On Thursday, Aug. 27, Gov. Chris Christie signed into law a measure that will enhance the state’s capacity to handle an expected increase in the number of tenure arbitration cases in the upcoming school year.
Introduced in late June and quickly passed by the Legislature before it recessed for the summer, A-4608/S-3055 (P.L.2015, c.109) increases the number of arbitrators serving on the panel that determines contested cases involving tenured employees in school districts. The measure also gives the education commissioner discretion on setting arbitrator fees. The NJSBA supported the legislation, which went into effect immediately upon the governor’s signature.
Enacted in 2012, the historic tenure reform law known as the “Teacher Effectiveness and Accountability for the Children of New Jersey Act,” or “TEACHNJ,” established binding arbitration for contested cases involving the dismissal or reduction in compensation of tenured employees in school districts. TEACHNJ required the commissioner of education to maintain a permanent panel of 25 arbitrators to hear those cases. The New Jersey Education Association, the American Federation of Teachers, the New Jersey School Boards Association and the New Jersey Principals and Supervisors Association each designate a specified number of arbitrators to the panel.
The amendments to TEACHNJ increased the total number of arbitrators on the panel from 25 to 50, doubling the number of arbitrators designated by each entity. The NJSBA now has the statutory authority to designate 18 of the 50 arbitrators on the panel, up from nine under the original TEACHNJ law.
Under TEACHNJ, a district superintendent must file tenure charges of inefficiency against a teacher, principal, assistant principal or vice-principal to the board of education, under certain circumstances. In other cases, charges may be filed. For instance, a superintendent must file such charges against a teacher who receives an annual summative evaluation rating of “ineffective” or “partially effective” in one year, plus a rating of “ineffective” in the second year. If such an employee is rated “partially effective” in two consecutive annual summative evaluations, or is rated “ineffective” in one year and “partially effective” in the following year, the superintendent may file a tenure charge of inefficiency or may defer such a filing until after the next annual evaluation upon a written finding of exceptional circumstances. Tenure charges are then forwarded to the education commissioner who refers the case to an arbitrator to determine the potential loss of tenure.
The introduction of A-4608/S-3055 in June was likely triggered by the widespread expectation that the number of tenure arbitration cases will increase in the near future. During the Legislature’s deliberations on the fiscal year 2015-2016 budget this past spring, the Office of Legislative Services (OLS) asked the New Jersey Department of Education (NJDOE) to estimate of the number of tenure cases it anticipates being initiated during the 2015-2016 school year. The OLS also inquired as to whether Gov. Christie’s 2015-2016 budget proposal provided adequate resources for the possible increase in tenure cases. The NJDOE acknowledged that it expects a substantial increase in the number of tenure cases filed in the upcoming school year.
“The number of tenure cases will likely rise into the hundreds; which is up from 61 cases brought during the 2013-2014 school year and 75 brought during the 2014-2015 school year,” the NJDOE stated in a written response to OLS. The changes in the new law represent an attempt to ensure that a sufficient number of qualified arbitrators are available to meet that increased demand.
The amendments also alter the fee provision for arbitrators. Under the original TEACHNJ law, arbitrators could receive no more than $1,250 per day and no more than $7,500 per case. Now, arbitrators will receive no less than $1,250 per day and the new law eliminates the $7,500-per-case limitation.
Left unchanged is the TEACHNJ provision stipulating that the cost of the arbitrator be borne by the state and not by local school districts. According to an OLS fiscal estimate, the new law may lead to an increase in state expenditures by potentially increasing the per diem rate and total compensation of arbitrators presiding over tenure cases. However, the exact amount of the expenditure increase is indeterminate, since the legislation gives the commissioner of education discretion in setting the per diem rate. In doing so, the commissioner must consider the average per diem rate of arbitrators eligible to serve on the panel who reside in New Jersey, New York, and Pennsylvania.