CCSD Superintendent Jesus Jara’s contract runs out on June 30, 2021. But his representatives argued in two letters to CCSD outgoing attorney Mary-Anne Miller that his contract actually expires in 2023.
The letters concern the automatic renewal clause in Jara’s contract – usually a fairly straightforward extension clause after the stated term of the agreement
This is the clause at issue:
The term of this Agreement shall commence on June 19, 2018 and conclude on June 30, 2021. If the Board determines that this Agreement is not to be extended for an additional year beyond June 30 of each year, the Board shall give written notice of the same to Dr. Jara no later than the last business day of February of each year. If no notice is received, this contract is automatically renewed for an additional year under the same terms and conditions hereof, with the salary base pay to be reviewed annually….
The key words here are “each year.”
Miller, who works out of the Clark County District Attorney’s office, and has been the Board of Trustee’s attorney since 2015, clearly feels that Jara has a 3-year contract, with an option to extend one year at a time after his contract has expired.
She initiated the conversation with Jara’s representative, Mason Moses, and had further communication with Jara’s attorney, Cory S. Hartsfield, both out of Texas.
On January 7, 2021, Miller wrote to Moses:
It has recently come to our attention that Superintendent Jara may have a different interpretation of Paragraph 2(a) of his employment contract with the Clark County Board of School Trustees than the Board has. This provision is intended to provide for an initial term of employment until June 30, 2021, and then additional terms of one year each if there is no notice of intent to terminate the agreement by the last business day of February of that term. In other words, beginning in 2021, if the Board does not send a notice of termination by February 26, 2021, the employment agreement will renew for its first extension for one year, and this process can be repeated for each year thereafter.
Moses, who identifies himself in the letter answering Miller as a partner and vice-president of executive compensation firm TCG Advisors, interprets the “each year” part differently. He does not see, as Miller does, that “each year” refers to each year after the initial 3-year term.
As [Jara’s] contract states, if the Board does not notify Dr. Jara that the contract will not be extended by the agreed date each year, then the contract is automatically renewed for an additional year. Since no written notice was given in either 2019 or 2020, the contract that began on June 19, 2018, which was a three (3) year contract, has been renewed each year and remains a three (3) year contract and now expires on June 30, 2023.
In other words, since Jara wasn’t told his contract would not auto-renew in February of 2019 – six months after he was hired – then, his representatives say, his contract extended to 2022. Then, when he wasn’t told his contract would not auto renew in February of 2020, that extended the contract to 2023.
Twenty days after the exchange between Miller and Moses, Hartsfield, who identified himself as Jara’s attorney, wrote to Miller:
Based on the language in the Agreement and the understanding of the parties at the time the Agreement was entered, it is clear that the provision provides for an automatic one-year extension of the term each year the Agreement is in effect if the BOT fails to give notice to Dr. Jara on or before the last business day of February of each year the Agreement is in effect.
In a Feb. 3 work session, Miller asked the board to remove Jara’s auto-renew clause for this year – in effect informing him that an auto-renewal would not happen and the board would decide his fate in the future.
The Trustees have many options. They can renegotiate the terms of a new contract after June 30. They can let him stay on for a period of time under a shorter extension. Or they can decide not to renew his contract.
In the Feb. 3 meeting, Miller and the Trustees were clear that they were not making a determination about whether or not to retain Jara, but just to take the clause out of the contract so they had time to decide.
The Trustees voted unanimously to take the clause out of his contract. And they agreed to inform Jara that the clause had been removed for 2021.
I want to go back to what Hartsfield wrote. Specifically the part about “understanding of the parties at the time.”
That, said Reno labor attorney Shannon Pierce, “is the key factor.” A judge, should this dispute be brought to court, would likely ask for possible evidence, such as emails, that existed prior to the contract being signed.”
I emailed and left a phone message with Hartsfield’s assistant, asking if he had that kind of evidence. Hartsfield responded to my email on Wednesday writing, “The Board and Dr. Jara are currently engaged in discussions regarding his contract, but I cannot comment beyond that.”
Miller – who was the board attorney at the time the contract was signed – makes it clear in the letters that she was surprised by Jara’s interpretation of the auto renew clause.
Miller also notes that Jara had the opportunity to correct the view the board had of his contract on June 18, when the board was doing his performance evaluation.
She wrote to Moses that the board’s interpretation of a yearly renewal after the end of the 3-year contract, “was expressed by Trustee Danielle Ford during Dr. Jara’s midyear evaluation in June, 2020, and we did not hear anything to the contrary from Dr. Jara.”
Here’s part of what was said in that meeting:
Ford: I would like to request an agenda item for the board to discuss our thoughts about the superintendent’s future employment status, as his contract does end next year and if we don’t give any [notice], it’s going to renew for a year. So I think now is a good time to start seeing what our feelings are about that.
Trustee Lola Brooks: Trustee Ford, I’m really disappointed in your strategy, or whatever is happening right now, but I would be happy to provide you with the information you requested with Mary-Anne Miller.
Ford: What you call “my strategy,” I call doing my job. But tomato/potato.
Trustee Deanna Wright: Trustee Ford, this is so inappropriate. I’m sorry. You are inappropriately abusing a platform that is… You should’ve talked to council before you ever brought this up. This is…
Ford: This is a board meeting and it’s a special session about specifically about the superintendent.
Wright: When you’re talking about the superintendent’s contract, that’s a legal issue, and you should’ve ran that by our legal council. You are putting us in jeopardy.
Ford: OK, well, I also want to protect our butts and make sure we do our due diligence of overseeing the superintendent and communicating and planning properly. So I will talk to Mary-Anne Miller. I’m sorry if I did that wrong. However, I’ve made my thoughts clear.
Brooks: Your thoughts are noted, thank you Trustee Ford.
(You can see the entire clip of the exchange – including the comments of Linda Young – here.)
The fact that neither Jara nor Trustees Brooks or Wright objected to Ford’s interpretation “can be persuasive evidence,” said Pierce.
She and other attorneys I spoke with referred to the contradiction of the first sentence of the clause in dispute – which has a beginning date and end date for the contract – and the next one, which is not as clear and adds the “each year” language.
“I can see a judge saying that the rest of the contract should be read within the context of the first sentence,” said Pierce. “I can also see a judge say, ‘I have no idea how sentence one and sentence two go together’.”
Duke University law professor Erika Buell said that the clause is incredibly confusing, but that it seems upon reading it that it was intended as Miller has interpreted it. She called Jara’s reading “tortured,” but was able to find one example of such a clause – albeit written more clearly.
She added that if it were meant to be a rolling 3-year contract, it would likely have been referred to as an extension, not a renewal.
Las Vegas labor attorney Richard Dreitzer thinks that a judge would not even entertain both sentences of the clause.
“When you look at the plain language of the agreement, it says the contract should commence on a date and end on a date,” Dreitzer said. “The subsequent sections, which refer to each year, are incompatible.”
Dreitzer also notes that Jara’s interpretation would not be advantageous to him, as a new employee, or the district. For Jara, it would have opened the possibility that the Trustees might end his contract after just one year on the job.
For the Trustees, the interpretation means if they made a wrong choice, or circumstances change, then they are stuck.
“From a common sense standpoint, why would the Trustees lock themselves into something like this,” Dreitzer said. “That doesn’t make sense.”
He also noted that a school district would not want to “revisit the entire job search process after one year.”
I have contacted all parties involved – including Mary-Anne Miller, all of the Trustees, Jara via CCSD PIO Melinda Malone, Mason Moses, and Cory Hartsfield. Only Hartsfield answered.
And his answer had some new information. Jara and the board are negotiating. Presumably both parties want to make a decision well before June 30, when the contract will expire.
The board is looking for a new attorney. I would say whatever their decision vis a vis Jara, they probably should get a few second opinions before signing any new agreement.