Administrative Employment and Contracts: Rights and Expectations ACCCA 2013 Annual Conference February 20, 2013 Presented By: Mary Dowell, Liebert Cassidy.

Administrative Employment and Contracts:Rights and Expectations

ACCCA 2013 Annual ConferenceFebruary 20, 2013

Presented By:Mary Dowell, Liebert Cassidy WhitmoreJohn Didion, Rancho Santiago Community College District

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OverviewLegal RequirementsEntering Into Contracts Renewing Contracts Terminating Administrator Contractual Provisions

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Entering Into ContractsWhy a Contract?Education Code Section 72411(a): Every educational administrator shall be employed by an appointment or contract of up to four years in duration.

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Entering Into a ContractTerms and conditions of employment are memorialized in a written agreement signed by the partiesBoard approval required at a regular meeting of the board

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Renewing a ContractThe district and the administrator may mutually agree to terminate existing contract and enter into a new contract Current contract ends on June 30Contract with new terms and conditions begins on July 1

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Renewing a ContractNo contractual provision can provide for an automatic renewal of the contract if there are automatic salary increases that exceed a cost of living adjustment Board approval required at a regular meeting of the board

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Renewing a ContractAutomatic renewal by operation of law If no notice of non-renewal is provided, the administrator is reemployed for a term of the same duration that was just completedBut: the contract itself can state that it only renews for one year.No statutory or contractual right to an administrative position

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Terminating a ContractMutual agreementResignationTerms specified in contract Must provide appropriate notice as specified in contract

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Terminating a ContractNon-renewal of contractFor contracts longer than a year:At least 6 months notice prior to expiration of contract; orA time period agreed to in the contract (e.g. by March 15)For contracts less than a year, notice of non-renewal must be given on or before March 15

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Terminating a ContractWithout causeTerms specified in contractSeverance pay is limited to the monthly salary owed for the remainder of the contractCapped at a maximum of 18 months, but no right to have it be 18 months

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Terminating a ContractFor causeAdministrators without tenure as a faculty member may be terminated for cause pursuant to the terms of the contract, if anyAdministrators with tenure as a faculty member must be dismissed in accordance with Education Code 87732

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Retreat Rights Academics OnlyNo retreat rights for an administrator dismissed for causeAdministrator with tenure as a faculty member who has been released without cause may return to a faculty position

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Retreat RightsAcademic administrator without tenure as a faculty member may become a first-year probationary faculty memberTermination must not be for causeDistrict must have a process to evaluate whether administrator meets minimum qualifications, developed with Faculty SenateAdministrator must have completed at least 2 years of satisfactory serviceA first-year probationary position must be available

Common Contractual Provisions

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Essential ProvisionsTerm/DurationGoverns the length of the contractAdministrator contracts may be up to 4 years in durationLimitations on CalSTRS annuitants:$31,020 annual post-retirement earnings limit (2011-12)Beginning in 2013, there is a180-day waiting period prior to being employed regardless of the age of the annuitant

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Essential ProvisionsSalaryBase salaryCOLAGrounds for salary increasesDuties/ResponsibilitiesDefines the job responsibilities of the position

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Essential ProvisionsEvaluationExplains the standards, timing, and process for performance evaluations

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Essential ProvisionsFringe benefitsMedical & dental insuranceLife insuranceLeavesRetirement plansExpense allowance/Reimbursement

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Essential ProvisionsTermination Resignation, for cause, without cause, non-renewal

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Essential Provisions Applicable lawDefines what law applies to interpret and enforce the contract (e.g. California law)May define where parties may sue to enforce the contract (e.g. Alameda County)Severability/Savings ClauseIf one term of the contract is invalidated by a court, the rest of the contract is still enforceable

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Essential ProvisionsComplete/Entire AgreementContract is a final expression of the agreement between the partiesNo other terms or conditions exist outside what is written in the contract

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Other Optional ProvisionsArbitration/Mediation ClauseMedical ExaminationsOutside Employment/Professional ActivitiesNon-Compete ClauseNon-Recruiting Clause

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New RequirementsIf the following benefits are provided, the contract must contain provisions requiring an administrator to reimburse the district for these costs if he/she is convicted of a crime involving an abuse of his/her position:Paid leave pending an investigationFunds for the legal criminal defense of the administratorAny cash settlement received related to the termination of the employment contract

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Effect of PEPRAPost-retirement earnings limit for STRS960 hour limit for PERS

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Thank you!Mary DowellPartnerLiebert Cassidy Whitmore310-981-2000 | [email protected] DidionExecutive Vice Chancellor, Human Resources and Educational ServicesRancho Santiago Community College District714-480-7489 | [email protected]

*Chief Instructional Officers Conference, A New Paradigm for the CIO Contract New Board approval of contract cannot occur in a special meeting. (Gov. Code 54956(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salary, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive . . .)EC 72411(a) - Every educational administrator shall be employed, and all other administrators may be employed, by the governing board of the district by an appointment or contract of up to four years in duration. The governing board of a community college district, with the consent of the administrator concerned, may at any time terminate, effective on the next succeeding first day of July, the term of employment of, and any contract of employment with, the administrator of the district, and reemploy the administrator, on any terms and conditions as may be mutually agreed upon by the board and the administrator, for a new term to commence on the effective date of the termination of the existing term of employment. *Chief Instructional Officers Conference, A New Paradigm for the CIO Contract New - Gov. Code 3511.2 On or after January 1, 2012, any contract executed or renewed between a local agency and a local agency executive shall not provide for the following: An automatic renewal of a contract that provides for an automatic increase in the level of compensation that exceeds a cost-of-living adjustment . . .

New - Gov. Code 54956(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salary, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive . . .

EC 72411(c) - If the governing board fails to reemploy an administrator by appointment or contract in his or her administrative position and the written notice provided for in this section has not been given, the administrator shall, unless the existing appointment or contract provides otherwise, be deemed to be reemployed for a term of the same duration as the one completed with all other terms and conditions remaining unchanged. Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College District CCD administrators do not have a either a statutory or property right to their former administrative positions, and are not entitled to be reinstated into those positions.An administrator with tenure as a faculty member could return to a faculty positionsAn administrator without tenure may become a first year probationary faculty memberEducation Code 72411(b) - If the governing board of a district determines that an administrator is not to be reemployed by appointment or contract in his or her administrative position upon the expiration of his or her appointment or contract, the administrator shall be given written notice of this determination by the governing board. For an administrator employed by appointment or contract, the term of which is longer than one year, the notice shall be given at least six months in advance of the expiration of the appointment or contract unless the contract or appointment provides otherwise. For every other administrator, notice that the administrator may not be reemployed by appointment or contract in his or her administrative position for the following college year shall be given on or before March 15. Gov. Code 53260(a) - All contracts of employment between an employee and a local agency employer shall include a provision which provides that regardless of the term of the contract, if the contract is terminated, the maximum cash settlement that an employee may receive shall be an amount equal to the monthly salary of the employee multiplied by the number of months left on the unexpired term of the contract. However, if the unexpired term of the contract is greater than 18 months, the maximum cash settlement shall be an amount equal to the monthly salary of the employee multiplied by 18. Education Code 72411.5 - In the absence of an express appointment or contract as provided in Section 72411, every administrator shall serve in his or her administrative assignment at the pleasure of the governing board. The dismissal of, and imposition of penalties for cause on, an administrator employed by appointment or contract pursuant to Section 72411 shall, if the administrator does not have tenure as a faculty member, be in accordance with the terms of the appointment or contract of employment. If the administrator has tenure as a faculty member, the dismissal of, and imposition of penalties for cause on, the administrator shall be in accordance with the provisions applicable to faculty members. EC 87454 - A tenured employee, when assigned from a faculty position to an educational administrative position, or assigned any special or other type of work, or given special classification or designation, shall retain his or her status as a tenured faculty member.

EC 87458 - A person employed in an administrative position that is not part of the classified service, who has not previously acquired tenured status as a faculty member in the same district and who is not under contract in a program or project to perform services conducted under contract with public or private agencies, or in other categorically funded projects of indeterminate duration, shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated if all of the following apply: The process by which the governing board reaches the determination shall be developed and agreed upon jointly by representatives of the governing board and the academic senate, and approved by the governing board. The agreed upon process shall include reasonable procedures to ensure that the governing board relies primarily upon the advice and judgment of the academic senate to determine that the administrator possesses the minimum qualifications for employment as a faculty member. The process shall further require that the governing board provide the academic senate with an opportunity to present its views to the governing board before the board makes a determination and that the written record of the decision, including the views of the academic senate, shall be available for review pursuant to Section 87358. Until a joint agreement is reached pursuant to subdivision (a), the district process in existence on January 1, 1989, shall remain in effect. The administrator has completed at least two years of satisfactory service, including any time previously served as a faculty member, in the district. The termination of the administrative assignment is for any reason other than dismissal for cause. This section shall apply to every educational administrator whose first day of paid service in the district as a faculty member or an administrator is on or after July 1, 1990. Wong v. Ohlone College District is not required to grant request of administrator for a first-year probationary position if no such position is available.EC 87454 - A tenured employee, when assigned from a faculty position to an educational administrative position, or assigned any special or other type of work, or given special classification or designation, shall retain his or her status as a tenured faculty member.

EC 87458 - A person employed in an administrative position that is not part of the classified service, who has not previously acquired tenured status as a faculty member in the same district and who is not under contract in a program or project to perform services conducted under contract with public or private agencies, or in other categorically funded projects of indeterminate duration, shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated if all of the following apply: The process by which the governing board reaches the determination shall be developed and agreed upon jointly by representatives of the governing board and the academic senate, and approved by the governing board. The agreed upon process shall include reasonable procedures to ensure that the governing board relies primarily upon the advice and judgment of the academic senate to determine that the administrator possesses the minimum qualifications for employment as a faculty member. The process shall further require that the governing board provide the academic senate with an opportunity to present its views to the governing board before the board makes a determination and that the written record of the decision, including the views of the academic senate, shall be available for review pursuant to Section 87358. Until a joint agreement is reached pursuant to subdivision (a), the district process in existence on January 1, 1989, shall remain in effect. The administrator has completed at least two years of satisfactory service, including any time previously served as a faculty member, in the district. The termination of the administrative assignment is for any reason other than dismissal for cause. This section shall apply to every educational administrator whose first day of paid service in the district as a faculty member or an administrator is on or after July 1, 1990. Wong v. Ohlone College District is not required to grant request of administrator for a first-year probationary position if no such position is available.Education Code 72411(a) - Every educational administrator shall be employed, and all other administrators may be employed, by the governing board of the district by an appointment or contract of up to four years in duration.

The monetary earning limitations for CalSTRS annuitants will limit the duration of the employment contract.The post-retirement earnings limitation will increase to $40,011 for the 2012-13 fiscal year.

Currently, only annuitants under 60 have a $0 earning limit for the first six months of retirement. However, under the new pension legislation, CalSTRS has interpreted the legislation to extend this restriction to all CalSTRS members regardless of age. This restriction does not apply if the board approves the appointment at a public meeting, and the position is critically needed. Salary provision will include the base salary. If negotiated, this section will include cost of living adjustments, and any other provision governing the basis for a salary increase. Often times, the contract will say that the Board retains the right to review and adjust the amount of salary. If an increase is provided, it will usually be an amendment to the existing agreement and not be in the form of an entirely new agreement.

Salary provision will include the base salary. If negotiated, this section will include cost of living adjustments, and any other provision governing the basis for a salary increase. Often times, the contract will say that the Board retains the right to review and adjust the amount of salary. If an increase is provided, it will usually be an amendment to the existing agreement and not be in the form of an entirely new agreement.

Fringe benefits may be explicitly provided. In districts that have a management benefit schedule or management benefit plan, this section may just refer to the benefit plan.Expense allowance May provide a maximum monetary allowance to cover incidental expenses incurred in the performance of the positions job duties. It may also provide for payment of membership in professional organizations, cell phone allowances, and automobile allowances. Make sure to follow any of the procedures required to obtain a reimbursement as outlined in the contract, such as obtaining pre-approval for certain expenditures, or properly submitting documentation of expenditures.Termination clause This provision will explicitly state the options for terminating the contract that was discussed earlier. For example, a resignation clause might state that a resignation may be allowed but state that 120 days notice is required. Fringe benefits may be explicitly provided. In districts that have a management benefit schedule or management benefit plan, this section may just refer to the benefit plan.Expense allowance May provide a maximum monetary allowance to cover incidental expenses incurred in the performance of the positions job duties. It may also provide for payment of membership in professional organizations, cell phone allowances, and automobile allowances. Make sure to follow any of the procedures required to obtain a reimbursement as outlined in the contract, such as obtaining pre-approval for certain expenditures, or properly submitting documentation of expenditures.Termination clause This provision will explicitly state the options for terminating the contract that was discussed earlier. For example, a resignation clause might state that a resignation may be allowed but state that 120 days notice is required. Arbitration/Mediation Clause if a dispute arises regarding the contract, the parties may agree to attempt to resolve the dispute through arbitration or mediation prior to pursuing formal litigation. Medical examinations Agreement that the administrator will undergo a medical exam that assesses the physical ability of the administrator to perform the duties of the position.Outside Employment/Professional Activities May specify limits or prohibition on outside employment or other professional activities. Non-Compete Clause Restricts employees ability to seek employment with a competitor for a certain time period. These are not enforceable in California.Non-Recruiting Clause Restricts employees ability to induce other employees to leave employment and work for a new employer. While unusual to see in an administrator contract, they are enforceable.New AB 1344 requirements:

Gov. Code 53243 - On or after January 1, 2012, any contract executed or renewed between a local agency and an officer or employee of a local agency that provides paid leave salary offered by the local agency to the officer or employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or employee is convicted of a crime involving an abuse of his or her office or position.

Gov. Code 53243.1 - On or after January 1, 2012, any contract executed or renewed between a local agency and an officer or employee of a local agency that provides funds for the legal criminal defense of an officer or employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or employee is convicted of a crime involving an abuse of his or her office or position.

Gov. Code 53243.2 - On or after January 1, 2012, any contract of employment between an employee and a local agency employer shall include a provision which provides that, regardless of the term of the contract, if the contract is terminated, any cash settlement related to the termination that an employee may receive from the local agency shall be fully reimbursed to the local agency if the employee is convicted of a crime involving an abuse of his or her office or position.

Even if those benefits are not provided for in a contract, an administrator will still be obligated to reimburse the District for those costs if he/she is convicted of a crime involving the abuse of his or her office or position. (Gov. Code 53243.3 - On or after January 1, 2012, if a local agency provides, in the absence of a contractual obligation, for any of the payments described in this article, then the employee or officer receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the employee or officer is convicted of a crime involving the abuse of his or her office or position.)Chief Instructional Officers Conference, A New Paradigm for the CIO Contract *