One of the many changes made to the School Code by the Pennsylvania Legislature at the close of the 2011-2012 session was an overhaul of Section 1072, which governs the selection of a district superintendent or assistant superintendent. Prior to the amendments made by Act 82 of 2012 and Act 141 of 2012, school districts and their superintendents were not even required by law to have a written employment contract.
Under the new law, not only is a written contract required, but any superintendent or assistant superintendent contract must include certain items. Namely, contracts must contain all terms and conditions related to a superintendent’s employment, including duties and performance expectations (including assessment tools and timelines), provisions related to compensation and benefits, the term of employment, outside work which may be performed by the superintendent during the term, and statements requiring any modifications to the contract to be made in writing and that the contract shall be governed by Pennsylvania law.
In addition, the new law places substantive limits on the sick leave which an inexperienced superintendent or assistant superintendent may bring to the position, both in terms of the number of days and the per diem rate which may be paid for such leave. Specifically, for superintendents and assistant superintendents without prior experience, unused sick leave cannot be paid at a rate exceeding that which is paid to administrators for unused sick leave under an administrative compensation plan, and a limit of thirty (30) transferable sick days applies.
Finally, the revisions to the School Code significantly impact the ability to offer buy-out and severance provisions and postemployment compensation. Under the new law, any postretirement benefits and the period of time in which such benefits shall be provided must be specified in the contract, and these provisions may not be modified during the term of the contract or if the contract is terminated early. In addition, any postemployment compensation or severance paid when a contract is terminated early may not exceed the equivalent of one year’s compensation and benefits due under the contract if terminated two (2) years or more prior to the end. If the contract is terminated less than two (2) years prior to its scheduled end, the severance may not exceed one-half of the total compensation and benefits due under the remainder of the contract.
There are significant unanswered questions in the new law’s treatment of severance and postemployment matters which school districts, their solicitors and their superintendents will have to muddle through. For example, it is not made clear in the new law how the parties should define “compensation and benefits” for purposes of limiting early termination pay. Further, it is not clear whether the limitations on post-termination severance apply to situations where the parties agree to a monetary settlement to resolve a complaint regarding a superintendent’s employment. However, it is clear that under the new law, school districts and superintendents should plan with attention to detail as to how the parties will act in the event that the superintendent’s commission must be terminated early, as the new law prohibits those terms to be negotiated later.
With regard to the performance expectations and assessment tools which must be included in an agreement, the Legislature has elected to treat superintendents and assistant superintendents in the same fashion as teachers and principals. Each of those groups will now be required to be assessed under objective criteria. In the case of superintendents and assistant superintendents, Section 1073.1 of the School Code states that the “objective performance standards” which may be agreed to be placed in contracts by districts and their employees include the following: (a) district-established annual measurable objectives, (2) achievement on the PSSA, (3) achievement on Keystone Exams, (4) student growth as measured by the Pennsylvania Value-Added Assessment System, (5) attrition and graduation rates, (6) financial management standards, (7) standards of operational excellence or (8) any other criteria deemed relevant and agreed to by the board and the superintendent or assistant superintendent.
Whatever objective performance standards are agreed to by the parties and included in the contract must be evaluated within a contractual timeframe, and further, the performance standards must be posted on the school district’s publicly accessible website. After each evaluation of a superintendent or assistant superintendent, the district’s board must also post on the website the date of the evaluation and whether each of the performance standards was met.
There is no indication in the statute that these requirements must be applied to existing contracts with superintendents and assistants, but a district issuing a new or renewal commission should plan to negotiate a written contract addressing the above-discussed requirements. In preparing a contract under these requirements, district boards will be compelled to consider which performance objectives align closest with district measures of success and what they’re willing to pay in the event an appointment must be terminated early. In short, under the new law, districts will be required to plan both how to measure success and how to address a lack of success.
