Has Governor Left Himself Open for a Legal Challenge of Superintendent Caps?

John Mooney | November 17, 2010 | Education
Legal questions abound as to how far the Christie administration can go

Credit: (Governor's Office/Tim Larsen)
It would seem a move itching for a lawsuit.

Gov. Chris Christie’s plan to cut hundreds of school superintendents’ salaries by as much as a third has been implemented essentially by fiat. Bottom line: nobody would be much surprised if the caps and their various configurations end up challenged in court.

Still, some school law experts say the governor may be on good legal standing in the long run, with the courts and the law giving the office wide berth to enact such restrictions.

He may be on shakier legal ground in the shorter term, however, with the administration’s move this week to freeze contracts and reject any renegotiation of new ones before the caps are even enacted.

They specifically cited the memo from acting Education Commissioner Rochelle Hendricks to her county offices, instructing them to hold off approving any new contracts until a full review of all contracts was complete. She also told them not to approve any extensions, “given pending regulations with respect to Superintendent contracts.”

A Legal Opening

One school attorney said that reference to regulations not yet in effect may have left districts a legal opening to challenge.

“The legal issue is whether it is legally appropriate to tell them not to follow existing regulations,” said Phil Stern, founding member of Adams Stern Gutierrez & Lattiboudere in Newark.

“If a school district wanted to get in the game and submit a contract, I think they’d have a horse race,” said Stern, whose office represents more than 50 school boards.

Still, he and others said the caps themselves — once enacted — are going to be tough to challenge for superintendents. They lost tenure rights two decades ago; other protections were shot down in a more recent appellate decision.

“If they are not a protected class, and if [the administration] can show it has a reasonable basis for enacting this, that’s enough,” said Victor Medina, managing partner of the Media Law Group in Pennington.

None of the legal conjecture slowed down the governor’s office. It released a video and transcript of Christie’s statements earlier in the week that sent out the warning to school districts not to circumvent the caps before they are put in place in February.

The Focus of Attention

The focus of attention was the contract extension for Parsippany-Troy Hills superintendent Leroy Seitz, that would have kept his salary next year over $210,000 and raised it as high as $234,000, well above the $175,000 cap Christie has proposed. Christie announced his administration had rejected the extension, or at least not approved it yet.

But Christie also alluded to the possible legal argument that superintendents in general could claim in court that they are a protected class, or at least being singled out when other public employees are not seeing similar restrictions.

“If we’re asking teachers to sacrifice, administrators have to sacrifice, too,” Christie said in the Washington Township town meeting. “They cannot be sitting here saying that they are some special privilege class of folks who deserve to make that kind of money, when everybody else in this state is tightening their belt and making due with less. And so we’re not going to have it.”

He has court precedent on his side, most recently in a state appellate court decision on behalf of the previous Corzine administration’s 2008 limits on superintendent perks.

In that case, NJ Association of School Administrators v. Davy, the association contended that the state was depriving administrators of property without due process.

But the court found that superintendents, without tenure since 1992, no longer faced the protections that would have prevented their compensation from being reduced.

“We consider it clear that the superintendents do not have a property interest in the terms and conditions of any contracts they may execute in the future,” the court wrote.

“Whatever interests they may have are entirely contingent and can rise no higher than a mere expectancy and thus cannot be cloaked with constitutional protection.”

School law attorneys this week said there are still some caveats in that ruling that could apply in any future one. For one, the superintendents could still contend they are being targeted unfairly. They said what happens to other public employees and whether there are restrictions on their pay will be an important development.

“When it comes to targeting superintendents alone,” Medina said, “the question unanswered right now is what happens to the bulk of the labor costs.”

Medina would not guess on that, but it is no secret that Christie has said he also hopes to bring some controls to other administrator and especially teacher salaries through property tax caps and further contract reviews.