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The School Administrator
May 2009 Number 5 Vol. 66|
Case No. 1: H. Major Poteat worked for the Harrisburg, Pa., School District for 11 years before his promotion to the position of superintendent in 1995. After only six months on the job, he ran into disagreement with three newly elected school board members about the district budget. They wanted spending cuts, but Poteat asserted that their recommended action would violate the state’s school code because the purpose was to save money rather than to eliminate ineffective programs.Despite his objections, the board ordered the reductions, furloughing both teachers and administrators. As a result, the teachers’ union filed a grievance, which the board settled.
Not long thereafter, the same three members exhibited hostile behavior toward Poteat. One of them suggested he needed assistance to perform his duties, whereupon the board hired the board member’s sister in this capacity.At about that time, rumors surfaced that administrators and teachers had changed grades to qualify students for graduation from high school. Poteat investigated the rumors and reported his findings to the school board at a regular meeting. During the same meeting, the board hired an attorney to conduct an independent investigation into the matter. Seven days later, Poteat received notice that the attorney also was representing the board to negotiate the potential termination of his employment contract.After the attorney’s three-month investigation, the report cleared Poteat of any wrongdoing in the grade scandal. Separate from that single issue, the report characterized his supporters as “wanting to cover up economic advantages to themselves, nepotism and even sexual relationships”; averred he had “permitted an environment to exist where subordinates did not adhere to school board policies or superintendent circulars”; and said that he had implemented a summer school program inconsistent with board policy.
Approximately two months later and without putting the subject on its announced agenda, the school board terminated the superintendent’s contract, paying him a lump sum in accordance with its severance provision. Poteat sued the school board in federal court, primarily based on alleged constitutional violations.First, he claimed a violation of 14th Amendment due process. He asserted the board denied him a property right based on either the Pennsylvania School Code’s requirement for the board to provide a pre-termination hearing to prove at least one of the specified grounds, such as incompetency or immorality, for any professional employee or the board’s obligation in his individual employment contract to conduct an annual evaluation, with a written report of any deficiencies.
Alternatively, he argued that the board deprived him of liberty by ruining his reputation with its unjustified termination, thereby foreclosing his future employment opportunities.Poteat’s second constitutional claim was that the board’s action amounted to retaliation for his public disagreement, thereby violating his First Amendment freedom of expression. Finally, he threw in some state claims, with the primary one being defamation. Did he prevail on any of his claims? A Second CaseBefore discovering the answer, consider one more example, which shows that such litigation is not at all limited to or even particularly pronounced for urban districts. This second scenario arose in a rural region.Case No. 2: School District No. 5 of Jackson County, Ore., hired Raymond Adams as superintendent under a three-year contract in 1984. After two years, the board extended his contract for another two years.Approximately one year later, the local education association notified the school board that its members had taken a strong no-confidence vote against Adams. Within several months, the school board gave him a negative evaluation, voted not to renew his contract and encouraged him to resign. When Adams failed to resign, the board advised him that it had tentatively voted in favor of termination.He immediately requested and received a hearing but, contrary to his requests, without an independent hearing officer and specification of the charges. The school board conducted the hearing and, at the conclusion of the hearing, the board officially terminated Adams, whereupon the board president issued a public statement concerning Adams’ performance. As reported in the local newspaper, the board president said: “Adams’ attitude at times was hostile and patronizing. … I think to put it crudely, we needn’t accept crumbs.”After Adams applied but failed to be the successful finalist for superintendent vacancies in five other school districts, he filed suit in federal court. Like Poteat, his claims were based on procedural due process, alleging (1) the board had decided to terminate him before the hearing; (2) the board refused to specify the charges against him; and (3) the board failed to provide an independent hearing officer, make a recording of the hearing and prepare findings of fact. What was the judicial outcome?Claims RejectedIn the first case, Poteat v. Harrisburg School District, the federal district court granted summary judgment for the school board, meaning that the court decided the case without needing a trial.First, the court summarily rejected his 14th Amendment due process claim, ruling Poteat had failed to show either a property or liberty interest because (1) the Pennsylvania School Code excluded superintendents under the definition of a “professional employee” and, thus, his contract was terminable without a hearing and specific reason for the termination; (2) the terms of the employment agreement allowed the board to dissolve it at anytime so long as Poteat received a lump-sum amount, without regard to evaluation or any other provision of his contract; and (3) the requisite stigmatization was lacking because the statements in the report would not “seriously damage Poteat’s standing and associations in the community” and “the mere possibility that his future employment may be affected by the board’s comments is not enough.”Second, the court similarly rejected Poteat’s First Amendment claim on the basis that a board is entitled to a superintendent who will implement its policies without fighting them.Finally, the court jettisoned his defamation claim based on the board members’ official immunity.The second case, Adams v. School District No. 5 of Jackson County, also served as a shutout victory for the school board. As in Poteat, the federal district court granted summary judgment for the defendants.In response to specific claims, the court ruled (1) the pre-termination hearing satisfied due process requirements by allowing Adams to present his side of the story prior to the board’s vote to terminate his employment; (2) the board’s evaluations of Poteat’s performance provided sufficient detail to give notice to him of the charges; (3) because a “school board acts with the presumption of honesty and integrity,” it had the right, in the absence of any statutory or contractual requirement to the contrary, to conduct the termination hearing in the absence of an independent hearing officer, without recording the hearing, and without preparing findings of fact.As a side note, the court commented that any public comments by school board members had not infringed upon the former superintendent’s constitutional interest because they related to his ability to perform his job and get along with the board.Rising LitigationThese two decisions are not outliers. We recently conducted a study comprehensively covering all of the published court decisions concerning superintendent terminations, nonrenewals, suspensions, demotions and buyouts. For the purpose of the study, the term “superintendent” encompassed employees with similar titles, including assistants, associates, deputies and community superintendents.Given the increasing demands placed on superintendents, we were not surprised to discover this category of employment litigation is on the rise. But we did not expect the marked extent of the increase — 400 percent since the early 1970s, with the biggest jump during the last 20 years. Although applicable to both judicial forums, the increase was more pronounced in state courts than in federal courts.The total number of published court decisions since 1951 was 89, more than we had expected based on the negligible mention in the professional literature. Moreover, the actual number of lawsuits is much higher because most superintendent-board disputes over job security are settled or dropped before reaching a judicial decision, and some of the cases that reach a decision are not published.The general outcomes revealed that the decisions overwhelmingly favored school districts. On a total basis, school districts conclusively won decisions more than twice as often as superintendents did. Superintendents fared better in state courts than in federal courts, but the ratio of conclusive decisions was still 1.7 in favor of school districts.The most productive basis for superintendents’ suits proved to be state statutes or regulations — as compared with claims based on the federal constitution, state constitutions, state common law or breach of contract. More specifically, superintendents fared best where school boards failed to follow statutory procedures for termination or where the evidence was insufficient to meet state law standards for disciplinary action.For instance, in Burns v. Board of Directors of Uniontown Area School District, the Commonwealth Court of Pennsylvania reinstated the superintendent, James Burns, ruling that the board of education’s failure to notify the superintendent of his nonrenewal at least 150 days prior to the expiration of his term violated applicable state statute. The court concluded that monetary damages alone were insufficient to repair the harm to the former superintendent and ordered the reinstatement pending the disposition of his separate breach of contract claim.In another decision, Nebraska’s highest court, in Boss v. Fillmore County School District No. 19, reversed the school board’s termination of the superintendent where the evidence was insufficient to meet applicable statutory standards. The board had charged the superintendent — conveniently named Boss — with unprofessional conduct, incompetency and neglect of duty primarily based on alleged errors in budget documents, failure to file a time-sensitive Chapter 1 form and inadequate responses to parental complaints. Nebraska statutes permitted termination of a contract for a probationary certificated employee, which Rodney Boss was, for such reasons. The court ruled that the school board’s evidence was insufficient as a matter of law to support its findings. Additionally, the court concluded that the board violated state law by failing to conduct the statutorily prescribed periodic evaluations of the superintendent.Conversely, superintendents have been least successful in terms of claims based on the U.S. Constitution. Similar to Case 2, in Patterson v. Ramsey the federal 4th Circuit Court of Appeals upheld dismissal of the Baltimore superintendent’s suit challenging his termination based on 14th Amendment due process. The court concluded that the school board’s notice and name-clearing hearing for Roland S. Patterson provided the superintendent, as a nontenured employee, with all the procedural due process the Constitution required.In another 4th Circuit decision, Royster v. Board of Trustees of Anderson County, S.C., School District No. 5, the court ruled that the board did not violate procedural due process upon terminating the superintendent and paying him the amount due according to the terms of the contract. The court’s reasoning was that William Royster’s contract guaranteed him only the right to be fully compensated and not due process in the form of a pre-termination hearing.In a final illustration of the pitfalls associated with claims founded on federal constitutional grounds, Kinsey v. Salado Independent School District echoed the claims and outcomes of Case 1. Having served as superintendent for seven years, Nolan L. Kinsey publicly supported three school board members seeking re-election. Only a few months prior to the election, the board extended Kinsey’s contract by a 4-3 vote. The majority included three members up for re-election, while the minority included only one member campaigning for appointment.Kinsey voiced his support for the three members who had endorsed his contract extension through public statements and a letter published in the local newspaper. Unfortunately for the former superintendent, these members failed to be re-elected. A coalition of two new members and the former member, who had voted against Kinsey, attempted to buy out the superintendent’s contract. Their attempt came to naught, and two months later the board terminated Kinsey with full pay and benefits.Kinsey sued, claiming the school board had violated his property interest in the “noneconomic benefit of the duties and responsibilities as superintendent” and that the termination was in retaliation for his constitutionally protected speech and association with board members’ political opponents. The 5th Circuit Court of Appeals upheld the lower court’s decision that, having received the compensation due him under his employment agreement, Kinsey had no constitutionally protected interest in the non-economic benefit to the position. Similarly, he lacked First Amendment protection because he had “stepped over the line” in his opposition to the new board majority and, as a result of his activities, he could not effectively work with the board. Practical MeasuresDespite the relatively grim picture that the pertinent case law paints for superintendents, they can glean some practical lessons from a closer look.As a threshold matter, superintendents can improve their odds of success at the outset by negotiating a well-crafted employment contract. A multiyear agreement providing that the board pays in the event the superintendent is fired before the contract expires offers some protection. Likewise, specific provisions concerning concrete performance goals and evaluation procedures as well as detailed grounds and process for termination afford added security.Equally important is familiarity with state statutes and regulations pertinent to evaluation and dismissal since state law provides the framework for employment contracts and the catalyst for due process. While few state statutes and regulations allow for tenure or procedural protections for superintendents, state laws differ considerably in this area. For example, revisions in Louisiana’s state laws resulted in superintendents being excluded from procedural safeguards in 1998 by the same court that ruled in their favor in 1977.Yet actual costs and benefits merit consideration. Being expensive and time-consuming, litigation can take a significant toll on the individual through aggravation and emotional distress. Additionally, a growing judicial trend to refrain from meddling in school boards’ administrative and management decisions further increases the odds against superintendents.If impending problems with the school board exist, to the point of possibly imminent adverse employment action, superintendents sooner rather than later should seek independent legal advice from an attorney experienced in school law. School boards have ready access to legal counsel, while superintendents do not enjoy the same luxury. The school district’s attorney ultimately represents the school board rather than the superintendent.Clearly the position of superintendent is quasi-political and compels professionals to stay attuned to the nuances of the board of education. First and foremost is maintaining a harmonious working relationship with the board. Second, the value of negotiating a solidly protective employment contract and knowing its specific terms is not to be underestimated. However, if your employment goes awry to the point of goodbye, before following the American syndrome of suing the board, consider the case law and think not just twice but thrice.Betty Cox, a former superintendent, is an assistant professor of educational studies at the University of Tennessee at Martin. E-mail: email@example.com. Perry Zirkel is university professor of education and law at Lehigh University.
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