Transcript Annotated Employment Contract for School Superintendents

ANNOTATED
EMPLOYMENT CONTRACT
FOR
SCHOOL SUPERINTENDENTS
AND
SECOND LEVEL LEADERS
JIM DAVIES
[email protected]
1
WHAT BOARDS AND SUPERINTENDENTS
SHOULD KNOW ABOUT EMPLOYMENT
CONTRACTS
Basic Legal Concepts Relating to Employment
Employment Law
Employment Standards Code
Common Law
Related statutes
Labour Law
Employment Standards Code
Labour Relations Code
Arbitration Decisions
The Distinction Between Employment and Labour
Law
Employment: Contract
Labour: Collective Agreement
Reinstatement: only applies to labour law
2
WHAT BOARDS AND
SUPERINTENDENTS SHOULD KNOW
ABOUT EMPLOYMENT CONTRACTS
Unwritten Employment Contracts
Constituents:
•oral and written (entire agreement clause)
•employer policies and rules
•common-law implied clauses
•statute (Employment Standards Code)
•management’s rights
Outcome: Uncertainty
3
WHAT BOARDS AND
SUPERINTENDENTS SHOULD KNOW
ABOUT EMPLOYMENT CONTRACTS
Written Employment
Contracts
Deal with all of the above
Outcome: Certainty
4
WHAT BOARDS AND
SUPERINTENDENTS SHOULD KNOW
ABOUT EMPLOYMENT CONTRACTS
Termination
SCC: Duty of fairness when school
boards in terminate senior staff
Elements of fairness:
• Notice of concerns
• Opportunity to respond (hearing)
• Unbiased panel
• Representation by counsel
• Reasons for decision
ELIMINATED IN MANY
EMPLOYMENT CONTRACTS
5
Second Level Leaders’ Contracts
Consider your status:
School Act: Sections 96, 106- 108, 110, 132
Administrative, supervisory and
consultative positions
96(1) Subject to section 93, a board may
appoint any person or designate a teacher to
an administrative, supervisory or consultative
position.
(2) When an organization representing
teachers carries on collective bargaining on
behalf of the teachers, a board and the
organization,
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Second Level Leaders’ Contracts
(a)
in the case of any teacher who has
been designated by the board to an
administrative, supervisory or consultative
position, may, through negotiation, include or
exclude that teacher from the teachers on
whose behalf the organization is bargaining,
and
(b)
in the case of any teacher who as a
result of making an election under section 5.1
of the Teaching Profession Act is not an
active member of The Alberta Teachers’
Association, must exclude that teacher from
the teachers on whose behalf the organization
is bargaining.
7
Second Level Leaders’ Contracts
Termination of contract
106(1) A contract of employment between a
board and a teacher automatically terminates
at the time that
(a)
the certificate of qualification of the
teacher is suspended or cancelled by the
Minister, or
(b)
the certificate of qualification of the
teacher expires.
(2) A contract of employment between a
board and a teacher or a designation of a
teacher made pursuant to section 19, 95 or 96
may be terminated by mutual consent.
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Second Level Leaders’ Contracts
Termination by board
107(1) Whether or not the board has
suspended a teacher under section 105 and
whether or not the suspension, if any, has
been appealed to the Board of Reference, a
board may terminate
(a)
a contract of employment with a
teacher, or
(b)
a designation of a teacher made
pursuant to section 19, 95 or 96, after giving
the teacher written notice of termination not
less than 30 days prior to the effective date of
termination.
(2) In terminating a contract of employment
or a designation, the board shall act
reasonably.
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Second Level Leaders’ Contracts
(3) A notice of termination of a contract of
employment or a designation shall specify the
reasons for the termination.
(4) Where a teacher has been served with a
notice of termination of a contract of
employment or a designation, the board may
suspend the teacher from the performance of
the teacher’s duties in accordance with the
notice.
(5) A notice of termination of or the
termination of a designation does not
terminate a contract of employment.
(6) A teacher who has been suspended under
this section must be paid the teacher’s salary
until the effective date of the termination of
the teacher’s contract of employment or the
designation.
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Second Level Leaders’ Contracts
(7) If a teacher is served with notice of
termination under subsection (1) and the
teacher has been suspended under section 105
before the notice is served, an appeal, if any,
to the Board of Reference in respect of the
suspension shall not be proceeded with but is
merged with the appeal, if any, to the Board
of Reference in respect of the termination
under this section.
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Second Level Leaders’ Contracts
Termination by teacher
108(1) A teacher may terminate
(a) a contract of employment with a board, or
(b) a designation of the teacher made pursuant
to section 19, 95 or 96,
by giving the board 30 days’ written notice of
the teacher’s intention to terminate that
contract or designation.
(2) If a teacher has terminated the teacher’s
contract of employment with a board before
rendering any service under the contract, the
teacher shall not be employed by another
board unless the board with which the
teacher’s contract was terminated gives its
prior approval to the teacher’s employment
with the other board.
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Second Level Leaders’ Contracts
Termination by teacher
108(1) A teacher may terminate
(a) a contract of employment with a board, or
(b) a designation of the teacher made pursuant
to section 19, 95 or 96,
by giving the board 30 days’ written notice of
the teacher’s intention to terminate that
contract or designation.
(2) If a teacher has terminated the teacher’s
contract of employment with a board before
rendering any service under the contract, the
teacher shall not be employed by another
board unless the board with which the
teacher’s contract was terminated gives its
prior approval to the teacher’s employment
with the other board.
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Second Level Leaders’ Contracts
After Termination of Designation
110(1) Notwithstanding section 106(2), a
teacher, on receipt of a notice of termination
of a designation made pursuant to section 19,
95 or 96, may terminate the teacher’s contract
of employment by giving 30 days’ written
notice to the board of the teacher’s intention
to terminate that contract.
(2) No appeal may be made from a
termination of a contract to the Board of
Reference if the contract of employment is
terminated pursuant to subsection (1).
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Second Level Leaders’ Contracts
BOARD OF REFERENCE
Appeal
132(1) This section does not apply to
(a) a superintendent, chief deputy
superintendent, deputy superintendent,
associate superintendent or assistant
superintendent of a board, or
(b) a teacher who, under section 96(2), is
excluded from the teachers on whose behalf
an organization is bargaining.
Note: you can be excluded under 96(2) by
being bargained out of the collective
agreement, or by electing to cease being an
active member of the ATA.
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Second Level Leaders’ Contracts
CONSEQUENCES OF TERMINATION
OF DESIGNATION
No appeal to Board of
Reference
No possibility of reinstatement
If you don’t have an underlying
principalship or teacher
position, you are done
A major consideration if
you are moving districts
16
Second Level Leaders’ Contracts
CONSEQUENCES OF TERMINATION
OF DESIGNATION
Things to consider in
contract:
Principalship
Continuing teacher contract
Significant payout
Reference
Moving expenses
Job search assistance
Confidentiality
17
Superintendents’ Contracts
Impact of :
School Act: Sections 113 & 114
Superintendents of Schools Regulation
Contract
18
School Act
Superintendent of Schools
113 (1) Subject to the regulations, a board shall appoint an
individual superintendent of schools for a period of not
more than 5 years with the prior approval in writing of
the Minister.
(2)
Where a board applies for the Minister’s approval under
subsection (1), it shall give to the Minister, in the form
and containing the information required by the Minister,
notice of its intention to appoint the superintendent.
(3)
The superintendent is the chief executive officer of the
board and the chief education officer of the district or
division.
(4)
The superintendent shall carry out the duties assigned
to the superintendent by the board.
(5)
The superintendent shall supervise the operation of
schools and the provision of education programs in the
district or division, including, but not limited to, the
following:
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(a) implementing education policies established by the
Minister;
(b) ensuring that students have the opportunity in the
district or division to meet the standards of education
set by the Minister;
(c) ensuring that the fiscal management of the district
or division by the treasurer or secretary-treasurer is in
accordance with the terms or conditions of any grants
received by the board under this Act or any other Act;
(d) providing leadership in all matters relating to
education in the district or division.
(6)
The superintendent shall report to the Minister with
respect to the matters referred to in subsection (5) (a)
to (d) at least once a year.
(7)
A report required under subsection (6) must be in the
form and contain the information required by the
Minister.
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School Act
Term of appointment
114(1)A board shall not enter into a contract of employment
or a contract renewing a contract of employment with
an individual who is appointed as a superintendent
under this section unless the contract includes a
maximum term of not more than 5 years with no option
to renew or extend the contract at the end of the term
if the individual is not reappointed under this section.
(2)
If a board intends to reappoint a superintendent named
in a contract referred to in subsection (1), the board
shall, not less than 6 months before the contract ends,
give to the Minister, in the form and containing the
information required by the Minister, notice of its
intention to reappoint the superintendent.
(3)
A reappointment of a superintendent must be for a
period of not more than 5 years.
(4)
The Minister may approve or refuse to approve a
reappointment under subsection (2), in any form the
Minister considers appropriate, not more than one
month after the Minister is notified under subsection
(2).
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(5)
If the Minister refuses to approve a reappointment
under subsection (2), the Minister shall give the board
reasons in writing for the refusal.
(6)
If the Minister refuses to approve a reappointment
under subsection (2), the board shall appoint another
individual as superintendent of schools in accordance
with section 113.
(7)
This section applies to a contract renewing a contract of
employment whether or not the original contract was
entered into before this section comes into force.
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ALBERTA REGULATION 178/2003
School Act
SUPERINTENDENT OF SCHOOLS REGULATION
Table of Contents
Definitions 1
Qualifications 2
Minister’s approval 3
Severance allowance 4
Expiry 5
Definitions
1
In this Regulation,
(a) “Act” means the School Act;
(b) “equivalent standard” means an equivalent standard
of education or experience as determined by the Minister;
(c) “superintendent” means a superintendent of schools
appointed in accordance with the Act and includes an
individual appointed to act in the office of
superintendent..
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Qualifications
2 (1) No individual may be appointed as a superintendent
unless the individual has
(a) a Bachelor of Education degree or equivalent from a
university in Alberta or from a university of equivalent
standard,
(b) a Master’s degree from a university in Alberta or
from a university of equivalent standard,
(c) a certificate of qualification as a teacher issued
under the Act or an equivalent certificate issued by
another province or a territory, and
(d) 3 years’ experience in a school system in Alberta or
in a school system of equivalent standard which is
acceptable to the board that appoints the
superintendent.
(2)
Notwithstanding subsection (1), a person who is a
secretary, a treasurer, or a secretary-treasurer
appointed under section 116 of the Act may not hold
the position of superintendent.
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(3) The term for which an individual is appointed to act in the
office of superintendent must not exceed one year, but
the individual may be reappointed with the prior
approval in writing of the Minister.
Minister’s approval
3
The Minister may refuse to approve an appointment or
reappointment of a superintendent if the provisions of
the employment contract relating to that position,
including any provision governing termination of the
contract, are not acceptable to the Minister.
Severance allowance
4 (1) Where
(a) an individual ceases to be a superintendent by
reason of resignation or termination or non-renewal of
the individual’s appointment or employment contract,
and
(b) the board pays a severance allowance to that
individual,
the severance allowance shall not exceed one year’s salary.
(2)
For the purpose of subsection (1), “severance
allowance” does not include vacation pay or a
reasonable relocation allowance.
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Expiry
5
For the purpose of ensuring that this Regulation is
reviewed for ongoing relevancy and necessity, with the
option that it may be repassed in its present or an
amended form following a review, this Regulation
expires on August 31, 2015.
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ANNOTATED
EMPLOYMENT CONTRACT
FOR
SCHOOL SUPERINTENDENTS
JIM DAVIES
27
ANNOTATED EMPLOYMENT CONTRACT FOR
SCHOOL SUPERINTENDENTS
Purpose
Comprehensive written employment contracts provide both employer
and employee an opportunity to set out very clearly the respective
rights and benefits of each party. A good contract will address all areas
of potential concern with clarity -- ambiguity is not a virtue in a
contract.
A clear and comprehensive written contract is especially important for
senior employees, with whom the employer must have an open and
frank relationship. Sensitive areas such as salary increases, termination
of the contract, moving expenses, termination pay and the like cannot
be left to negotiation when they arise. That would only undermine the
close relationship that must exist between the senior employee and the
employer.
No relationship is more important to a school board than the one it has
with its superintendent, and thus the annotated employment contract
set out in the following pages was prepared with that position
specifically in mind. However, the intention of creating it was to assist
all of the members of the College of Alberta School Superintendents
(CASS), which of course includes many individuals who do not occupy
the chief superintendency, and thus the contract is readily adaptable to
other circumstances. I also hope the contract will be useful to school
boards. My belief is that if both sides to the contract better understand
the issues and the meaning of the contract language, negotiation of
appropriate agreements will be less stressful for all.
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Organization
An entire employment contract specifically designed for school superintendents is
contained in the following pages. Most of the sections contain alternative provisions
<contained within arrows like this phrase is> in contemplation of various individual
circumstances. Each part of the contract is followed by an annotation entitled
“Commentary”, which provides explanatory material as to the purpose of that part,
alternatives available, and suggestions as to the legal and tax implications of the
alternatives.
Use
CASS members are free to use and alter the contract to create contracts for their
own jobs. In order to make this more convenient, CASS will provide an
unannotated electronic version free of charge to every CASS member who wants
one. The same goes for Alberta school boards.
The Disclaimer
I hope the annotated contract is of real benefit to you, and forms the foundation of
clearer and better employment relationships in the future. However, particular fact
situations will demand changes to the contract. There’s no such thing as one-sizefits-all in employment relationships, and when that occurs I would encourage you
to get appropriate legal and tax advice. I cannot give you legal advice through a
booklet and I don’t purport to.
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EMPLOYMENT AGREEMENT
BETWEEN
THE BOARD OF TRUSTEES OF <>
(the “Board”)
and
<>
(the "Superintendent")
30
Commentary. The purpose of this section is to identify
the parties to the Agreement. There are many styles of
doing this, some quite ornate and perhaps humorous
to today’s eyes, but nothing of legal import turns on
the stylistic attributes. In addition to identifying the
parties, each is given a defined name for convenience
of expression.
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WHEREAS:
1.Section 113(1) of the School Act, RSA 2000 c.S-3 requires
the Board to appoint an individual as superintendent of
schools;
2.Section 113(1) of the School Act, RSA 2000 c.S-3 prohibits
the Board from appointing an individual as superintendent of
schools for a period exceeding five years;
3.Section 113(1) of the School Act, RSA 2000 c.S-3 requires
the Board to obtain the approval in writing of the Minister of
Education prior to appointing an individual as superintendent
of schools; and
4.The Board and the Superintendent have agreed to enter into
an employment relationship in accordance with the School Act,
RSA 2000 c.S-3 for their mutual benefit, whereby the
Superintendent shall become superintendent of schools for the
Board;
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THIS AGREEMENT WITNESSES that the parties have
agreed that the terms and conditions of the employment
relationship shall be as follows:
Commentary. This section is called the preamble. The
“whereas” statements are called recitals, and their
purpose is solely to recite the facts that lead to the
Agreement in the first place – to set out the context of
and foundation for the Agreement so that some third
party (perhaps a judge) will be better able to
understand why the parties entered into the
Agreement. Recitals are not intended to have legal
import beyond that, and are in my view generally
unnecessary, particularly in employment agreements,
for which the reason and intention are pretty obvious.
I would generally omit them, but set them out here for
your general information. The last sentence is just a
grammatical transition from the preamble to the meat
of the Agreement.
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ARTICLE ONE - CONDITIONS OF EMPLOYMENT
Commentary. My drafting style is to group related
issues under a general heading and then list each topic
under a more specific heading. None of this is
necessary. You don’t need headings or section
numbers at all if you don’t want them. The “olde
English” style of drafting was to use no headings and
write in huge extended sentences with extensive use
of semi-colons rather than periods. I think that style is
hard to read and makes it difficult to locate specific
topics.
34
1.1
Appointment. The Superintendent is hereby
appointed by the Board to the position of superintendent of
schools. The Superintendent acknowledges that
reappointment of the Superintendent as superintendent of
schools is by law subject to the prior approval of the Minister
of Education and cannot be for a term greater than five years.
The Superintendent accepts the appointment on the terms
and conditions set forth in this Agreement.
Commentary. It is useful to have specific
acknowledgement of the fact and terms of the
appointment and acceptance, and agreement as to the
relationship being governed by the Agreement,
although some would argue that this is unnecessary
because these could be inferred by the fact of signing
the Agreement.
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1.2
Duties and Authority. The Superintendent shall
undertake the duties and exercise the powers of
superintendent of schools and act in any other offices to which
the Superintendent may be appointed by or at the direction or
request of the Board. The Superintendent will be the chief
executive officer of the school district and in charge of the
administration. The Superintendent will inform the Board of
significant actions of the administration and advise the Board
on any matter pertaining to its deliberations. The
Superintendent shall be responsible and accountable to the
Board for the total operations of the Board, having general
responsibility for advising the Board of matters arising in all
areas of Board jurisdiction, for recommending policies to the
Board for these areas, and for implementing those policies
adopted by the Board.
Commentary. This section could be replaced with
much more specific language if desired. My view is
that at least general recognition of the scope of
responsibilities is very useful for both parties.
36
1.3
Term. The Board shall employ the Superintendent
as superintendent of schools from <>, 200<> until <>,
200<>, subject to earlier termination in accordance with the
provisions hereunder.
Commentary. This is the first absolutely essential
section. Both parties must agree to the length of
employment, and this must be specified so that it is
clear that the Agreement conforms with the School Act
restrictions on length.
37
1.4
Evaluation. The Board shall evaluate the performance of
the Superintendent <yearly> OR <by <> of each year>. The
evaluation shall be carried out in accordance with the procedures
<agreed to by the Board and the Superintendent from time to time>
OR <specified in Schedule “A” hereto>.
Commentary. Private-sector CEO’s have the luxury of
justifying pay increases in good years by reference to
economic performance of the company. In bad times, they
have the comfort of the cushion provided by the fact that most
private-sector boards consist of a majority of members that
are beholden to the CEO for their appointment to the board.
Not so school superintendents. Evaluation is necessary, if only
for political reasons, but particularly so if there is to be any
form of performance increment. There is provision for the
parties to specify a date for completion of the evaluation, and
an alternative for those who would like to leave timing issues
to be dealt with more informally. As to whether or not to
actually specify the evaluation document in the Agreement,
this too is a matter of individual preference and circumstance.
A lawyer’s point-of-view would be that a specific evaluation
document should be agreed to before employment commences
and should form part of the Agreement, as contemplated by
the second alternative. However, it may be impossible to
agree to such a detailed document prior to hiring in many
circumstances, and of course there will be many
superintendents and boards who would prefer the more
adaptable and collegial features of the first, even if a detailed
document could be worked out in advance.
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1.5
Covenants of the Superintendent. The Superintendent
covenants both during and after employment with the Board that:
1.5.1
except in fulfillment of the Superintendent’s duties
hereunder, the Superintendent shall not enter into any
contract on behalf of, or in the name of, the Board, and
shall not pledge the credit of the Board;
1.5.2
the Superintendent shall not at any time be guilty of any act
or conduct causing or calculated to cause damage or
discredit to the reputation or business of the Board;
1.5.3
the Superintendent shall not at any time during the
Superintendent’s employment with the Board or within 6
months after the termination thereof take any steps or
make any approach either directly or indirectly to any
employee of the Board calculated to lead to such employee
l
eaving his or her employment;
1.5.4
as soon as notice of termination of employment has been
given by either party and or the Superintendent’s
employment with the Board shall terminate, whichever is
the earlier, the Superintendent shall deliver up to the Board
all books, records, printouts, lists, notes and other
documents or copies thereof relating to the business of the
Board which may be in the Superintendent’s possession or
directly or indirectly under the Superintendent’s control;
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1.5.5
1.5.6
the Superintendent shall not at any time during and/or after
employment use for the Superintendent’s own interest and
shall not release directly or indirectly to anyone any
information concerning the Board’s business practices,
operations, procedures, policies, budget, products, financial
information, client names, suppliers, etc., which the Board
shall deem confidential or against its business interests; and
the information found in the Board’s books, records,
printouts, lists, notes, or any other documents or copies
thereof relating to the business of the Board is the exclusive
property of the Board and can only be used for the benefit
of the Board.
Commentary. Section 1.5.1 sets up a contractual obligation
not to financially oblige the board except for board business.
Brach of this provision could provide grounds for termination
for cause. Section 1.5.2 is a type of deportment clause,
reflective of the fact that the superintendent’s behaviour in
the community can dramatically influence what community
members think of the board. Section 1.5.3 is a non-solicitation
clause, preventing a departing superintendent from taking
other key members of the administration away. Section 1.5.4
is a return-of-property provision, while 1.5.5 and 1.5.6 prohibit
exploitation for personal gain of the board’s intellectual
property.
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ARTICLE TWO - REMUNERATION AND BENEFITS
Commentary. Individual circumstances will vary, as
will employment contracts. The following sections
outline an array of possible ways for a Board to
compensate its Superintendent. It is not expected that
all of them will apply. However, both parties to the
employment contract will do a better job if they are
aware of what’s available to be included.
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2.1
Salary. <In this Agreement, the Superintendent’s
“annual salary” shall mean the sum of <$> paid directly to the
Superintendent in monthly installments and the cost of indirect
payments made on the Superintendent’s behalf to the provider
of various benefit plans made available to the Superintendent
pursuant to this Agreement in section 2.2. Adjustments to the
direct payments> OR <The Superintendent shall be paid a
salary of <$> per year. Adjustments to salary> shall be on
<> of each year of this Agreement <in accordance with the
annual cost of living adjustment figures shown in the Alberta
Consumer Price Index, or mutually agreeable comparable
index in the event that no such figures are available through
the Alberta Consumer Price Index for the year in question>
OR <by reference to the general principle of fairness and
specific factors such as increases in remuneration of school
superintendents in other jurisdictions, public-sector pay
increases to senior officials, the performance of the
Superintendent as reflected in the Superintendent’s
performance evaluation, increases in the cost of living
generally in Alberta, and other factors to which the parties
may agree from time to time.
42
Commentary. Specification of salary is fundamental to
an employment agreement. This Agreement attempts
to give the Superintendent a greater severance payout
by defining the cost of benefits as part of the
Superintendent’s salary, remembering that the
Superintendent of Schools Regulation limits severance
payouts to “one year’s salary”. Benefit programs are
just another form of compensation and the cost of
them is routinely paid out to terminated employees.
Since it is a significant amount of money, I have
attempted to include benefit premiums as part of
salary. I must emphasize that the Minister of Learning
might not approve a contract that provides for this, in
which case it would have to be changed. I do not think
that making benefit premiums a part of salary would
increase your taxes, but I advise you to get specific
tax advice on this matter.
Of course, if your contract does not provide for
severance, or you do not wish to entertain the
uncertainties I have referred to, then the second
alternative should be used, which is quite
conventional.
43
Timing of adjustments is important, although some
superintendents and boards would prefer not to
specify a date, as is contemplated here. That is fine, so
long as the adjustment is at least annual. Dealing with
how to arrive at appropriate adjustments is one of the
most difficult things to handle. I recommend against
the first alternative given here, which is a simple costof-living (COLA) clause. It can over-reward in some
years, and under-reward in others. The first is
politically difficult and potentially dysfunctional to the
organization, and the latter is unfair to the
superintendent and unwise for the board that wishes
to keep a superintendent. The second alternative is
very flexible and can be adapted to unique
circumstances. I strongly recommend against use of
any reference to settlements with other staff groups in
determining what adjustments the Superintendent will
get. The Superintendent must be seen to be free of
self-interest in dealing with salary issues for other
board employees.
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2.2
Benefits.
<The Board shall provide to the
Superintendent all benefits (“Benefits”) provided by the Board
from time to time to other senior employees of the Board.>
OR <The Board shall pay on behalf of the Superintendent the
entire premiums for the most comprehensive and highest level
benefits (“Benefits”) available under the benefit plan in place
from time to time for other senior employees of the Board.>
OR <The Board shall pay on behalf of the Superintendent the
entire premiums for the following benefits (“Benefits”)
<list>.> There shall be no entitlement to payment for any
benefits provided under this section after termination or
expiration of this Agreement except as provided for herein.
45
Commentary. Various alternatives to the provision of benefits
are possible. The first consideration is whether the Agreement
should require the Board to provide the actual benefits as
provided for in the first alternative, or just to pay the
premiums as provided for in the second. This seemingly trivial
distinction is actually potentially very important for both
parties. For example, if the Superintendent is dismissed and is
subsequently successful in a wrongful dismissal action against
the Board, a court could reach dramatically different
conclusions as to the Board’s liability depending on which
section is used. With the first alternative, if the
Superintendent could show a loss greater than the amount of
the premiums, the Board’s liability could be greater than the
cost of those premiums. Perhaps the result would be different
with the second or third alternatives. The distinction could be
particularly important in cases involving the death of the
Superintendent after dismissal, because in some situations
employers have been found liable not just for the amount of
premiums they ought to have paid for a life insurance policy
during the period of notice of dismissal, but for the entire
amount the employee’s estate would have been paid under the
lapsed policy. The wording could be very important to both
parties, and they should carefully consider the consequences
of adopting one or the other.
46
Another distinction between the first two alternatives
is whether the Board will provide benefits equivalent
to that of other senior employees of the Board, or even
higher levels if available under the plan utilized for
those employees. Note that there is no provision for
the Board to utilize a unique benefits carrier for the
Superintendent. If that is the wish of the parties, then
the benefits to be purchased should be specified as in
the last alternative. The final sentence of the section is
not just for clarity, but is also an attempt to protect
Boards from post-termination liability for benefits like
life insurance In other words, it’s for the benefit of the
employer, not the employee.
47
2.3
Continuation of Benefits. If the Superintendent
begins receipt of pension under the Teachers’ Retirement
Fund (“Pension”) within 31 days following cessation of
employment with the Board for any reason other than
termination for just cause, the Board shall pay the premiums
on behalf of the Superintendent for all Benefits available for
retired employees of the Board until the Superintendent
ceases to be in receipt of Pension or becomes 70 years of age,
whichever occurs first.
Commentary. Benefits continuation after retirement is
very valuable. For the Superintendent on the last leg
of employment which is eligible for TRF pension, this is
an attractive addition to the Agreement. For the Board
interested in a Superintendent who will finish out his
or her career with the Board, this section represents a
potentially significant inducement. The choice of 70
years as a cut-off is arbitrary.
48
2.4
Reimbursement of Expenses. The Board shall
reimburse the Superintendent for all expenses actually and
properly incurred by the Superintendent in connection with the
performance of duties under this Agreement, including fees,
transportation, food and lodging, or attending educational or
professional conferences, seminars and other meetings,
subject to the provision by the Superintendent of receipts,
statements and vouchers to the satisfaction of the Board.
Commentary. I like the generality of this section, but I
appreciate that there are divergent views on this.
There is no provision for limitation on how many trips
the Superintendent may take or the destination. Some
boards wish to specify these, or at least set
parameters. I advise Boards against paying for
spouses to accompany the Superintendent on trips, as
is provided for in some contracts. The spouse is not an
employee and it is difficult to legally justify such an
expenditure by the Board.
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2.5
Club Fees. Recognizing the requirement for
entertainment and social activities in furtherance of the
interests of the Board by the Superintendent, the Board will
provide for initiation/transfer fee, share price, and annual dues
payments for one health or luncheon club, subject to the
provision by the Superintendent of receipts, statements and
vouchers to the satisfaction of the Board. The club shall be of
the Superintendent's choosing, subject to the approval of the
Board as to cost.
Commentary. There are many benefits to both parties
from having the Superintendent belong to a club.
What sort is most appropriate will depend on the
community and the Superintendent’s desires.
50
2.6
Sabbatical Leave. The Superintendent shall be
entitled to <x> weeks of sabbatical leave in each twelve
months of employment under this Agreement, and to a
prorated entitlement for periods of less than twelve months.
Sabbatical leave may be taken at the discretion of the
Superintendent, with due regard to the requirements of the
Board. Sabbatical leave entitlement <shall> OR <shall not>
accumulate. USE ONLY IF ACCUMULATION IS
PROVIDED FOR <Upon termination or completion of this
Agreement, the Superintendent shall be paid a sum equivalent
to the total number of days of accumulated entitlement
multiplied by <1the daily wage of the Superintendent for the
period in which each day of entitlement was earned> OR <2
the average daily wage of the Superintendent over the total
period of service rendered under this Agreement> OR <the
average daily salary of the Superintendent during the last
twelve months of service under this Agreement>.>
Commentary. Sabbatical entitlement is commonplace
in education and can certainly be defended as
appropriate for superintendents. If the Board wants to
induce the Superintendent to take the sabbatical leave
after cessation of employment rather than during it,
accumulation and payout is provided for. Attention
should be paid to the three alternatives provided for
calculating the amount of the payout. Contracts that
don’t address this issue with precision serve neither
party well.
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2.7 Professional Organizations. The Board shall <pay>
OR <reimburse the Superintendent> for all fees related to
membership in appropriate professional organizations,
OPTIONAL <subject to the prior approval of the Board >.
Commentary. It is desirable for the Superintendent to
maintain appropriate professional ties. This section
provides alternate methods of payment, leaves the
choice of organizations to the Superintendent, and
provides an alternative that allows the Board to reject
a membership if it wishes.
52
2.8
Vacation. The Superintendent shall be entitled, for
each twelve months of service as superintendent of schools, to
<> weeks (pro-rated for periods of service less than twelve
months) of vacation.
Commentary. Unlike other benefits, vacation
entitlement is statutory and thus payout of unused
portions does not have to be provided for in the
Agreement. The Employment Standards Code requires
it. As to an appropriate number of weeks, six is
standard but seven is not uncommon.
53
2.9 Vehicle. The Board shall, at the commencement of the term of
appointment and <every two years thereafter> OR <at such other
times as determined by the Board in consultation with the
Superintendent>, provide the Superintendent with a new full-size, midrange vehicle of the Superintendent's choosing, and shall pay for all
operating costs and repairs for such vehicle, subject to the provision by
the Superintendent of receipts, statements and vouchers to the
satisfaction of the Board. OPTIONAL <The Superintendent may
purchase the vehicle from the Board at book value <when a new one is
purchased> OR <at the end of the Superintendent’s employment by
the Board.> OPTIONAL <Upon proof satisfactory to the Board that
the Superintendent has paid income tax in respect of an assessed
taxable benefit for the personal use of the vehicle, the Board shall pay
the Superintendent an amount equal to the amount of such tax paid.>
Commentary. The term “vehicle” is used instead of
“automobile” because of the increasing popularity of SUV’s
and other trucks. The provision of a vehicle is very common
and should be basic to the superintendency. Two-year
turnover of the vehicle is fairly common but not universal, so
an alternative is provided. Alternatives for the purchase of the
vehicle are provided as well, although this is less common.
Since the vehicle will be a taxable benefit, some
superintendents ask for reimbursement of income tax paid on
the benefit, which is an alternative provided for. Remember
that this payment will also be taxable as income.
54
2.10
Retiring Allowance (Retention Incentive). Upon
completion of the term of this Agreement as specified in section 1.3,
the Board shall pay to the Superintendent a retiring allowance
(“Retiring Allowance”) equivalent to the Superintendent’s annual salary,
calculated at the rate of pay of the Superintendent at the time of
cessation of employment. If legislation limiting the amount that may be
paid by the Board to the Superintendent upon cessation of the
Superintendent’s employment is revised, the Retiring Allowance shall
the maximum permissible under the revised legislation. If such
legislation is repealed or expires, the Retiring Allowance shall be a sum
equal to two times the Superintendent’s annual salary, calculated at the
rate of pay of the Superintendent at the time of cessation of
employment.
Commentary: Section 4 of Regulation 2/99 (The
Superintendent of Schools Regulation) allows a maximum
severance allowance of one year’s salary upon resignation,
termination or non-renewal of a superintendent. No such
limitation applies to other employees. For purposes of
clarifying what the payout should be, the section references
the current salary of the Superintendent rather than the vague
“one year’s salary” used in the Regulation. Use of that phrase
could lead to needless dispute: for example, if a contract
provides for yearly salary increases and the Superintendent
resigns on the last day of the fourth year of a five-year
contract, does the agreement provide for payment of the
annual salary for the fifth year, when the payment will
actually be made, or the fourth, when the resignation was
delivered, or an average of both years? Uncertainty is not a
virtue in contracts.
55
As well, recall that one alternative under section 2.1 is that all
benefit premiums are defined as part of the “annual salary”.
This section will work appropriately whether or not that choice
is made.
An attractive alternative for those who will not be obtaining
alternative employment is the continuation of those benefit
programs which can be continued after employment ceases.
Payment of these premiums by the Board is contemplated as a
benefit in section 2.3.
Note that the payout is characterized as a retiring allowance.
While retiring allowances are taxable as income, there are
three potential advantages to the Superintendent in such
characterization and no disadvantages to the Board. The
advantages are:
$2000 per year of service prior to 1996 may be transferred to
an RRSP (and perhaps other amounts – consult your tax
advisor)
you might be able to attribute the income to a year prior to
the year of receipt, which may have tax advantages for some
legal fees related to the recovery or establishment of the
retiring allowance are tax- deductible, which means that not
all of a retiring allowance should be transferred to an RRSP if
legal fees have been incurred, as the deduction will be lost.
56
Provision is made for the retiring allowance payable to be
increased in the event of revision, repeal or expiry of the
Regulation.
Some districts prefer to characterize a retiring allowance as a
retention incentive, perhaps pro-rating the amount payable
according to the number of years the superintendent stays
with the board, or making completion of the whole term a
precondition to any payment.
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2.11
Deferred Salary. <The Board shall pay to the
Superintendent a bonus in the amount of <$> at the time
requested by the Superintendent, except that such payment
shall not be payable if it is not to be paid more than three
years after cessation of the employment of the Superintendent
by the Board, or if the cessation of employment if the
Superintendent is a result of termination for just cause.> OR
<Provided that it is allowed under the Income Tax Act, the
Board shall upon request enter into an arrangement with the
Superintendent such that the Superintendent may defer
payment of a portion of salary for up to six years and be paid
interest by the Board on the unpaid amounts at the rate paid
by the Board to its banker.
Commentary. While the Income Tax Act generally
requires taxation of income in the year in which it is
earned, it does allow a tax deferral of up to 3 years or
less on a bonus, which is contemplated by the first
alternative. The second alternative contemplates the
self-funded sabbatical so prevalent in education.
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2.12
Sick Leave. The Superintendent shall be credited
with <x> days of sick leave entitlement upon commencement
of this Agreement, and shall earn <x> days of additional
entitlement for every <x> days of service thereafter. Sick
leave shall accumulate, OPTIONAL <and any unused
accumulated entitlement shall be paid to the Superintendent
after termination of this Agreement, calculated at the daily
rate of pay earned by The Superintendent during the last
month of service prior to termination.
Commentary. The Board should provide sufficient
initial sick leave entitlement to bridge the
Superintendent to its long-term disability plan, should
disaster strike in the early stages of employment.
Additional entitlement should be earned according to
some reasonable formula. One day per week is
common. Payout of sick-leave entitlement on
termination of the contract is an alternative provided
for because it is a very attractive benefit. It may be
eligible for rollover into an RRSP, it is a relatively
invisible severance payment, and it induces the
Superintendent to forgo taking days off during
employment. Calculation of the dollar value of an
unused sick day is based on the latest daily wage of
the Superintendent, even though the entitlement
might have been earned during a period of lower pay.
To do otherwise is to invite needless calculation
problems.
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2.13
Relocation Expenses. The Board shall pay the
Superintendent a relocation allowance of <$> to move to the
district the Board serves OPTIONAL <and a relocation
allowance of <$> at the cessation of employment with the
Board provided that the cessation of employment is not a
consequence of dismissal for just cause>.
Commentary. Actual relocation expenses are fully tax
deductible, and thus a relocation allowance is an
attractive incentive for a Superintendent who has to
move to take a new job. Relocation expenses at both
ends of the contract are doubly attractive. They are a
fine benefit for the retiring Superintendent, and for
the Superintendent heading elsewhere for
employment, they offer the opportunity to negotiate
other valuable provisions with the new employer in
lieu of relocation expenses. The dollar value of
relocation expenses should be carefully considered.
Boards should strive for clauses that provide for
reimbursement of actual expenses. Superintendents
should strive for clauses that provide for a specific
amount. Twenty-five thousand dollars is a reasonable
allowance in many circumstances.
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2.14
Performance Bonus. The Board shall pay to the
Superintendent a performance bonus in accordance with the
provisions of Schedule “B”.
Commentary. Performance bonuses are relatively new
to the education field and fraught with difficulties.
Some superintendents are agreeing to unreasonable
contractual demands in return for bonuses that are
miniscule in comparison to private-sector bonuses. I
don’t recommend them at this time, so I have not
developed a schedule outlining how one might be
structured.
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2.15
Ancillary Technology. The Board shall provide
the Superintendent with the following ancillary technology
items:<>
Commentary. It is difficult to suggest specific items
for inclusion in this section because technology is
changing very quickly. Certainly in today’s world, the
Superintendent should be provided with a minimum of
a computer at work and at home, a projector for
power-point presentations, a cell phone, and a
personal organizer. It is an open question what might
be standard tomorrow.
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2.16
Personal Effects and Services. The Board shall
upon presentation of satisfactory proof of purchase, reimburse
the Superintendent for the full cost of OPTIONAL <all items
of business apparel>, OPTIONAL <briefcase> and
OPTIONAL <luggage>, OPTIONAL personal grooming
services>, OPTIONAL <health-related services not covered
by the benefits provided to the Superintendent under section
14>, and OPTIONAL <include any other items agreed to>.
Commentary. Superintendents lead busy and
frequently very public lives. They need to look and feel
good, and it is therefore not unreasonable to expect
that the Board will provide those amenities that will
assist them in this regard. This section can be adapted
to individual needs. The Superintendent who needs
regular massage or chiropractic therapy to cope with
the rigours of the job ought to be compensated for
them.
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2.17 Life Insurance. The Board shall <prepay> OR
<pay as they come due> the premiums on a policy of <term>
OR <whole> life insurance (“Policy”) on the Superintendent’s
life, such Policy to remain in force until <date> OR <the
death of the Superintendent>. The Policy shall provide for
payment of $<> following the Superintendent’s death
OPTION TO BE USED ONLY WITH WHOLE LIFE POLICY
<and have a cash surrender or maturity value of $<>>.
Commentary. This section provides alternatives for
the Board to prepay or maintain payments on a term
or whole-life policy (discussed below) of specific value
on behalf of the Superintendent for a specific period of
time, including a period following termination of
employment. If there is no prepayment, the
Agreement should specify that the obligation to pay
survives termination of the Agreement. Otherwise,
that obligation would cease upon termination of the
Agreement. Since the value of the premiums paid by
the employer will be a taxable benefit, tax advice
should be sought as to whether prepayment is
appropriate in a particular situation.
64
The Board-paid life insurance is a significant benefit,
particularly as we age, because premiums typically escalate
dramatically once the insured reaches his or her mid-fifties.
Since premiums are generally not tax deductible, maintaining
adequate life insurance in later years can be very difficult,
particularly in retirement. The benefits of life insurance are
many, particularly for those with dependents who may need
replacement income or help with education expenses upon
your death. Insurance proceeds are not taxable, and if you
name specific individuals as beneficiaries rather than your
estate, the proceeds will not be available to creditors who may
have a claim on your estate. While the insurance industry has
created many different products, two types -- term, and whole
life (sometimes called permanent or universal life) -predominate. The section may be adapted to either type. An
alternative to this section would be to incorporate by
reference a policy already agreed upon by referring to it in the
section and attaching it as a schedule to the agreement.
Term insurance premiums are far lower than those for whole
life. Most policies have termination provisions at age 70 (some
75), but some companies offer policies with termination at
higher ages. The advantage of term insurance is that for the
same level of premium as for a whole life policy, the insured
can purchase much more coverage. The disadvantage is that
nothing is paid under a term policy if you do not die while the
insurance is in place. (Admittedly, most people have difficulty
seeing this as a disadvantage when they apply it to
themselves!)
65
Whole life policies combine insurance with investment,
and will mature with a specific cash value at a
specified time. They are sometimes criticized for
providing comparatively low investment returns, and
very low amounts of coverage when compared to term
policies with equivalent premiums. However, there
are advantages. The insured can cash out or borrow
against the cash value, while the life insurance
remains intact. If a specific beneficiary is named in the
policy, the cash surrender value can be sheltered from
creditors because the proceeds on the policy will not
be part of the insured’s estate. If the beneficiary is a
charity, premiums will be tax deductible if the policy is
donated to the charity (ie. legal ownership of the
policy is transferred to the charity). Therefore, if the
insured maintains such a policy past the time during
which the Board is paying the premiums, the policy
should be donated to the charity immediately.
Whole life insurance policies might be the best way to
provide for a supplementary pension. Not only are the
products varied enough to meet most individual
circumstances, but the terminology “life insurance” is
much less politically sensitive than “supplementary
pension”, even though the cost to the Board may be
the same. Still, for those who wish to have a separate
supplementary pension clause, some alternatives are
set out in the next section.
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2.18
Supplementary Pension. The Board shall make
contributions to the supplementary pension plan outlined in
Schedule “A”.
Commentary. Supplementary pension schemes are
becoming increasingly common. The reason is that the
Income Tax Act imposes a limit on the pension that
may be paid by a registered pension plan. While this
limit is increasing, it is still below the salary of many
superintendents. In response to this situation, perhaps
as much as a third to a half of private-sector
employers have instituted supplementary pension
plans. The Alberta Government instituted one for
management employees in 1999.
The ASBA has instituted a supplementary pension plan
that many boards have subscribed to. The ASBA plan
contemplates different plans, including retroactivity
for the uncapping portion of the pension. Thus, the
details for each individual will vary, and should be
scheduled.
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2.19Pension Indemnity. The Board shall pay the
Superintendent annually a sum that is equivalent to the
payments made by the Superintendent to the Teachers’
Retirement Fund over that period.
Commentary. It is commonplace for organizations to
pay a CEO’s pension contributions. This section
merely provides the same benefit for school
superintendents.
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2.20
Discretionary Allowance. The Superintendent
shall have an allowance of <$> per year to spend at the
Superintendent’s discretions OPTIONAL <without the
necessity of providing receipts of expenditures.>
Commentary. Discretionary allowances are
acceptable, but the option of not having to provide
receipts is not recommended. Some contracts stipulate
that part of the allowance is a “non-taxable” expense
allowance. This characterization is of dubious value
since it is irrelevant to the taxation authorities.
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2.21 Education Expenses. The Board shall pay for all
tuition, travel, and other associated expenses related to the
Superintendent pursuing studies toward a doctoral degree.
Commentary. This is a valuable inducement for some
Superintendents.
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2.22
Northern Allowance. The Board shall pay the
Superintendent the sum of <$> for travel to the nearest
large Canadian city and <$> for necessary travel for medical
services not available locally.
Commentary. In addition to the special deduction of
20% of net income available to northern residents,
a deduction is available to offset the taxable
benefit of two paid trips per year to the nearest
large Canadian city and unlimited travel for
medical services not available locally. It only
makes sense for northern residents to take
advantage of this to the extent possible.
71
2.23 Death Benefit. In recognition of the
Superintendent's service with the Board and additionally in
settlement of the Superintendent's accumulated sick-leave
entitlement, the Board will upon the death of the
Superintendent pay a death benefit in the amount of $<> to
the Superintendent's spouse. Such payment shall be made as
quickly as possible and in any event not later than 7 calendar
days following the date of the Superintendent's death. If at
the time of such payment the Superintendent's spouse is
deceased, the death benefit shall instead be paid in
equal shares to Employee's surviving children.
Commentary. It is possible to provide for a direct
payment from the employer to the spouse or children
of a deceased employee, so the complications and time
involved in running money through an estate are
eliminated. More about the subject is in IT-508R on
the CCRA website. It explains that a death benefit of
up to $10,000 may be made by an employer to a
deceased employee's spouse or children tax free. Any
amount over $10,000 is taxed.
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2.24
Indemnity. The Board shall indemnify the
Superintendent in respect of any expenses incurred by the
Superintendent in the performance of the Superintendent’s
duties under this Agreement. Such indemnification shall apply
only to expenses actually incurred and not otherwise
indemnified or reimbursed to the Superintendent under a
policy of insurance or otherwise under this Agreement.
Commentary. A superintendent is protected by
section 144.1 of the School Act, which provides as
follows:
Section144.1(1) Trustees, employees of a board and
school council
members are not liable for any loss or damage caused
by anything
said or done or omitted to be done in good faith in the
performance
or intended performance of their functions, duties or
powers under
this Act or any other enactment.
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This is not comprehensive protection, however, as it
applies only to acts or omissions done in good faith
and in the performance or intended performance of
the superintendent’s functions, duties or powers.
These elements must be proven before the protection
of the section kicks in. The only way they are proven is
at trial. This means that legal fees, likely significant,
will have to be expended to prove this. Those fees
should not fall to the superintendent to pay.
Ordinarily, they would be paid by the district’s insurer,
but all insurance has gaps in its coverage. Therefore, it
is possible that a particular claim will not be covered,
and the superintendent would have to pay legal fees
to prove the applicability of section 144.1. Thus it is
important for an indemnity to be in place to cover this
eventuality. Many districts provide such protection by
way of board resolution, but it can also be done by
way of a contractual provision like this one. Note that
the last few words of the clause make it inapplicable
to expenses otherwise reimbursed.
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ARTICLE THREE - TERMINATION OF EMPLOYMENT
3.1
Termination for Just Cause. Notwithstanding anything
contained in this Agreement to the contrary, the Board retains the right
to terminate the employment of the Superintendent for just cause
without notice. Prior to such termination, the Board shall convene a
meeting of the trustees to consider the matter, excluding all persons
except the Board's legal counsel, secretary, the Superintendent and the
Superintendent's legal counsel, and any persons necessary to provide
evidence regarding the matter of the meeting. If the decision is in
favour of termination, the Board shall give its decision and reasons
therefor in writing.
Commentary. Few organizations would want to go through
the difficulties inherent in terminating a CEO for just cause,
but a process is specified just in case. If the Board has just
cause to terminate, it may do so without giving notice or pay
in lieu of notice. Establishing just cause is generally not easy,
however, unless the Superintendent commits some serious
breach of obligation or demonstrates behaviour that
essentially repudiates the contract or so damages the
relationship that it cannot reasonably continue. Where general
performance is at issue, it will be very difficult for the Board to
prove just cause. Generally, that takes time and abundant
evidence. The process can be so dysfunctional to the
organization that most the Boards don’t even bother to
attempt it with respect to senior people, and instead rely on a
reasonable provision in the contract allowing termination by
the Board without cause by payment of a prescribed severance
allowance, as is set out in section 3.2.
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3.2 Termination on Notice. The Superintendent may
terminate employment with the Board without cause or
providing reasons therefor, by giving the Board <> months’
written notice of termination. The Board may at any time
terminate the employment of the Superintendent without
cause or providing reasons therefor by paying the <x months’
salary> <the > Retiring Allowance to the Superintendent. In
such case, the Superintendent shall have no right to attend a
meeting of the Board or make representations to it regarding
the termination.
Commentary. In almost all cases, utilizing this section
to terminate the employment of a Superintendent
would be preferable than relying on just cause. The
Superintendent should give the Board a reasonable
amount of notice. Three months would be minimal.
Some Superintendents have negotiated contracts that
contain a clause allowing them to choose to take a
principalship (or other “suitable “ position in the
District or Division) instead of a payout.
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ARTICLE FOUR - GENERAL CONTRACT PROVISIONS
4.1
Governing Law. The terms of this Agreement are
governed by the laws and shall be construed by the courts of
the Province of Alberta.
Commentary. This section protects Boards from
having to sue a former superintendent outside Alberta.
It can be vexatious and expensive to have to pursue
litigation in other provinces, and particularly so in
other countries.
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4.2
Severability. If any provision contained herein is
determined to be void, invalid or unenforceable in whole or in
part for any reason whatsoever, it shall not be deemed to
affect or impair the validity or enforceability of any other
provisions hereof, and such unenforceable provision or part
thereof shall be treated as severable from the remainder of
this Agreement.
Commentary. Occasionally, a court will find some
provision of agreement void or unenforceable because
it is contrary to law or public policy. Penalty clauses in
construction contracts are one example. This section
prevents the whole Agreement from becoming invalid
just because of the single offending provision.
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4.3
Entire Agreement. This Agreement and any
schedules attached hereto constitute the whole of the
agreement between the parties.
Commentary. A short section, but very important.
Remember those comforting words that the Board’s
representative said to you last week? They mean
nothing with this section in the Agreement.
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4.4
Amendments. No modification, amendment or
variation hereof shall be of effect or binding upon the parties
hereto unless agreed to in writing by each of them and
thereafter such modification, amendment or variation shall
have the same effect as if it had originally formed part of this
Agreement.
Commentary. This means that the Agreement can be
changed, but only if both parties formally agree to the
change in writing.
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4.5
Enurement. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their
respective legal personal representatives, heirs, executors
administrators or successors.
Commentary. This little section is actually very
important. It ensures that if the Superintendent dies,
his or her estate will be entitled to enforce payment of
any amounts owing. It also ensures that any successor
to the Board (a trustee appointed by the Minister, a
new district upon amalgamation, etc.) will be bound
by the Agreement.
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4.6
Assignment. This Agreement is personal to the
Superintendent and may not be assigned by the
Superintendent.
Commentary. This means, for example, that the
Superintendent can’t assign the Agreement to a
personal holding company.
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4.7
Non-Waiver. No waiver by the parties hereto of
any breach of any condition, covenant or agreement hereof
shall constitute a waiver of such condition, covenant or
agreement except in respect of the particular breach giving
rise to such waiver.
Commentary. This means that if a party grants an
indulgence to the other party, that doesn’t mean that
they are not entitled to strictly enforce the provisions
of the Agreement the next time.
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4.8
Time of the Essence. Time is of the essence of this
Agreement.
Commentary. This means that when the Agreement
specifies something relating to timing (like when a
payout is supposed to be made), it’s serious.
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4.9
Timing of Payouts. To the fullest extent
permissible in law, the Board shall pay all amounts payable to
the Superintendent under this Agreement at the time and in
the manner requested by the Superintendent in writing.
Commentary. Income tax obligations and other
personal considerations can dramatically affect the
value of payments made to the Superintendent, but
rarely affect the Board in any significant way. This
section obliges the Board to comply with the
Superintendent requests for timing of payment of such
things as retirement allowances, sick leave payout,
and the like. It is a virtually no-cost way for the Board
to add value to the agreement with the
Superintendent.
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IN WITNESS WHEREOF the parties have duly executed this
Agreement as of the _____ day of ______________, 201__.
The Board of Trustees of <>
Per:
____________________
<>
____________________
Superintendent
86