Legality of Aitken contract at issue

Questions raised over extension by SCS board

When the unified school board takes up the contracts of both school superintendents next week, the contract of Shelby County Schools Supt. John Aitken may be the one getting the most attention.

Board member Diane George said Tuesday that the SCS board, of which George was a member, did not give 15 days’ notice last winter that it intended to extend Aitken’s contract, which is required by state law.

While attorneys hesitate to say the contract extension was illegal, they do say it could be challenged, adding another wrinkle to the school merger case.

“I am not saying there is not a problem,” said Ernest Kelly, former Memphis City Schools board attorney.

“The Sunshine Law does not answer the question. It’s the kind of judgment a chancellor would have to make.”

Under Tennessee Sunshine Law, boards must give 24 hours’ notice of a public meeting. The 15- day notice required for acting on a superintendent’s contract is found in a different section of the Tennessee code.

Shelby County Schools Tuesday could not produce proof of the 15day public meeting notice and was trying to determine if hard copies of previous electronic notices were on file.

George says she learned Aitken’s contract was being considered for extension on Feb. 14, 2011, when she received her board packet for the Feb. 18 work session.

“If a board member didn’t get proper documentation and notice of a change to the superintendent’s contract, how would the public get it?” George asked.

The board discussed the exten-

sion and pay increase on Feb. 18 and approved both in its regular business meeting Feb. 25.

“Now, it’s a legal issue. And an investigation needs to be done into the legal procedure of it,” George says.

She says board members wanted to extend Aitken’s contract and pay to increase his pension, calculated on the last five years of employment.

“They wanted to make sure he left with money in his pocket,” she says.

Former SCS board chairman David Pickler, who also is a member of the unified board, says the issue amounts to nothing.

“Actually, we have already checked in with a variety of legal experts who have ratified that Mr. Aitken’s contract is legal and valid. Even is there was an issue with 15 days’ notice, due to the fact that the contract has been legally executed and more than a year has passed, the rules of waiver and estoppel govern,” Pickler said.

Pickler said notice of the meeting was posted two months in advance.

State law says the notice must include the action the board plans to take on the superintendent’s contract.

Pickler says no board member objected at the time of the meeting and that each also approved the meeting minutes the following month.

George says she requested a copy of Aitken’s contract before the Feb. 17 meeting.

“I didn’t even get a reply back nor a copy of the con- tract so I could be prepared for that meeting,” she said.

School boards are governed by education code Tennessee Code Annotated and also by open-meeting laws. Under open-meeting laws, action taking place in meetings without proper notification “is void and has no effect.”

The Sunshine Law remedy does not apply specifically to the education code. Lawyers say a judge would have to determine if Aitken’s contract extension is valid.

If it is not, his former contract was to expire in June 2013, two months before MCS Supt. Kriner Cash’s contract expires on Aug. 1, 2013.

On June 19, the board will discuss the possibility of not renewing either Cash’s or Aitken’s contracts.

According to state law, the board can not terminate or extend a superintendent’s contract 45 days before school board elections.

The cutoff date is June 18 — the day before the next board meeting.

The only option the school board will have when it meets is to not renew one or both contracts.

Cash’s contract stipulates that he must be notified by Jan. 31, 2013, if the board does not intend to renew.

On Tuesday, board chairman Billy Orgel said the board is respectfully giving notice early.

“Giving someone notice one way or another I think helps them if they are pursuing other employment. There are not that many superintendent jobs out there. You need some decent lead time to do it.” — Jane Roberts: (901) 529-2512