Legal Brief                                                         Page 9

Who Should Negotiate

Your Contract? 

BY MAREE SNEED

Too often, new superintendents rely on the legal counsel for the board of education to negotiate their contracts rather than hiring their own counsel to negotiate for them. This may not be in their best interest.

Many reasons explain why someone might rely on the school board’s attorney rather than hiring his or her own. The superintendent may be concerned about the board viewing the new superintendent as being adversarial by seeking outside counsel. The superintendent also may be concerned about paying legal fees for personal representation or may believe he or she has the skills, knowledge and experience to negotiate the contract.

Having negotiated more than 50 contracts for superintendents over the past 15 years, I believe there’s a strong rationale for why it is in the best interest of superintendents to hire counsel to negotiate their contract. Knowing what qualifications to seek in an attorney to negotiate a contract also is important.

Your Own Counsel
One key reason superintendents should hire an attorney to negotiate their contract is because a board’s lawyer has ethical obligations to the board of education but has no such obligations to the superintendent. As a result, counsel for the board will be interested in getting the “best deal” for the board, not for the superintendent.

In negotiating the annual base salary for the superintendent, the board’s lawyer is not required to tell the superintendent the maximum annual base salary the board is willing to pay. Rather, the board counsel’s obligation is to negotiate the minimum base salary the board wants to pay. The board may want to avoid public outcry about paying the superintendent too much.

On the other hand, it is in the superintendent’s interest to negotiate the maximum annual salary to have a sufficient amount on which to pay living expenses. If the superintendent has a personal lawyer, that individual will know the “market rate” for annual base salaries in the area, statewide and nationally and can use that to negotiate with the board’s attorney.

By hiring their own counsel, new superintendents can avoid getting into an adversarial relationship with the board or the board’s counsel, particularly at the beginning of their relationship. The initial discussions between the superintendent and board should be about improving achievement for all students and not about how much the superintendent should be paid, how the superintendent can be terminated or what the board will pay for health insurance.

Contract negotiations, by their very nature, are adversarial and often require difficult discussions for there to be an understanding about why a particular term of a contract is so important to the board or the superintendent. If the board and superintendent are represented by separate counsel, they can blame their respective lawyers for the difficult discussions and focus on developing a positive working relationship.

Understandably, superintendents may prefer to avoid legal fees. However, typical superintendents do not have the knowledge, skills and experience to negotiate their own contract, just as most lawyers could not function effectively as chief educational officers. If superintendents seek a competitive salary and benefits, longevity in the position and fair treatment in the event of termination, they should seriously consider hiring private counsel even if the board won’t agree to pay the lawyer’s fees. (It’s not uncommon, though, for a board to agree to pay the reasonable legal fees of the superintendent’s attorney for negotiating the contract.)

Minimal Qualifications
How does one select a qualified attorney? Similar to other professions, lawyers specialize. To select someone to negotiate a contract, the superintendent should seek an attorney with experience in negotiating contracts, particularly superintendent contracts.

In addition, the minimal qualifications should include knowledge of and experience in advising school districts; experience working with school boards and an understanding of the role of boards; experience working with superintendents and an understanding of the role of superintendents; and familiarity of state and federal laws that apply to superintendents’ contracts.

Maree Sneed is a partner specializing in education law with Hogan Lovells in Washington, D.C. E-mail: maree.sneed@hoganlovells.com