Labor & Employment

In 2013, the Appellate Division ruled that Daniel Woska, a former member of the Brick Township Board of Education (“Board”), exceeded the scope of his authority and violated the New Jersey School Ethics Act (“Act”) when he directed the Business Administrator to issue a Rice notice to the Superintendent. As a result of that Rice notice, the Board discussed the Superintendent’s employment and then terminated him. In the 2013 decision, the Appellate Division remanded the case to the School Ethics Commission (“SEC”) to determine who is authorized to issue a Rice notice for the purposes of reviewing the Superintendent’s employment. Ultimately, this issue became the subject of an appeal before the Appellate Division in Persi v. Woska, 2017 N.J. Super. Unpub. LEXIS 625 (2017), which was decided on March 10, 2017.

After the Appellate Division remanded the case to the SEC in 2013 to determine who is authorized to issue a Rice notice to the Superintendent, the SEC found that it lacked jurisdiction on this issue and transferred the case to the Commissioner of Education (“Commissioner”). In analyzing the issue, the Commissioner highlighted that matters relating to a chief school administrator’s employment are “serious and time-sensitive” and analogous to the kind of issue that would trigger a special meeting of the board of education. According to the Commissioner, the issuing of a Rice notice to the Superintendent is a significant procedural matter. Therefore, the Commissioner relied upon N.J.A.C. 6A:32-3.1(a), the procedure for calling a special board meeting. Pursuant to N.J.A.C. 6A:32-3.1(a), (a), the Board Secretary must call a special board meeting whenever:

1. Requested by the president of the district board of education;
2. Requested by the chief school administrator when the district board of education fails to meet within two months during the period in which the schools in the district are in session; or
3. Presented with a petition signed by a majority of the full membership of the district board of education requesting the special meeting.

The Commissioner concluded that an individual board member is without authority to direct the issuance of a Rice notice to the Superintendent and such authority rests with the board president or majority of the full membership of the board.

On appeal, the Appellate Division affirmed the Commissioner’s determination. It rejected Woska’s argument that he requested the Business Administrator to send the Rice notice rather than direct him, as this contention was not supported by the record. Further, the Appellate Division rejected Woska’s argument that he did not violate the Act since the board ratified the issuance of the Rice notice to the Superintendent. According to the Appellate Division, the composition of the Board was different at the time Woska directed the issuance of the Rice notice than the Board which later voted to terminate the Superintendent. Moreover, a Board’s ratification of unethical conduct does not make that conduct ethical. For these reasons, the Appellate Division upheld the Commissioner’s decision.

On February 21, 2017, the New Jersey Supreme Court in Bound Brook Board of Education v. Glenn Ciripompa invalided an arbitrator’s award in a tenure removal case after determining that the arbitrator exceeded his authority when he failed to determine whether a teacher’s actions rose to the level of conduct unbecoming. The arbitrator improperly applied the standard for hostile work environment instead of conduct unbecoming.

Bound Brook Board of Education (“Board”) filed tenure charges against Glenn Ciripompa, a tenured high school math teacher, after an investigation revealed that he was using school district-issued laptops, iPads, and networks to transmit nude photographs and engaged in unprofessional, inappropriate, and potentially harassing conduct toward female staff members. Count I of the Board’s complaint related to Ciripompa’s misuse of school district technology. Count II related to Ciripompa’s conduct against the female employees. Both counts charged Ciripompa with conduct unbecoming and sought his termination.

The arbitrator did not remove Ciripompa from his teaching position, finding that the Board did not prove sexual harassment with regard to Count II of the complaint. Instead, the arbitrator issued a 120-day suspension. On review, the Chancery Division of the Superior Court reversed and remanded the case to a new arbitrator. The Appellate Division vacated and reinstated the suspension.

The New Jersey Supreme Court determined that the arbitrator improperly converted Count II of the complaint alleging unbecoming conduct into a hostile work environment/sexual harassment claim. That is, the tenure charges filed by the Board never alleged sexual harassment, which the arbitrator acknowledged. Rather, the Board’s tenure charges against Ciripompa stated that his conduct toward the female employees rose to the level of conduct unbecoming. As a result, the arbitrator should have analyzed whether Ciripompa’s actions constituted conduct unbecoming, not sexual harassment or hostile work environment. The Court reasoned that an arbitrator cannot decide a legal question not actually placed before him by the parties. To do so, as the arbitrator did in this case, is to exceed his authority.

Ultimately, the New Jersey Supreme Court reversed the Appellate Division’s decision and remanded the case for arbitration with a new arbitrator to determine whether Ciripompa’s actions toward the female staff members constitutes unbecoming conduct.

On December 22, 2016, the New Jersey Appellate Division in Middletown Township Board of Education v. Division of Pensions and Benefits affirmed the Board of Trustees of the Teachers’ Pension and Annuity Fund’s determination that the Middletown Township Board of Education offered an unauthorized early retirement incentive to its employees. The decision requires the Board to pay back approximately $3.8 million to the teachers’ pension fund.

In October 2007, the Middletown Township Board of Education (“Board”) approved a Sidebar Agreement with the Middletown Township Education Association (“Association”) modifying the collective bargaining agreement between the Board and the Association. The Sidebar Agreement allowed tenured teachers who retired or resigned prior to June 30, 2008 to receive $225 for each unused sick day up to $40,000. Similarly, non-certified staff members who retired or resigned before that date were eligible to receive $125 for each unused sick day up to $20,000.

Immediately after the Board approved the Sidebar Agreement, the Division of Pension Benefits (“Division”) contacted the Board requesting additional information and advised that early retirement incentives must be reviewed by the Division first. In August 2008, after numerous employees already resigned or retired pursuant to the Sidebar Agreement, the Division notified the Board that the early retirement incentive created by the Sidebar Agreement was impermissible. The Division explained that such early retirement incentives must be expressly authorized by enabling legislation, which was not the case here. The Division also requested the Board to produce a list of all employees who retired or resigned under the Sidebar Agreement so that it could calculate the acceleration cost which would then be billed to the Board.

Shortly thereafter, the Board provided the requested information. However, the Division did not contact the Board until February 2014, at which time it reiterated that the early retirement incentive was unauthorized by law. The Division further explained that even if the early retirement incentive was permitted, the employer is always responsible for the additional pension liabilities resulting from the program. Approximately 41 employees received a payout through the Sidebar Agreement. At that time, the Division calculated approximately $5.4 million in pension liabilities owed by the Board.

The Board disputed the Division’s position and appealed to the Teachers’ Pension and Annuity Fund (“TPAF”). In December 2014, the TPAF upheld the Division’s determination but reduced the amount of the pension liabilities to about $3.8 million. The TPAF also directed the Division to establish a five-year payment plan with no interest. The Board disagreed with the TPAF’s ruling and appealed to the New Jersey Appellate Division.

In affirming the TPAF’s determination, the Appellate Division found that the TPAF’s decision was a final agency decision supported by credible evidence and therefore should not be disturbed. The TPAF and Appellate Division rejected the Board’s argument that the Sidebar Agreement did not constitute an impermissible early retirement incentive. The Sidebar Agreement was actually an early retirement incentive because it created an enhanced payout to the employee in exchange for retirement or resignation. Such a program or incentive is illegal unless specifically authorized by legislation. Furthermore, by encouraging employees to retire sooner than anticipated creates a funding imbalance and “impacts the ability of the retirement system to establish reasonably accurate experience assumptions on which funding is based.”

Boards of education must be cautious when contemplating a program inducing an employee’s resignation or retirement in exchange for a payout. If even the local education association agrees to such an early retirement incentive, it could be invalidated by the Division of Pension and Benefits. For specific questions related to early retirement incentives, boards of education should consult with their board attorney.

The entirety of the Appellate Division’s decision can be found here.

On November 29, 2016, the New Jersey Supreme Court In the Matter of Robbinsville Township Board of Education v. Washington Township Education Association ruled that boards of education must negotiate employees’ work hours and cannot unilaterally reduce those hours even in times of economic crisis.

The collective negotiation agreement between the Robbinsville Township Board of Education (“Board”) and the Washington Township Education Association (“Association”) stated that teachers’ salaries would be based on 188 days for new teachers and 185 days for all other teachers. In 2010, a series of events caused a significant reduction in the Board’s funding. As a result, the Board requested the Association to reopen negotiations to address the changing circumstances – yet the Association declined each time. In May 2010, the Board imposed a three day furlough on the remaining teachers, reducing their work year from 185 to 182 days.

Thereafter, the Association filed an unfair practice charge with the Public Employment Relations Commission (“PERC”). PERC found in favor of the Board reasoning that the temporary furlough was a non-negotiable managerial prerogative. The Association appealed, and the Appellate Division upheld PERC’s decision.

The New Jersey Supreme Court disagreed with the Board and reversed the Appellate Division. The Supreme Court explained that the Appellate Division improperly relied on Borough of Keyport v. International Union of Operating Engineers for the proposition that a public employer may impose temporary layoffs or furloughs during times of economic crisis. The Supreme Court emphasized that the public employer’s decision to impose a furlough in Keyport was authorized by an emergency regulation enacted in response to the 2008 economic crisis. In contrast, no such regulation permitted the Board in this case to unilaterally reduce the teachers’ workdays.

In sum, the Supreme Court found that even during times of economic crisis, boards of education must negotiate employees’ work hours and cannot unilaterally alter those hours.

On December 1, 2016, the New Jersey Commissioner of Education (“Commissioner”) upheld an Administrative Law Judge’s determination to invalidate a non-renewal provision contained in a Superintendent’s contract. In Richardson v. Gangadin and Jersey City Education Association v. Jersey City Board of Education, the Commissioner found that a board of education and a Superintendent may not alter the statutory requirements governing the renewal of a Superintendent’s contract.

N.J.S.A. 18A:17-20.1 provides, in part, that a Superintendent will be automatically reappointed or renewed unless the board of education affirmatively provides timely notice.  Such notice must be 30 days for each year in the term of the current contract. The Jersey City Board of Education (“Board”) and the Superintendent entered into a contract that expired on June 30, 2016. Pursuant to N.J.S.A. 18A:17-20.1, the Board was required to provide notice to the Superintendent regarding reappointment by March 2, 2016.

However, the contract between the Board and Superintendent contained a provision requiring the Board to provide notice of renewal or nonrenewal to the Superintendent by December 31, 2015. The contract further stated that the Board’s failure to provide notice by December 31, 2015 means that the Board is not offering renewal of the contract.  The Board did not vote on the Superintendent’s contract on or before March 2, 2016.

A dispute arose as to whether the Superintendent was reappointed. On the one hand, the Board’s failure to vote on the contract by December 31, 2015, per the agreement between the Board and the Superintendent, deemed the Superintendent non-renewed. On the other hand, the Board’s failure to vote by March 2, 2016, per N.J.S.A. 18A:17-20.1, meant that the Superintendent was reappointed.

In affirming the ALJ, the Commissioner invalidated the contract provision requiring notice by December 31, 2015 and ruled that N.J.S.A. 18A:17-20.1 exclusively governed the notice requirements for non-renewal. First, the effect of the contract provision allowed the outgoing or old board of education to decide on the renewal or nonrenewal of the Superintendent for a term that would begin after a new board takes office – such a result is inconsistent with the well-known principle that an outgoing board cannot bind a successor board. Second, public employees and employers are prohibited from altering statutory requirements by way of a separate contract.

Here, the contract provision in question contradicts the notice requirement under N.J.S.A. 18A:17-20.1.  For these reasons, such a provision is invalid. The complete text of N.J.S.A. 18A:17-20.1 can be found here.

Petitioners Beryl Zimmerman and Judy Comment were employed by the Sussex County Educational Services Commission (“Sussex County”) as tenured part-time teachers for numerous years. For the 2014-2015 school year, Sussex County reduced Petitioners’ weekly assigned hours of work from their 2013-2014 school year levels. Petitioners filed a Petition of Appeal claiming that Sussex County violated their tenure and seniority rights when their compensation was effectively reduced. On October 4, 2016, the New Jersey Commissioner of Education affirmed the Administrative Law Judge’s decision that this action did not violate Petitioners’ rights in Zimmerman v. Sussex County Educational Services Commission, OAL Dkt. No. EDU 430-15, EDU 431-15 (Oct. 4, 2016).

Sussex County reduced Petitioners’ number of hours due to the different levels of services needed for its students. The Commissioner rejected Petitioners’ argument that Sussex County violated their tenure rights under N.J.S.A. 18A:28-5 when it reduced their 2014-2015 school year weekly assigned hours of work, while non-tenured and/or less senior part-time teachers were employed in positions within the scope of their certifications and endorsements. Rather, the Commissioner reasoned in order for a reduction of a part-time employee’s hours to trigger tenure and/or seniority rights, that employee must have a guaranteed number of working hours.

Here, Petitioners never had a guaranteed number of hours in their employment contracts with Sussex County. Instead, Petitioners’ employment terms were flexible in terms of the number of hours expected that they work. Accordingly, Petitioners were not entitled to a minimum number of hours assigned, and their tenure rights not were violated.

Pursuant to N.J.S.A. 18A:6-7.1, the Criminal History Review Unit (“CHRU”) of the New Jersey Department of Education (“NJDOE”) is authorized to permanently disqualify a public school employee from employment with any educational institution supervised by the NJDOE if that individual is convicted of certain New Jersey crimes or a substantially equivalent crime in another state. On June 29, 2016, the New Jersey Appellate Division in Kelly v. New Jersey Department of Education and Lawrence Township Board of Education, 2016 N.J. Super. Unpub. LEXIS 1506 (App. Div. 2016), analyzed whether a teacher’s convictions in Pennsylvania for recklessly endangering another person and possessing instruments of crime substantially equated to New Jersey crimes that would permanently disqualify him from teaching.

David Kelly was employed as a tenured music teacher by the Lawrence Township Board of Education. In January 2012, a Pennsylvania jury convicted Mr. Kelly for multiple offenses, including two counts of recklessly endangering another person, one count of possessing instruments of crime, two counts of simple assault, and one count of disorderly conduct. Thereafter, in February 2012, the CHRU determined that under N.J.S.A. 18A:6-7.1 Mr. Kelly was permanently disqualified from employment with any educational institution due to the criminal convictions of recklessly endangering another person and possessing instruments of crime. As result of the CHRU’s decision, Mr. Kelly was immediately terminated.

Mr. Kelly then initiated a Petition of Appeal, which was first heard by an Administrative Law Judge (“ALJ”). The ALJ found in favor of Mr. Kelly and concluded that, based on the plain reading of the Pennsylvania statutes, neither of Mr. Kelly’s convictions of recklessly endangering another person and possessing instruments of crime substantially corresponded to any of the offenses listed at that time in N.J.S.A. 18A:6-7.1 that would warrant permanent disqualification. Thereafter, the Commissioner of Education (“Commissioner”) reversed the ALJ. In ruling in favor of the CHRU and Board of Education, the Commissioner relied on an affidavit of probable cause from the criminal case as factual evidence to demonstrate that the Pennsylvania crime of recklessly endangering another person matched a New Jersey crime under N.J.S.A. 18A:6-7.1. The New Jersey equivalent statute at the time regarding reckless endangerment required the use or threatened use of force. Having decided that Mr. Kelly was permanently disqualified from teaching due to his Pennsylvania conviction of recklessly endangering another person, the Commissioner declined to rule on Mr. Kelly’s Pennsylvania conviction of possessing instruments of crime.

Unfortunately for the CHRU and Board of Education, the Appellate Division determined that the factual record, particularly the heavy reliance on the affidavit of probable cause, did not support a finding that Mr. Kelly’s Pennsylvania conviction of recklessly endangering another person was substantially equivalent to a New Jersey disqualifying crime. While the affidavit of probable cause contained statements from victims demonstrating Mr. Kelly’s use of force, the Appellate Division found that the affidavit was unreliable double hearsay. While hearsay is generally admissible in administrative proceedings, the Appellate Division reasoned that the residuum rule requires some independent, legally component evidence to support a finding of fact, which was absent from this case. Rather, the CHRU and Board of Education should have included in the record any facts and evidence that were actually admitted into evidence in the criminal trial or any evidence of the jury finding that Mr. Kelly used or threatened to use force.

As the Commissioner did not rule on whether Mr. Kelly’s Pennsylvania conviction of possessing instruments of crime permanently disqualified him from teaching in New Jersey, the Appellate Division remanded this issue for further proceedings.

Criminal convictions of public school employees are serious concerns for boards of education and charter schools and raise questions regarding discipline and disqualification. As this case demonstrates, out-of-state convictions further complicate these matters and extra caution should be taken when addressing whether an out-of-state conviction is substantially equivalent to a New Jersey crime that would warrant disqualification. For more specific guidance, boards of education and charter schools should consult with their board attorney.

Advancements on the salary guide and annual increments for teachers must be earned – they are not automatic. In a recent opinion issued on May 20, 2016, Administrative Law Judge Evelyn J. Marose affirmed the Jersey City Board of Education’s decision to withhold teacher John Baran’s salary increment for the 2013-2014 school year. In Baran v. Board of Education of the City of Jersey City, OAL Dkt. No. EDU 14772-14, 2016 N.J. AGEN LEXIS 351 (2016), ALJ Marose held that the decision to withhold Baran’s increment was consistent with the school laws and was not arbitrary, capricious, or unreasonable.

Baran was employed as a teacher by the Board since approximately 2006. The evidence showed that during the year in question, Baran was absent twenty-three days and late on one occasion.  He exceeded his yearly absentee allotment by seven days. Moreover, Baran’s supervisor reported performance issues, such as lack of positive instruction taking place in the classroom, lack of engagement with students, and lack of classroom management.  ALJ Marose rejected Baran’s argument that his absences were due to a medical need, as the evidence did not demonstrate that he requested or was in need of such a leave. Regarding performance concerns, ALJ Marose rejected Baran’s position that the school district failed to provide sufficient teaching support and discipline to improve his poor performance.

Based on these circumstances, Baran did not sustain his burden of proof to establish that the Board acted arbitrarily without a rational basis when Baran’s increment was withheld. A board of education’s determination to withhold a salary increment is a managerial prerogative and is presumptively valid, absent an improper motive. Baran failed to set forth clear and convincing evidence that the Board’s decision to withhold his increment for the 2013-2014 school year for attendance and performance reasons was irrational, arbitrary, or unreasonable.

This case is a reminder that salary increments are not entitlements, and teachers must earn them each year. Boards of education and charter schools maintain the managerial prerogative to withhold an increment so long as the decision is rational and supported by reliable evidence.

A non-tenured, public school teacher is entitled to written notice of non-renewal regarding his or her employment by May 15 each school year if the board of education or charter school wishes to no longer employ that teacher for the following school year. This type of notice also applies to paraprofessionals. Pursuant to N.J.S.A. 18A:27-11, a school district or charter school’s failure to provide this non-renewal notice to a non-tenured teaching staff member results in an automatic offer of employment to the teacher for the next school year – but does this right extend to paraprofessionals? The New Jersey Commissioner of Education says no, according to a recent decision issued on May 6, 2016 in Tanner v. Community Charter School of Paterson, OAL Dkt. No. EDU 14408-15, Agency Dkt. No. 203-7/15.

The Community Charter School of Paterson (“Charter School”) hired Rickenya Tanner as a full-time instructional assistant, a paraprofessional as defined by N.J.S.A. 18A:27-10.2(a), for the 2014-2015 school year. As of May 15, 2015, Ms. Tanner received no written notice indicating whether her employment would be renewed for the 2015-2016 school year. On June 1, 2015, Ms. Tanner informed the Charter School in writing that she accepts employment as a paraprofessional for the following school year. Thereafter, the Charter School notified Ms. Tanner on June 12, 2015 that a decision had been made to not renew her employment for the 2015-2016 school year.

In affirming the Administrative Law Judge’s (“ALJ”) decision to dismiss Ms. Tanner’s Petition, the Commissioner reasoned that separate, distinct statutes govern the rights of teachers and paraprofessionals. Specifically, while N.J.S.A. 18A:27-10.2(b) requires school districts and charter schools to provide paraprofessionals with written notice regarding renewal of their employment by May 15, no statute triggers an automatic renewal of employment for the next school year if this notice is not provided. The Commissioner rejected Ms. Tanner’s argument that paraprofessionals should be entitled to the same remedy as non-tenured teachers. That is, even though the Charter School did not strictly comply with the notice requirement by informing her after May 15 that she would be non-renewed, Ms. Tanner is not entitled to automatic renewal of her employment as a paraprofessional because no statute affirmatively authorizes this remedy. Essentially, the Commissioner reasoned that the Legislature did not intend to provide non-tenured teachers and paraprofessionals with the same remedies based on their respective statutory schemes. In addition, the Commissioner found that Ms. Tanner failed to plead an implied contract claim, and even if she had, such a claim is beyond the Commissioner’s jurisdiction, as it does not involve a controversy arising under the school laws.

A school district and charter school’s best practices should include providing all non-tenured teachers and paraprofessionals with proper notice of non-renewal by May 15 to avoid ambiguity. For answers to specific questions relating to non-renewal of paraprofessionals and other employees, school districts and charter schools should consult with their board attorney.

Collective negotiated agreements (“CNAs”) delineate the terms and conditions of employment for many, if not the majority, of board of education employees.  They often dictate an employee’s rights and privileges, hours, salary, benefits, procedures for the termination of employment, and grievance procedures for challenging a board’s interpretation or application of the CNA.  On February 2, 2016, the Appellate Division in Egg Harbor Township Board of Education v. Egg Harbor Township Education Association, 2016 N.J. Super. Unpub. LEXIS 205 (App. Div. 2016) addressed the issue of whether the Egg Harbor Township Board of Education’s (“Board”) actions resulting in the discontinuation of employment of two members belonging to the Egg Harbor Township Education Association (“Association”) must be arbitrated.

L.D. was non-tenured teacher’s aide whose contract was slated to end on June 30, 2012.  On May 10, 2012, L.D. and the Board’s president executed a written contract for re-employment for the 2012-2013 school year.  However, on July 9, 2012, the Board rescinded the employment contract, purportedly due to allegations surfacing after May 10, 2012 that L.D. verbally and physically assaulted students in a classroom.  L.D. took no further action after her employment contract was rescinded.  Y.J. was a non-tenured custodian employed by the Board for the 2011-2012 school year.  The Superintendent non-renewed Y.J. for the 2012-2013 school year.  As a result, Y.J. requested and appeared before the Board, which accepted the Superintendent’s determination.  Y.J. did not appeal this decision to the Commissioner of Education.

The Association, on behalf of both employees, demanded arbitration of the two grievances pursuant to the CNA.  In response, the Board sought the New Jersey Public Employment Relations Commission (“PERC”) to restrain arbitration of its decision not to renew L.D. and Y.J.’s employment contracts asserting that these actions were non-negotiable managerial prerogatives.  The Board also relied on language from the operating CNA which limited arbitration to grievances “based upon an allegation that there has been a violation of the express written terms of the locally negotiated [CNA].”  PERC ultimately determined that whether the Board agreed to arbitrate disputes involving the non-renewal of its aides and custodians was beyond the scope of its jurisdiction.  As a result, the Board sought judicial review by the New Jersey Superior Court of whether the CNA allowed for arbitration of the grievances.  Relying on the general presumption of arbitrability, the trial judge found that both L.D. and Y.J.’s issues must be arbitrated.

However, the Appellate Division disagreed with the trial court’s reasoning and ultimately found that the Board’s decision regarding L.D. requires arbitration but not for Y.J.  Specifically, the Appellate Division rejected the Board’s argument that L.D. was non-renewed.  The Board’s revocation of the employment contract for the following school year, which had been previously offered to and accepted by Y.J., was interpreted as disciplinary action resulting in dismissal – action explicitly subject to the grievance procedure of the CNA.  Accordingly, arbitration of L.D.’s grievance must proceed.  In contrast, the Board’s action relating to Y.J. was purely a non-renewal and did not arise from a grievable disciplinary determination, which precludes arbitration.

Boards of education should be cognizant of whether the governing CNA expressly omits a mandate for a non-renewal determination to be based on just cause or a provision conferring upon an employee the right to grieve a non-renewal decision.  When seeking to non-renew an employee, which is generally a managerial determination, superintendents and boards of education should make sure that the action taken against the employee in question is purely a non-renewal and not subject to interpretation as a disciplinary action resulting in termination.