When a New Jersey “teaching staff member” achieves tenure, she receives protections that most other New Jersey employees do not. Tenured teaching staff members can be dismissed or reduced in compensation “during good behavior” only for “incapacity,” “inefficiency,” or “conduct unbecoming” a teaching staff member, or some other “just cause.” However, they can be laid off for budget reasons or enrollment losses at any time as long as their seniority is honored.
For the purposes of tenure, “teaching staff members” includes a wide range of employees, including: Assistant superintendents, teachers, principals (but not administrative principals), vice-principals, assistant principals, school nurses, athletic trainers, business administrators shared by more than one school district, and other employees requiring appropriate certificates.
Left unchanged are the initial procedures. Tenure charges are instituted by the local board of education. They are filed in writing with the board’s secretary together with a sworn statement of evidence. The employee is promptly given a copy and the opportunity to submit a written statement in response. The board will then consider the charges in closed session and decide by majority vote if the evidence supports probable cause for the charges, and whether the charges are sufficient to warrant dismissal or reduction in salary. If so, it then forwards the charges to the Commissioner of Education. If the board does not make a determination within 45 days, the charges are dismissed.
The Commissioner will then examine the charges. The employee has 15 days to submit a written response to the Commissioner. 10 days after the employee’s time to respond expires, the Commissioner must make a determination on the sufficiency of the charges. If the Commissioner determines the charges are insufficient, he will dismiss them.
All these provisions remain unchanged. However, from this point forward is where the TEACHNJ Act changes existing procedures.
If the Commissioner determines the charges are sufficient, rather than referring them to the Office of Administrative Law for determination by an administrative law judge, as in the past, he now refers them to an arbitrator. (Tenure charges forwarded to the Office of Administrative Law before the start of the 2012-2013 school year will be decided under the old procedures.)
Uniquely, the TEACHNJ Act requires that the arbitrators serve for the American Arbitration Association (known as the “AAA”), a private sector institution. Some argue that the AAA has a reputation for favoring management. However, the Commissioner is required to maintain a panel of 25 arbitrators: 8 designated by the New Jersey Education Association (NJEA); 3 by the American Federation of Teachers (AFT); 9 by the New Jersey School Boards Association; and 5 by the New Jersey Principals and Supervisors Association. The fact that the majority of these are selected by employee organizations (even if 5 are by the highest supervisory employees), and only 9 by the New Jersey School Boards Association, should serve to temper any perceived bias. The arbitrators are also required to be members of the National Academy of Arbitrators, a non-profit organization.
Hearings are required to be heard within 45 days of referral to an arbitrator. Arbitrators can be paid no more than $1250 per day and $7500 per case; they are paid by the State of New Jersey. Evidence is exchanged and limited discovery conducted. The cases will be heard under AAA labor arbitration rules, a very unusual arrangement for a governmental appeal.
The board of education has the burden of proof to demonstrate that the statutory criteria for tenure charges have been satisfied. Generally, the arbitrator may look at the whole case. However, where the charge is inefficiency, the arbitrator can look only at whether or not:
- (1) the employee’s evaluation failed to adhere substantially to the evaluation process, including, but not limited to providing a corrective action plan;
(2) there is a mistake of fact in the evaluation;
(3) the charges would not have been brought but for considerations of political affiliation, nepotism, union activity, discrimination as prohibited by State or federal law, or other conduct prohibited by State or federal law; or
(4) the district’s actions were arbitrary and capricious.
If the employee demonstrates that any of these factors are applicable, the arbitrator can look to see if that affected the outcome of the evaluation. The evaluator’s determination of classroom teaching quality is not subject to review.
Arbitrators’ decisions are not appealable to the Commissioner of Education or the State Board of Education. It is appealable in the courts only in accordance with the New Jersey Arbitration Act, which provides very narrow grounds for appeal. It is also unusual because the Arbitration Act generally only applies to cases where the parties agree in writing to arbitrate.
If a teacher, principal, assistant principal or vice-principal is rated ineffective or partially effective for two consecutive years, the superintendent must file tenure charges for inefficiency. However, if the second year is partially ineffective, the superintendent may defer the filing one year for “exceptional circumstances;” tenure charges must be filed the next year, however, if that evaluation is not at least effective. The board must forward the charges to the Commissioner of Education unless it finds that the evaluation process was not followed. The employee is allowed to respond, but the Commissioner must send the charges to an arbitrator unless he finds the evaluation process was not followed.
The Commissioner of Education is required by the TEACHNJ Act to write rules to carry out the Act’s provisions. These may give shape to how the TEACHNJ Act affects public school teaching staff members. However, the TEACHNJ Act is a dramatic change in New Jersey’s system of fighting tenure charges.
A knowledgable New Jersey employment lawyer is thus essential to help in this process. McLaughlin & Nardi’s attorneys have significant knowledge in this area, and Maurice McLaughlin “wrote the book” on the subject – New Jersey Public Employment Law, Education Edition (Gann Law Books, 1st ed. 2012). McLaughlin & Nardi’s New Jersey employment attorneys also have considerable experience in arbitration.
E-mail us, or call (973) 890-0004, to speak with one of our employment attorneys .