Executive County Superintendent Review of Administrator Contracts
Q&A
Updated 7/1/08
This Q&A is to be used for the Executive County Superintendent and Acting Executive County Superintendent required review and approval of administrator contracts pursuant to N.J.S.A. 18A:7-8(j) and the standards promulgated by the Commissioner for this review pursuant to N.J.A.C. 6A:23A-3.1.
General | Annuities | Sick and Vacation | Beneficiary Provisions | Travel Requirements | Buyout Provisions | Provisions for Salary Increases
Disability Insurance | Life Insurance and TPAF/FICA | Longevity Payments | Core Hours | Total Cost of the Contract
Required Provision for revocation of a Certificate
Q1. Which contracts must the executive county superintendent or acting executive county superintendent review?
A1. The executive or acting executive county superintendent (ECS or Acting ECS) must review and approve, prior to BOE approval, all employment contracts for the superintendent, deputy superintendent, assistant superintendent(s) and business administrator. This includes review and approval of the following:
- all new employment contracts, including contracts that replace an expired contract for that employee (tenured and non-tenured);
- all renegotiations, amendment and other alterations of terms of existing contracts that have been approved by the executive or acting executive county superintendent; and
- all contract extensions where such term was not included in the original employment contract or is different from the term contained in the original contract.
The statute permits only Superintendent contracts to exceed one year. Therefore, the executive county superintendent must review and approve assistant superintendent, deputy superintendent and business administrator contracts (tenured and non-tenured) at least annually consistent with N.J.A.C. 6A:23A-3.1, and cannot approve such contracts for a term greater than one year.
Q2. Is the ECS or Acting ECS required to review all renegotiations, amendment and other alterations of terms in existing contracts?
A2. No. The ECS or Acting ECS must review and approve all new contracts, including contracts that replace expired contracts. In addition, the ECS or Acting ECS must review all renegotiations, amendment and other alterations of terms of existing contracts that have been previously approved by the executive or acting executive county superintendent. The ECS does not have the authority to review renegotiations, amendments and other alternations of terms to existing contracts not previously required to be approved by the ECS or Acting ECS.
Q3. What happens if the BOE approved a new contract, including a contract that replaces an expired contract for a tenured and non-tenured employee, or renegotiated, amended, or altered terms of existing contracts that the ECS or Acting ECS had previously approved without submitting to the executive county superintendent for approval as required?
A3. If the executive or acting executive county superintendent was in place when the BOE took this action, then the contract is considered unenforceable until the district submits the contract for review and receives approval from the executive or acting executive county superintendent.
Q4. Is the executive or acting executive county superintendent required to review and approve existing contracts?
A4. No, unless the contract should have been submitted for review/approval when the executive county superintendent was in place and it was not, or if there is a renegotiation, amendment, or other alteration of terms to an existing contract which was previously approved by the executive or acting executive county superintendent. The ECS or Acting ECS is not required to review existing contracts nor do they have authority to disapprove existing contracts that they were not required to review.
Therefore, the ECS cannot request modifications to existing contracts if such contracts were entered into prior to the appointment of the ECS or Acting ECS. The executive county superintendent can certainly review existing contracts or modifications to existing contracts (such as salary adjustments) if requested by the district as well as request copies of existing contracts for analysis and/or other purposes, such as the current survey of existing Superintendent contract provisions.
The ECS or Acting ECS should advise districts to consult with their local attorney regarding whether existing contract provisions should be revised based on changes to law and regulation.
Q5. Who approves contracts required to be reviewed in a county without an executive or acting executive county superintendent?
A5 The Assistant Commissioner for Field Services will approve contracts for districts in counties without an executive or acting executive county superintendent based on review and recommendation by the applicable county office.
Q6. Can the ECS approve a new contract that replaces an expired contract for that employee which includes benefits that the regulations/standards no longer permit (e.g. supplemental life insurance, reimbursement for FICA or health co-pays) for non-tenured and tenured employees (deputy superintendent, assistant superintendents and SBAs)?
Q6. No. The ECS or Acting ECS cannot approve a contract that includes benefits that the regulations/standards no longer permit. The ECS or Acting ECS must disapprove all new contracts, including new contracts that replace an expired contract for that employee, that do not meet the benefit limitations and other standards in the regulations.
Q7 Is a board of education subject to the public notice and public hearing requirement pursuant to N.J.S.A. 18A:11-11 for new contracts, including contracts that replace expired contracts for tenured or non-tenured employees?
A7. No. Only renegotiations, amendments, or other alternations of terms of existing contracts are subject to the public notice and public hearing requirements pursuant to N.J.S.A. 18A:11-11. However, nothing precludes a board of education from holding public hearings on new contracts, including contracts that replace expired contracts, and the department encourages districts to do so in the spirit of disclosure and transparency.
Q8. Can the executive or acting executive county superintendent approve annuities in a contract?
A8. No, except for new contracts that replace expired contracts for which an annuity was included in the expired contract for that administrator in that district. An annuity for this purpose refers to a financial instrument in which the board of education invests funds on a tax-deferred basis in the name of an employee to be distributed back to the employee in the future.
Q9. Are the P.L. 2007, chapter 92 (pensions law) caps on unused sick leave and vacation leave applicable to superintendents, assistant superintendents, deputy superintendent and business administrator?
A9. Yes. The contractual provisions regarding accumulated unused sick and vacation leave and supplemental compensation for such leave must be consistent with N.J.S.A. 18A:30-3.5 and 18A:30-9.
Q10. Can contracts include payment of unused sick leave prior to retirement?
A10. No. Pursuant to the law, contracts can only include supplemental compensation for accrued, unused sick leave payable upon retirement (not annually or as part of any separation clause, only upon retirement) for which the amount cannot exceed the higher of the individuals accrued sick leave as of June 8, 2007 (date of the law) or the sick leave accrued by the individual after June 8, 2007, capped at $15,000.
Q11. Can contracts include payment for unused vacation leave?
A11. Yes, but only for vacation leave accrued prior to enactment of P.L. 2007, chapter 92. Under chapter 92, employees may accumulate vacation leave accrued as of the effective date of the law (June 8, 2007). Vacation leave accrued after June 8, 2007 can be carried over for up to one year, where required by business demands. Contracts must provide that annual payments of accrued vacation can occur only for leave accrued prior to the effective date of the act; annual payout of vacation leave accrued after the effective date of the act is not permitted. Payment of vacation leave accrued subsequent to the passage of P.L. 2007, chapter 92 occurs upon separation or retirement.
Q12. What happens to unused sick leave upon employee separation from a district before the employee retires?
A12. It is not the previous district’s responsibility to make payment upon retirement of any accrued sick time after the affected employee has separated from that district prior to retirement. Pursuant to NJSA 18A:30-3.2, the new board of education may credit the employee for unused sick time based on the new board of education’s policy on sick leave credit for all employees. The ECS or Acting ECS should request a copy of the board policy and certificate of accrued leave if such provision is included in the new contract.
Q13. Can the payment of unused sick or vacation be based on a number of days other than 260 if a different denominator was applicable when the unused sick or vacation was accrued?
A13. The applicable denominator for new contracts and payment of sick and vacation under new contracts is 260.
The calculation of an employee’s sick leave benefit as of June 8, 2007, should be calculated using the methodology under the existing contract unless the contract does not include a per diem amount or method of calculation. If no method was included, the calculation cannot exceed the salary as of June 8, 2007 using a denominator of 260 days.
Note, the applicable salary to use in any payout is negotiable and ECS and Acting ECS should encourage payout of grandfathered leave at different amounts as long as the salary used does not exceed the current salary of the employee at the time of the payout.
Q14 What beneficiary provisions can be included for unused sick or vacation leave?
A14 Contracts may name a beneficiary for accumulated unused vacation leave
(consistent with the caps under P.L. 2007, chapter 92) but may not include a beneficiary of unused sick leave which is only payable to the employee upon retirement.Q15 Should contracts include a provision that requires travel consistent with the OMB circular and regulations?
A15 Yes, the contract should include such a provision. Note that any contractual provision that is inconsistent with law is superseded by the law. Therefore, new contracts cannot include provisions inconsistent with the circular such as mileage reimbursement at a higher rate than the state rate or reimbursement for overnights in NJ (unless it is for a conference which has received a waiver) or reimbursement for meals inconsistent with the circular.
Q16. Can new contracts allow for mileage reimbursement at the federal rate or some other rate higher than the state mileage rate?
A16. No. The OMB circular specifically states that the state mileage rate applies. This applies to all employees and board of education members in the district. The state rate is set annually in the appropriations act. It is currently 31 cents per mile. (Note: Existing negotiated agreements, which have not expired, that include a mileage reimbursement at a different rate may be honored pursuant to section I.B.6 of the NJOMB travel circular.)
Q17. Can contracts include a monthly travel allowance?
A17 No. The only allowable monthly allowance is a reasonable car allowance that replaces the provision of a car. A reasonable car allowance cannot exceed the monthly cost of the average monthly miles traveled for business purposes for that employee multiplied by the allowable mileage reimbursement pursuant to applicable law and regulation and NJOMB circular (currently 31 cents per mile). If such allowance is included, the employee cannot be reimbursed for business travel mileage nor permanently assigned a car for official district business.
Q18 Can contracts provide an employee a car for business travel? What about personal travel? Can the contract include a dedicated driver or chauffeur?
A18. Contracts can include a car consistent with the proposed vehicle use regulations. Such regulations do not allow the cost of the car to exceed $30,000 and only allow incidental personal travel. The ECS or Acting ECS, however, should request and review justification for any dedicated car provision. The contract cannot include a provision for a dedicated driver or chauffeur.
Q19 Can contracts include a separate provision to buy out the superintendent if a shared service or a consolidation of the district occurs?
A19 No. Contracts can include a general provision for payment as a condition of separation from service if it is not deemed by the executive or acting executive county superintendent to be prohibitive or excessive in nature. This general provision would cover the circumstance of a consolidation or shared services.
Q20 How should the ECS review a provision for payment as a condition of separation from service?
A20 The ECS or Acting ECS should review the provision for a determination that it is neither prohibitive nor excessive in nature and to confirm the payment does not exceed the lesser of the calculation of three months pay for every year remaining on the contract with proration for partial years, not to exceed 12 months, or the remaining salary amount due under the contract.
Provisions for Salary Increases
Q21. Can contracts include provisions that provide that the administrator receive all benefits and emoluments provided to a specified bargaining unit?
A21. No. Contracts cannot include such a provision. Only superintendent contracts can exceed one year and therefore include an annual salary increase provision, but such provision must include a specific percentage or dollar amount that is reasonable. Benefits should also be specified for all contracts and not tied generally to a specified bargaining unit or set of employees, to the greatest extent possible to enable disclosure, transparency, and ability for the ECS and Acting ECS to conduct a fair comparability analysis. A provision for health benefits consistent with other employees in the district is acceptable. However, a provision that states that the employees will receive all benefits consistent with other administrators, for example, is not acceptable. Allowable benefits should be specific to enable disclosure and transparency. Note, there is a School Ethics Commission opinion that prohibits an administrator from participating in the negotiations where his contract is tied to the contract of the bargaining unit.
Q22 Can contracts include provisions for a minimum salary increase (e.g. 2%) with a provision that any increase above that is based on the achievement of goals to be annually set by the board (outside the contract)?
A22 Yes, but any increase over the minimum salary increase set would require ECS or Acting ECS review as it would be an amendment to a contract the ECS or Acting ECS had reviewed/approved.
Q23 Can contracts include simple provisions that the salary increase for subsequent years will be based on some formula (e.g. fixed %).
A23 As stated in Q&A #21, contracts cannot contain a provision that bases increases on other staff or bargaining unit increases, but it can contain a fixed percentage increase or other reasonable formulaic increase.
Q24. Can contracts include provisions that pay for disability insurance in contracts if the district offers it to all employees at the employees’ expense?
A24. No. The regulations (3.1(e)(3)) specifically state that contracts cannot include payment for employee contributions that are either required by law (e.g. FICA) or by a contract in effect in the district with other employees.
Q25 Can contracts include provisions for payment of disability insurance if the district only offers it to specific employees (at the district’s expense)?
A25. Yes. The regulations allow for benefits to be included that do not supplement or duplicate other benefits that are otherwise available to the employee by operation of law or existing group plan (3.1(e)(5)) or do not reimburse or pay for employee contributions that are either required by law or by a contract in effect in the district with other employees (3.1(e)(3)).
Q26. Can contracts include payment for the additional TPAF optional life insurance coverage of up to 3 ½ times salary?
A26. No. The regulations specifically state that contracts cannot include reimbursement or payment of employee contributions that are either required by law or by a contract in effect in the district with other employees (3.1(e)(3)).
Q27. Can contracts include a supplemental life insurance payment (supplemental to the TPAF provision)?
A27 No. The regulations specifically state that contracts cannot include payment for benefits that supplement or duplicate existing benefits that are otherwise available to the employee by operation of law or existing group plan (e.g. life insurance supplements the TPAF benefit) (3.1(e)(5)).
Q28 Can contracts include payment for the employee share of FICA or pensions requirement?
A28. No. The regulations specifically state that contracts cannot include reimbursement or payment of employee contributions that are either required by law or by a contract in effect in the district with other employees (3.1(e)(3)).
Q29 Can contracts include a separate payment or salary increase to replace the lost payment for optional life insurance, FICA or TPAF?
A29. No. Contracts should not include a corresponding salary increase to replace such lost benefit payment. The contracts review should ensure the salary, benefits and other emoluments are comparable with similarly credentialed and experienced administrators in other school districts in the region and with similar enrollment, academic achievement levels and challenges, and grade spans.
Q30 Can contracts include a longevity payment?
A30. Yes. The longevity payment should be reviewed with the salary, benefits and other emoluments for comparability with similarly credentialed and experienced administrators in other school districts in the region and with similar enrollment, academic achievement levels and challenges, and grade spans.
Q31 Do contracts need to include core hours of the administrator?
A31. No. The final regulations do not include that requirement; however, the ECS or Acting ECS should request the schedule for summer, vacation and other applicable periods with the submission of the contract for review to enable the ECS or Acting ECS to conduct a fair and appropriate comparability analysis.
Q32 Do contracts need to include a total cost of the contract for each applicable year which will include salary, longevity (if applicable), benefits and all other emoluments?
A32. No, the total cost does not need to be included in the contract, however, the district must provide the ECS or Acting ECS with a detailed statement setting forth the total cost of the contract for each applicable year, including salary, longevity (if applicable), benefits and all other emoluments.
Required Provision for revocation of a Certificate
Q33. What contracts must include the required provision pursuant to 18A:17-15.1 that in the event that the administrator’s certificate is revoked, the contract is null and void.
A33. This provision is required for Superintendent contracts only. However, the department recommends that all contracts include such a provision given the requirement for all teaching staff members under N.J.S.A. 18A:27-2.
