A Rite of Spring – Nonrenewal of Non-tenured Staff

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By: Wayne Oppito, Esq.

 

New Jersey statute, N.J.S.A. 18A:27-10 reads:

On or before May 15 in each year, each nontenured teaching staff member continuously employed by a board of education since the preceding September 30 shall receive either:

a. A written offer of a contract for employment from the board of education for the next succeeding year providing for at least the same terms and conditions of employment but with such increases in salary as may be required by law or policies of the board of education, or

 

b. A written notice from the chief school administrator that such employment will not be offered.

Teaching staff member is defined to be anyone who is required to hold a certificate issued by NJDOE for his/her position, including a principal, vice or assistant principal and supervisor.  (N.J.S.A. 18A:1-1)

 

N.J.S.A. 18A:27-11 indicates that if a nontenured teaching staff member does not receive notice by May 15, he/she is deemed to have been offered a contract upon the same terms and conditions of employment.  If the teaching staff member wants to avail him/herself to the benefit of the statute, he/she must notify the board of education in writing of such acceptance on or before June 1.  In the absence of the written notice of acceptance, the offer is no longer applicable.  (N.J.S.A. 18A:27-12).  Please note that although the statutory date for notice is May 15, some teacher contracts may have an earlier date, most commonly, April 30.  Therefore be certain to review the teacher contract as to the date that non-tenured staff members are to be notified.

N.J.S.A. 18A:27-4.1 requires that a board of education shall renew the employment contract of a certificated or non-certificated officer or employee only upon the recommendation of the chief school administrator and by a recorded roll call majority vote of the full membership of the board.  If it is a nine (9) person board, five (5) affirmative votes are needed, even if only five board members are at that meeting.

The board shall not withhold its approval of an affirmative recommendation for arbitrary and capricious reasons.  A nontenured officer or employee who is not recommended for renewal by the chief school administrator shall be deemed nonrenewed.  Prior to notifying the officer or employee of the nonrenewal, 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.  An officer or employee whose employment contract is not renewed shall have the right to a written statement of reasons for the nonrenewal only if he/she requests the reasons in writing within 15 calendar days after receiving the notice of non-renewal.  The teaching staff member is to receive in writing the statement of reasons within 30 days after receipt of the request (18A:27-3.2).  Once a teaching staff member receives the statement of reasons, he/she has 10 calendar days to ask for a hearing before the BOE (N.J.A.C. 6:3-4.2).  The purpose of the appearance shall be to permit the staff member to convince the members of the board to offer reemployment.  The BOE has 3 days from the hearing to notify the staff member of its final determination.  The BOE may act independently of the superintendent’s recommendation and hire the person even if the superintendent did not recommend the person for rehire.

In 1995, the Legislature amended the statute to read that if the superintendent did not recommend a staff member be rehired, the person “shall be deemed not renewed.”  However, further into the amended statute, it indicated that the nonrenewed staff member had a right to request a statement of reasons and an opportunity for an informal hearing before the local board of education.  The purpose of the informal hearing is “to try to convince the members of the board to offer employment.”

In Velasquez v. Brielle Bd. of Ed, the State Board clarified this apparent inconsistency in the statutory language.  In May, 1995, the superintendent of schools informed the board of education that he was not recommending Mr. Velasquez for reemployment.  Mr. Velasquez asked for a statement of reasons as to why he was not rehired and for an informal appearance before the board.  Remember that the amended statute contains the language that in the absence of the superintendent’s recommendation, the person “shall be deemed not renewed.”

At the hearing before the Board, which included the superintendent who is a non-voting member pursuant to N.J.S.A. 18A:17-20, the superintendent was not convinced to change his recommendation and informed the Board that he still did not recommend Mr. Velasquez for renewal.  The Board took no further action and pursuant to the regulation, Mr. Velasquez was notified within three days as required, that he would not be offered a contract for the succeeding school year.

 

Mr. Velasquez filed a petition with the Commissioner, alleging that the Board was required to vote on his reappointment and that the Board’s action not to renew him was arbitrary, unreasonable and/or capricious.  The Administrative Law Judge agreed that the amended statute as drafted was confusing, but determined that “the least absurd interpretation” is that a person not recommended by the superintendent for reemployment is deemed not renewed.  However, if the person requests a statement of reasons and a hearing before the local board of education, the person has the opportunity to convince the board members to rehire him/her.  The purpose of the hearing is not to change the superintendent’s mind.  The purpose is to convince a majority of the Board to offer reemployment.  The ALJ went on to determine that Mr. Velasquez received the procedural rights set forth in the statute and regulation.  The ALJ determined that there is nothing in the statute or regulation that requires the Board to vote.  Accordingly, the petition was dismissed.

 

The Commissioner rejected the ALJ’s rationale.  The Commissioner determined that the amended language in the statute was an outcrop of the Rotondo decision, wherein the Commissioner had determined that all personnel decisions required the recommendation of the CSA.  When the Court overturned the Commissioner’s decision, the statute was amended.  The Commissioner determined that the legislative intent in amending the statute was to require the recommendation of the superintendent on all hires and rehires.  Thus, the Commissioner determined that the purpose of the informal hearing before the Board was to change the superintendent’s mind that reemployment should be offered.  In dismissing the petition, the Commissioner determined that a person not recommended for reemployment by the superintendent is deemed not renewed.

On appeal, the State Board of Education agreed with the ALJ and the Commissioner that the petition should be dismissed.  However, the State Board rejected the Commissioner’s rationale and affirmed the rationale of the Administrative Law Judge.  The State Board agreed with the ALJ that the statute as written provides that a person not recommended for reemployment by the superintendent is deemed not renewed.  However, if the informal hearing is requested, the purpose of the hearing is to convince a majority of the Board to offer reemployment without the superintendent’s recommendation.  Furthermore, the State Board reiterated that there is nothing in the statute that requires a local board of education to vote after the informal hearing.  The Velasquez decision provides guidance for boards of education and teaching staff members for interpreting a confusing statute and dealing with non-renewal situations.

 

3/2004

4/2011