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Spring 2011

Rights of Spring: Non-Tenured Staff Rights and Responsibilities

Robert M. Schwartz, Esq.

Each year at this time, school administrators and supervisors must submit teacher staff recommendations for the succeeding school year. Decisions have to be made as to which staff members to keep and which to let go. With all the focus on school accountability, it's now more important than ever to understand the legal requirements of the renewal and the non-renewal process.

Evaluations

A logical starting point for this discussion is the role of evaluations. Every board of education is responsible for having both tenured and non-tenured staff members observed and evaluated. Tenured staff members must be evaluated at least once a year and non-tenured staff members must be observed and evaluated at least three times during each year but not less than once during each semester. Evaluations are made based on criteria that each district adopts.

In March 2011 the New Jersey Educator Effectiveness Task Force issued a report recommending that New Jersey develop a statewide standardized evaluation system to be based in part on student achievement on standardized tests and other measures yet to be developed. That's what is recommended for the future. The aim of this Task Force and the focus of the often heated political discussion is to increase accountability as to teacher performance and in the process improve student performance. But nothing is new here, except perhaps for the increasing drumbeat to tie teacher evaluations to student performance via student test scores. The aim of a rigorous evaluation system has always been to improve teacher performance, which in turn would be expected to improve student performance. Certainly that is what is behind the current evaluation requirements.

Non-Tenured Staff Members

The statute, N.J.S.A. 18A:27-3.1, has four requirements for non-tenured staff members:

  1. Evaluations are to take place before April 30 of each year.
  2. Evaluations may cover the period between April 30 of one year and April 30 of the succeeding year except in the first year of employment when the three evaluations must have been completed prior to April 30.
  3. The number of required observations and evaluations may be reduced proportionally when an individual teaching staff member's term of service is less than one academic year.
  4. Each evaluation shall be followed by a conference between the teaching staff member and his or her superior or superiors.

The corresponding administrative regulation, N.J.A.C. 6A:32-4.5, is much more specific. It mandates that "each" district board of education adopt a policy for the supervision of instruction, that each board set procedures for the observation and evaluation of non-tenured staff members, and that each board distribute the policy to all teaching staff members at the beginning of their employment. It also requires that the annual written evaluation consist of at least the following:

  1. Performance areas of strength;
  2. Performance areas needing improvement based upon the job description;
  3. An individual professional development plan developed by the supervisor and the teaching staff member;
  4. A summary of indicators of student progress and growth and a statement of how these indicators relate to the effectiveness of the overall program and the performance of the individual teaching staff member.

While the focus of the current political debate appears to have centered on the need for a standardized evaluation instrument little, if any, attention has been given to the fact that there is no enforcement mechanism in the current legal framework. Districts that fail to comply with statutory and regulatory requirements do so without consequences. This was noted by the courts nearly thirty years ago in Dore v. Board of Education of Bedminster Township, 185 N.J. Super. 447 (App. Div. 1982). Addressing the requirement that all non-tenured teaching staff members need to have no less than three evaluations, the court said that because neither the statute nor the regulation "impose a penalty for non-compliance" the Commissioner "cannot arrogate to himself" the power to penalize a district or to reinstate a non-renewed staff member because of the district's non-compliance with evaluation requirements. The court said that if the Legislature wants the Commissioner of Education to have such authority, it must provide it. The Legislature never has.

Since the Commissioner lacks the authority to enforce legal requirements as to evaluations, it has been left to district boards of education to enforce their own policies. Therefore, administrators and supervisors must understand that among their core responsibilities is meeting district policy requirements concerning evaluations. It's also important for administrators and supervisors to recognize that while the Commissioner may not have been provided with the authority to act against school districts who fail to comply with mandated evaluation requirements, there's nothing preventing a board from acting against those those within its employ who do not comply with district policy. Consequently, as a matter of self-protection, if not better accountability, administrators need to follow their district's evaluation policies as to timelines, substance, and completion.

Evaluation of Tenured Staff Members

Much of the current rhetoric is that tenure is the antithesis of accountability; that once tenure is achieved, accountability is minimized or lost altogether. But the governing regulation states otherwise. N.J.A.C. 6A:32-4.4 mandates the following:

  1. Each district board of education shall adopt policies and procedures requiring the annual evaluation of tenured teaching staff members by appropriately certified personnel;
  2. The purpose of the annual evaluation is to (a) improve teaching skills, (b) improve student learning and growth and (c) provide a basis for review of the performance of tenured staff members.

The same regulation requires that the policies and procedures for evaluating tenured teaching staff members include (but not be limited to):

  1. The roles and responsibilities for implementation of policies and procedures;
  2. Development of job descriptions and evaluation criteria based on district goals, program objectives, and instructional priorities;
  3. Methods of data collection and reporting appropriate to the job description including, but limited to, the observation of classroom instruction;
  4. Observation conferences between the supervisor and the teaching staff member;
  5. Provision of the use of additional certified personnel when deemed advisable; preparation of an individual professional development plan; preparation of an annual performance report by the supervisor and an annual summative conference between the supervisor and the teaching staff member.

As with non-tenured staff members, the policies affecting the evaluation of tenured staff members must be distributed annually, but no later than October 1.

What is to be included in the evaluation? The regulation requires:

  1. Performance areas of strength;
  2. Performance areas needing improvement based upon job description;
  3. An individual professional development plan developed by the supervisor and a teaching staff member;
  4. A summary of indicators of student progress and growth and how these indicators relate to the effectiveness of the overall program and the performance of the individual teaching staff member;
  5. Provisions for performance data which had not been included in the report prepared by the supervisor, to be entered into the record by the evaluatee within ten working days after signing the report.

And what is to be included in the conference that is to follow the evaluation? The regulation addresses this, too. The conference must include:

  1. A review of performance of the teaching staff member based on the job description;
  2. A review of the teaching staff member's progress toward the objectives of the individual professional development plan developed at the previous annual conference;
  3. A review of available indicators of student progress and growth toward the program objectives;
  4. A review of the annual written performance report and the signing of said report within five working days of the review.

    What does all this mean? It means that there are regulations and statutes now in place which mandate the number of evaluations each staff member—tenured and non-tenured—is to receive, that each school district have a policy on evaluations and observations, and that all such policies contain, at a minimum, the requirements set forth in the administrative regulations and statutes. More than this, the administrative regulations and statutes envision that administrators and supervisors and their boards recognize the importance of the evaluation process for accountability and improving teacher performance.

    Non-Renewal— The Process

    Now that we have discussed the role that evaluations play in the renewal or non-renewal process, what happens when there is a recommendation for non-renewal? First, be sure to follow board policy and the applicable negotiated contract. Follow the timelines. Have these documents - the district's policies and the teacher contract - readily available as a guide to when the recommendation must be made, when the conference must be held, and when the final summative report must be given.

    For renewals as well as non-renewals, the recommendation of the administrator or supervisor is to be made to the superintendent. If the recommendation is for non-renewal, which is accepted by the superintendent, then no further action is necessary. Once the superintendent receives a recommendation for the non-renewal of a staff member, the staff member's name is simply omitted from the renewal list given to the board. Only "renewals" are acted upon by a district board.

    N.J.S.A. 18A:27-4.1 provides that a board can only remove a certificated or a non-certificated employee based upon the "recommendation of the chief school administrator" and then by a "recorded roll call majority vote of the full membership of the board." The recorded roll call majority vote to be taken is for the list of recommended renewals submitted by the superintendent. While a district board may disagree with a recommendation of its superintendent, or even override that recommendation, such actions require the board to provide its own reasons. The statute states that a board shall not withhold its approval of the recommendation of the superintendent for "arbitrary and capricious reasons."

    legal one When should the superintendent notify the employee of the non-renewal? The statute, N.J.S.A. 18A:27-4.1, says that "prior to notifying the officer or employee of the non-renewal, the chief school administrator shall notify the board of the recommendation not to renew the officer's or employee's contract and the reasons for the recommendation."

    What are the timelines by which non-tenured staff members should be told of their renewal or non-renewal? May 15 is the annual deadline. By that date, non-tenured teaching staff members shall either be given (a) a written offer of contract for the succeeding school year or (b) a written notice that employment will not be offered.

    Once a teaching staff member receives a notice of termination, the teaching staff member "may, within 15 days thereafter, request in writing a statement of the reasons for such non-employment which shall be given to the teaching staff member in writing within 30 days after receipt of such request." N.J.S.A. 18A:37-3.2.

    After having received the statement of reasons, a teacher has a right to appear before the district board to contest the decision not to renew. The administrative regulation, N.J.A.C. 6A:32-4.6, provides that:

    1. The written request has to be submitted to the board within 10 calendar days of receipt by the teaching staff member of the board's statement of reasons;
    2. The informal appearance before the district board is to be scheduled "within" 30 calendar days from receipt of the district board of education's statement of reasons;
    3. The appearance before the district board shall "not be an adversary proceeding." The purpose of the appearance is to permit the staff member to convince the members of the board to offer reemployment.

    As to the "appearance" of the teaching staff member, or the "hearing" to be conducted by the board of education, the administrative regulation provides district boards with the authority to determine a "reasonable" length of time at the proceeding. With respect to the proceeding itself, the process must allow for the non-tenured staff member to be represented either by counsel or by someone of his own choosing; it must allow the staff member to present witnesses who do not need to be placed under oath and who "shall not" be cross-examined by the district board of education. It also states that witnesses must be excused except when they provide their statement. "Witnesses shall be called into the meeting to address the board one at a time and shall be excused from the meeting after making their statements."

    Depending on the employee's desires, the hearing before the board of education, often referred to as a "Donaldson" hearing, may take place in front of the public or may occur in executive session. That's solely up to the teaching staff member in accordance with the Open Public Meetings Act. N.J.S.A. 10:4-12(b)(a).

    Within three days of the informal "appearance" or hearing before the district board, the district board shall notify the teaching staff member of its final determination in writing. This can be "delegated" to the superintendent or the board secretary.

    Tenure— The Process

    Now that we have discussed the process for non-renewal of non-tenured staff members, what is the process for tenured staff members?

    First, a tenured staff member may not be "non-renewed" for the succeeding school year. Tenured staff members are entitled to continued employment until and unless charges are brought by a district board and affirmed by the Commissioner. N.J.S.A. 18A:6-10.

    Donaldson v. Board of Education of the City of North Wildwood, 65 N.J. 236 (1974). In Donaldson the Supreme Court agreed that teachers not renewed for the succeeding year should receive a statement of reasons. This was before the enactment of N.J.S.A.18A:27-3.2. The Court said that "a teacher is a professional who has spent years in the course of obtaining the necessary education and training. When he is engaged as a teacher, he is fully aware that he is serving a probationary period and may or may not ultimately obtain tenure. If he is not reengaged he is certainly interested in knowing why... elemental fairness and justice suggest that... he be told why." As for the hearing itself, before there was any statute requiring a hearing, the Donaldson Court suggested "that a timely request for an informal appearance before the Board should ordinarily be granted."

    This is all the more reason why the evaluation process for tenured staff members needs to be followed. Accountability cuts both ways. While accountability means that a teacher should be accountable for his or her performance, or lack of performance, it also means that the evaluations received by the staff member should be an objective indicator or barometer of how he or she is doing in the profession; of how he or she stacks up against colleagues, what the areas of excellence are and what areas are in need of improvement. Both sides-the district and the teaching staff member-need to have the answers to these questions.

    How consistently and how often are these questions answered? And if they aren't answered, what does that mean for tenure and the tenure process? First, tenure is achieved in a position after service of two years and a day if promoted from within the district. Coming into the district, the service requirement is three years and a day. To qualify for tenure, the staff member must be fully certified and must be a citizen of the United States. N.J.S.A. 18A:28-5; N.J.S.A. 18A:28-6.

    To remove tenure-to dismiss or reduce in compensation a staff member under tenure—N.J.S.A. 18A:6-10 provides that a board must demonstrate by way of charges brought pursuant to the statute that the teaching staff member's performance is inefficient or that the staff member has exhibited conduct unbecoming or incapacity or it must show "other just cause." The charges must be in writing and must contain a written statement of evidence "under oath" and must be presented to the board. N.J.S.A. 18A:6-11. Prior to acting on the charges, the board must provide the teaching staff member with a copy of the charge, a copy of the statement of evidence, and an opportunity to to reply by submitting under oath a written statement of position and a written statement of evidence. The teaching staff member's written response is due 15 days after the staff member is provided with a copy of the charge and the statement of evidence.

    The board then must decide within 45 days after receipt of the written charge whether or not to certify charges. N.J.S.A. 18A:6-13.

    One important note is that an additional step occurs with a charge of inefficiency. Prior to making a determination as to whether to certify charges, a board "shall provide" the affected employee with written notice of the alleged inefficiency, with specificity, and allow for at least 90 days in which to correct or overcome the inefficiency.

    Once tenure charges are certified and are forwarded to the Commissioner, the Commissioner notifies the teaching staff member and provides the teaching staff member with an opportunity to submit a written response, after which the matter is assigned to the Office of Administrative Law for a hearing. N.J.S.A. 6A:3-5.3.

    Administrative regulation N.J.A.C. 1:6B-13.1 provides that a prehearing conference shall be held within 30 days of referral of the case to the Office of Administrative Law and that a hearing is to commence within 30 days of completion of discovery.

    It's also important to note that the administrative regulations call for the superintendent to notify the State Board of Examiners when a tenured teaching staff member is accused of a criminal offense or conduct unbecoming and resigns or retires from his position. N.J.A.C. 6A:9-17.4.

    As is clear from this discussion, the tenure process can be cumbersome and difficult. But, tenure was enacted as a measure of protection to help prevent the abuses that occurred before the system of tenure was put in place. Tenure was used to cloak teaching staff members from political or outside interference. It was intended to assist in the establishment of a competent and efficient school system by affording teaching staff members a measure of security in their positions. Viemeister v. Board of Education of Prospect Park, 5 N.J. Super. 215 (App. Div. 1949). Historically, the courts have said that the protections afforded by tenure should be given liberal support consistent with legitimate demands of governmental economy. Spewak v. Board of Education of Rutherford, 90 N.J. 63 (19 ).

    With all the talk that tenure is no longer needed, or that its protections have outlived their usefulness, the question that needs to be posed is whether the reasons that brought about tenure in the first place have evaporated; whether today's political system is so pristine that protections against political interference are no longer necessary; whether the reasons for providing staff members a measure of security in the ranks they hold no longer remain.

    Governor Christie, commenting on the report of the Educator Effectiveness Task Force, stated that there is something wrong when only 17 tenure cases were brought against teaching staff members. Without addressing the accuracy of the number cited by the Governor, the number of tenure hearings that take place is not the issue. Rather, the issue is whether the current system of tenure does what it was intended to do-offer a measure of security for staff members in the positions they hold to assist in the establishment of a "competent and efficient school system." If the answer to that question is "no," then the system may need to be overhauled. But if the answer is that a competent and efficient system exists in most instances, then we need to focus on whether the current system fails, and if so, why.

    Moreover, among the reasons that the number of tenure hearings should not be the issue is that in most instances tenured staff members facing the prospect of tenure charges opt to settle—opt to leave—rather than face the negative publicity associated with tenure charges. Because the very idea of having tenure charges brought is fraught with negative stigma, most staff members choose the exit gate before charges are ever brought.

    In addition, separate and apart from filing tenure charges, boards have at their disposal other methods of discipline for teachers who fail to meet performance standards or who act inappropriately. Notably, teaching staff members do not have a "right" to a salary increase or promotion. Kopera v. Board of Education of the Township of West Orange, 60 N.J. Super. 288 (App. Div. 1960). District boards are given the authority to withhold salary increments for "inefficiency" or other "good cause" by N.J.S.A. 18A:29-14. The statute states that a board may withhold an employment or adjustment increment or both by (a) a recorded roll call majority vote of the full membership of the board of education; and that the board shall (b) within 10 days give written notice together with the reasons to the staff member. The staff member has the right to appeal to the Commissioner of Education if the increment withholding is performance-based or to proceed to arbitration if the increment withholding is discipline-based. If performance- based, the teaching staff member has the burden to demonstrate by a preponderance of credible evidence that the increment withholding was arbitrary and capricious; or, in other words, that it did not have any basis in fact. As long as there is a reason-even if it's a reason with which a judge may disagree-the increment withholding is not arbitrary or capricious. As a result, it's very difficult for a staff member to reverse a local district's decision to deny an increment.

    If the increment withholding is based on something other than performance, then the staff member may very well be able to appeal through the arbitration process, where the burden shifts. In arbitration, the board must demonstrate that the increment withholding was predicated on a rational reason, that it's not arbitrary and capricious. Either way, the increment withholding option is a potent penalty that a board may impose against a teaching staff member who does not behave or perform in a manner acceptable to the district or its administrators or supervisors.

    Boards are also free to transfer personnel, tenured or not. The statute, N.J.S.A. 18A:25-1, simply requires that the transfer be effected by a roll call majority vote of the full membership of the board. But the transfer must be to a comparable position, meaning that the staff member cannot be transferred out of title without consent. N.J.S.A. 18A:28-6. Therefore, a principal can only be transferred to another principalship; a director can only be transferred to another director position; a supervisor may only be transferred to a supervisor title; a vice principal may only be transferred to another vice principalship; and a teacher may be only transferred to another classroom teaching position for which the teacher is qualified. While it's true that some procedural issues as to transfers may be negotiated, boards may not negotiate away their right to transfer, just as they may not negotiate away their right to withhold an increment. Ridgefield Park Education Association v. Ridgefield Park Board of Education, 78 N.J. 144 (1978).

    Conclusion

    As you can see, the renewal and the non-renewal process is now addressed by both the statute and the administrative regulations. The statute and the administrative regulations contain exacting requirements. It's fair to say that we can expect more requirements. But the open question is whether more requirements will result in more accountability. This is particularly the case if school districts are continually asked to do more with less; not only to provide current services with fewer personnel, but to evaluate staff members more thoroughly and more rigorously with fewer personnel; in many cases, with no supervisors.

    Whether the current system is retained or revised, or whether a new system is created, it takes personnel to implement its requirements and to meet its goals. This comes with a cost which few want to acknowledge. It will be interesting to see how this conundrum is addressed.

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