Last night at a special meeting the School Board approved a multi-year contract with Interim Superintendent Scott Thompson. This means that District 15 now has two Superintendents on its payroll, because Daniel Lukich’s “resignation” does not take effect until June 30, 2011, and he continues to be paid by the District. And, like his predecessor, Thompson is a party to an unenforceable contract because the School Code requires that multi-year superintendent contracts contain “goals and indicators” that will help the Board to determine what the Super’s goals are and whether they are actually being attained. Lukich’s first contract contained an Appendix that listed four “goals” but no indicators. Lukich’s second contract did not contain either goals or indicators, and therefore, was unenforceable. So, here we go again, with business as usual in District 15. Neither our School Board President, Gerald Chapman nor the Board’s attorneys, who drafted these contracts, appears to have a grasp of the law on this subject. Below you will find an outline of what transpired in the Lukich contract and termination. You may ask yourself, “Why are we paying Lukich $185,000 under a contract that wasn’t even enforceable?”
THE LUKICH TERMINATION
On June 30, 2010, former Superintendent Dan Lukich and Community Consolidated School District parted ways under the terms of a Separation agreement which provides that Lukich’s duties would cease on June 30, 2010, but his “resignation” would be effective June 30, 2011. June 30, 2011 also happens to be the date of termination of Lukich’s original contract with the District. The circumstances surrounding Lukich’s termination have never been fully explained. The District denies that Lukich was terminated for cause, and the separation agreement refers to Lukich’s “resignation”. In order to understand why there are serious issues with Lukich’s termination, we need to take close look at his employment agreements.
THE 2008 MULTI-YEAR EMPLOYMENT AGREEMENT
Lukich originally entered into a three year contract with the District effective from May 14 2008, through June 30, 2011 (the “2008 Agreement”). The Illinois School Code requires that all multi-year superintendent contracts contain “goals and indicators”. The purpose of the “indicators” is to guide the school board in determining if the superintendent has actually met the goals they have set for him or her. If a multi-year contract does not contain these required goals and indicators, the contract is legally unenforceable.
Paragraph D.3 of the 2008 Agreement states as follows:
“Perfomance Goals and Indicators. In accordance with the requirements of the School Code, the parties agree that performance goals for the Superintendent shall be established with respect to student performance and academic improvement, including the indicators listed beneath the goals that shall be used by the Board to measure the Superintendent’s performance. The strategic planning framework for the performance goals are set forth in Appendix 1 to this contract and are incorporated herein. The Board and Superintendent shall develop the specific goals and indicators for the initial 2008-2009 year of this multi-year agreement by no later than the September, 2008 regular board meeting and shall incorporate them as Appendix 2 to this contract. The parties understand and acknowledge that the completion and attachment of Appendix 2 is a legal condition required for the enforcement of this contract.
The board shall determine whether the Superintendent has met the performance goals above using the criteria described in the goals themselves…”
In plainer English, the 2008 Agreement required the Board and the Superintendent to use the “strategic planning framework” contained in Appendix 1 in order to formulate the goals and indicators which were to be incorporated in Appendix 2. Appendix 1 is a three-paragraph page that discusses a “five year strategic plan designed the enhance District-wide student performance”, and states that “Utilizing the Facilities Audit plan due for completion in September 2008, the Board and the Superintendent shall work together to devise strategic goals by consensus… the strategic goals, indicators and a schedule of implementation and measurement shall be reduced to writing and become and amendment to this contract on or before July 1, 2009”.
When I initially requested a copy of the 2008 Agreement the District provided me with a copy that did not include Appendix 2. Upon further request, I was provided with what appeared to be a Memorandum from Gerald Chapman to Dan Lukich (with all other board members copied) dated September 4, 2008 Re: “2008-2009 School Year Board/Superintendent Performance Goals”. The goals stated in the memo are set forth below in their entirety:
1. Develop a plan to improve student achievement, addressing ELL and student not making growth targets.
2. Prepare for negotiations with the CTC.
3. Prepare a long-range facilities plan.
4. Define actions to improve communications with the board of education, public, and staff.
Nowhere in these “goals” is there any mention of the “indicators” that are required by the School Code and by Paragraph D.3 of the contract. This means that according to the School Code and the very terms of the Agreement, that the 2008 Agreement was not enforceable.
THE 2009 EMPLOYMENT AGREEMENT
On June 24, 2009, the District entered into a new Agreement ( the “2009 Agreement”) which according to its terms supersedes the 2008 Agreement. The terms of the 2009 Agreement were essentially identical to the 2008 Agreement. In fact the language of Paragraph D.3 of the 2009 Agreement is identical to that contained in the 2008 Agreement, even to the point of stating: “The Board and Superintendent shall develop the specific goals and indicators for the initial 2008-2009 year of this multi-year agreement by no later than the September, 2008, regular Board meeting and shall incorporate them as Appendix 2 to this contract.” Unfortunately for the parties, the 2009 Agreement required the parties to perform an impossible feat: turn back the hands of time and develop Goals and Indicators prior to a meeting that had already occurred one year previously. And, because the 2009 Agreement by its very terms superseded the 2008 Agreement, for all intents and purposes it is as if the 2008 contract never existed – the 2009 Agreement has to stand on its own.
When I requested a copy of the Appendix 2 for the 2009 Agreement I was informed in writing by James Garwood that the Appendix 2 for the 2009 Agreement was the same Appendix 2 as the 2008 Agreement. In other words, no new goals and indicators had been included in the 2009 Agreement, contrary to the requirements of the School Code. Therefore, the 2009 Agreement was also void and unenforceable because it did not contain the goals and indicators required by law.
THE SEPARATION AGREEMENT
The Separation Agreement between Lukich and the District dated June 30, 2010 contains some very interesting terms. The District agrees to pay Lukich $185,000 until the termination date of the 2009 Agreement. The Separation Agreement provides that “Lukich and the Board have agreed to an amicable separation from employment effective June 30, 2011, with all District duties ceasing June 30, 2010”; and further states at Paragraph 1, “Lukich herewith irrevocably tenders to the board his voluntary, written resignation from employment in the District effective as of the end of the workday, June 30, 2011, with all District duties ceasing June 30, 2010.” The 2008 and 2009 Agreements, upon which the Separation Agreement is supposedly based, both provide that in the event of Lukich’s resignation, Lukich is not entitled to severance pay. Lukich is only entitled to severance pay if the District terminates him without cause.
Paragraph 3 of the Separation Agreement provides that “All written employment inquiries made with respect to Lukich’s employment with the District shall be responded to by means of the letter of reference attached hereto as Exhibit 2”. The District initially refused to provide the letter of reference pursuant to FOIA requests, but the Attorney General’s office instructed the District to make it available to the public. The letter of reference contains statements that directly contradict statements previously made by the District pursuant to FOIA requests concerning the terms of Lukich’s employment. As you will recall I had FOIA’d the District for the Goals and Indicators for the 2009 Agreement, but was informed by Jim Garwood that there were no goals and indicators other than those contained in Appendix 2 to the 2008 Agreement. Yet the letter of reference state that:
“In September and October of 2009, year two, the Board directed a new set of District/Strategic goals and a new set of Superintendent Goals. District/Strategic goals included 1.) Improve student achievement 2.) Recruit and hire district facility planner 3.) Develop district and building administrative team 4.) enhance use of technology for 21st century teaching and learning. Goals for the Superintendent included 1.) Improve Board communications 2.) Enhance administrative presence 3.) Design and implement a merit performance pay plan 4.) Increase administrative morale 5.) Fix transportation problem and leadership 6.) Develop and improve relations with all unions.”
If these goals (but no indicators!) were actually discussed and approved by the board, for some reason they were never incorporated into Lukich’s contract. In any event, the 2009 Agreement would still not be enforceable because of the lack on indicators.
The letter of reference also contains a baldfaced lie: “Dr. Lukich resigned on June 30, 2010 for the sole purpose of terminating his relationship and continuing his career as a Superintendent of Schools”. This cannot be true if the Separation Agreement is true in its statement that Dr. Lukich’s resignation is effective June 30 2011.
There is a legitimate question as to the legality of paying Lukich $185,000 to cease the performance of his duties as Superintendent. If the 2008 and 2009 Agreements are deemed to be legally binding and fully enforceable, in spite of their lack of sufficient “Goals and Indicators”, then the District has no authority to give Lukich this generous severance package because, by the very terms of Lukich’s Separation Agreement, Lukich is not entitled to severance pay if he resigns. If on the other hand, the Agreements are not legally enforceable because the Agreements do not contain adequate Goals and Indicators, then the District has no legal basis for paying Lukich any severance whatsoever, because there is technically no contract that would provide for such payments.
Sadly, the District and the School Board appear to be headed down the same path with the new contract for Scott Thompson, which it has been acknowledged, does not contain any goals or indicators.