Arbitration In matter regarding two non-tenured fixed-term employees (custodian and paraprofessional) court held that decisions of non-renewal of non-tenured employees, akin to reducing the workforce, are not subject to mandatory negotiation and arbitration. The presumption of arbitrability for public employees adopted in N.J.S.A. 34:13A-5.3 does not eviscerate a board of education’s statutory authority to determine whether to retain non-tenured contract employees upon the expiration of their contract terms. A non-tenured employee (custodian) whose employment is not renewed, cannot claim a disciplinary motive and invoke the grievance procedure of a CNA which does not otherwise permit such an action. The revocation of a valid employment contract (paraprofessional) cannot be retroactively relabeled a non-renewal and is arbitrable under the contract clause in this case. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Educ. Ass’n, DOCKET NO. A-3035-14T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 2, 2016
Charter Schools Appellate Division affirms Commissioner of Education determination, rejecting board of education’s request to reduce the tuition rate in the 2010-2011 school year to four charter schools for district students attending those charter schools. Following an earlier remand from the Appellate Division, the Commissioner concluded in his second final agency decision that he lacked the authority to reduce the tuition, notwithstanding a regulation that had been on the books since 2010 stating that he possessed the authority. The issue was the amount of surplus retained by the charter schools, between $400,000 and $600,000. The board argued that the tuition should have been reduced given the surpluses. It should be noted that the regulation in question was repealed by the State Board in 2015. The authorizing legislation for the regulation, N.J.S.A. 18A:36A-12, had been amended in 2000, removing the discretion from the Commissioner. Piscataway Twp. Bd. of Educ. v. Hespe, DOCKET NO. A-5890-13T4, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 4, 2016
Appellate Division affirmed the Department of Education determination declining to renew the Greater Newark Charter School’s charter after placing the school on a brief probationary period. The DOE considered the 2012-2013 test scores, found them inadequate, and concluded that with the low SGP scores, an ineffective board of trustees and administration, and other problems, GNCS was not likely to improve. The Appellate Division deferred to the expertise of the DOE, which based its decision not to renew on substantial credible evidence in the record and did not act in an arbitrary, capricious or unreasonable manner. Greater Newark Charter Sch. v. N.J. Dep’t of Educ., DOCKET NO. A-3852-13T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided, January 15, 2016
IDEA Appellate Division affirmed a final determination of the Department of Education Office of Special Education Programs (OSEP) that parents were entitled to an independent educational evaluation before agreeing to the school district’s individualized education plan (IEP). N.J.A.C. 6A:14-2.5(c) entitled a parent to an independent educational evaluation if the parent disagrees with an evaluation obtained by the public agency. USDOE had advised that the code provision violated the independent educational evaluation provisions of federal law.Haddon Twp. Sch. Dist. v. N.J. Dep’t of Educ., DOCKET NO. A-1626-14T4, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 4, 2016
Jurisdiction Appellate Division determined that PERC has primary jurisdiction to determine whether the subject matter of a particular dispute is within the scope of collective negotiations; PERC makes a threshold determination as to whether the disputed matter is something parties can legally negotiate and make subject to arbitration. PERC may not interpret contracts. The court’s function is to determine whether the collective negotiations agreement involves a matter the parties agreed to arbitrate. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Ed. Assn., A-3035 (2015 N.J. Super. Lexis 205 (App. Div. Feb. 2, 2016).
Labor Relations In matter regarding two non-tenured fixed-term employees (custodian and paraprofessional) court held that decisions of non-renewal of non-tenured employees, akin to reducing the workforce, are not subject to mandatory negotiation and arbitration. The presumption of arbitrability for public employees adopted in N.J.S.A. 34:13A-5.3 does not eviscerate a board of education’s statutory authority to determine whether to retain non-tenured contract employees upon the expiration of their contract terms. A non-tenured employee (custodian) whose employment is not renewed, cannot claim a disciplinary motive and invoke the grievance procedure of a CNA which does not otherwise permit such an action. The revocation of a valid employment contract (paraprofessional) cannot be retroactively relabeled a non-renewal and is arbitrable under the contract clause in this case. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Educ. Ass’n, DOCKET NO. A-3035-14T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 2, 2016
Law Against Discrimination Summary judgment vacated. Appellate Division determined there were genuine issues of material fact as to supervisor’s negative remarks about plaintiff’s weight to create a hostile work environment and whether the fitness for duty examination accurately corresponded to plaintiff’s job requirements. Plaintiff contended that the school district unfairly discharged her because of her obesity in violation of the Law Against Discrimination. Matter remanded for trial. Sheridan v. Egg Harbor Twp. Bd. of Educ., DOCKET NO. A-5394-13T2, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided January 7, 2016
Non-renewal In matter regarding two non-tenured fixed-term employees (custodian and paraprofessional) court held that decisions of non-renewal of non-tenured employees, akin to reducing the workforce, are not subject to mandatory negotiation and arbitration. The presumption of arbitrability for public employees adopted in N.J.S.A. 34:13A-5.3 does not eviscerate a board of education’s statutory authority to determine whether to retain non-tenured contract employees upon the expiration of their contract terms. A non-tenured employee (custodian) whose employment is not renewed, cannot claim a disciplinary motive and invoke the grievance procedure of a CNA which does not otherwise permit such an action. The revocation of a valid employment contract (paraprofessional) cannot be retroactively relabeled a non-renewal and is arbitrable under the contract clause in this case. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Educ. Ass’n, DOCKET NO. A-3035-14T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 2, 2016
Scope of Negotiations Appellate Division determined that a non-renewal action of a non-tenured custodian by the superintendent is not subject to disciplinary grievance procedures where, despite the fact that the non-renewal touched upon job security and was filed well after the normal date for such action, the grievance of a non-renewal is not contemplated by the collective negotiations agreement. The exercise of a public employer’s right to non-renew shall not be second-guessed as a pre-text for discipline. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Ed. Assn., A-3035 (2015 N.J. Super. Lexis 205 (App. Div. Feb. 2, 2016).
Where district executed a contract with a non-tenured teacher’s aide for the upcoming school year, Appellate Division determined that the board could not simply non-renew the aide by rescinding a contract before performance had begun. The revocation of a valid employment contract which was not part of e reduction-in-force fell within the collective negotiations agreement, accordingly the grievance of the board action must proceed to arbitration. Egg Harbor Twp. Bd. of Educ. v. Egg Harbor Twp. Ed. Assn., A-3035 (2015 N.J. Super. Lexis 205 (App. Div. Feb. 2, 2016).
Student Discipline University did not violate students’ due process rights in adjudication of assault, disorderly conduct and hazing charges. Students were found guilty of hazing and disorderly conduct charges; one was suspended from student housing for a year, one was suspended from the university for a year. Students received all protections set forth in the WPU Student Handbook. No constitutional right existed to confront and cross examine witnesses (Goss v Lopez) and students were allowed to consult with counsel at the hearing. Students’ claim that their hearing before the UHB board villated fundamental due process was rejected by the court. Rockwell v. William Paterson Univ., DOCKET NO. A-1679-13T4, A-1680-13T4, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided January 25, 2016
Student Residency Appellate Division affirmed Commissioner of Education’s determination that student was not entitled to a free education in the Hamilton Township school district as he was not a resident of the school district. Substantial credible evidence existed to demonstrate that student lived with mother in Trenton during the majority of the 2012-2013 and 2013-2014 school years. No evidence existed that student lived in Hamilton Township. I.J. v. Bd. of Educ. of Hamilton, DOCKET NO. A-4619-13T2, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided January 26, 2016
Appellate Division upheld board determination that student was not domiciled where father, who had been domiciled, was incarcerated and mother did not reside win district. Domicile of the child of separated parents is established in the domicile where the child spends the most time. I.J. v. Bd. of Educ. of Hamilton, Dkt. No. A-4619, 2016 N.J. Super Unpub. Lexis 149, (App Div. Jan. 26, 2016).
Tenure Dismissal Appellate Division affirms Commissioner of Education decision denying motion to reopen the proceedings which resulted in Valdes removal as a tenured employee (plumber) of the Union City Board of Education. In re Tenure Hearing of Sabino Valdes, DOCKET NO. A-5323-13T3, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided February 5, 2016
Unemployment Appellate Division affirmed the determination of the Board of Review which found plaintiff ineligible for unemployment benefits for certain periods and liable to refund benefits totaling $2250. Plaintiff had worked as a substitute teacher and teacher’s aide at a per diem rate of $ 90. To be unemployed a person must be working less than full time. Weeks in which she earned $450 were deemed full time and weeks in which she earned less than $450 were deemed part time. Frato v. Bd. of Review,DOCKET NO. A-5153-13T3, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, Decided January 25, 2016