1. A New Paradigm for the CIO Contract
Presented By: Mary Dowell
Chief Instructional Officer’s Conference, A New Paradigm for the CIO Contract

2. Overview Legal Requirements Entering Into Contracts Renewing Contracts
Terminating Administrator
Contractual Provisions
Chief Instructional Officer’s Conference, A New Paradigm for the CIO Contract

3. Entering Into Contracts
Why 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.

4. Entering Into a Contract
Terms and conditions of employment are memorialized in a written agreement signed by the parties
Board approval required at a regular meeting of the board
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 . . .”)

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

6. Renewing a Contract
No 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
New - Gov. Code – “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 . . .”
Chief Instructional Officer’s Conference, A New Paradigm for the CIO Contract

7. Renewing a Contract Automatic 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 completed
But: the contract itself can state that it only renews for one year.
No statutory or contractual right to an administrative position
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 positions
An administrator without tenure may become a first year probationary faculty member

8. Terminating a Contract
Mutual agreement
Resignation
Terms specified in contract
Must provide appropriate notice as specified in contract

9. Terminating a Contract
Non-renewal of contract
For contracts longer than a year:
At least 6 months notice prior to expiration of contract; or
A 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
Education 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.

10. Terminating a Contract
Without cause
Terms specified in contract
Severance pay is limited to the monthly salary owed for the remainder of the contract
Capped at a maximum of 18 months, but no right to have it be 18 months
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.

11. Terminating a Contract
For cause
Administrators without tenure as a faculty member may be terminated for cause pursuant to the terms of the contract, if any
Administrators with tenure as a faculty member must be dismissed in accordance with Education Code 87732
Education Code 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 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.

12. Retreat Rights
No retreat rights for an administrator dismissed for cause
Administrator with tenure as a faculty member who has been released without cause may return to a faculty position
EC 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 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
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.

13. Retreat Rights
Administrator without tenure as a faculty member may become a first-year probationary faculty member
Termination must not be for cause
District must have a process to evaluate whether administrator meets minimum qualifications, developed with Faculty Senate
Administrator must have completed at least 2 years of satisfactory service
A first-year probationary position must be available
EC 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 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
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.

14. Common Contractual Provisions

15. Essential Provisions Term/Duration Governs the length of the contract
Administrator contracts may be up to 4 years in duration
Limitations on CalSTRS annuitants:
$31,020 annual post-retirement earnings limit ( )
Beginning in 2013, there is a180-day waiting period prior to being employed regardless of the age of the annuitant
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 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.

16. Essential Provisions Salary Duties/Responsibilities Base salary COLA
Grounds for salary increases
Duties/Responsibilities
Defines the job responsibilities of the position
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.

17. Essential Provisions Evaluation
Explains the standards, timing, and process for performance evaluations
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.

18. Essential Provisions Fringe benefits Expense allowance/Reimbursement
Medical & dental insurance
Life insurance
Leaves
Retirement plans
Expense allowance/Reimbursement
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 position’s 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.

19. Essential Provisions Termination
Resignation, for cause, without cause, non-renewal
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 position’s 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.

20. Essential Provisions Applicable law Severability/Savings Clause
Defines 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 Clause
If one term of the contract is invalidated by a court, the rest of the contract is still enforceable

21. Essential Provisions Complete/Entire Agreement
Contract is a final expression of the agreement between the parties
No other terms or conditions exist outside what is written in the contract

22. Other Optional Provisions
Arbitration/Mediation Clause
Medical Examinations
Outside Employment/Professional Activities
Non-Compete Clause
Non-Recruiting Clause
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 employee’s ability to seek employment with a competitor for a certain time period. These are not enforceable in California.
Non-Recruiting Clause – Restricts employee’s 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.

23. New Requirements
If 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 investigation
Funds for the legal criminal defense of the administrator
Any cash settlement received related to the termination of the employment contract
New AB 1344 requirements:
Gov. Code 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 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 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 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.)

24. Thank you! Mary Dowell Partner | Los Angeles|
Chief Instructional Officer’s Conference, A New Paradigm for the CIO Contract