Legalities

January 12, 2018 - Volume 38 Issue 1

Legalities

Roger Hanshaw

By Kim Croyle

Question:  What steps can a county board can take before to prepare for another contract with its superintendent when the superintendent’s current contract expires?

Answer: In our last legalities article, we discussed the strict legal limits on the power of a county board of education to employ a superintendent for a period longer than specified in the superintendent’s current contract, as well as the inability of a school board to pay a superintendent more salary than is provided for in the superintendent’s current contract.  Now that January 1 has passed, the Board has the authority to reappoint a superintendent whose term expires at the end of the 2017-2018 school year for a new term that can last up to four years. 

The first step that the board needs to take is to evaluate the superintendent.  In fact, W. Va. Code 18-4-6 suggests the board “use the evaluation results to determine whether to extend the contract of the county superintendent” to another term of from one to four years or, instead, appointing someone else.  

Assuming the superintendent’s evaluation is such that the board wants to extend the contract, the next step is to get the action correctly stated on the board’s agenda.  One is to first entertain a motion (typically after an executive session discussion) to appoint the current superintendent to another term to begin on July 1 for a specified number of years (and, possibly, for a salary specified for each year of the appointment), and authorizing a board member (typically the president) to discuss with the superintendent, and bring back to the board for action at its next regular meeting, the other proposed terms and conditions of the superintendent’s new contract. Then, at the next regular meeting (typically following an executive session for discussion), the president presents the proposed contract to the board. A motion is considered to approve the proposed contract and authorize the president to sign the contract on behalf of the board if, within some specified number of days, the superintendent first signs. 

An alternative to that approach is to entertain a motion (typically after an executive session or sessions) that accomplishes all the above in one fell swoop. The motion would not only provide for the superintendent’s reappointment for a specified term of years, but also contain the terms and conditions of the contract and authorize the president to sign such a contract on behalf of the board. The terms and conditions can be described in the motion as the same as those contained in the superintendent’s current contract, with specified changes. Under this approach, the contract is sometimes signed by the president and the superintendent at the meeting itself, although that is not necessary. 

It is up to the board whether the superintendent should attend all or any part of the executive sessions referred to above. West Virginia Code § 18-4-10(7) requires the superintendent to attend all board meetings except “when the tenure, salary or administration of the county superintendent is under consideration.” The superintendent’s presence can be helpful if the board wishes to engage in discussion with the superintendent to get a sense of what contract terms and conditions would be mutually agreeable. On the other hand, the superintendent’s presence might complicate a discussion of whether to even reappoint the superintendent to another term.  

Finally, reduce it all to writing!  Be mindful to follow West Virginia Code § 18-4-4, which requires that a superintendent’s salary be “fixed” on or before June 1 of the year in which the superintendent is appointed.  This is particularly important if there are provisions that reimburse the superintendent for unused vacation days or for increasing the superintendent’s salary from one year to the next.  You can find a form superintendent’s contract on the West Virginia School Board Association’s website.

Editor's Note: Kim Croyle is a partner at the law firm of Bowles Rice.