ARTICLE: Points to ponder.

When you are involved in contract negotiations for a superintendency, you need to ponder the following:

* Contracts can be written in English and be legal.

* Vague promises do not constitute a contract; a handshake is not a legally binding agreement.

* The board you work for now may not be the board that questions your contract.

* Don't lament the road not taken.

* Just because the board says no to a request once doesn't mean it is no forever.

* Don't resign from your current job until the contract for the new job is final!

Marcy Dutton

Marcy Dulton, a lawyer, is associate director of the Illinois Association of School Administrators, 2020 Timberbrook Drive, Springfield, IL 62702. E-mail: [e-mail]