In a recent New Jersey employment law decision, the Appellate Division of New Jersey’s Superior Court rejected a board of education’s argument that it had substantially complied with the requirements for giving notice to untenured employees whose employment contract was not going to be renewed for the following school year.
Background
In that case, Monika Vakulchik v. Board of Education of the Borough of Dunellen, Vakulchik, an untenured speech pathologist who worked for the Board since 2016,
She did not receive a notice from the superintendent that she was not being renewed which was required by statute to be served by May 15th, nor did she receive a Rice Notice. Therefore, on May 18, 2020, she emailed the superintendent and members of the Board that:
Insofar as I have not received notice from the chief school administrator in accordance with N.J.S.A. 18A:27-10; 27-11 that employment for the succeeding school year will not be offered, I hereby accept your offer of employment.
The superintendent responded that she was not renewed and did not have a contract for the following year. This was his first communication to her about her actual termination, as opposed to her supervisor’s recommendation that she not be renewed which was contained in her evaluation.
Vakulchik’s Appeal to the Commissioner of Education
After a Donaldson Hearing (which raised many interesting issues, but did not factor in the court’s decision), she was non-renewed, thus terminating her employment. She appealed to the Commissioner of Education. An administrative law judge recommended the non-renewal be upheld. The ALJ explained that even though the Board did not meet the requirements of the statute which required that she receive notice from the superintendent of non-renewal by May 15th, the fact that she realized she was non-renewed equaled substantial compliance and allowed her termination. However, the Commissioner of Education rejected that recommendation because the Board did not satisfy the clear requirements of the statute, and ordered that Vakulchik be reinstated with back pay. The Board appealed to the Appellate Division of the Superior Court of New Jersey.
The Appellate Division’s Appeal
The Board argued that the Commissioner was placing “form over substance,” and that it had substantially complied with the statute because Vakulchik knew she was being terminated before May 15th. The Appellate Division rejected both of these arguments.
The court explained that while an appellate court’s review of the Commissioner’s decisions is limited, it is not a rubber stamp, and where appropriate it will reverse the Commissioner. However, in this instance the court explained that the Commissioner was clearly right.
Two related statutes governed the Board’s actions regarding Vakulchik’s employment. The first, N.J.S.A. 18A:27-10, requires that:
18A:27-10. Written offer or notice to nontenure teachers
1. On or before May 15 in each year, each nontenured teaching staff member continuously employed by a board of education since the preceding September 30 shall receive either
a. A written offer of a contract for employment from the board of education for the next succeeding year providing for at least the same terms and conditions of employment but with such increases in salary as may be required by law or policies of the board of education, or
b. A written notice from the chief school administrator that such employment will not be offered.
It was clear that the Board took neither of these actions, therefore the next statute, N.J.S.A. 18A:27-11, came into play.
18A:27-11. Failure to give timely notice of termination as offer of employment for next succeeding year
Should any board of education fail to give to any nontenure teaching staff member either an offer of contract for employment for the next succeeding year or a notice that such employment will not be offered, all within the time and in the manner provided by this act, then said board of education shall be deemed to have offered to that teaching staff member continued employment for the next succeeding school year upon the same terms and conditions but with such increases in salary as may be required by law or policies of the board of education.
Thus, the Appellate Division explained, because the Board undisputedly did not meet the requirements of section 10, section 11 unequivocally requires that the employee be given a contract for the next year. The fact that a supervisor recommended non-renewal does not meet the requirement that the superintendent herself tell the employee that her contract is not going be renewed.
The court also rejected the Board’s argument that it substantially complied wit section 10’s requirements. Substantial compliance will sometimes excuse failure to strictly comply with a law’s requirements, but only if the other party was not prejudiced and there was a reasonable explanation why there was not strict compliance. The Board made no explanation for why it couldn’t comply, and clearly Vakulchik was prejudiced. A recommendation in an evaluation simply does not cut it. The Appellate Division explained that:
Nor are we satisfied that the record supports the Board’s argument that its actions evidenced compliance with the statute’s purpose. To allow notice only by way of a recommendation from an employee’s supervisor subverts the additional statutory requirement that notice be provided from the “chief school administrator.”
The Court acknowledged that this might have the effect of Vakulchik acquiring tenure, but since the Commissioner did not address that issue, it was not an appropriate element to be addressed on appeal.
The Bottom Line
The takeaway is that boards of education must strictly comply with the requirements of section 10, or section 11 will require them to reemploy the employee the next school year, which might confer tenure. Likewise, employees should know that they have a route to appeal the failure of a board of education to comply with these requirements. Each case of course is different, but the route is there and the Commissioner and courts will enforce an employee’s rights under these statutes.
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