Appellate Division Issues New Jersey Employment Law Decision on Applicability of Rice Notice to Tenured Teachers

The Appellate Division recently issued an important New Jersey employment law decision concerning the due process rights of tenured teachers.

Tenured teachers have significantly more protections than untenured teachers.

An untenured teacher is essentially an “employee-at-will” who may be terminated without cause; however, an untenured teacher has the right to require that her board of education discuss her termination in public session.  Thus, the board cannot discuss an untenured teacher’s employment without first giving the untenured teacher formal notice of the intention to discuss her employment and the opportunity to require that it be held in public; this notice is referred to as a “Rice Notice” and derives from the Open Public Meetings Act.

Tenured teachers, on the other hand, have significant due process rights.  Tenured teachers cannot be disciplined or terminated without good cause.  Tenure charges against a tenured teacher must be supported by evidence before they are certified by a board of education.  The charges are then forwarded to the New Jersey Department of Education, which will determine whether the evidence sufficiently supports the charges for them to proceed to a hearing.  The teacher then has the opportunity to fight the charges and amount of discipline in arbitration, and then has certain limited appeal rights thereafter.

One question left open is whether tenured employees are also entitled to a Rice Notice before a board of education can certify tenure charges to the Commissioner of Education.  That matter was adressed in a recent published opinion by the Appellate Division of the Superior Court of New Jersey.

In that case, Simadiris v. Paterson Public School District, Marcella Simadiris was a tenured teacher.  Her employer, the Paterson Board of Education, sent her attorney informal notice through an email that the Board would consider whether there was probable cause to bring tenure charges against her at a meeting two days later.  Her attorney objected that this did not meet the formal requirements for a valid Rice Notice.  The Board’s attorney responded that a Rice Notice was unnecessary because the New Jersey Tenured Employee Hearing Law prohibited the Board from discussing a tenured teacher’s charges at a public meeting.  The Board then certified the charges to the Commissioner of Education.

Simadiris filed an action in the New Jersey Superior Court to void the charges because she had not had the opportunity to have them considered at a public session.  The Trial judge agreed with her that she had not received proper notice and therefore the Board’s resolution certifying the charges was invalid.  The Board then appealed to the Appellate Division of the Superior Court.  The Appellate Division rejected Simadiris’s arguments and overturned the trial judge’s decision.

The Appellate Division explained that the Tenured Employees Hearing Law, which prohibits public discussion of tenure charges, takes precedence over the Open Public Meetings Act, because it specifically precluded public discussion in this very instance, whereas the Open Public Meetings Act was a law of general applicability which applied to all situations, and also because it contains an exemption for situations where other laws prohibit open discussion.

Moreover, the Appellate Division posited that this distinction made sense as public policy.  The untenured teacher possesses none of the due process and job protection rights of a tenured teacher, and therefore should at least be able to have the option to try to persuade her employer in public session to not fire her.  On the other hand, under New Jersey employment law, tenured teachers have significant protections which untenured employees do not enjoy.  Indeed, in the case of an untenured teacher, the board of education has the final say on termination.  On the other hand, in the case of an untenured teacher the board only decides on the sufficiency of evidence; it cannot fire a tenured teacher.  The charges are then reviewed again by the Commissioner of Education, and even the Commissioner does not make the final decision.  Only if the Commissioner finds the evidence sufficient does the matter to go an arbitrator to make the decision.  At that point, the tenured teacher can call witnesses, present evidence and have a full hearing on the merits, followed by limited appeal rights.  This means that the tenured employee gets significant opportunities after board consideration to make her case.  The untenured only has the board meeting.

Will Simadiris decide to appeal, and if so will the New Jersey Supreme Court decide to hear the case?  Stand by….

 

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