After the November 8 school board election, the lame duck Wayne Board of Education (BOE) seemed bound and determined to amend or extend the employment contract of the Wayne Township School District Superintendent, Mark Toback, even though the contract wouldn't end for another year-and-a-half. After a variety of fits and starts, the issue of the contract seemed to disappear.  What happened?

An investigation by the Education Harbinger has determined that the answer may lie with the New Jersey law governing such superintendent contract changes. The investigation found that what happened in Wayne was quite surprising.

Two December Meeting Failures

The week before the school board election, the board secretary, William Moffitt, sent out a "PUBLIC NOTICE OF INTENT TO AMEND AND/OR ALTER SUPERINTENDENT CONTRACT." The November 1st notice stated that the Board of Education would be taking formal action on Superintendent Mark Toback's contract at the board's December 1 meeting.

Some parents were confused by the notice because the current contract with Dr. Toback still had a year-and-a-half to run. Moreover, unlike many other New Jersey school districts, the proposed changes were not made public.  Post-Election changes to Wayne superintendent contract create confusion. 

On November 8, two more pro-parent candidates were elected to the board. The board's president was not reelected. Speculation began to surface as to whether or not the contract was being changed early in order to allow the lame duck 2022 BOE to make the decision on the superintendent's contract instead of the more pro-parent 2023 board. There is a certain irony in that thought because the superintendent was not the major focus of controversy during the campaign.

December 1st arrived but the BOE meeting was cancelled by the then board president, Suzanne Pudup, "due to a lack of quorum." The next day, another notice was issued by Mr. Moffit saying that the board would take action on the contract at its regularly scheduled meeting on December 15. The notice stated that members of the public were "invited to submit public comments" at a hearing on the proposed changes to the contract -- but the Administration and the board still did not say what those changes were.

Many parents and others wondered how they could possibly comment on something that they weren't allowed to see.

On December 15, major rainstorms forced the cancellation of the regular board meeting. No further public notices concerning the contract were issued and no other meetings were scheduled. "What happened?" said one parent. The issue of what had been called the "mystery contract" became even more mysterious.

The Law Governing Superintendent Contract Changes

The Education Harbinger investigation carefully examined the law governing changes to superintendent contracts. Section 18A:11-11 of the New Jersey Statutes clearly states: "A board of education shall not negotiate, extend, amend, or otherwise alter the terms of a contract with a superintendent of schools, assistant superintendent of schools, or school business administrator, unless notice is provided to the public at least 30 days prior to the scheduled action by the board."

The same section provides further that "the board shall also hold a public hearing and shall not take any action on the matter until the hearing has been held." The section goes on to require that the board "shall provide the public with at least 10 days' notice of the public hearing."

As with so many education enactments, the state's Department of Education (DOE) developed regulations that provide the framework for enforcing this statute. The New Jersey Administrative Code section 6A:23A-3.1 provides for the "review of employment contracts for superintendents, assistant superintendents, and school business administrators." This regulation states that "[t]he executive county superintendent shall review and approve" contracts for superintendents.

Paragraph (c) of this DOE regulation requires that "The contract review and approval shall take place prior to any required public notice and hearing pursuant to N.J.S.A. 18A:11-11 and prior to the district board of education approval and execution of the contracts to ensure compliance with all applicable laws. ..."

This contract review and approval process makes sense because the DOE wants to be sure that the proposed contract changes comply with the form and substance of the law before hearing from the public.

The Wayne BOE 30-day notice of the board's intent to act on changes to Dr. Toback's contract did not comply with this regulation. The same is true of the 10-day hearing notice sent out on November 21. Both notices were sent out prior to receiving an approval from the Passaic County Acting Executive County Superintendent.

The required approval was not received by the Wayne board secretary, Mr. Moffitt, until near the end of November.

The Wayne BOE notices also violated the Wayne School District's own policies. District Policy No. 1650 tracks the language of the state DOE regulations and requires the review and approval of the contract changes by the executive county superintendent before any notices are sent out to the public.

Questions

The Wayne BOE's failure to comply with the DOE review and approval regulations, and its own policies, raise several questions. Some parents and residents may ask whether the notices were sent out early so that the lame duck board would vote on the contract instead of the incoming more pro-parent board.

More significantly, why wasn't this mistake (if it was a mistake) caught by anyone? After all, the review and approval process is critical to any superintendent's career. Was Dr. Toback really unaware of how the procedure worked?

The same is true for the board's secretary, William Moffitt, who was responsible for the issuing the public notices. He is also the district's School Business Administrator and is covered by the same review and approval process. Was he similarly unaware of the need for prior approval?

What about the board's attorney, John Geppert? He is a competent school board attorney. Why didn't he catch the board's noncompliance?  After all, if there had been a quorum on December 1, the members of the board would have voted on potentially substantial changes to the superintendent's contract despite not being in compliance with the regulations. That could have led to needless litigation.

The collapse of the post-election contract changes underscores just how important it is to be in complete compliance with state statutes and regulations.

Perhaps this issue will be revisited in 2023. If it is, the process will have to start all over again. Maybe the new board will insist on posting the proposed contract changes on its website so that the public will be informed when they are invited to comment at the public hearing. Like other districts, the required public notices can contain a link to the proposed contract changes.