2019 NJASBO Academy Program Legislative and Case
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2019 NJASBO Academy Program Legislative and Case Law Update NJASBO Headquarters Robbinsville, New Jersey March 27, 2019 Michael F. Kaelber, Esq. NJASBO Education Law Consultant kaelbs1122aol.com 1 NEW JERSEY LEGISLATIVE UPDATE January 1,
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01
2019 NJASBO Academy Program Legislative and Case Law Update
NJASBO Headquarters
Robbinsville, New Jersey
March 27, 2019
Michael F. Kaelber, Esq.
NJASBO Education Law Consultant
kaelbs1122@aol.com 1<br>
NJASBO Headquarters
Robbinsville, New Jersey
March 27, 2019
Michael F. Kaelber, Esq.
NJASBO Education Law Consultant
kaelbs1122@aol.com 1<br>
02
NEW JERSEY LEGISLATIVE UPDATE
January 1, 2018 – March 23, 2019
www.njleg.state.nj.us<br>
January 1, 2018 – March 23, 2019
www.njleg.state.nj.us<br>
03
Teacher Evaluation Rubric Weights 2018-2019 (8/31/18) mSGP Teacher
Teacher Practice: 70% (55%)
SGO: 25% (15%)
mSGP: 5% (30%)
Non – mSGP Teacher
Teacher Practice 85%
SGO: 15%
N.J.A.C. 6A:10-4.1 (d), 5.1 (d) - Issued 8/31/18<br>
Teacher Practice: 70% (55%)
SGO: 25% (15%)
mSGP: 5% (30%)
Non – mSGP Teacher
Teacher Practice 85%
SGO: 15%
N.J.A.C. 6A:10-4.1 (d), 5.1 (d) - Issued 8/31/18<br>
04
Teacher Evaluation Rubric Weights 2018-2019 mSGP Principal AP VP
Principal Practice: 70% (50%)
Administrator Goals: 10%
SGO Average: 10%
mSGP Average: 10% (30%)
Non – mSGP Principal AP VP
Principal Practice 80% (50%)
Administrator Goals 10% (40%)
SGO Average: 10%<br>
Principal Practice: 70% (50%)
Administrator Goals: 10%
SGO Average: 10%
mSGP Average: 10% (30%)
Non – mSGP Principal AP VP
Principal Practice 80% (50%)
Administrator Goals 10% (40%)
SGO Average: 10%<br>
05
Legislative Update P.L. 2017, c. 274 (1/8/18) – Provides certain immunity to board of director members and employees of private schools for students with disabilities for HIB incident reporting.
P.L. 2017, c. 291 (1/16/18) – Establishes certain requirements, including staff training and reporting to parents/guardians of students with disabilities who are restrained or secluded in school districts, ESCs and approved PSSDs.<br>
P.L. 2017, c. 291 (1/16/18) – Establishes certain requirements, including staff training and reporting to parents/guardians of students with disabilities who are restrained or secluded in school districts, ESCs and approved PSSDs.<br>
06
Legislative Update Physical Restraint/Seclusion Limits use of physical restraint for students with disabilities – only in an emergency in which the student is exhibiting behavior that places the student or others in imminent physical danger
Only restrain in prone position with prior written authorization of primary care doctor
Staff members using restraint annually trained
Immediate parental notice with written notice within 48 hours
DOE Guidance 7/10/18<br>
Only restrain in prone position with prior written authorization of primary care doctor
Staff members using restraint annually trained
Immediate parental notice with written notice within 48 hours
DOE Guidance 7/10/18<br>
07
Legislative Update Physical Restraint/Seclusion Law defines restraint and seclusion
Physical restraint-means the use of a personal restriction that immobilizes or reduces the ability of a student to move all or a portion of his or her body.
Seclusion technique – the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, but does not include a timeout
Timeout – means a behavior management technique that involves the monitored separation of a student in a non-locked setting, and is implemented for the purpose of calming.<br>
Physical restraint-means the use of a personal restriction that immobilizes or reduces the ability of a student to move all or a portion of his or her body.
Seclusion technique – the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, but does not include a timeout
Timeout – means a behavior management technique that involves the monitored separation of a student in a non-locked setting, and is implemented for the purpose of calming.<br>
08
Legislative Update Physical Restraint/Seclusion N.J.S.A. 18A:6-1 Corporal Punishment statute
Regular education students
Training of staff – very important!
Careful and continuous monitoring of each incident where restraint used; second person
Documented in writing in enough detail to use to develop or improve a BIP at next IEP mtg
Attempt to minimize use of physical restraint through use of positive behavior supports<br>
Regular education students
Training of staff – very important!
Careful and continuous monitoring of each incident where restraint used; second person
Documented in writing in enough detail to use to develop or improve a BIP at next IEP mtg
Attempt to minimize use of physical restraint through use of positive behavior supports<br>
09
Legislative Update “Pass the Trash” P.L. 2018, c.5 – Requires school districts, charter schools, nonpublic schools and contracted services providers working with school districts to determine if prospective employees have pending or substantiated allegations of child abuse or sexual misconduct over the past 20 years.
Signed April 11, 2018, effective June 1, 2018<br>
Signed April 11, 2018, effective June 1, 2018<br>
10
Key Definitions “Child abuse” means any conduct that falls under the purview and reporting requirements of P.L. 1971, c.437 (N.J.S.A. 9:6-8.8 et. seq.) and is directed toward or against a child or student, regardless of the age of the child or student
THESE are the allegations that must be reporting to the Division of Child Protection and Permanency (DCP&P, formerly DYFS)<br>
THESE are the allegations that must be reporting to the Division of Child Protection and Permanency (DCP&P, formerly DYFS)<br>
11
Key Definitions “Sexual misconduct” means any verbal, nonverbal, written or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student.
NOTE that this definition potentially includes actions that may not have been reported to DCP&P but may have only been investigated by the school district<br>
NOTE that this definition potentially includes actions that may not have been reported to DCP&P but may have only been investigated by the school district<br>
12
“Pass the Trash” Requirements for Prospective Employee Provide a list of current employer and all former employers within the last 20 years that were schools or where the applicant was employed in a position that had involved direct contact with children
Sign a written authorization that allows for prior employers to release relevant information and releases those employers from any liability
Sign a written statement attesting to whether there are any substantiated or pending allegations of child abuse or sexual misconduct<br>
Sign a written authorization that allows for prior employers to release relevant information and releases those employers from any liability
Sign a written statement attesting to whether there are any substantiated or pending allegations of child abuse or sexual misconduct<br>
13
“Pass the Trash” Prospective Employee Statement Must disclose if:
Subject of any child abuse or sexual misconduct investigation in the last 20 years unless the investigation resulted in a finding that the allegations were false or not substantiated
Has ever been disciplined, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct
Has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct<br>
Subject of any child abuse or sexual misconduct investigation in the last 20 years unless the investigation resulted in a finding that the allegations were false or not substantiated
Has ever been disciplined, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct
Has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct<br>
14
“Pass the Trash” Requirements for Prospective Employer Conduct a review of employment history by contacting applicable former employers to determine if
such an investigation is pending or if the allegations have been substantiated;
the employee was discharged, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or
the employee has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct
NOTE that different standards involved for contacting former out-of-state employers<br>
such an investigation is pending or if the allegations have been substantiated;
the employee was discharged, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or
the employee has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct
NOTE that different standards involved for contacting former out-of-state employers<br>
15
“Pass the Trash” Prior Employers (In-State) Must disclose requested information no later than 20 days after receiving a request if person in question employed within last 20 years
Failure of prior employer to respond within 20 days may be grounds for automatic disqualification of applicant for employment
NOTE this could result in applicant being penalized because of nonresponsive prior employer<br>
Failure of prior employer to respond within 20 days may be grounds for automatic disqualification of applicant for employment
NOTE this could result in applicant being penalized because of nonresponsive prior employer<br>
16
“Pass the Trash” Prior Employers (Out-of-State) Out-of-State prior employers cannot be compelled to cooperate. However, school district must document with specificity diligent efforts to gather the information in question
Best practice to send written request to out-of-state prior employers and follow-up if no response within short time period<br>
Best practice to send written request to out-of-state prior employers and follow-up if no response within short time period<br>
17
Immediate Termination or Rescission of Offer Right to terminate immediately or rescind offer if applicant is offered or begins employment, and then relevant information is subsequently discovered
Termination is not subject to any grievance or appeal process or tenure proceedings
OPEN QUESTION – What happens if a tenured employee is terminated based on inaccurate information from a prior employer without first going through tenure hearing process?<br>
Termination is not subject to any grievance or appeal process or tenure proceedings
OPEN QUESTION – What happens if a tenured employee is terminated based on inaccurate information from a prior employer without first going through tenure hearing process?<br>
18
“Pass the Trash” Hiring on a Provisional Basis May employ an applicant on a provisional basis for up to 90 days if:
The applicant has submitted the required documentation regarding prior employment
The school district or related entity has no knowledge or information pertaining to prior allegations of child abuse or sexual misconduct
The school district or related entity determines that “special or emergent circumstances exist”<br>
The applicant has submitted the required documentation regarding prior employment
The school district or related entity has no knowledge or information pertaining to prior allegations of child abuse or sexual misconduct
The school district or related entity determines that “special or emergent circumstances exist”<br>
19
Bars Suppression of Information The statute bars settlement agreements, contracts, or collective bargaining agreements from including language that has the effect of
Suppressing or destroying relevant information related to an investigation;
Limiting the right of an employer to report suspected incidents; or
Expunging relevant information from employment records
OPEN QUESTION – The impact on nondisclosure agreements entered into prior to the effective date of the legislation<br>
Suppressing or destroying relevant information related to an investigation;
Limiting the right of an employer to report suspected incidents; or
Expunging relevant information from employment records
OPEN QUESTION – The impact on nondisclosure agreements entered into prior to the effective date of the legislation<br>
20
Legislative Update P.L. 2018, c. 9 (4/24/18) – Diane Allen Equal Pay Act – Equal Pay and Employment Discrimination
P.L. 2018, c. 10 (5/2/18) – Earned sick leave for employees
P.L. 2018, c. 15 (5/18/18) – Workplace Democracy Enhancement Act
P.L. 2018, c. 68 (7/24/18) – Allows for municipality with population over 200,000 to impose an employer payroll tax; revenues to be paid over to school districts in certain circumstances<br>
P.L. 2018, c. 10 (5/2/18) – Earned sick leave for employees
P.L. 2018, c. 15 (5/18/18) – Workplace Democracy Enhancement Act
P.L. 2018, c. 68 (7/24/18) – Allows for municipality with population over 200,000 to impose an employer payroll tax; revenues to be paid over to school districts in certain circumstances<br>
21
Legislative Update P.L. 2018, c. 81 (8/10/18) – Directs State Board of Education to authorize computer science education endorsement to instructional certificate
P.L. 2018, c. 83 (8/10/18) – Unemployment compensation and labor disputes
P.L. 2018, c. 100 (8/17/18) – Permits school district superintendent to designate school employee with certain expertise as school safety specialist
P.L. 2018, c. 106 (8/24/18) – Requires certain schools to maintain supply of opioid antidotes and permits emergency administration of antidote by school nurse or trained employee.
P.L. 2018, c. 156 (12/17/18) – Authorizes local units of government subject to “Local Public Contracts Law” and “Public School Contracts Law” to use electronic procurement technologies.<br>
P.L. 2018, c. 83 (8/10/18) – Unemployment compensation and labor disputes
P.L. 2018, c. 100 (8/17/18) – Permits school district superintendent to designate school employee with certain expertise as school safety specialist
P.L. 2018, c. 106 (8/24/18) – Requires certain schools to maintain supply of opioid antidotes and permits emergency administration of antidote by school nurse or trained employee.
P.L. 2018, c. 156 (12/17/18) – Authorizes local units of government subject to “Local Public Contracts Law” and “Public School Contracts Law” to use electronic procurement technologies.<br>
22
Legislative Update P.L. 2019, c. 32 (2/4/19) – Raises, over time, hourly minimum wage to $ 15.00
P.L. 2019, c. 33 (2/4/19) – Alyssa’s Law – requires pubic school buildings to be equipped with panic alarm linked to local law enforcement.
P.L. 2019, c. 37 (2/19/19) – Revises law concerning family leave, temporary disability and family temporary disability leave or sexual violence safety leave<br>
P.L. 2019, c. 33 (2/4/19) – Alyssa’s Law – requires pubic school buildings to be equipped with panic alarm linked to local law enforcement.
P.L. 2019, c. 37 (2/19/19) – Revises law concerning family leave, temporary disability and family temporary disability leave or sexual violence safety leave<br>
23
Legislative Update – School Security School Safety Specialist P.L. 2017, c.162 – Establishes NJ School Safety Specialist Academy and requires every school district to appoint a school administrator as School Safety Specialist
Responsibilities include supervising and overseeing all school safety and security personnel; ensuring safety and security policies are in compliance; providing necessary training and resources to staff
P.L. 2018, c. 100 – Allows for designated school employee with expertise<br>
Responsibilities include supervising and overseeing all school safety and security personnel; ensuring safety and security policies are in compliance; providing necessary training and resources to staff
P.L. 2018, c. 100 – Allows for designated school employee with expertise<br>
24
Transgender Students/Staff Four legislative enactments
P.L. 2017, c. 137; DOE Guidelines 9/27/18
P.L. 2018, c. 58; Amended birth certificate – female, male, undesignated non-binary gender
P.L. 2018, c. 59; Death certificates, gender identification
P.L. 2018, c. 60; Transgender Equality Task Force
NJSIAA Transgender Student Policy – Participation, Drug Testing<br>
P.L. 2017, c. 137; DOE Guidelines 9/27/18
P.L. 2018, c. 58; Amended birth certificate – female, male, undesignated non-binary gender
P.L. 2018, c. 59; Death certificates, gender identification
P.L. 2018, c. 60; Transgender Equality Task Force
NJSIAA Transgender Student Policy – Participation, Drug Testing<br>
25
DOE Transgender Student Guidance Definitions
Student Gender Identity – Parent consent, court order name change not required; parent notification
Name and pronoun use, student ID, student dress
Safe and Supportive Environment – staff training, equal access, HIB, social and emotional learning
Confidentiality and Privacy
Student Records – gender identity v. birth name
Student Activities
Restrooms and locker rooms<br>
Student Gender Identity – Parent consent, court order name change not required; parent notification
Name and pronoun use, student ID, student dress
Safe and Supportive Environment – staff training, equal access, HIB, social and emotional learning
Confidentiality and Privacy
Student Records – gender identity v. birth name
Student Activities
Restrooms and locker rooms<br>
26
Joel Doe v. Boyertown Area SD 3rd Cir. Ct. of Appeals – June 19, 2018 Issue
Parents upset that SD’s policy assigned facility use by gender identity rather than the student’s sex at birth
Claimed a violation of the right to privacy
Legal Arguments:
Constitutional right to bodily privacy
The SD violated Title IX’s protections against sex discrimination in schools
The policy went against state (PA) tort law
Holding
SD may continue using bathrooms and locker rooms that match the students’ gender identities
Rationale
“An individual’s right to privacy is not absolute and has to be weighed against competing governmental interests.”
State interest in this case is “protecting transgender students from discrimination and minimizing risk to their well-being.”
“… the presence of transgender students in the locker and restrooms is no more offensive to … privacy interests than the presence of other students who are not transgender…”
“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes severe psychological distress often leading to attempted suicide.”<br>
Parents upset that SD’s policy assigned facility use by gender identity rather than the student’s sex at birth
Claimed a violation of the right to privacy
Legal Arguments:
Constitutional right to bodily privacy
The SD violated Title IX’s protections against sex discrimination in schools
The policy went against state (PA) tort law
Holding
SD may continue using bathrooms and locker rooms that match the students’ gender identities
Rationale
“An individual’s right to privacy is not absolute and has to be weighed against competing governmental interests.”
State interest in this case is “protecting transgender students from discrimination and minimizing risk to their well-being.”
“… the presence of transgender students in the locker and restrooms is no more offensive to … privacy interests than the presence of other students who are not transgender…”
“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes severe psychological distress often leading to attempted suicide.”<br>
27
School Bus Safety Legislation Prompted by May 17, 2018 Bus crash in which a 10 year old student and a teacher were killed when a 77 year old bus driver attempted to illegally cross 3 lanes of traffic on 1-80.
Package of legislation signed by Governor Murphy on December 17, 2018:
P.L. 2018, c.151 requires holders of a bus driver license to submit a medical report by a certified medical examiner. It also requires bus drivers over age 70 to submit proof of physical fitness every year, and those over age 75 to submit this proof every six months.
P.L. 2018, c.152 requires that when the Department of Education notifies a board of education or a school bus contractor that a school bus driver has had their bus driver license suspended or revoked, the board of education or school bus contractor must verify to DOE that the driver in question no longer operates a bus for them.
P.L. 2018, c.159 requires school bus operations in the State to comply with federal regulations concerning safety, noise emissions, insurance, and drug testing, among other areas.
P.L. 2018, c.160 requires all permanent and substitute school bus drivers and aides to undergo safety education programs twice every year.
If 1st training not done already in 2019, should have first training completed as soon as possible. 27<br>
Package of legislation signed by Governor Murphy on December 17, 2018:
P.L. 2018, c.151 requires holders of a bus driver license to submit a medical report by a certified medical examiner. It also requires bus drivers over age 70 to submit proof of physical fitness every year, and those over age 75 to submit this proof every six months.
P.L. 2018, c.152 requires that when the Department of Education notifies a board of education or a school bus contractor that a school bus driver has had their bus driver license suspended or revoked, the board of education or school bus contractor must verify to DOE that the driver in question no longer operates a bus for them.
P.L. 2018, c.159 requires school bus operations in the State to comply with federal regulations concerning safety, noise emissions, insurance, and drug testing, among other areas.
P.L. 2018, c.160 requires all permanent and substitute school bus drivers and aides to undergo safety education programs twice every year.
If 1st training not done already in 2019, should have first training completed as soon as possible. 27<br>
28
School Bus Safety Legislation Additional Bus Safety Legislation
P.L. 2018, c. 118 Requires certain school buses to be equipped with lap and shoulder seat belts.
P.L. 2019, c. 9 Requires suspension of school bus endorsement on driver license for a certain number of motor vehicle moving violations in certain time period.
P.L. 2019, c. 17 Requires certain school district transportation supervisors to complete educational program.
P.L. 2019, c. 24 Requires study of safety of school bus passengers in certain emergency situations, including school bus accidents; appropriates $ 250,000.
P.L. 2019, c.43 Requires display of identifying information on rear of bus so public may report bus driver misconduct. 28<br>
P.L. 2018, c. 118 Requires certain school buses to be equipped with lap and shoulder seat belts.
P.L. 2019, c. 9 Requires suspension of school bus endorsement on driver license for a certain number of motor vehicle moving violations in certain time period.
P.L. 2019, c. 17 Requires certain school district transportation supervisors to complete educational program.
P.L. 2019, c. 24 Requires study of safety of school bus passengers in certain emergency situations, including school bus accidents; appropriates $ 250,000.
P.L. 2019, c.43 Requires display of identifying information on rear of bus so public may report bus driver misconduct. 28<br>
29
Bus Driver Safety Education Training Two times per year, an employer shall administer a safety education program for all permanent and substitute school bus drivers and school bus aides that it employs. At a minimum, the training shall include:
Student management and discipline;
School bus accident and emergency procedures;
Conducting school bus emergency exit drills;
Loading and unloading procedures;
School bus stop loading zone safety;
Inspecting the school vehicle for students left on board at the end of a route; and
The use of a student's education records, including the employee's responsibility to ensure the privacy of the student and the student’s records, if applicable. 29<br>
Student management and discipline;
School bus accident and emergency procedures;
Conducting school bus emergency exit drills;
Loading and unloading procedures;
School bus stop loading zone safety;
Inspecting the school vehicle for students left on board at the end of a route; and
The use of a student's education records, including the employee's responsibility to ensure the privacy of the student and the student’s records, if applicable. 29<br>
30
Bus Driver Safety Education Training Additional Issues to Consider:
Use of School Bus Cameras
Identify Existing Problems on the Bus
Assist in Improving Training
Outsourced Bus Companies
Obtain Written Documentation re: Proof of Training
Indemnification Clauses with Service Contract
Transient / “Come and Go” Employees Training
Getting “Buy In”
Establishes Evaluation / Driver Discipline Baselines 30<br>
Use of School Bus Cameras
Identify Existing Problems on the Bus
Assist in Improving Training
Outsourced Bus Companies
Obtain Written Documentation re: Proof of Training
Indemnification Clauses with Service Contract
Transient / “Come and Go” Employees Training
Getting “Buy In”
Establishes Evaluation / Driver Discipline Baselines 30<br>
31
Legislation Enacted 3/18/2019 P.L. 2019, c.40 Upgrades penalty for failing to report act of sexual abuse against child
P.L. 2019, c.43 Requires display of identifying information on rear of bus so public may report bus driver misconduct.
P.L.2019, c.45 Mandates certain training for DOE arbitrators; conduct unbecoming, allegations of sexual assault and child abuse
P.L. 2019, c.46 Requires school districts to notify State Board of Examiners when teaching staff member fails to report child abuse for determination of revocation or suspension of certificate
P.L. 2019, c.47 Requires Attorney General to develop protocol for retaining footage from school surveillance system
P.L. 2019, c.51 Revises law concerning Class III Special Law Enforcement Officer 31<br>
P.L. 2019, c.43 Requires display of identifying information on rear of bus so public may report bus driver misconduct.
P.L.2019, c.45 Mandates certain training for DOE arbitrators; conduct unbecoming, allegations of sexual assault and child abuse
P.L. 2019, c.46 Requires school districts to notify State Board of Examiners when teaching staff member fails to report child abuse for determination of revocation or suspension of certificate
P.L. 2019, c.47 Requires Attorney General to develop protocol for retaining footage from school surveillance system
P.L. 2019, c.51 Revises law concerning Class III Special Law Enforcement Officer 31<br>
32
Uniform State Memorandum of Agreement Between Law Enforcement and the Schools 2019 Revisions – January 8, 2019 32<br>
33
Case Law Update<br>
34
United States Supreme Court Janus v. AFSCME Council 31
Argued February 26, 2018
Decided June 28, 2018
Holding - Agency Shop fees are unconstitutional and a violation of first amendment right to free speech
Abood v. Detroit BOE (1977) upheld agency shop fees.
Friedrichs v. California Teachers Ass’n. (2016) 4-4 vote, upheld 9th Circuit decision in favor of CTA.<br>
Argued February 26, 2018
Decided June 28, 2018
Holding - Agency Shop fees are unconstitutional and a violation of first amendment right to free speech
Abood v. Detroit BOE (1977) upheld agency shop fees.
Friedrichs v. California Teachers Ass’n. (2016) 4-4 vote, upheld 9th Circuit decision in favor of CTA.<br>
35
United States Supreme Court Janus v. AFSCME Council 31
Unit employees cannot be compelled to join or pay fees to the union.
Non-union unit employees still covered by terms and conditions of CBA, represented in contractual grievances.
Consent of deduction of union dues must be “clearly and affirmatively” given; opt-in not opt-out<br>
Unit employees cannot be compelled to join or pay fees to the union.
Non-union unit employees still covered by terms and conditions of CBA, represented in contractual grievances.
Consent of deduction of union dues must be “clearly and affirmatively” given; opt-in not opt-out<br>
36
United States Supreme Court Janus v. AFSCME Council 31
New Jersey
P.L. 1979, c. 477 – Agency Shop – May negotiate a representation fee in lieu of dues; may not exceed 85%. N.J.S.A. 34:13A-5.5
P.L. 2002 c. 46 - If not agreed to in contract, union may petition PERC to order agency shop. N.J.S.A. 34:13A-5.5, 5.6<br>
New Jersey
P.L. 1979, c. 477 – Agency Shop – May negotiate a representation fee in lieu of dues; may not exceed 85%. N.J.S.A. 34:13A-5.5
P.L. 2002 c. 46 - If not agreed to in contract, union may petition PERC to order agency shop. N.J.S.A. 34:13A-5.5, 5.6<br>
37
Janus-Related Legislation P.L. 2018, c.15 – Workplace Democracy Enhancement Act
Signed May 18, 2018 by Governor Murphy
School districts and other public employers must provide union representatives access to members of their negotiation units<br>
Signed May 18, 2018 by Governor Murphy
School districts and other public employers must provide union representatives access to members of their negotiation units<br>
38
Workplace Democracy Enhancement Act Exclusive representative unions have the right to:
Meet with individual employees on premises during the work day to investigate and discuss grievances, workplace-related complaints, and other workplace issues;
Conduct meetings on premises during breaks and before/after the workday to discuss workplace issues, collective negotiations, administration of agreements, other matters related to union duties, and internal union matters; and
Meet with new employees without charge to the pay or leave time of the employee, within 30 days of hire; 30 – 120 minutes.<br>
Meet with individual employees on premises during the work day to investigate and discuss grievances, workplace-related complaints, and other workplace issues;
Conduct meetings on premises during breaks and before/after the workday to discuss workplace issues, collective negotiations, administration of agreements, other matters related to union duties, and internal union matters; and
Meet with new employees without charge to the pay or leave time of the employee, within 30 days of hire; 30 – 120 minutes.<br>
39
Workplace Democracy Enhancement Act Exclusive representative unions have the right to:
Receive from the employer, employees’ home and work contact information within 10 days of hire; updated every 120 days; not deemed government records. January 1
Use school district email systems to communicate with members regarding collective negotiations matters, grievances and internal union matters.
Use school district buildings and facilities to conduct meetings with unit members; no partisan election matters.<br>
Receive from the employer, employees’ home and work contact information within 10 days of hire; updated every 120 days; not deemed government records. January 1
Use school district email systems to communicate with members regarding collective negotiations matters, grievances and internal union matters.
Use school district buildings and facilities to conduct meetings with unit members; no partisan election matters.<br>
40
Workplace Democracy Enhancement Act School districts are prohibited from encouraging employees to resign or relinquish membership in a union or to revoke authorization to deduct union fees; unfair labor practice.
WDEA classifies all employees, including part-time employees, who perform negotiations unit work, as part of the negotiations unit unless they are confidential employees or managerial employees
Employees who no longer wish to be in the union may revoke their authorization of payroll deduction of union fees by written notice during the 10 days following the employee’s anniversary date of employment.<br>
WDEA classifies all employees, including part-time employees, who perform negotiations unit work, as part of the negotiations unit unless they are confidential employees or managerial employees
Employees who no longer wish to be in the union may revoke their authorization of payroll deduction of union fees by written notice during the 10 days following the employee’s anniversary date of employment.<br>
41
Janus/WDEA – The Aftermath Janus and the WDEA – the decision, the legislation; thoughts of the group
Dept. of Labor Joint Guidance https://nj.gov/labor/lwdhome/press/2018/20180822janus.html
Opt out, Opt in – Seven months in – what have we seen
Early litigation – The PERC Decisions Reregistering of union members
Delanco, Chatsworth - PERC TROs, Interim Relief<br>
Dept. of Labor Joint Guidance https://nj.gov/labor/lwdhome/press/2018/20180822janus.html
Opt out, Opt in – Seven months in – what have we seen
Early litigation – The PERC Decisions Reregistering of union members
Delanco, Chatsworth - PERC TROs, Interim Relief<br>
42
Janus/WDEA – The Aftermath Board of Education /Union Relationships
Affirmative Action Complaints – Member v Non-Member
Grievances and litigation
Collective Negotiations
Union membership Issues
Opt Out, Opt In
Rejoining the union
Representation issues, fees for services other than negotiations and grievances<br>
Affirmative Action Complaints – Member v Non-Member
Grievances and litigation
Collective Negotiations
Union membership Issues
Opt Out, Opt In
Rejoining the union
Representation issues, fees for services other than negotiations and grievances<br>
43
Janus/WDEA – The Aftermath Access to school email systems – limited open public forum
Current litigation re: WDEA
Smith v. NJEA et. al. (Clearview Regional)
NJEA letter re: escrow of dues payments
Fischer and Speck v. Murphy, NJEA, Ocean Twp. Ed. Assn.
Thulen v. AFSCME.
Recently Negotiated Settlements
Long term effects for unions and boards of education; Where will we be five years from now?<br>
Current litigation re: WDEA
Smith v. NJEA et. al. (Clearview Regional)
NJEA letter re: escrow of dues payments
Fischer and Speck v. Murphy, NJEA, Ocean Twp. Ed. Assn.
Thulen v. AFSCME.
Recently Negotiated Settlements
Long term effects for unions and boards of education; Where will we be five years from now?<br>
44
United States Supreme Court South Dakota v Wayfair, Inc.
Supreme Court overturned Quill v. North Dakota (1992) – States may compel the collection of internet or mail order sales tax by retailers even if they do not have a physical presence in the state.
GAO estimates loss of $23 billion annually
Argued 4/17/18, Decided June 21, 2018<br>
Supreme Court overturned Quill v. North Dakota (1992) – States may compel the collection of internet or mail order sales tax by retailers even if they do not have a physical presence in the state.
GAO estimates loss of $23 billion annually
Argued 4/17/18, Decided June 21, 2018<br>
45
United States Supreme Court South Dakota v Wayfair, Inc.
New Jersey
New Jersey’s Amazon Law – 2014
Out-of-state seller’s gross receipts from sales to New Jersey customers exceeds $10,000 during the preceding four calendar quarters; sales tax collected
New Jersey estimated loss of $350 million in sales tax annually.
Gov. Murphy signs new law P.L. 2018, c. 132 10/4/18<br>
New Jersey
New Jersey’s Amazon Law – 2014
Out-of-state seller’s gross receipts from sales to New Jersey customers exceeds $10,000 during the preceding four calendar quarters; sales tax collected
New Jersey estimated loss of $350 million in sales tax annually.
Gov. Murphy signs new law P.L. 2018, c. 132 10/4/18<br>
46
New Jersey Standards and Assessment In Re N.J.A.C. 6A:8 Standards and Assessment, App. Div. 12/31/18
Holding – N.J.A.C. 6A:8-5.1(a)(6), -5.1(f) and -5.1(g) are contrary to the express provisions of the Proficiency Standards and Assessment Act because they require administration of more than one graduate proficiency test to students other than those in the eleventh grade, and because the regulations on their face do not permit retesting with the same standardized test to students through the 2020 graduating class. As a result, the regulations as enacted are stricken.
ELA10, Algebra I, end of course assessments; more than just 11th grade assessment<br>
Holding – N.J.A.C. 6A:8-5.1(a)(6), -5.1(f) and -5.1(g) are contrary to the express provisions of the Proficiency Standards and Assessment Act because they require administration of more than one graduate proficiency test to students other than those in the eleventh grade, and because the regulations on their face do not permit retesting with the same standardized test to students through the 2020 graduating class. As a result, the regulations as enacted are stricken.
ELA10, Algebra I, end of course assessments; more than just 11th grade assessment<br>
47
Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell
448 N.J. Super. 520 (App. Div. Feb. 8, 2017)
Holding – Board is required to send out Rice notice any time any matter is on the agenda involving the employment, appointment, termination, evaluation, promotion, or disciplining of an employee.
Court further held that, absent extraordinary circumstances, minutes need to be made available w/in 45 days.
Result - Vote to not reappoint is null and void. Required 45 day time limit for minutes release, absent extraordinary circumstances.<br>
448 N.J. Super. 520 (App. Div. Feb. 8, 2017)
Holding – Board is required to send out Rice notice any time any matter is on the agenda involving the employment, appointment, termination, evaluation, promotion, or disciplining of an employee.
Court further held that, absent extraordinary circumstances, minutes need to be made available w/in 45 days.
Result - Vote to not reappoint is null and void. Required 45 day time limit for minutes release, absent extraordinary circumstances.<br>
48
Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell
New Jersey Supreme Court, Dkt. No. A-84-16
Decided June 21, 2018
Holding – Appellate Division reversed – Rice notices need not be given to all potentially affected employees whenever a personnel matter appears on the public meeting agenda.
Procedural notice required in Rice should not be extended beyond its factual setting; would add to the OPMA requirements not imposed by the Legislature.
Minutes should be approved regularly and released in a timely manner.<br>
New Jersey Supreme Court, Dkt. No. A-84-16
Decided June 21, 2018
Holding – Appellate Division reversed – Rice notices need not be given to all potentially affected employees whenever a personnel matter appears on the public meeting agenda.
Procedural notice required in Rice should not be extended beyond its factual setting; would add to the OPMA requirements not imposed by the Legislature.
Minutes should be approved regularly and released in a timely manner.<br>
49
Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Persi v. Woska - App. Div. 3/10/17
Appellate Division determined that board member lacked the authority to unilaterally issue a RICE notice to the CSA.
Only board president and a majority of the board may call a meeting or RICE the CSA
See N.J.A.C. 6A:32-3.1<br>
Appellate Division determined that board member lacked the authority to unilaterally issue a RICE notice to the CSA.
Only board president and a majority of the board may call a meeting or RICE the CSA
See N.J.A.C. 6A:32-3.1<br>
50
Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Cheng v. Rodas - 1/10/17
Commissioner determined that board president lacked the authority to unilaterally issue a RICE notice to the school business administrator.
Reliance on erroneous legal opinion did not protect the board member from sanction.<br>
Commissioner determined that board president lacked the authority to unilaterally issue a RICE notice to the school business administrator.
Reliance on erroneous legal opinion did not protect the board member from sanction.<br>
51
Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Lewis-Gallagher v BOE of Twp. of Monroe
7/12/18
Board properly filled board member vacancy.
Failure to advertise in two newspapers for special meeting did not invalidate the appointment as no action was taken at the meeting; question on level of vote.
8-0 appointment vote occurred at next properly advertised regular meeting.<br>
7/12/18
Board properly filled board member vacancy.
Failure to advertise in two newspapers for special meeting did not invalidate the appointment as no action was taken at the meeting; question on level of vote.
8-0 appointment vote occurred at next properly advertised regular meeting.<br>
52
Open Public Records Act (OPRA) N.J.S.A. 47:1A-1 et. seq. L.R. v Camden City et. al.
Innisfree requests (4) for special education settlement agreements and records of services to other special education students
App. Div. remands to Law Division 10/16/17 – plaintiffs entitled to appropriately-redacted copies if they can establish status of “bona fide researchers” (N.J.A.C. 6A:32-7.5(e)(16) or obtain a court order authorizing access (N.J.A.C. 6A:32-7.5(e)(15)
N.J. Supreme Court grants certification 4/17/18<br>
Innisfree requests (4) for special education settlement agreements and records of services to other special education students
App. Div. remands to Law Division 10/16/17 – plaintiffs entitled to appropriately-redacted copies if they can establish status of “bona fide researchers” (N.J.A.C. 6A:32-7.5(e)(16) or obtain a court order authorizing access (N.J.A.C. 6A:32-7.5(e)(15)
N.J. Supreme Court grants certification 4/17/18<br>
53
Open Public Records Act (OPRA) N.J.S.A. 47:1A-1 et. seq. Scheeler v. Atlantic County Municipal Joint Insurance Fund – App. Div. 5/16/18
Appellate Division reverses Law Division determination that out of state residents are not precluded from making public records requests under the OPRA; affirms other Law Division decisions that allowed access from out of state residents.
“Citizen” “Person” “Requestor” “Individual”<br>
Appellate Division reverses Law Division determination that out of state residents are not precluded from making public records requests under the OPRA; affirms other Law Division decisions that allowed access from out of state residents.
“Citizen” “Person” “Requestor” “Individual”<br>
54
Board of Education Membership Fischer v Attorney General of the State of NJ NJDOE and Haledon BOE
App. Div. 5/30/18
App. Div. reverses Law Division holding permitting simultaneous elected service on Haledon and Manchester Reg boards of education.
Dual office holding statute, N.J.S.A. 19:3-5.2, (2008) applies to elected board of education members; may not serve on two elected boards.
Exceptions – sending receiving reps, volunteer board members of fire districts<br>
App. Div. 5/30/18
App. Div. reverses Law Division holding permitting simultaneous elected service on Haledon and Manchester Reg boards of education.
Dual office holding statute, N.J.S.A. 19:3-5.2, (2008) applies to elected board of education members; may not serve on two elected boards.
Exceptions – sending receiving reps, volunteer board members of fire districts<br>
55
Barila, Ludwig, Kantor and Enrico v Cliffside Park BOE App. Div. 7/10/18, Supreme Court cert. granted 1/11/19
App. Div. affirms trial court decision that compensation for accumulated but unpaid sick leave is “earned” during the service performed by teachers during the term of any particular CBA.
Once vested, the right to compensation is a form of deferred compensation that cannot, absent a knowing waiver be retroactively negotiated away in a successor agreement.
2015 agreement reduced the 2012 maximum from $25,000 to $15,000, decreased the maximum number of days. Board and Assn impermissibly applied the 2015 agreement retroactively to divest plaintiffs right to earned compensation Labor Relations<br>
App. Div. affirms trial court decision that compensation for accumulated but unpaid sick leave is “earned” during the service performed by teachers during the term of any particular CBA.
Once vested, the right to compensation is a form of deferred compensation that cannot, absent a knowing waiver be retroactively negotiated away in a successor agreement.
2015 agreement reduced the 2012 maximum from $25,000 to $15,000, decreased the maximum number of days. Board and Assn impermissibly applied the 2015 agreement retroactively to divest plaintiffs right to earned compensation Labor Relations<br>
56
Labor Relations Mattes v. Bd. Of Ed. of Twp. Of Washington, Commissioner 2/28/19
Commissioner determined that teacher who notified the school district of her retirement effective June 30, 2015, with a deferred retirement date of March 1, 2018, was entitled to $ 15,000 in sick leave reimbursement effective March 1, 2018.
School district unsuccessfully argued that teacher had resigned effective 6/30/15 and was not entitled to sick leave reimbursement.<br>
Commissioner determined that teacher who notified the school district of her retirement effective June 30, 2015, with a deferred retirement date of March 1, 2018, was entitled to $ 15,000 in sick leave reimbursement effective March 1, 2018.
School district unsuccessfully argued that teacher had resigned effective 6/30/15 and was not entitled to sick leave reimbursement.<br>
57
Tasoff v. Bd. Of Ed. of City of Pleasantville, Comm. 11/1/18
Commissioner determined that board’s action in approving employee’s application for 27 retroactive sick bank days from time period of unpaid medical leave but awarding future sick leave credit rather than compensation was improper.
Board alleged that sick bank leave did not allow for monetary compensation but only sick leave going forward for retroactively approved days. ALJ and Commissioner disagreed. Labor Relations<br>
Commissioner determined that board’s action in approving employee’s application for 27 retroactive sick bank days from time period of unpaid medical leave but awarding future sick leave credit rather than compensation was improper.
Board alleged that sick bank leave did not allow for monetary compensation but only sick leave going forward for retroactively approved days. ALJ and Commissioner disagreed. Labor Relations<br>
58
Belleville Ed. Assn. v Belleville BOE
App. Div. 7/16/18
App. Div. affirms PERC decision that Association had the right to negotiate over the impact of board policy requiring staff to wear radio frequency ID cards and the installation of exposed security cameras in the schools. Managerial prerogative to ensure safety of students and staff.
BOE committed an ULP when it filed tenure charges against the union president in retaliation for protected union activity; advocating against the board policy.
BEA did not have the authority to enforce PERC’s order in the Law Division. Only PERC has that authority; BEA may request PERC Labor Relations<br>
App. Div. 7/16/18
App. Div. affirms PERC decision that Association had the right to negotiate over the impact of board policy requiring staff to wear radio frequency ID cards and the installation of exposed security cameras in the schools. Managerial prerogative to ensure safety of students and staff.
BOE committed an ULP when it filed tenure charges against the union president in retaliation for protected union activity; advocating against the board policy.
BEA did not have the authority to enforce PERC’s order in the Law Division. Only PERC has that authority; BEA may request PERC Labor Relations<br>
59
Parsippany-Troy Hills Education Association v. Parsippany-Troy Hills BOE - App. Div. 7/23/18
App. Div. affirms Ch. Div. decision that BOE enforcement of employment policy regarding political activity in the schools while students were present did not violate PTHEA members first amendment rights or common law rights.
BOE directed removal of 200-300 signs on classroom windows and doors, bearing the PTHEA name and stating “I AM PROUD TO BE A TEACHER” because they were “intended and/or designed to promote,…a position on labor relations issues.”
Board policy stated “A teaching staff member shall not engage in any activity in the presence of pupils while on school property,… intended and/or designed to promote a position on labor relations issues.”
Cited to Green Township, Garcetti v Ceballos Labor Relations<br>
App. Div. affirms Ch. Div. decision that BOE enforcement of employment policy regarding political activity in the schools while students were present did not violate PTHEA members first amendment rights or common law rights.
BOE directed removal of 200-300 signs on classroom windows and doors, bearing the PTHEA name and stating “I AM PROUD TO BE A TEACHER” because they were “intended and/or designed to promote,…a position on labor relations issues.”
Board policy stated “A teaching staff member shall not engage in any activity in the presence of pupils while on school property,… intended and/or designed to promote a position on labor relations issues.”
Cited to Green Township, Garcetti v Ceballos Labor Relations<br>
60
West Orange BOE v West Orange Ed. Assn.
App. Div. 7/25/18
App Div affirms PERC decision that supplementary sick leave contract provision was preempted by N.J.S.A. 18A:30-6; stricken from successor CBA
Scope of Negotiations petition – expired K
Association “cannot achieve a contractual benefit … that allows for extra paid sick leave days to be earned and utilized by a blanket rule rather than per the board’s discretion within the constraints of N.J.S.A. 18A:30-6”
Supplementary days could be used after regular sick leave exhausted Labor Relations<br>
App. Div. 7/25/18
App Div affirms PERC decision that supplementary sick leave contract provision was preempted by N.J.S.A. 18A:30-6; stricken from successor CBA
Scope of Negotiations petition – expired K
Association “cannot achieve a contractual benefit … that allows for extra paid sick leave days to be earned and utilized by a blanket rule rather than per the board’s discretion within the constraints of N.J.S.A. 18A:30-6”
Supplementary days could be used after regular sick leave exhausted Labor Relations<br>
61
Labor Relations West Morris Reg. BOE v West Morris Ed. Assn. – App. Div. 8/28/18
App Div affirms PERC decision that start and end date of the school calendar was a non-negotiable managerial prerogative
Scope of Negotiations petition
“shall be employed from September 1 through June 30”
Distinguished Piscataway (App Div 1998) - make up of snow days<br>
App Div affirms PERC decision that start and end date of the school calendar was a non-negotiable managerial prerogative
Scope of Negotiations petition
“shall be employed from September 1 through June 30”
Distinguished Piscataway (App Div 1998) - make up of snow days<br>
62
HIB Investigations – Resource Materials N.J.S.A. 18A:37-14 – Definition of Harassment, Intimidation and Bullying (HIB)
N.J.S.A. 18A:37-15 – Board of Education Harassment Intimidation and Bullying (HIB) Policy
New Jersey HIB Case Law 2016 – 2018
LEGAL ONE Comparison Chart – Prior and Recently Revised Regulations.<br>
N.J.S.A. 18A:37-15 – Board of Education Harassment Intimidation and Bullying (HIB) Policy
New Jersey HIB Case Law 2016 – 2018
LEGAL ONE Comparison Chart – Prior and Recently Revised Regulations.<br>
63
LEGAL ONE Comparison Chart – Prior and Recently Revised Regulations - N.J.A.C. 6A:16 Initiation of HIB Investigation - Principal
Approved Private Schools for Students with Disabilities See P.L. 2017, c. 278 Immunity for reporting
Communication with Parents – Student Circumstances
Timeline for Parent/Guardian Request for Board Hearing
School Safety/Climate Team
Policy reference to power imbalance in bullying
Conflict of Interest – ABS, ABC
Bully consequences – consideration of student disability<br>
Approved Private Schools for Students with Disabilities See P.L. 2017, c. 278 Immunity for reporting
Communication with Parents – Student Circumstances
Timeline for Parent/Guardian Request for Board Hearing
School Safety/Climate Team
Policy reference to power imbalance in bullying
Conflict of Interest – ABS, ABC
Bully consequences – consideration of student disability<br>
64
Sadloch, Manzo, Gogertz, Weber and Sinisi v. Board of Education of the Township of Cedar Grove – 6/23/15 (1)
Due process rights for parents and guardians apply to staff – written information, hearing before the board of education, written decision. References to HIB expunged from two volunteer football coaches’ files. New Jersey Anti-Bullying Case Law 2016 - 2018<br>
Due process rights for parents and guardians apply to staff – written information, hearing before the board of education, written decision. References to HIB expunged from two volunteer football coaches’ files. New Jersey Anti-Bullying Case Law 2016 - 2018<br>
65
Matters remanded to board where board made procedural errors. Case dismissal and removal of HIB references no longer acceptable remedy.
(4) Gibble v. Hunterdon Central Reg. Bd. Of Ed. – keys to gun closet, special education student at wrestling summer camp; remand
See S.G. v Bd of Ed of Hunterdon Central App Div. 3/1/18 – affd. meaningful board hearing similar to that given to students in disciplinary proceedings,
Certification denied 6/1/18,
Board hearing (2 days) reverses – no HIB 11/17/18 New Jersey Anti-Bullying Case Law 2016 - 2018<br>
(4) Gibble v. Hunterdon Central Reg. Bd. Of Ed. – keys to gun closet, special education student at wrestling summer camp; remand
See S.G. v Bd of Ed of Hunterdon Central App Div. 3/1/18 – affd. meaningful board hearing similar to that given to students in disciplinary proceedings,
Certification denied 6/1/18,
Board hearing (2 days) reverses – no HIB 11/17/18 New Jersey Anti-Bullying Case Law 2016 - 2018<br>
66
Matters remanded to board where board made procedural errors. Case dismissal and removal of HIB references no longer acceptable remedy.
(9) J.L. o/b/o A.L. v. Bridgewater-Raritan Bd. of Ed. 12/9/16 - written decision, info to parents, 10 days;
App. Div. 10/16/18 - info to parents for hearing, “the full record of the HIB allegations … including the underlying investigative report, [and] any additional written reports or summaries, and the letter from [the victim’s] parents to the superintendent.”
Certification denied Sup. Ct. 3/8/19 New Jersey Anti-Bullying Case Law 2016 - 2018<br>
(9) J.L. o/b/o A.L. v. Bridgewater-Raritan Bd. of Ed. 12/9/16 - written decision, info to parents, 10 days;
App. Div. 10/16/18 - info to parents for hearing, “the full record of the HIB allegations … including the underlying investigative report, [and] any additional written reports or summaries, and the letter from [the victim’s] parents to the superintendent.”
Certification denied Sup. Ct. 3/8/19 New Jersey Anti-Bullying Case Law 2016 - 2018<br>
67
Matters remanded to board where board made procedural errors. Case dismissal and removal of HIB references no longer acceptable remedy.
(15) C.K. and M.K. o/b/o M.K v. Voorhees BOE (CCOE) 3/23/17 – Wrongly applied principal’s discretion as per New Jersey Department of Education Guidelines – Not part of board policy. See 2018 Amendments to HIB Code
(26) J.B. o/b/o M.B. v. Bd. of Ed. of the Borough of Haddonfield 6/4/18 – hearing, info to parents, written decision; 90 day rule New Jersey Anti-Bullying Case Law 2016 - 2018<br>
(15) C.K. and M.K. o/b/o M.K v. Voorhees BOE (CCOE) 3/23/17 – Wrongly applied principal’s discretion as per New Jersey Department of Education Guidelines – Not part of board policy. See 2018 Amendments to HIB Code
(26) J.B. o/b/o M.B. v. Bd. of Ed. of the Borough of Haddonfield 6/4/18 – hearing, info to parents, written decision; 90 day rule New Jersey Anti-Bullying Case Law 2016 - 2018<br>
68
New Jersey Anti-Bullying Case Law 2016 - 2018 Matters remanded to OAL where ALJ made procedural errors. Case dismissal and removal of HIB references no longer acceptable remedy.
(11) R.S. o/b/o G.M. v. State Operated School District of the City of Paterson 1/13/17 – students graduated, not moot
(19) Columbia High School Baseball Boosters v. Board of Education of the South Orange-Maplewood School District 11/13/17 – booster club not a person; volunteer
(27) H.C. o/b/o B.Y. v. Bd. of Ed. of the Borough of Metuchen 6/22/18 – board attorney letter, factual issues
(28) R.N. v. Board of Education of the South Orange-Maplewood School District 6/22/18 - standing<br>
(11) R.S. o/b/o G.M. v. State Operated School District of the City of Paterson 1/13/17 – students graduated, not moot
(19) Columbia High School Baseball Boosters v. Board of Education of the South Orange-Maplewood School District 11/13/17 – booster club not a person; volunteer
(27) H.C. o/b/o B.Y. v. Bd. of Ed. of the Borough of Metuchen 6/22/18 – board attorney letter, factual issues
(28) R.N. v. Board of Education of the South Orange-Maplewood School District 6/22/18 - standing<br>
69
New Jersey Anti-Bullying Case Law 2016 - 2018 Coaches accused of Bullying/Retaliation
(10) M.R. o/b/o M.R. v. Bd. Of Ed. Of the Ramapo-Indian Hills Regional School District 12/21/16 – cheerleading coach
(21) Joseph Ehrhard and Robert Ehrhard v. Bd. of Ed. of the Hunterdon Central Regional School District – 12/21/2017 – baseball coaches – “aggressive conduct without identifiable motivation;” student, white healthy male, meek or weak
(24) L.P. and H.P. o/b/o L.P. v. Bd. of Ed. of the West Morris Regional High School District – 3/29/2018; See App Div 8/15/18 – A/B strip, retaliation
(28) R.N. v. Board of Education of the South Orange-Maplewood School District 6/22/18 - Retaliation<br>
(10) M.R. o/b/o M.R. v. Bd. Of Ed. Of the Ramapo-Indian Hills Regional School District 12/21/16 – cheerleading coach
(21) Joseph Ehrhard and Robert Ehrhard v. Bd. of Ed. of the Hunterdon Central Regional School District – 12/21/2017 – baseball coaches – “aggressive conduct without identifiable motivation;” student, white healthy male, meek or weak
(24) L.P. and H.P. o/b/o L.P. v. Bd. of Ed. of the West Morris Regional High School District – 3/29/2018; See App Div 8/15/18 – A/B strip, retaliation
(28) R.N. v. Board of Education of the South Orange-Maplewood School District 6/22/18 - Retaliation<br>
70
New Jersey Anti-Bullying Case Law 2016 - 2018 Teachers accused of Bullying/Retaliation
(15) Chiodi, Borrelli and Bittner v. Eitner - 3/30/17 - CSA not victim
(17) Valerie Kenny v. Bd. Of Ed. of the Borough of Moonachie - 9/27/17 – grievance procedure, 90 day
(20) T.T. o/b/o G.C. v. Bd. of Ed. of the Toms River Reg. School District – 11/17/2017 – mother who advocates
(22) C.P. o/b/o L.P. v. Bd. Of Ed. of the Township of Warren – 2/16/2018 - IEP
(25) S.A. and C.A. o/b/o G.A. v. Bd. Of Ed. of the Township of Moorestown – 4/23/2018 IEP<br>
(15) Chiodi, Borrelli and Bittner v. Eitner - 3/30/17 - CSA not victim
(17) Valerie Kenny v. Bd. Of Ed. of the Borough of Moonachie - 9/27/17 – grievance procedure, 90 day
(20) T.T. o/b/o G.C. v. Bd. of Ed. of the Toms River Reg. School District – 11/17/2017 – mother who advocates
(22) C.P. o/b/o L.P. v. Bd. Of Ed. of the Township of Warren – 2/16/2018 - IEP
(25) S.A. and C.A. o/b/o G.A. v. Bd. Of Ed. of the Township of Moorestown – 4/23/2018 IEP<br>
71
New Jersey Anti-Bullying Case Law 2016 - 2018 N.M. o/b/o H.M. v. Bd. Of Ed. of School District of the Chathams – Comm. 11/29/18
Commissioner determined that BOE finding of no HIB in 3 of 4 incidents was not arbitrary, capricious or unreasonable. HIB was substantiated in 5th incident.
Incident in which student made derogatory comments about student’s deceased father in video chat and told student “You’re f…ing stupid” met the definition of HIB.
Student’s known status as a special education student was a distinguishing characteristic; insulted, demeaned, caused anxiety, depression that resulted in home instruction.<br>
Commissioner determined that BOE finding of no HIB in 3 of 4 incidents was not arbitrary, capricious or unreasonable. HIB was substantiated in 5th incident.
Incident in which student made derogatory comments about student’s deceased father in video chat and told student “You’re f…ing stupid” met the definition of HIB.
Student’s known status as a special education student was a distinguishing characteristic; insulted, demeaned, caused anxiety, depression that resulted in home instruction.<br>
72
New Jersey Anti-Bullying Case Law 2016 - 2018 W.D. and J.D o/b/o G.D. v. Bd. Of Ed. of Twp. of Jefferson – Comm. 11/26/18
Commissioner determined that BOE finding of no HIB was not arbitrary, capricious or unreasonable. Board determined that students were mutually engaged in conflict.
Online exchange among a group of fifth grade female friends; extraordinarily offensive and vile language towards each other; egregious words, sexual references, use of the “N word”. Girls, including victim, viewed it as “pranking”.
No showing of substantial disruption or interference with student’s rights or academic program<br>
Commissioner determined that BOE finding of no HIB was not arbitrary, capricious or unreasonable. Board determined that students were mutually engaged in conflict.
Online exchange among a group of fifth grade female friends; extraordinarily offensive and vile language towards each other; egregious words, sexual references, use of the “N word”. Girls, including victim, viewed it as “pranking”.
No showing of substantial disruption or interference with student’s rights or academic program<br>
73
Board of Education Business Functions Under the Sun Learning Center of Marlton v. Bd. Of Ed. of Twp. Of Evesham – Comm. 11/26/18
Board operated a for-profit day care center, “Teddy Bear Academy”, serving resident and non-resident children, 6 weeks to pre-K, in space in Marlton Middle School.
Board violated N.J.S.A. 18A:19-2 and N.J.S.A. 18A:11-1 when it received, expended and reported monies from the operation of TBA; an unauthorized activity under N.J.S.A. 18A:20-34, which excludes an enterprise like TBA
Board must cease operations in 30 days.<br>
Board operated a for-profit day care center, “Teddy Bear Academy”, serving resident and non-resident children, 6 weeks to pre-K, in space in Marlton Middle School.
Board violated N.J.S.A. 18A:19-2 and N.J.S.A. 18A:11-1 when it received, expended and reported monies from the operation of TBA; an unauthorized activity under N.J.S.A. 18A:20-34, which excludes an enterprise like TBA
Board must cease operations in 30 days.<br>
74
Board of Education Business Functions Bartloff, et. als. v, Jackson Twp. Bd. Of Ed., App. Div. 10/25/18
App. Div. affirms trial court decision on remand.
Construction of new high school (2005) created a situation, storm water runoff directed at plaintiffs’ properties, causing repeated flooding, standing water on the property, substantial erosion and inundated vegetation on plaintiffs’ properties; committed a temporary taking that rose to the level of an inverse condemnation.<br>
App. Div. affirms trial court decision on remand.
Construction of new high school (2005) created a situation, storm water runoff directed at plaintiffs’ properties, causing repeated flooding, standing water on the property, substantial erosion and inundated vegetation on plaintiffs’ properties; committed a temporary taking that rose to the level of an inverse condemnation.<br>
75
Tenure Acquisition - Promotional Tenure Chatman v State Operated School District of Newark – App. Div. 7/10/18
Appellate Division affirms Commissioner determination that principal did not obtain promotional tenure; received annual ratings of “partially effective” and “ineffective” in two school years following 8/22/12 appointment; returned to VP
TEACH NJ requires demonstrated effectiveness in the promotion position as well as service credit; “effective” or “highly effective” in two annual summative evaluations in first three years of employment in new position
Argued prior time as acting principal should count; evaluations still fell below required ratings.
See also, Lisa McDonald v. State Operated School District of Newark, Commissioner 8/31/18; no effective or highly effective<br>
Appellate Division affirms Commissioner determination that principal did not obtain promotional tenure; received annual ratings of “partially effective” and “ineffective” in two school years following 8/22/12 appointment; returned to VP
TEACH NJ requires demonstrated effectiveness in the promotion position as well as service credit; “effective” or “highly effective” in two annual summative evaluations in first three years of employment in new position
Argued prior time as acting principal should count; evaluations still fell below required ratings.
See also, Lisa McDonald v. State Operated School District of Newark, Commissioner 8/31/18; no effective or highly effective<br>
76
Tenure Acquisition- Bedside Instructor Mirda v Union Cty Ed. Svcs. Commission
11/9/18
Commissioner determines that services provided as bedside instructor did not count towards tenure acquisition. (10/1999 – 11/2013) Bedside instructor deemed “substitute” or “temporary employee” exception to the Tenure Act. N.J.S.A. 18A:16-1.1 Acted in place of the regular classroom teacher
Teacher attained tenure with the ESC (11/2017) combined employment as Title 1 and Auxiliary Services Teacher (11/2013 – 11/2017); looking for back pay, full time position and other emoluments.<br>
11/9/18
Commissioner determines that services provided as bedside instructor did not count towards tenure acquisition. (10/1999 – 11/2013) Bedside instructor deemed “substitute” or “temporary employee” exception to the Tenure Act. N.J.S.A. 18A:16-1.1 Acted in place of the regular classroom teacher
Teacher attained tenure with the ESC (11/2017) combined employment as Title 1 and Auxiliary Services Teacher (11/2013 – 11/2017); looking for back pay, full time position and other emoluments.<br>
77
Tenure Rights Melnyk v. Bd. Of Ed. of the Delsea Reg. H.S. District – 10/12/17, affirmed App. Div. 12/17/18
Appellate Division affirmed Commissioner determined that tenured special education teacher had no tenure entitlement to part-time special education position in evening alternative education program held after school hours. 2002-2015, not rehired in 2015-2016
Alternative education program was “extracurricular” in nature and not part of regular duties.
Teacher received hourly rate stipend for alternative education position; separate agreement; compensation not part of regular salary
If alternative program teaching were only position, tenure eligible<br>
Appellate Division affirmed Commissioner determined that tenured special education teacher had no tenure entitlement to part-time special education position in evening alternative education program held after school hours. 2002-2015, not rehired in 2015-2016
Alternative education program was “extracurricular” in nature and not part of regular duties.
Teacher received hourly rate stipend for alternative education position; separate agreement; compensation not part of regular salary
If alternative program teaching were only position, tenure eligible<br>
78
Tenure Rights Basile v BOE of Borough of Fairview 7/26/18
Commissioner determined that board of education improperly transferred tenured educational services employee (speech therapist) to position of 2nd grade teacher in violation of her educational services tenure rights.
Basile possessed instructional certificate with various endorsements but never served as a teacher and did not have tenure as a teacher.
Board retained non-tenured speech therapists<br>
Commissioner determined that board of education improperly transferred tenured educational services employee (speech therapist) to position of 2nd grade teacher in violation of her educational services tenure rights.
Basile possessed instructional certificate with various endorsements but never served as a teacher and did not have tenure as a teacher.
Board retained non-tenured speech therapists<br>
79
Tenure Rights Hackett v BOE of City of Orange 7/26/18
Commissioner determined that RIF’d tenured supervisor of science (K-7) was not improperly assigned to teaching position at reduced salary.
Board created new upgraded positions of Supervisor of Science (K-12) and Supervisor of STEM –Focused Learning (K-12) which required secondary science teaching certification.
Supervisors needed to possess instructional endorsements for all grade levels which they would supervise. RIF’d supervisor possessed Teacher of Science (K-5) and Middle School Teacher of Science endorsement. Deemed not qualified for the position
Wrongly decided???<br>
Commissioner determined that RIF’d tenured supervisor of science (K-7) was not improperly assigned to teaching position at reduced salary.
Board created new upgraded positions of Supervisor of Science (K-12) and Supervisor of STEM –Focused Learning (K-12) which required secondary science teaching certification.
Supervisors needed to possess instructional endorsements for all grade levels which they would supervise. RIF’d supervisor possessed Teacher of Science (K-5) and Middle School Teacher of Science endorsement. Deemed not qualified for the position
Wrongly decided???<br>
80
Tenure Rights Concato v BOE of River Dell Reg. HS School District App. Div. 8/14/18
Appellate Division affirmed Commissioner decision that RIF’d teacher of industrial arts did not have entitlement to position requiring Technology Education endorsement.
RIF’d teacher eligible to apply for Technology Education endorsement due to “grandfather” provision for holders of Industrial Arts endorsements.
Teacher did not apply for nor possessed Technology Endorsement at time of RIF.
Claimed entitlement to over 22 different positions.
Commissioner 12/18/18 – 90 day rule; appropriate notice<br>
Appellate Division affirmed Commissioner decision that RIF’d teacher of industrial arts did not have entitlement to position requiring Technology Education endorsement.
RIF’d teacher eligible to apply for Technology Education endorsement due to “grandfather” provision for holders of Industrial Arts endorsements.
Teacher did not apply for nor possessed Technology Endorsement at time of RIF.
Claimed entitlement to over 22 different positions.
Commissioner 12/18/18 – 90 day rule; appropriate notice<br>
81
Tenure Rights Russo v. Warren Hills Regional School District 9/6/18
RIF’d tenured music teacher (full-time to part-time) deemed not entitled to full-time music teaching position or several middle school teaching positions held by non-tenured teachers or teachers with less seniority.
Teacher possessed K-12 music certification and an elementary teaching endorsement. Lacked seniority to “bump” remaining full time Teacher of Music from teacher’s position.
Not qualified to perform the duties of middle school teacher of Math, English Language Arts, Physical Education /Health; did not possess enhanced certification requirements for middle school teachers.<br>
RIF’d tenured music teacher (full-time to part-time) deemed not entitled to full-time music teaching position or several middle school teaching positions held by non-tenured teachers or teachers with less seniority.
Teacher possessed K-12 music certification and an elementary teaching endorsement. Lacked seniority to “bump” remaining full time Teacher of Music from teacher’s position.
Not qualified to perform the duties of middle school teacher of Math, English Language Arts, Physical Education /Health; did not possess enhanced certification requirements for middle school teachers.<br>
82
Tenure Rights Scott v. Bd. of Ed. of the City of Englewood 11/2/18
Commissioner determined that RIF’d tenured educational services employee (school social worker) was not entitled to be recalled when another school social worker resigned. No violation of tenure or seniority rights.
Board chose to not replace its resigning school social worker, reducing its staff by attrition, from 7 social workers to 6, consistent with N.J.S.A. 18A:28-9. No formal action of the board was required. Board was within its managerial rights not to fill the “vacancy.”<br>
Commissioner determined that RIF’d tenured educational services employee (school social worker) was not entitled to be recalled when another school social worker resigned. No violation of tenure or seniority rights.
Board chose to not replace its resigning school social worker, reducing its staff by attrition, from 7 social workers to 6, consistent with N.J.S.A. 18A:28-9. No formal action of the board was required. Board was within its managerial rights not to fill the “vacancy.”<br>
83
Tenure Rights Deitch v. Camden County Ed. Svcs. Comm. 11/8/18
RIF’d tenured Berlin Borough Bd. Of Ed. educational services employee (Educational Media Specialist certification) claimed that her tenure and seniority rights were violated when Camden Co. ESC did not consider her for positions which fell under her certification.
Berlin Borough Bd. Of Ed. had eliminated employee’s library media specialist position and attempted to enter into a shared services arrangement with the Camden Co. ESC.
Commissioner determined that employee was never employed by the Camden Co. ESC and, as such, had no tenure or seniority rights to any position in the ESC.<br>
RIF’d tenured Berlin Borough Bd. Of Ed. educational services employee (Educational Media Specialist certification) claimed that her tenure and seniority rights were violated when Camden Co. ESC did not consider her for positions which fell under her certification.
Berlin Borough Bd. Of Ed. had eliminated employee’s library media specialist position and attempted to enter into a shared services arrangement with the Camden Co. ESC.
Commissioner determined that employee was never employed by the Camden Co. ESC and, as such, had no tenure or seniority rights to any position in the ESC.<br>
84
Tenure Rights Snow v. Bd. Of Ed. of the Twp. of Brick
App. Div. 12/7/18
Appellate Division affirms Commissioner determination that board of education did not act in an arbitrary or capricious manner when it terminated a school occupational therapist whose state occupational therapist license expired.
Employee was absent from work due to illness, was advised of the lapse of license and opportunity to be heard at a scheduled board meeting. Did not attend.
N.J.S.A. 18A:28-14 – “…not the holder of an appropriate certificate issued by the SBE…may be terminated without charge or trial”<br>
App. Div. 12/7/18
Appellate Division affirms Commissioner determination that board of education did not act in an arbitrary or capricious manner when it terminated a school occupational therapist whose state occupational therapist license expired.
Employee was absent from work due to illness, was advised of the lapse of license and opportunity to be heard at a scheduled board meeting. Did not attend.
N.J.S.A. 18A:28-14 – “…not the holder of an appropriate certificate issued by the SBE…may be terminated without charge or trial”<br>
85
Tenure Rights Romeo v. Bd. of Ed. of the High Point Regional School District – Commissioner 1/29/19
RIFd tenured student assistance counselor (SAC) claimed entitlement to SAC and teacher of psychology positions.
Board RIFd for legitimate reasons of economy, distributed duties existing staff in a lawful manner.
No entitlement to teacher of psychology position; not tenured as a teacher; argument that she taught in an alternative program was not valid. Provided counseling under her SAC endorsement. Tenured in educational services.<br>
RIFd tenured student assistance counselor (SAC) claimed entitlement to SAC and teacher of psychology positions.
Board RIFd for legitimate reasons of economy, distributed duties existing staff in a lawful manner.
No entitlement to teacher of psychology position; not tenured as a teacher; argument that she taught in an alternative program was not valid. Provided counseling under her SAC endorsement. Tenured in educational services.<br>
86
Increment Withholding Wicks v. Bd. of Ed. of Borough of Farmingdale – Comm. 10/12/18
Board did not act in an arbitrary, capricious or unreasonable manner or violate N.J.S.A. 18A:29-14 when it withheld a teacher’s salary and adjustment increment for professional shortcomings in the 2012-2013 school year; parental complaint.
Board did not violate N.J.S.A. 18A:29-14 when it considered a reprimand for unprofessional classroom behavior in 2011-2012 as part of a “continuum of poor teaching techniques and deficient conduct as an instructor.”<br>
Board did not act in an arbitrary, capricious or unreasonable manner or violate N.J.S.A. 18A:29-14 when it withheld a teacher’s salary and adjustment increment for professional shortcomings in the 2012-2013 school year; parental complaint.
Board did not violate N.J.S.A. 18A:29-14 when it considered a reprimand for unprofessional classroom behavior in 2011-2012 as part of a “continuum of poor teaching techniques and deficient conduct as an instructor.”<br>
87
Increment Withholding Trenton Bd. Of Ed. v. Trenton Education Association, App. Div. 1/18/19
App. Div. reverses trial court determination that arbitrator’s award was in error. Matter reversed and remanded.
Arbitrator determined that teacher’s deficiencies in professional conduct did not rise to the level of an indefinite increment withholding; one year withholding would be appropriate. Law Division vacated the award.
Teaching practices, failure to attend meetings and submit required reports, inclusion of vulgar expletives in student progress reports, slamming door after leaving meeting with vice principal.<br>
App. Div. reverses trial court determination that arbitrator’s award was in error. Matter reversed and remanded.
Arbitrator determined that teacher’s deficiencies in professional conduct did not rise to the level of an indefinite increment withholding; one year withholding would be appropriate. Law Division vacated the award.
Teaching practices, failure to attend meetings and submit required reports, inclusion of vulgar expletives in student progress reports, slamming door after leaving meeting with vice principal.<br>
88
CSA Contract Renewal Richardson v Gangadin
Jersey City Education Association v BOE of Jersey City -App. Div. 6/25/18
Appellate Division affirms Commissioner decision dismissing complaints
Board of education failed to provide timely written notice of contract non-renewal to superintendent; contract renewed for a similar term (4 years) by operation of law
N.J.S.A. 18A:17-20.1 – 30 days for each year of contract
Contract language cannot override statute<br>
Jersey City Education Association v BOE of Jersey City -App. Div. 6/25/18
Appellate Division affirms Commissioner decision dismissing complaints
Board of education failed to provide timely written notice of contract non-renewal to superintendent; contract renewed for a similar term (4 years) by operation of law
N.J.S.A. 18A:17-20.1 – 30 days for each year of contract
Contract language cannot override statute<br>
89
CSA Contract Rescission - New Contract Wall Twp. Education Association, et. als. v. Wall Twp Bd. Of Ed., et. al. – Comm. 6/1/18,
Reversed App. Div. 3/14/19
Board of Education and CSA mutually rescinded employment contract and entered into a new contract.
Commissioner determined that process did not require a 30 days notice or public hearing under N.J.S.A. 18A:11-11 as contract was not renegotiated, amended, extended or otherwise altered. Rescission not mentioned.
Appellate Division reverses; rescission and replacement do not avoid the notice and hearing requirement of N.J.S.A. 18A:11-11<br>
Reversed App. Div. 3/14/19
Board of Education and CSA mutually rescinded employment contract and entered into a new contract.
Commissioner determined that process did not require a 30 days notice or public hearing under N.J.S.A. 18A:11-11 as contract was not renegotiated, amended, extended or otherwise altered. Rescission not mentioned.
Appellate Division reverses; rescission and replacement do not avoid the notice and hearing requirement of N.J.S.A. 18A:11-11<br>
90
Teacher Certificate Suspension In the Matter of the Suspension of the Teaching Certificate of Michael Maguire 8/29/18
Teacher’s certificate suspended for one year for failure to provide proper notice of resignation to school district as required by contract. N.J.S.A. 18A:26-10
Notice provided 2/21/18, resignation effective 3/11/18. Contract required 60 days notice. See also Kaynak, Comm. 11/21/18
Chae Hyuk Im v. School District of the Twp. Of Wayne
App. Div. 7/20/18
Tenured teacher’s certificate suspended for one year.
N.J.S.A. 18A:28-8 – tenured teaching staff members – 60 days notice, See also Grolli-Cole, Comm. 5/23/18<br>
Teacher’s certificate suspended for one year for failure to provide proper notice of resignation to school district as required by contract. N.J.S.A. 18A:26-10
Notice provided 2/21/18, resignation effective 3/11/18. Contract required 60 days notice. See also Kaynak, Comm. 11/21/18
Chae Hyuk Im v. School District of the Twp. Of Wayne
App. Div. 7/20/18
Tenured teacher’s certificate suspended for one year.
N.J.S.A. 18A:28-8 – tenured teaching staff members – 60 days notice, See also Grolli-Cole, Comm. 5/23/18<br>
91
Bus Driver Certificate Suspension Ahad v NJDOE, Office of Criminal History Review, State Operated School District of Paterson 7/26/18
Bus driver’s school bus endorsement suspended after sleeping student remained on the bus after student’s drop school off point. No visual inspection completed.
Six month suspension of endorsement for first offense. N.J.S.A. 18A:39-26 et. seq.
See also, Arcos v, NJDOE, Office of Criminal History Review, 9/20/18 – Sleeping student remained on bus after bus stop. No visual inspection. Proceeded to next bus stop. 6 month suspension<br>
Bus driver’s school bus endorsement suspended after sleeping student remained on the bus after student’s drop school off point. No visual inspection completed.
Six month suspension of endorsement for first offense. N.J.S.A. 18A:39-26 et. seq.
See also, Arcos v, NJDOE, Office of Criminal History Review, 9/20/18 – Sleeping student remained on bus after bus stop. No visual inspection. Proceeded to next bus stop. 6 month suspension<br>
92
Coaching Liability Jake Mesar v. Bound Brook Bd. of Ed. and John Suk App. Div. 5/2/18
Player, in JV baseball game, injured ankle sliding into third base; surgery required.
Suit alleged that defendants “negligently” and “carelessly” supervised JV baseball game.
Judge determined that “recklessness” was the appropriate standard and granted motion to dismiss; recklessness not pleaded. No analysis as to whether conduct met recklessness standard.
App. Div. reversed and remanded. Law Division Judge to analyze whether plaintiffs proferred sufficient evidence of recklessness.<br>
Player, in JV baseball game, injured ankle sliding into third base; surgery required.
Suit alleged that defendants “negligently” and “carelessly” supervised JV baseball game.
Judge determined that “recklessness” was the appropriate standard and granted motion to dismiss; recklessness not pleaded. No analysis as to whether conduct met recklessness standard.
App. Div. reversed and remanded. Law Division Judge to analyze whether plaintiffs proferred sufficient evidence of recklessness.<br>
93
Coaching Hiring Nana Manful v. Trenton Board of Education 9/12/18
Board of education hired basketball coach with county substitute credential over fully certified teacher of the handicapped.
No violation of N.J.A.C. 6A:9-5.18(b); current regulation did not require board to hire fully certified teacher over applicant with county substitute credential.<br>
Board of education hired basketball coach with county substitute credential over fully certified teacher of the handicapped.
No violation of N.J.A.C. 6A:9-5.18(b); current regulation did not require board to hire fully certified teacher over applicant with county substitute credential.<br>
94
Employee Physical Examinations Cummings v Little Egg Harbor Bd. of Ed.
10/19/18
Commissioner upholds board of education directive that elementary supervisor, employed district since 1992, submit to a mental and physical examination before being permitted to return to work. N.J.S.A. 18A:16-2(a). See also N.J.A.C. 6A:32-6.3
Supervisor fell asleep in three documented staff meetings and called DCPP to report a student matter without first obtaining correct information and without consulting or advising district administration.
Board’s directive that petitioner undergo a fitness for service evaluation before returning to work not arbitrary, capricious or unreasonable.<br>
10/19/18
Commissioner upholds board of education directive that elementary supervisor, employed district since 1992, submit to a mental and physical examination before being permitted to return to work. N.J.S.A. 18A:16-2(a). See also N.J.A.C. 6A:32-6.3
Supervisor fell asleep in three documented staff meetings and called DCPP to report a student matter without first obtaining correct information and without consulting or advising district administration.
Board’s directive that petitioner undergo a fitness for service evaluation before returning to work not arbitrary, capricious or unreasonable.<br>
95
Employee Indemnification Welsh v Warren Cty. Spec. Svcs. School District and Hackettstown BOE
App. Div. 10/19/18, cert. den. 3/8/19
Part-time school psychologist claim for reimbursement of attorney’s fees under N.J.S.A. 18A:16-6.1. Parent filed assault complaint against psychologist when he helped remove an out-of-control student from the classroom. See N.J.S.A. 18A:6-1 Parent did not appear at trial and complaint was dismissed.
Hackettstown deemed responsible for indemnification notwithstanding services being provided through a consultant service agreement with Warren Cty. Spec. Svcs.<br>
App. Div. 10/19/18, cert. den. 3/8/19
Part-time school psychologist claim for reimbursement of attorney’s fees under N.J.S.A. 18A:16-6.1. Parent filed assault complaint against psychologist when he helped remove an out-of-control student from the classroom. See N.J.S.A. 18A:6-1 Parent did not appear at trial and complaint was dismissed.
Hackettstown deemed responsible for indemnification notwithstanding services being provided through a consultant service agreement with Warren Cty. Spec. Svcs.<br>
96
Working on Public Holidays Corcoran v. Queen City Academy Charter School 11/2/18
Commissioner determines that charter school improperly deducted one personal day from employee’s leave bank for failing to attend a district-wide Professional Day on Columbus Day, a public holiday. Charter school observed school district’s academic calendar.
N.J.S.A. 18A:25-3 provides that no teaching staff member shall be required to perform his duties on a public holiday. No financial loss to an employee who chooses not to work on a public holiday.
Consider contract requirement of 193 day work year<br>
Commissioner determines that charter school improperly deducted one personal day from employee’s leave bank for failing to attend a district-wide Professional Day on Columbus Day, a public holiday. Charter school observed school district’s academic calendar.
N.J.S.A. 18A:25-3 provides that no teaching staff member shall be required to perform his duties on a public holiday. No financial loss to an employee who chooses not to work on a public holiday.
Consider contract requirement of 193 day work year<br>
97
Regional School District Tax Apportionment Borough of Sea Bright v. Bd. of Ed. of Shore Regional High School District – Comm. 1/14/19
Failure of board to place referendum on ballot to change tax apportionment among constituent districts not arbitrary and capricious.
Motion made by Sea Bright representative; no second, no specifics as to change; equalized valulation, per pupil, combinations thereof
Sea Bright, Monmouth Beach, Oceanport, West Long Branch<br>
Failure of board to place referendum on ballot to change tax apportionment among constituent districts not arbitrary and capricious.
Motion made by Sea Bright representative; no second, no specifics as to change; equalized valulation, per pupil, combinations thereof
Sea Bright, Monmouth Beach, Oceanport, West Long Branch<br>
98
Sending – Receiving In Re Petition to Sever Allenhurst Sending-Receiving Relationship with Asbury Park and enter into Sending-Receiving with West Long
Branch and Shore Regional – 7/20/17
No Allenhurst students attended Asbury Park for at least the last three years
Commissioner allows severance; no negative educational, financial or racial impact
Consider earlier refusals to sever
Deal-Asbury Park, Interlaken – Asbury Park, Longport-Atlantic City, Merchantville-Pennsauken,<br>
Branch and Shore Regional – 7/20/17
No Allenhurst students attended Asbury Park for at least the last three years
Commissioner allows severance; no negative educational, financial or racial impact
Consider earlier refusals to sever
Deal-Asbury Park, Interlaken – Asbury Park, Longport-Atlantic City, Merchantville-Pennsauken,<br>
99
Sending – Receiving Bd. of Ed. of the Township of Mine Hill v. Bd. Of Ed. of the Town of Dover 2/9/18
Mine Hill sought limited severance of send-receive relationship; educate seventh and eighth grade students in Mine Hill; two year phase out program – Dover opposed.
In OAL, parties reached a settlement agreement – Mine Hill would educate its seventh and eighth grade students beginning in 2018-2019. ALJ approved.
Commissioner rejected settlement – did not comport with procedures for uncontested applications for severance.
Boards must announce at next public meetings opportunities for persons or entities to submit comments to Commissioner. Boards must make filings to the Commissioner. Commissioner will then determine next steps. See Interlaken<br>
Mine Hill sought limited severance of send-receive relationship; educate seventh and eighth grade students in Mine Hill; two year phase out program – Dover opposed.
In OAL, parties reached a settlement agreement – Mine Hill would educate its seventh and eighth grade students beginning in 2018-2019. ALJ approved.
Commissioner rejected settlement – did not comport with procedures for uncontested applications for severance.
Boards must announce at next public meetings opportunities for persons or entities to submit comments to Commissioner. Boards must make filings to the Commissioner. Commissioner will then determine next steps. See Interlaken<br>
100
Sending – Receiving Bd. of Ed. of the Township of Mine Hill v. Bd. Of Ed. of the Town of Dover 1/14/19
Commissioner denied limited severance of send-receive relationship; Mine Hill to educate 7th and 8th graders.
No transition plan – substantial negative educational impact for Mine Hill students; 7th Dover, 8th Mine Hill, 9th Dover – lack of continuity
Substantial negative racial impact – Dover Caucasian students; 3% 2017-2018, 2.6% 2018-2019
Caucasian students in Dover; 38 – 21 2017 – 2018; 31-17 2018-2019; reduction of 45%<br>
Commissioner denied limited severance of send-receive relationship; Mine Hill to educate 7th and 8th graders.
No transition plan – substantial negative educational impact for Mine Hill students; 7th Dover, 8th Mine Hill, 9th Dover – lack of continuity
Substantial negative racial impact – Dover Caucasian students; 3% 2017-2018, 2.6% 2018-2019
Caucasian students in Dover; 38 – 21 2017 – 2018; 31-17 2018-2019; reduction of 45%<br>
101
Sending – Receiving BOE of the Upper Freehold Regional School District v BOE of the Twp. of Millstone and BOE of the Red Bank Regional High School District 7/26/18
Millstone (K-8) has sending-receiving relationship with Upper Freehold Regional whereby it sends its high school students to Allentown High School
Millstone could properly send students to Red Bank Regional High School for courses of study which were not available at Allentown High; Finance, Information Technology, Engineering, Visual and Performing Arts and Culinary Arts.
N.J.S.A. 18A:38-15 applies to K-8 school districts<br>
Millstone (K-8) has sending-receiving relationship with Upper Freehold Regional whereby it sends its high school students to Allentown High School
Millstone could properly send students to Red Bank Regional High School for courses of study which were not available at Allentown High; Finance, Information Technology, Engineering, Visual and Performing Arts and Culinary Arts.
N.J.S.A. 18A:38-15 applies to K-8 school districts<br>
102
Student Discipline - Expulsion N.C. o/b/o minor child J.C. v. Bd. of Ed. of City of Ocean City - 4/5/18
Board voted to expel student for repeated violations of Code of Student Conduct and failure to abide by school district policies.
Student expelled based on seriousness of an off campus incident depicted on video and possession of weapons (two knives and a choke cord) and drugs on school property.
Commissioner determined that board’s action to remove student from general education program was not arbitrary, capricious or unreasonable.
Board not authorized to expel as student had never served a long-term suspension in accordance with the disciplinary regulations. Board must continue to provide educational services. Student is entitled to a free public education. Homebound instruction is appropriate.<br>
Board voted to expel student for repeated violations of Code of Student Conduct and failure to abide by school district policies.
Student expelled based on seriousness of an off campus incident depicted on video and possession of weapons (two knives and a choke cord) and drugs on school property.
Commissioner determined that board’s action to remove student from general education program was not arbitrary, capricious or unreasonable.
Board not authorized to expel as student had never served a long-term suspension in accordance with the disciplinary regulations. Board must continue to provide educational services. Student is entitled to a free public education. Homebound instruction is appropriate.<br>
103
Student Discipline – Long Term Suspension B.E. o/b/o minor child F.E. v. Bd. of Ed. of the Twp. of Piscataway – 1/4/19
Commissioner has jurisdiction to hear challenge to one year suspension based on cyberbullying and disruption of school activities.
Parents had withdrawn student from Piscataway and enrolled student in private school in Edison; challenged the long term suspension
Board argued that once parent withdrew student, Commissioner had no jurisdiction. ALJ agreed
Commissioner remanded to OAL for a hearing.<br>
Commissioner has jurisdiction to hear challenge to one year suspension based on cyberbullying and disruption of school activities.
Parents had withdrawn student from Piscataway and enrolled student in private school in Edison; challenged the long term suspension
Board argued that once parent withdrew student, Commissioner had no jurisdiction. ALJ agreed
Commissioner remanded to OAL for a hearing.<br>
104
Student Discipline – Long Term Suspension R.T. and C.T. o/b/o minor child N.T. v. Bd. of Ed. of the Twp. of Wayne – 7/11/18
Commissioner determined that board’s long term suspension of student was not arbitrary, capricious or unreasonable and consistent with board policy.
Student was arrested for possession of marijuana with intent to distribute after an incident in the nurse’s office when he provided a student with a vial of “clean” urine to evade a drug screening. Search revealed marijuana and a large bottle of urine.
Student was suspended for the remainder of the year, barred from school grounds and activities, including the prom and graduation; provided home instruction, graduated.<br>
Commissioner determined that board’s long term suspension of student was not arbitrary, capricious or unreasonable and consistent with board policy.
Student was arrested for possession of marijuana with intent to distribute after an incident in the nurse’s office when he provided a student with a vial of “clean” urine to evade a drug screening. Search revealed marijuana and a large bottle of urine.
Student was suspended for the remainder of the year, barred from school grounds and activities, including the prom and graduation; provided home instruction, graduated.<br>
105
Student Discipline – Short Term N.S. o/b/o minor child S.B-S. v. Bd. of Ed. of the Kingsway Regional High School District – 2/25/19
Board did not act in an arbitrary, capricious or unreasonable manner when it imposed a penalty of four extended school days (2:30 – 5:30) upon special education student who pulled a hat off the head of a student and verbally exchanged in inappropriate and threatening language. Board had a reasonable basis for concluding that student committed a Tier II offense, violating Code of Conduct requirement that students “Respect the Rights of Others”
Parent believed a Tier I offense had occurred and the appropriate penalty should have been four administrative lunch detentions.
Proper procedures were followed in reviewing the discipline; no showing that the Board’s disciplinary decision was arbitrary, capricious or unreasonable<br>
Board did not act in an arbitrary, capricious or unreasonable manner when it imposed a penalty of four extended school days (2:30 – 5:30) upon special education student who pulled a hat off the head of a student and verbally exchanged in inappropriate and threatening language. Board had a reasonable basis for concluding that student committed a Tier II offense, violating Code of Conduct requirement that students “Respect the Rights of Others”
Parent believed a Tier I offense had occurred and the appropriate penalty should have been four administrative lunch detentions.
Proper procedures were followed in reviewing the discipline; no showing that the Board’s disciplinary decision was arbitrary, capricious or unreasonable<br>
106
Student School Assignment C.F. and E.F. o/b/o minor child G.F. v. Bd. of Ed. of the Twp. of Pequannock – Comm. 11/2/18
Commissioner determined that’s board’s school assignment of kindergarten student was in accordance with board policy and not arbitrary, capricious or unreasonable. Kindergarten placement decisions made on May 2. Students registered after May 2 placed in 3rd kindergarten section.
Parent wanted placement in school closest to house they were purchasing; registered student May 8. No showing that placement was based on the fact that student was Hispanic as alleged by the parents.<br>
Commissioner determined that’s board’s school assignment of kindergarten student was in accordance with board policy and not arbitrary, capricious or unreasonable. Kindergarten placement decisions made on May 2. Students registered after May 2 placed in 3rd kindergarten section.
Parent wanted placement in school closest to house they were purchasing; registered student May 8. No showing that placement was based on the fact that student was Hispanic as alleged by the parents.<br>
107
Questions?<br>