Earlier this year, Kirk Strang presented at the WASDA New Superintendents Academy on the topic of administrator contracts and contract renewal.
In Part 1 of this series we covered the following topics:
- The import of administrator contracts
- The Case for distinct superintendent contracts
- Contract Terms
- Who is covered, and who is NOT covered
- Additional prohibitions
- Issues to address
Part 2 covers the following:
- Contract deadlines
- Types of renewal
- Renewal v. extension
- Navigating nonrenewal/renewal problems
Let’s get started with contract deadlines …
Administrator Contract Nonrenewal
Contract Deadlines
- 5 Months: Board gives preliminary notice of nonrenewal by registered mail.
- 4 Months: Board gives final notice of renewal or nonrenewal.
- 3 Months: Administrator accepts or rejects the contract.
NOTE: Preliminary notice is in writing and by registered mail. The Board must “give” preliminary and final notices of nonrenewal.
There is no specific authority interpreting the term “given.” Consequently, the best practice is to ensure that notice is received — rather than sent — no later than the statutory deadlines.
Preliminary Notice
- The preliminary notice should make clear that the board is considering nonrenewal and avoid using language that states or implies that the school board has made a final decision to nonrenew.
NOTE: A preliminary decision to nonrenew is okay and does not violate an administrator’s right to due process. - The preliminary notice must state that “the board is considering nonrenewal of the contract, and that if such person files a written request with the board within 7 days after receiving such notice, the person has the right to a hearing before the board prior to being given written notice of refusal to renew the contract.” Wis. Stat. 118.24(7).
- The administrator has a right to request a hearing.
- The request must be a “written request.”
- The written request must be filed with the board.
- The written request must be filed within 7 days after the preliminary notice is received.
“The written request for a hearing shall include a statement requesting either a private hearing or a public hearing before the board …”
- Privacy in the nonrenewal setting is often dictated by an administrator’s choice of a public or private hearing.
- Responses to public records requests for the preliminary notice or the reasons for the proposed nonrenewal generally will be influenced by this choice.
- Public commentary or responses to media, public inquiries will also be affected.
- Case and witness preparation can be a permissible exception to the “rule” of privacy concerning a pending nonrenewal (where it applies), provided that disclosures are appropriate.
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Upon request, the Board must provide its reasons for considering nonrenewal.
“If a hearing concerning nonrenewal of the contract is requested, the reasons upon which the board is considering nonrenewal may also be requested and the board shall furnish such reasons before the hearing in writing.” Wis. Stat. 118.24(7).
This provision does not mandate that the reasons be requested as part of seeking a hearing, but the best practice is for the reasons to be provided with sufficient advance notice to allow the individual to prepare for the hearing.
The “reasons upon which the board is considering nonrenewal” can be a short statement providing the rationale for the decision.- There is no requirement that the reasons be elaborate or formal.
- The reasons generally should be fact based.
- The reasons should be understandable to a reasonable reader in the position of the employee.
A hearing is defined by the reasons given for the proposed nonrenewal. Choosing to broaden the hearing to entertain other information, with limited exceptions, is often a policy or political issue, not a legal mandate.
Final Notice
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Final notice under Wis. Stat. §118.24(6):
- Must be given “[a]t least 4 months prior to the expiration of the employment contract …”
- Must be given by “the employing school board.”
- Must be given in writing.
- Must give notice of “either renewal of the contract or of refusal to renew such person’s contract.”
NOTE: If no such notice is given, “the contract then in force shall continue in force for 2 years.” In addition, “[a]ny such person who receives notice of renewal or who does not receive notice of renewal or refusal to renew the person’s contract at least 4 months before the contract expiration shall accept or reject the contract in writing on or before a date 3 months prior to the contract expiration.”
Administrator Contract Renewal
Types of Renewal
A school board can renew an administrator contract in one of two ways:
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Deliberate renewal: This occurs when a school board offers renewal of an existing contract.
For example, a school board can offer to renew a 1-year contract, which results in a 1-year contract if the administrator accepts and no contract if the administrator declines. Similarly, a school board can offer to renew a 2-year contract, which results in a 2-year contract if the administrator accepts and no contract if the administrator declines.
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Accidental renewal/renewal by operation of law:
An administrator contract will continue for a period of two years by operation of law if the statutory procedures for nonrenewal are not followed. Wis. Stats. §§118.24(6) and (7) provide that preliminary and final notices of nonrenewal must be given 5 and 4 months, respectively, before a contract expires, and subs. (6) states that “[i]f no such notice is given, the contract then in force shall continue in force for 2 years.”
- As a general matter, an administrator contract will renew itself for a period of two years unless:
- It is nonrenewed;
- The parties agree to change it; or
- Timely written notice of an offer to renew the contract (which can be for a 1- or 2-year contract) is given but is either declined or — in the case of an offer to renew a 1-year contract — is accepted.
Renewal v. Extension
Contract extensions and contract renewal are not the same. Nothing in your policies, handbooks, or individual contracts should confuse this point.
- “Extension” refers to a contractual process. When an extension is granted, an existing contract is extended through some means agreed on by the parties.
- Extensions are usually for a period of one year (and are based on the statutory authority to have “one or more extensions of one year each”). Wis. Stat. 118.24(1)
- Extensions are generally granted by specific action or inaction of the school board.
- Multiple extensions of one year cannot be granted simultaneously so as to defeat the statutory two-year limit (e.g., five one-year extensions could not be granted on the same day to effectively create a five-year administrator contract by binding the school board for 5 years).
- “Renewal/Nonrenewal” refers to a statutory process.
- Nonrenewal requires a specific set of steps to nonrenew a contract (preliminary notice, notice of reasons for nonrenewal, public or private hearing, and final notice). Failure to follow these steps results in automatic renewal of the existing contract for a period of two years.
- Renewal requires written notice of renewal of the “person’s contract” no less than 4 months before expiration. Failure to follow this step results in renewal of the existing contract for a period of two years.
Navigating Nonrenewal/Renewal Problems
- Remember who is covered by the statute.
- Contract language may treat personnel that are not covered by the statute as though they are.
- There also can be administrators who should be covered but do not have an administrator contract under the statute.
- Registered mail is mandated for preliminary notice. However, use all means available to ensure actual notice as early as possible (email, personal service, etc.).
- By law, nonrenewal will generally be sustained if statutory procedures have been followed and if there is a non-arbitrary or capricious basis for the decision. Thus, the reason(s) for the proposed nonrenewal should be understandable, performance-based, and cast in terms of the superintendent’s judgment.
- Superintendents must have a calendar-based flow chart for administrator contract renewal and nonrenewal.
- When do evaluations have to be done under policy and are they done in fact before any recommendations are made concerning administrators’ contracts?
- What is the school board meeting schedule in relation to the statutory renewal and nonrenewal timelines?
- Are there conflicting obligations created by general policy (e.g., school board policy) or by specific commitments (e.g., plans of improvement)?
- Do the administrator contracts provide for extensions? If so, are the extension provisions negative options clauses (extension will take place if no action is taken) or does extension require specific action
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Don’t Be Fooled
Superintendents may be (and have been) told that providing a school board with a briefing on proceedings that may ultimately take place before the board violates an employee’s due process rights. This vastly overstates the case.
The school board is permitted to know about the case and even have an opinion on it. An “impartial decision maker,” in general, is one:- That does not have a pecuniary interest,
- That has not been the target of personal abuse at the hands of the employee, and
- Can make a decision based on the evidence presented at hearing.
Providing a school board with a short briefing so that they are not blindsided is appropriate, so long as the briefing does not cross these lines. Boards must have an open mind, not an empty mind.
This brings us to the end of our series on administrator contracts & contract renewal. If you found the information in this article helpful, you might also enjoy the following series …
Challenges for the 2022-2023 School Year:
Part 1: Unruly Fans & Parents at School Board Meetings
Part 2: Public Access to School Grounds