'Who's Paying You?' A Question of Outside Employment

Legal Brief

A SUPERINTENDENT WAS invited by a colleague to participate in an international education event sponsored by an education foundation. Months later, the superintendent was asked by the state education commissioner to serve on a screening committee that was reviewing bids for the state’s new assessment system.

Once the review was underway, the superintendent learned one of the bidders was associated with the foundation that had sponsored the earlier trip. Although the superintendent personally rated the company the lowest of all the competing bidders, it eventually was awarded the testing contract by the state education agency.

Later, a national news story alleged the overseas education trip was an effort by the vendor to inappropriately influence the contract award.

The accusation was wholly unsupported by even a shred of evidence, and facts known to the reporter but overlooked in the story actually served to disprove the article’s premise. But the damage was done.

Interpretative Rules

Superintendents are in a fishbowl, like it or not. As public employees, they are subject to laws and policies regarding outside employment or contracting, and the receipt of gifts, benefits or “anything of value,” as some prohibitions state. But they also are public figures, which carries with it more informal — but no less real — issues relating to perceptions and appearances, without regard to legalities.

In my state, we have statutory language that requires a superintendent to “devote himself exclusively to his duties.” Further, we have a professional code of ethics that says educators “shall not accept gratuities, gifts or favors that might impair or appear to impair professional judgment.”

These are broad declarations and certainly subject to interpretation. For that reason, some superintendents address these issues more specifically in their contracts, and all should consider doing so.

A Preventive Defense

It is routine for a superintendent to be viewed as having unique and well-honed skills and expertise. In a sense, that’s the very essence of the job. Thus it should be no surprise when a superintendent is sought out by third parties to be a lecturer, presenter, professor or adviser. Boards of education may even view these opportunities for the chief executive quite favorably, as reflecting well on the school district. Any superintendent would therefore be wise to include contract language that lays out some parameters for outside employment and even for other types of benefits and compensation.

Start with the basics:

• Is the superintendent permitted to perform duties for third parties, for compensation?
• Is there a limit to the number of days this can be done?
• Are certain types of outside duties, or is performing them for certain entities, off limits?
• Must the board be advised of these activities, or perhaps approve them in advance?

It even may be wise to extend contract language to cover vendor-provided perks, conferences and travel that does not involve direct compensation. Absent state law or board policy on the subject, the current emphasis on transparency and disclosure by public agencies may compel a superintendent to consider self-imposing limits on such things in order to mitigate future confusion, or even embarrassment, for both the superintendent and the board.

Be Prepared

In spite of efforts to address issues pre-emptively, it is probably impossible to prevent some people from forming negative opinions about the propriety of a superintendent’s outside activities or the benefits afforded him or her by third parties. But it is simple to create a record showing that the board and superintendent have taken tangible steps to assure the public that its school leaders have been thoughtful in preparing for such contingencies.