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Illinois School Board Journal
May/June 2006

'9-6-3 solution' offers a less costly way out

by John B. Murphey

John B. Murphey is an attorney with the Chicago law firm of Rosenthal, Murphey & Coblentz. He represents school districts and superintendents in contractual matters and has served as a member of a board of education.

In the January/February 2002 issue of The Illinois School Board Journal, I proposed that it would be in the best interests of both school boards and superintendents if multi-year administrator contracts provided for termination of the contract at the pleasure of the board. In exchange, an outgoing administrator would receive a severance payment linked to the amount of time remaining on the contract: the longer the term remaining, the higher the severance payment.

The article, "The 9-6-3 Solution: A call for no-fault termination clauses," argued that this type of contractual termination would serve the interests of both sides. If there isn't a fit between the superintendent and the board, the board could make its decision and move on with a new superintendent. The no-fault nature would allow the outgoing superintendent to seek another job without the stigma attached to a termination for cause.

The "9-6-3" formula was based on the number of months' salary that a superintendent might receive based on when the contract was terminated. Assuming a five-year contract, severance after one or two years might call for payment of nine months' salary. In the third or fourth year of the contract, the amount would be reduced to six months' salary. During the last year, the amount would be just three months' salary.

This approach ultimately would be more cost efficient to both sides because it would save both sides the time, expense and uncertainty attached to a termination for cause hearing and later judicial review.

School boards have an obligation to provide a constitutionally adequate procedural due process hearing to an administrator whose educational career is placed in jeopardy by a termination for cause proceeding. The amount of a no-fault severance could easily pale in comparison to the legal expenses and risk of damage liability in the event of a contested termination hearing.

A 2004 decision by the Seventh Circuit United States Court of Appeals in Baird v. Board of Education is important, both for school boards and administrators, and brings the desirability of the "9-6-3 solution" to home.

Specifics of the case

Kelly Baird was hired as superintendent of Warren Community Unit School District 205 under a three-year contract, which allowed the board to terminate him for just cause. Baird thought he had successfully completed the first year of his contract, especially since the district passed a large building referendum under his leadership.

However, Baird was surprised to receive an end-of-the-year evaluation that was sharply critical and replete with secondhand and third-hand allegations, which board members had received from unnamed sources. The evaluation served as the "charges" seeking to terminate him for cause.

Baird protested. His attorney asked for documentation. He asked for the names of the witnesses who were making these allegations against him. He asked that the board produce these witnesses at the hearing. He requested the right to inquire of those board members who individually made allegations against him. In short, Baird requested that he be provided due process.

The school board flatly denied his various requests. Baird appeared at the hearing, specifically to object to what he viewed as a constitutionally inadequate "kangaroo" court. He refused to participate further. Not surprisingly, the board fired him.

Baird filed suit against the board and the individual board members. He sought substantial monetary damages for civil rights violations based on having had a constitutionally inadequate hearing.

The Court of Appeals agreed with Baird, finding that the procedures the board applied were woefully inadequate, and that the procedures missed the mark of fairness "by a country mile." The court also emphasized the importance of a fair hearing in order to protect the professional interests of career school administrators, ruling as follows:

"(E)mployment, especially in a career such as education, is more than a way to make money; it is a profession with significant non-monetary rewards, and consequently money damages may be a 'hollow victory.' Thus, when a public employee terminated for cause has a present entitlement, and when the only available post-termination remedy is the opportunity to bring a state breach of contract suit, the pre-termination hearing to which such an employee is entitled must fully satisfy the due process requirements of confrontation and cross-examination in addition to the minimal Loudermill requirements of notice and an opportunity to be heard."

The court also found that because the constitutional principles of fundamental fairness are clearly established, individual school board members are subject to personal liability based on their failure to provide the superintendent with a fair hearing. Baird was entitled to a trial on his damages.

What it means

The Baird case makes it clear that school boards seeking to terminate a superintendent's contract for cause must observe the fundamental fairness principles of due process. To be sure, there is some expense and discomfort in doing this. Reasons must be legitimate. Those who level allegations against superintendents must be prepared to prove them.

But as the court notes, the costs of providing full due process are less than the costs of a lawsuit challenging deficient procedures. These costs are also fully justified because of the significant interests at stake when a superintendent faces employment termination for cause.

The Baird decision also points out the efficacy of the "9-6-3 solution." Had the contract provided for reasonable termination and severance, the board could have invoked its rights, and the superintendent would have received reasonable compensation.

More importantly, each side could have severed the relationship cleanly and gone their separate ways.