On Wednesday, June 21, 2023 from 10:00 a.m. to 12:00 p.m., Lauren E. Tedesco, Esq. will be presenting a webinar sponsored by The Institute for Professional Development entitled, “Employee Leaves of Absence Update-Answers To The Most Frequently Asked Questions.” This follow-up to the March 29, 2023 Webinar entitled “Employee Leaves of Absences: What Public Employers Need To Know” will answer attendees questions and discuss employee leaves of absences in further detail. For additional information and registration, please click here.
School Law Blog
Lead by Sanmathi (Sanu) Dev, Esq., this blog is devoted to current developments in New Jersey education law affecting school districts, charter schools, students, and employees.
View OTHER BLOGS
- Capehart Scatchard
- NJ School Law, Open Public Records Act
On April 20, 2023 the New Jersey Appellate Division decided an Open Public Records Act (“OPRA”) matter in the case of Owoh v. City of Camden, 2023 N.J. Super. Unpub. LEXIS 597 (App. Div. Apr. 20, 2023). The Appellate Division determined the City of Camden (“City”) did not deny access to requested police records and the City was not obligated to retrieve the records from the County of Camden (“County”) a separate public entity. The firm successfully represented the City on appeal.
Plaintiff-Respondents, Rotimi Owoh, o/b/o African American Data and Research Institute, and Baffi Simmons (“Owoh”) filed an OPRA request with the City back in November of 2018 for various police department records. The City directed the requestor to the proper custodian of the requested records, the County, as the City had not had its own police force since 2013 when the County assumed all police services for the City. The requestor filed a denial of access complaint with the Government Records Council (“GRC”) and the GRC determined the City denied access to the requested records, was obligated to retrieve the records from the County because of the Police Services Agreement between the City and the County and awarded attorneys’ fees to Owoh.
The City appealed the GRC’s determination to the Appellate Division on the basis Owoh did not serve the proper custodian with the request, the City was not the custodian of the records and the City could not be under an obligation to retrieve records from a separate public entity. The Appellate Division found in the City’s favor in all regards and reversed the GRC’s decision finding the City denied Owoh access to the requested records. The Appellate Division determined the City did not unlawfully deny access to records which were made and maintained by the County and that once the City received the request properly meant for the County, the City’s Custodian complied with the statute by directing the requestor to the proper County Custodian. Importantly, the Appellate Division vacated the award of attorneys’ fees to Owoh.
- Sanmathi (Sanu) Dev, Esq.
- Labor & Employment, NJ School Law
Editor: Sanmathi (Sanu) Dev, Esq.
Below is an article written by my colleague, Ralph R. Smith, Esq., Co-Chair of our firm’s Labor & Employment Group. If you wish to view additional articles and/or be kept up-to-date with labor & employment issues, visit our HR Resource blog by clicking here.
It seems like every day, I get some very unique questions in my practice. This one was a doozy. A client calls and tells me that an employee who is out of work on a medical leave of absence is posting pictures of herself on Facebook while on a wonderful vacation in the Bahamas. Needless to say, the client is irate and wants to take immediate disciplinary action against the employee, believing that the employee is not really sick and is engaged in some type of fraud under the Family and Medical Leave Act (“FMLA”). So, what can an employer do in such a circumstance?
Believe it or not, a lot.
Despite what some may think, being on FMLA leave does not shield an employee from possible disciplinary action, either for conduct that was committed before the leave or even during the leave. Employers can even fire an employee for misconduct when an employee is on an FMLA leave. The FMLA specifically states that if an employee would be subject to a possible job loss if they were physically present at work and not on a leave, the employee can lose their job even if they are taking FMLA. So, the statute itself provides an employer with some latitude in these types of situations. Obviously, any time such disciplinary action is taken there are risks, so the employer must make sure that it has solid documentation and proof to support its discipline in case the employee brings suit and claims either retaliation or interference with the ability to take FMLA leave. These are both possible claims that could be brought in such circumstances, so employers must proceed with some caution in navigating these types of factual scenarios.
In my client’s situation, the employer has every right to concern itself with possible FMLA fraud. It is real and happens much more frequently than you would think. There are a number of reported cases where courts have given employers the ability to address such situations, going as far as allowing terminations in the very scenario on which my client sought legal advice. In one such case, an employee who was on an FMLA leave for a mental condition was discovered on a vacation in Florida. The employer learned about it when the employee posted pictures of himself on the internet. After the employee was fired for FMLA fraud, he brought suit claiming retaliation and interference with his FMLA rights. In defense of his actions, the employee claimed that his doctor directed that he needed to relax more to deal with his stress condition, and that was why he took a vacation in Florida. The court rejected the claim, declaring that the point of FMLA leave is to allow an employee to recuperate from a serious medical condition and did not give an employee license to take an unauthorized surreptitious vacation from work. Thus, the employee’s termination while on FMLA leave was declared a valid disciplinary action by the employer.
Therefore, employers you do have tools available to you when you sense possible FMLA fraud. Proceed with caution, but don’t let those possible risks prevent you from imposing discipline against employees who are truly attempting to abuse the FMLA and harm your workplace.
- Capehart Scatchard
- NJ School Law, Seminars
On Wednesday, March 29, 2023 from 10:00 a.m. to 12:00 p.m., Lauren E. Tedesco, Esq. and Sanmathi (Sanu) Dev, Esq., will be presenting a webinar sponsored by The Institute for Professional Development entitled, “Employee Leaves of Absence-What Public Employers Need to Know”. This webinar will familiarize public employers on how to properly administer the laws relating to the various types of employee leaves of absences including the Family Medical Leave Act, the New Jersey Family Leave Act, the Americans with Disabilities Act and more. For additional information and registration, please click here.
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Seminars
On Wednesday, December 7, 2022 from 10:00 a.m. to 12:00 p.m., Sanmathi (Sanu) Dev, Esq. and Lauren E. Tedesco, Esq. will be presenting a webinar sponsored by The Institute for Professional Development entitled, “The New Jersey Earned Sick Leave Act-What Public Employers Need To Know.” Ms. Dev and Ms. Tedesco will be speaking about The New Jersey Earned Sick Leave Act. The topics include background on the Act and what the leave can be used for. For additional information and registration, please click here.
- Betsy G. Ramos
- NJ School Law, Other
In a published decision of the Appellate Division in Asphalt Paving Sys. v. Borough of Stone Harbor, 2022 N.J. Super. LEXIS 136 (App. Div. Nov. 14, 2022), the Court was asked to decide whether a bidder to a public contract, to be issued by Borough of Stone Harbor, submitted a statutorily compliant bid by listing its shareholders’ post office box, instead of a home address. The Court had to address whether N.J.S.A. 52:25-24.2, which required that no business entity may be awarded a public contract unless it submits with its bid “a statement setting forth the names and addresses of the individuals owning more than ten percent of the entity” mandated that a home address for the owners be provided.
In August 2020, the Borough of Stone Harbor had issued a notice to bidders, inviting the submission of bids for a construction project. Fred M. Schiavone Construction, Inc. submitted the lowest bid and Asphalt Paving Systems, Inc. had the second lowest bid. With its bid, Schiavone identified Fred and Roberta Schiavone as its two stockholders and provided a post office address for them. The bid was awarded to Schiavone as the lowest bidder.
In October 2020, Asphalt Paving filed a lawsuit challenging the award of the contract to Schiavone on the basis that Schiavone failed to meet the requirement of N.J.S.A. 52:25-24.2 because home addresses of the two stockholders were not provided, despite the bid specifications asking for the inclusion of the owners’ home addresses. The trial judge determined that this omission was a “waivable” requirement because it would not “deprive the municipality of its assurance that the contract would be entered into, performed and guaranteed according to its specified requirements and would not give the bidder a position of advantage over other bidders or … undermine the necessary common standard of competition.”
This ruling was appealed to the Appellate Division. The Court rejected Asphalt Paving’s argument that the bidder’s owners’ home addresses must be provided. The Appellate Division noted that it must examine the language of the statute to determine legislative intent in enacting a law. A court may not rewrite an enactment of the Legislature and “presume the Legislature intended something other than that expressed by way of the statute’s plain language.”
Here, the Court noted that the word “address” could suggest multiple things because a person could have multiple addresses – home, business, or mailing address. The Appellate Division found that “[t]here was no evidence in the enactment itself, and nothing about the statutory goals the Legislature was pursuing by enacting the statute, to suggest a desire to compel the production of one of these types of addresses.”
Finally, the Court stated that it would ascribe to the word “address” its generally accepted meaning and concluded that the Legislature intended that a bid would comply with N.J.S.A. 52:25-24.2, “so long as the bidder provided the home, business or mailing address for each owner of ten or more percent.” If the Legislature intended to require the bidder’s owners to provide their home address, it would have stated “home addresses” in the statute versus just using the term “addresses.”
Hence, the trial court’s decision upholding the award to Schiavone was affirmed.
- Sanmathi (Sanu) Dev, Esq.
- Labor & Employment, NJ School Law
By: Erika Vasant, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On August 25, 2022, in Sanjuan v. School District of West New York, the New Jersey Appellate Division in a published decision addressed the scope of an arbitrator’s authority under N.J.S.A. 18A:6-16 regarding tenure charges against a teacher. The Appellate Division held that an arbitrator may uphold a suspension without pay if a teaching staff member’s conduct was unbecoming. However, arbitrators lack the authority to demote teaching staff members from their positions.
In this case, the West New York Board of Education (“Board”) demoted plaintiff Sanjuan from assistant principal to fourth-grade teacher for inappropriate conduct. Sanjuan attended a high school activity and fell down a flight of stairs. After the fall, she reached into her purse, removed a piece of paper, and walked halfway up the stairway to place it on one of the steps. She then returned to the bottom of the stairs. The incident was caught on camera. The next morning, the benefits coordinator contacted her, and she confirmed that she fell after seeing the piece of paper on the stairs. The school district found that she manipulated the scene, allowed a false incident report to be made, and engaged in insurance fraud.
The Board approved tenure charges against Sanjuan in accordance with the Tenure Employees Hearing Law (“TEHL”), suspending her for 120 days without pay. After reviewing Sanjuan’s response, the Commissioner of Education found that Sanjuan’s conduct warranted “dismissal or reduction in salary” and referred the case to an arbitrator in accordance with N.J.S.A. 18A:6-17.1. The arbitrator found that Sanjuan’s conduct warranted retention of her tenure but as a fourth grade teacher (instead of assistant principal) without back pay. Sanjuan sought to vacate the arbitration reward, be reinstated as assistant principal, and receive the lost wages. The trial court then denied her relief, and affirmed the entire arbitration award. Sanjuan appealed.
On appeal to the New Jersey Appellate Division, Sanjuan argued that the arbitrator exceeded his authority and that since her tenure was not terminated, she should receive back pay during her suspension. The Appellate Division disagreed and noted that the trial court upheld the Board’s determination of Sanjuan’s conduct as unbecoming. Accordingly, under N.J.S.A. 18A:6-14, the arbitrator’s determination that Sanjuan was not permitted to receive back pay was authorized. However, the Appellate Division found that the arbitrator exceeded his authority in demoting Sanjuan, because it deviated from the disciplinary action specified in N.J.S.A. 18A:6-10. The statute provides that tenure charges against a teaching staff member may only include either termination or depriving him or her of salary – not demotion.
As a result, the Appellate Division vacated the trial court’s order and remanded the case to the arbitrator to “reconsider the penalty of termination.”
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Open Public Records Act
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
On September 29, 2022, the New Jersey Appellate Division in L.R. o/b/o J.R. v. Cherry Hill Board of Education issued a published decision affirming a ruling by the Superior Court of New Jersey, which held that a district could redact all parent and student information, including initials, when providing settlement agreements in response to an Open Public Records Act (“OPRA”) request.
In this case, the plaintiff, the mother of a student with a disability, made an OPRA request to the defendant Cherry Hill Board of Education (“Board”) for all settlement agreements in which the Board was named as a defendant and a student and/or their parent was named as a plaintiff. The Board provided the records sought but redacted all parent and student information, including initials. The plaintiff sued, asserting that the Board violated OPRA and improperly withheld information by redacting all personally identifiable information (“PII”).
In January 2015, the trial court granted the Board’s cross-motion for summary judgment, finding the initials were exempt from disclosure under the Family Educational Records and Privacy Act (“FERPA”) and the New Jersey Pupil Records Act (“NJPRA”). The plaintiff appealed and the matter was stayed pending the resolution of L.R. I and L.R. II. Following L.R. II, a special master adjudicated the Board’s motion to dismiss for failure to state a claim and recommended the court grant the motion. Plaintiff appealed the recommendation, and the trial judge affirmed, adopting the master’s findings of fact and conclusions of law.
The discrete issue raised on appeal was whether the Board should have redacted the PII altogether as opposed to leaving the initials intact. The plaintiff asserted the trial court erred by relying on the 2015 summary judgment decision and misunderstood the holdings of L.R. I and L.R. II.
The Appellate Division upheld the trial court’s decision, finding that using students’ initials is insufficient to protect identity as required by FERPA and NJPRA. The Court further held that just because the information may ordinarily be available to and accessible by the public — as legal submissions filed with the court — that does not “ipso facto mean that no legitimate privacy interest predominates.”
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Special Education/504
By: Angela Reading, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.
The Individuals with Disabilities Education Act (“IDEA”) and New Jersey law allow school districts to use two methods to determine specific learning disability (“SLD”) of a student who may qualify for special education: the severe-discrepancy approach and the response-to-intervention approach (“RTI”). The severe-discrepancy method examines whether there is a severe discrepancy between the student’s current achievement and intellectual ability in one or more areas of academic aptitude. N.J.A.C. 6A:14-3.5(c)(12)(i). The RTI method applies intensive and individualized instruction and evaluates the child’s progress in response to that intervention. 20 U.S.C. § 1414(b)(6)(B); N.J.A.C. 6A:14-3.5(c)(12)(ii).
On July 1, 2022, the Third Circuit Court of Appeals in J.M and E.M o/b/o C.M. v. Summit City Board of Education reaffirmed that school districts may use RTI rather than a severe discrepancy approach to determine SLD eligibility.
In September 2015, when C.M. was in first grade, he started exhibiting behavioral and academic issues. The district’s multidisciplinary intervention team began using an RTI approach to improve C.M.’s performance. In October 2015, C.M.’s parents supplied an independent educational evaluation (“IEE”), which diagnosed C.M. with an SLD based on the severe-discrepancy approach. The district evaluated C.M. for special education and related services at the parents’ request.
In February 2016, the district determined that C.M. was ineligible for special education and related services. In support of their decision, the district relied on the positive effects of the strategic behavioral and academic interventions, which reduced the incidents of poor behavior and improved C.M.’s progress in reading and math. The district noted that C.M. had some areas of weakness based on his aptitude scores. However, because he had positively responded to the interventions, they decided to continue implementing those in lieu of special education and related services. In April 2017, the district found C.M. eligible for special education after he was diagnosed with autism and ADHD.
C.M.’s parents filed for due process under the IDEA and Section 504 of the Rehabilitation Act, asserting that the district violated its “child-find duty” by erroneously concluding that C.M. did not have an SLD as of February 2016. The parents’ claims did not succeed at the administrative level or in the District Court. The parents appealed the District Court’s ruling to the Third Circuit Court of Appeals.
The Third Circuit held that the district did not violate its “child-find duty” by concluding that C.M. did not have an SLD. The Court found that the intervention and evaluation teams consisted of “trained and knowledgeable personnel” as required by the IDEA. 20 U.S.C. § 1414(b)(3)(A)(iv). The Court also found that teams gained relevant information about C.M.’s educational needs through a recognized method — incremental, potentially escalating interventions based on different tools and strategies. 20 U.S.C. § 1414(b)(3)(C), (b)(2)(A). Having met the relevant statutory requirements and having observed that C.M.’s classroom behavior and academic performance improved in response to interventions, the Court held that the district met its “child-find” obligations.
The Court noted that although C.M.’s measured achievement in three areas would have qualified him as having an SLD under the severe-discrepancy approach, neither the IDEA nor New Jersey law requires districts to use that approach — or even consider the results of that approach for child-find purposes.
This case illustrates that if a district can demonstrate a child responds well and makes meaningful progress using RTI, it likely will fulfill its child-find obligation.
- Sanmathi (Sanu) Dev, Esq.
- NJ School Law, Open Public Records Act
By: Angela Reading, Law Clerk.
Editor: Sanmathi (Sanu) Dev, Esq.
On June 21, 2022, the New Jersey Appellate Division in S.W. v. Elizabeth Board of Education confirmed in an unpublished opinion that a request made under the Open Public Records Act (“OPRA”) to an attorney for a public entity is invalid. The Appellate Division held that OPRA explicitly requires a request for access to a government record to be “to the appropriate custodian,” and counsel for a board of education is not a custodian within the meaning of OPRA under N.J.S.A. 47:1A-5(g).
This case arose from a special education due process petition brought by the parents on behalf of their son against the Elizabeth Board of Education (“Board”). The Administrative Law Judge (“ALJ”) in that case instructed the parties to stipulate as many documents as possible. The Board’s counsel provided 148 pages of documents, including the student’s grades, progress reports, attendance records, and special education records. The parents claimed that the documents were incomplete.
The parents did not seek to compel discovery before the ALJ for the alleged missing documents. Instead, the attorney for the parents sent an OPRA request to the Board’s counsel. The Board denied any obligation to provide documents under OPRA because no valid OPRA request had been submitted to the Board’s records custodian, nor to an officer, employee, or office of the district. The parents then initiated a lawsuit in the Law Division of the Superior Court of New Jersey, claiming the Board’s failure to produce the additional documents was a denial of public records under N.J.S.A. 47:1A-5(i) and a violation of OPRA. The parents also claimed that the OPRA request to the Board’s counsel was appropriate because Rule of Professional Conduct 4.2, which prohibits direct communication with a client known to be represented by counsel, prohibited them from communicating directly with the district. After the trial judge ruled in favor of the Board, the parents appealed to the New Jersey Appellate Division
The Appellate Division affirmed the trial court’s decision and upheld the Board’s denial of records as consistent with OPRA’s clear requirement that such a request be submitted to the agency’s custodian. The Appellate Division rejected the claim that the Board’s counsel was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. The Court held that outside counsel representing the agency is not an “officer or employee” of the agency.
The Appellate Division also addressed whether RPC 4.2 prohibits a party that sued a public agency from submitting an OPRA request directly to the agency. The Court said it does not, emphasizing that the RPC exempts communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact to ensure “a citizen’s right of access to government decision-makers.”
Top 30 Education Law Blogs
Capehart Blogs
Duty of Care
NJ School Law
Evidence
Categories
Tags
Alternative Energy
Alternative Energy - Solar
Alternative Energy - Wind
Appellate Division
automobile accident
automobile insurance
Burlington County Bar Association
Cannabis Law
Charity
constructive notice
coverage
data privacy
discovery
dismissal
Diversity & Inclusion Committee
duty of care
employees
employers
Employment Law
evidence
insurance
Liability
Litigation
Litigation Quarterly
Lorman
Millennium Seminars
NBI
negligence
New Jersey Workers' Compensation Act
New York Law
NJ Law
notice
Pennsylvania Law
personal injury
Public Entity Newsletter
Real Estate and Land Use
school law
slip and fall
statute of limitations
summary judgment
Taxes
Tort Claims Act
trip and fall
Workers' Compensation
Workers' Compensation Newsletter