New Jersey Employment Law Decision Explains that Teacher Cannot Wait Until After Conclusion of Certificate Revocation Proceedings to Seek Reimbursement from Board of Education

One of the most difficult New Jersey employment law issues confronted by government employees is that they are sometimes drawn into legal action because of actions taken in the course of their employment.  Defending such charges can cause significant expense and hardship to government employees.  For teachers, administrators and other public education employees, however, there are two laws which provide for payment of the employee’s attorneys fees and litigation expenses by their board of education in certain criminal, quasi-criminal, administrative and civil legal actions. The Appellate Division examined the question of when an employee must notify their employer and request payment under the two different statutes in a case where the New Jersey State Board of Examiners sought to revoke an employee’s teaching certificate in the case of Maria Azzaro v. the Board of Education of the City of Trenton.

 

Background: The Order to Show Cause and Administrative Litigation

Maria Azzaro worked for the Trenton Board of Education.  The New Jersey Department of Education, Office of Fiscal Accountability and Compliance alleged that while Azzaro was a vice-principal at Trenton Central High School improper practices occurred including misassignment of students, giving students credits for classes they did not attend or attended only sporadically, that certain classes did not meet Department requirements, and that transcripts were falsified so that students could matriculate.  As a result, in 2007, the New Jersey Department of Education, State Board of Examiners served Azzaro with an Order to Show Cause seeking revocation or suspension of her teaching certificate because she allegedly knew of or participated in these practices.

Azzaro did not advise her Board of Education of the charges or request that it provide her with counsel or indemnify her for her counsel fees.  However, Azzaro claimed that the Board was aware of the charges because the Department of Education consolidated the Order to Show Cause against her with an order to show cause against another Board employee.

The Order to Show Cause was transferred to the New Jersey Office of Administrative Law, where an administrative law judge held a hearing and issued a decision recommending that the charges against Azzaro be dismissed.  In 2020, the New Jersey Commissioner of Education adopted the ALJ’s recommendations and dismissed the charges.

Thereafter, Azzaro requested that the Commissioner order the Trenton Board of Education to reimburse her for her attorneys fees, which had now reached $430,800, plus $5,361.60 in expenses.  The Commissioner transferred the request back to the Office of Administrative law, where a different ALJ recommended ordering the Board to reimburse Azzaro.  The Commissioner rejected the ALJ’s recommendation because she  found that the delay of more than ten years in seeking  relief was unreasonably long.  Azzaro appealed to the Appellate Division of the Superior Court of New Jersey.

 

The Appellate Division’s Decision

The Appellate Division rejected Azzaro’s appeal and upheld the Commissioner’s decision denying reimbursement of Azzaro’s legal fees and expenses.  Although the statute at issue governing payment of a teacher’s or other education employee’s attorneys fees in a civil or administrative action did not contain a specific time frame for when a claim for when a request for reimbursement must be made, it must be made within a “reasonable time” after the employee has notice of the action.  While the statue governing payment of attorneys fees in criminal or quasi-criminal actions requires that reimbursement wait until the action is dismissed favorably for the employee, that is because payment is contingent upon the employee getting the charges favorably dismissed, which could not be known until the end of the case.  However, in civil or administrative actions reimbursement is not contingent on the outcome, merely that it was based on actions in the course of the employee’s employment.  Thus, the court explained that the right to reimbursement is not delayed until the end of the case, and the employee must therefore make her request for reimbursement withing a “reasonable time.”

 

The Takeaway

If a New Jersey teacher is faced with defending herself in a civil lawsuit or administrative action which arises out of the course of her employment, such as revocation of her teaching certificate, she should notify her employer as soon as possible or be faced with the real possibility of having to bear the cost of defending herself on her own.

 

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Our New Jersey employment attorneys represent teachers, principals and other education employees in all aspects of New Jersey employment law, including employment litigation, tenure charges, and certification revocation proceedings.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey employment lawyers.  We can help.