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Legal Brief                                                      Page 10

 

Should ‘Morality’ Be in Your

Contract?   

BY MAREE F. SNEED

MareeSneed

Over recent months, there has been considerable controversy about morals or morality clauses in superintendents’ contracts, including how to interpret such clauses and when such clauses should be included.

Three recent situations illustrate the issues raised by such clauses.

Michigan Case
A superintendent in Michigan resigned under protest following an investigation of an affair with the district’s director of human resources. The board and superintendent asked an arbitrator to determine whether the superintendent breached his contract.

The superintendent’s contract provided he could be terminated if he “engaged in any act of moral turpitude, misconduct ... or if the Superintendent materially breaches the terms of this contract, or for any other reason that is not arbitrary or capricious.”

The board claimed the superintendent engaged in “moral turpitude,” thus breaching the contract through the affair. The board acknowledged no statute or case law existed that defined moral turpitude. As a result, the arbitrator used the Merriam-Webster dictionary, which defines moral turpitude as “an act or behavior that gravely violates the moral sentiment or accepted moral standards of the community; esp: sexual immorality.”

The arbitrator concluded in June that the superintendent’s conduct did not reach this level, writing “under circumstances where men and women are working in close conditions such conduct is not unusual in the education field.”

However, the arbitrator found the superintendent breached his contract’s misconduct provision because he violated several board policies, including a policy that stated “the Superintendent shall not cause or allow any practice, activity, decision ... which is either unlawful, imprudent or in violation of commonly accepted business, educational and professional ethics and practices.”

The arbitrator called the affair “imprudent” because it exposed the district to potential liability for sexual harassment and “because it was in violation of commonly accepted business ethics and educational practices.”

Washington Case
A board of education in Washington fired its superintendent in January for an alleged violation of a morals provision of his contract, which stated the “Superintendent shall fulfill all aspects of this contract in a legal, ethical and moral manner.” The board contended he had an affair with a district employee; pursued a romantic relationship with a district consultant; used district equipment to conduct the affair; and disrupted the school where an employee worked.

The superintendent claimed he did not violate his contract because the relationship was consensual. The superintendent sued the board in federal court.

The school board included a similar morals clause in the contract for its new superintendent. The board chair indicated the provision was advised by the board’s attorney.

Iowa Case
An Iowa school board in June 2012 included a morality clause in its new superintendent’s contract after the resignation of the previous superintendent, who was found to have used district technology to send and receive sexually explicit e-mails. The previous superintendent’s contract did not include a morality clause.

On June 27, 2012, the previous superintendent sued the district for allegedly unlawfully releasing her e-mails.

Contract Provisions
In negotiating superintendents’ contracts, school board counsels often push for a clause providing for the superintendent’s termination for engaging in acts that constitute moral turpitude or that are immoral.

The superintendent’s attorney should point out that a morals clause is not necessary because the behavior of the superintendent will be governed by professional ethics codes or policies for administrators; other board policies, such as sexual harassment; and state and federal laws. If the board insists on a morality provision, superintendent’s counsel should ask board’s counsel to describe the behaviors of concern and request they be included in the contract rather than use vague language about moral turpitude.

Maree Sneed is an attorney specializing in education law with Hogan Lovells in Washington, D.C. E-mail: maree.sneed@hoganlovells.com

 

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