In a commissioner’s decision dated Aug. 5, 2020, Interim Commissioner of Education Kevin Dehmer affirmed an administrative law judge’s decision holding that a lame duck board of education improperly rescinded a superintendent’s original employment contract and approved a successor contract 18 months before its expiration.  The successor contract increased the superintendent’s salary and extended his employment.

The superintendent worked in that position under a contract running from July 2016 and expiring June 30, 2020.  During the school board election in 2018, a significant change to the makeup of the board occurred. Prior to those new members taking office, the “lame duck” board rescinded the superintendent’s contract and reissued a new contract containing a pay raise and extended his employment until 2023.  When the new board took office in January 2019, they suspended the superintendent, with pay, pending the resolution of whether the new contract was valid.

Both the commissioner and the ALJ agreed that there were 18 months remaining in the superintendent’s contract and, as such, there was no compelling reason to modify the original contract. Additionally, the “lame duck” board failed to follow any of the requirements for modifying a superintendent’s contract under N.J.S.A. 18A:11-11 and N.J.A.C. 6A:23A-3.1 which requires public notice and comment.

The actions of the new board amounted essentially to a termination of the superintendent’s contract with the board failing to follow the proper procedures for such an action. The new board at no time alleged that the superintendent’s suspension was based on performance, impropriety or allegations of wrongdoing.  Notably, the suspension did not include any public notice nor did the superintendent receive a “Rice” notice regarding his employment.

The ALJ and the commissioner ultimately ordered the reinstatement of the superintendent to his employment with all back pay and emoluments through the expiration of his original contract ending June 30, 2020.

The commissioner made a very important reaffirmation of the holding in the seminal case on lame duck board authority, Nowak v. Bd. of Educ. of the Borough of Manville, Somerset Cty., 1976 S.L.D. 43: “[e]xtending the superintendent’s contract term by two years and increasing his salary exceeds the authority of the ‘lame duck’ board.  The position of superintendent was not vacant for more than 18 months.  The ‘lame duck’ board had no statutory authority to bind its successor board by issuing individual contracts to [its continuing employee].” The commissioner was also clear to point out that the “lame duck” board failed to follow the required public notice and comment requirements when they negotiated, extended, amended or altered an existing contract with a superintendent.”

As we approach election season, board members should be mindful of actions taken by “lame duck” boards and consult with their board attorney or discuss with the NJSBA Department of Legal and Labor Relations Services at (609) 278-5254.