In many areas of New Jersey employment law, the scope of an arbitrator’s powers is a significant question. This is particularly true in the adjudication of tenure charges against New Jersey teachers and principals. The Appellate Division of New Jersey’s Superior Court squarely addressed this issue in the recently published decision in the case of Sanjuan v. School District of West New York.
The Sanjuan Case: Background
The Court explained that Amada Sanjuan was an assistant principal with the West New York Board of Education, after having been hired as a teacher in 1997. On February 12, 2020, she fell down a flight of stairs. Video of the scene showed that after she fell, she removed a piece of paper from her purse and placed it at the top of the stairs. She pointed out the paper to a custodian and teacher who came to help her and explained that the paper caused her fall. Sanjuan was out of work thereafter, but confirmed this version in a signed injury report.
Under New Jersey employment law, specifically Section 6-14 of Title 18A of New Jersey Statutes, tenured teachers may be suspended on disciplinary charges with or without pay while their tenure charges are pending a determination. However, the statute provides that if an arbitrator has not issued a decision on the charges by the 120th day of the suspension, the board of education is required to pay the suspended teacher beginning on the 121st day until the arbitration decision is issued. If the charges are dismissed at any stage, the teacher will be reinstated with full pay for the entire period of her suspension. If the charges are dismissed and the board of education appeals, and it continues the suspension during the appeal, the teacher must receive full pay during the appeal. If the charges are not dismissed at the arbitration and the employee appeals, she is not entitled to pay while the appeal is pending, but if the appellate court orders her to be reinstated she will then be entitled to her lost pay for the entire suspension. (The board is required to deduct any salary the employee was paid while she was suspended from what the board is required to pay her.)
The Appellate Division of New Jersey’s Superior Court, New Jersey’s intermediate appeals court, recently faced a situation not expressly covered by the statute – a situation where a tenured employee is suspended, the arbitrator upholds the termination, the employee appeals, and the appeals court does not order that the employee be reinstated but instead remands the case for a new arbitration hearing. In that case, Pugliese v. State-Operated School District of the City of Newark, two tenured teachers were suspended without pay pending resolution of their disciplinary charges. They contested the charges, and an arbitrator holding a hearing under New Jersey’s TEACHNJ Act of 2012 upheld the charges and ordered the teachers dismissed. The teachers appealed. The Appellate Division reversed the arbitrators’ decisions. However, it did not order reinstatement, but rather remanded the cases for further proceedings. The appeal, filed by the teachers, stretched the suspension well past the 120 day mark. The teachers argued that they should be paid while the proceedings continued, but district refused because it was the employees who appealed and the charges were not dismissed. The Commissioner of Education agreed. The teachers appealed.
The Appellate Division held that even though it was the employees who appealed and the tenure charges were not dismissed, the district had to pay the teachers during their suspension.
The Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act was recently enacted by the New Jersey Legislature and signed by New Jersey Governor Chris Christie. The TEACHNJ Act creates drastic changes to the process for fighting tenure charges by New Jersey teachers and other public school “teaching staff members.” In short, the TEACHNJ Act eliminates the hearing process before the Commissioner of Education and places the decision in the hands of an arbitrator.
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.