Certification and Tenure
In 2012 the New Jersey Legislature made significant changes to the tenure law. The changes increased the time for tenure acquisition in a new position from three to four years of service. The changes also removed the Commissioner’s authority to render final decisions on tenure and delegated that authority to approved arbitrators. A more rigorous evaluation process also accompanied these changes, with the current school year being the first year of its implementation. However, certain conditions did not change. Staff members still must be “qualified” to serve in a position in order to accrue tenure. Being qualified still includes meeting the reasonable requirements set out in the job description and being properly certificated to serve in the position.
There are two significant cases recently decided in 2013 which address what it means to meet certification requirements. The first is Feldman v. Branchburg Board of Education, No. A-2736-11T3 (App. Div. February 2013), This case discusses the distinctions between a certificate of eligibility (CE) and a provisional certificate and what each of these certificates qualify a staff member to do. The second case is Ruiz v. Board of Ed. of the Borough of Ft. Lee, A-4443-11T1 (App. Div. July 2013) which holds that a staff member must possess a standard certificate while in service in order to accrue tenure in a position. A provisional certificate alone will not suffice.
In Feldman, the petitioner – Dr. Feldman – was employed as an elementary school principal in March 2005. At the time he was named principal, the petitioner held only a certificate of eligibility as he had never before served in a title requiring a principal endorsement. Almost immediately after his employ, the Branchburg Board of Education, began communicating with the Department of Education (DOE) to arrange for the issuance of his provisional certification. However, because of difficulty in obtaining one of Dr. Feldman’s college transcripts, it was not until July of 2005, approximately four months later, that the DOE actually issued the provisional certification to Dr. Feldman.
Nonetheless, all the parties entered into a mentoring agreement required for the issuance of the provisional certification that had a start date of April 1, 2005. In addition, while the mentoring agreement listed April 1 as the official commencement of the mentoring process, in one of the mentor’s communications with the DOE, the mentor stated that she had begun to informally mentor Dr. Feldman the prior month. One year later, in April 2006, in accordance with the one-year mentoring agreement required at the time, the DOE issued to Dr. Feldman his standard certification as a principal signifying that he had successfully completed all of the required quarterly evaluation cycles, including the initial cycle that took place prior to the July 2005 issuance of the provisional certification..
Fast forward this set of facts to 2011 when the Branchburg Board, faced with the financial need to close one of its elementary schools, had to determine the “seniority” order of each of its elementary principals. When reviewing Dr. Feldman’s seniority, the district concluded that because Dr. Feldman’s provisional certification was not issued until July 2005, his service from March of 2005 to the July issuance date did not count toward his tenure and therefore it similarly did not count toward his seniority. The district determined that—notwithstanding the terms of the mentoring agreement on which all of the parties relied and with which all of the parties complied, and notwithstanding that Dr. Feldman’s standard certification was issued one year after the commencement of the mentoring agreement—until he had the provisional certification in hand, Dr. Feldman had not been qualified to serve as principal. By discounting his initial four months of service as principal, when calculating each of the principals’ seniority for purposes of the 2011 reduction in force, Dr. Feldman was found to be the least senior elementary principal in the Branchburg School District.
Having lost his employment as a principal, Dr. Feldman filed an appeal with the Commissioner. Despite the discrepancies in the paperwork and despite the underlying fact that in 2005 neither the Branchburg School District nor the DOE saw any reason to prevent Dr. Feldman from beginning his service as a principal while the mentoring process for acquiring the provisional certificate was being put into place, the Commissioner affirmed Branchburg’s decision to discount Dr. Feldman’s initial four months of service. The Commissioner concluded that the education laws “clearly prohibit a principal from assuming responsibilities under a certificate of eligibility and do not authorize the accrual of seniority under a certificate of eligibility.”
When the matter was appealed to the Appellate Division of Superior Court, the court affirmed the Commissioner’s decision though it recognized the discrepancies within the agency – the DOE – charged with issuing teaching and administrative certificates. The discrepancies to which the court alluded included that the DOE clearly knew that Dr. Feldman was performing his services as principal during the pendency of obtaining his provisional certification and never said or did anything to prohibit his service in the principal position. Moreover, the DOE accepted, for purposes of issuing his standard certificate in April 2006, Dr. Feldman’s entire period of service, including the period that predated the actual issuance of his provisional certificate. With all this said, the Appellate Division nevertheless upheld the decision of the Commissioner, deferring to his “expertise.”
The clear import of the Feldman decision, other than exposing the flawed manner in which the DOE administered the certification process, is that an administrator may not assume the duties of a given position until and unless the administrator obtains and has in place the provisional certificate appropriate for that position.
In Ruiz v. Board of Ed. of Fort Lee, A-4443-11T1 (App. Div. July 2013), the Appellate Division decided whether a staff member could acquire tenure in a position only possessing a provisional certificate during the pendency of the staff member’s service in the position. Ruiz claimed that he had achieved tenure as a substance awareness coordinator (SAC) because he had served in the position for the requisite period of time and because he possessed a standard school psychologist endorsement to an educational services certificate which was the certificate required for the SAC title. However, Ruiz did not hold the standard substance awareness coordinator endorsement which was among the endorsements included within the educational services certificate.
When the district named Ruiz to the SAC position, he possessed only a certificate of eligibility for the SAC endorsement. The certificate of eligibility stated that the provisional certificate would be issued “contingent upon evidence of employment in [a] [d]istrict that agrees to provide and approve an induction program, including required job support, performance evaluation and professional course work.” Ruiz and the district completed these requirements and, as a result, the DOE issued him a provisional certificate effective September 1, 2006 for a period of one year. Thereafter, Ruiz received extensions on his provisional certification so that he could continue serving as a SAC. He served in the title until June 30, 2010 when the SAC position was eliminated as a result of a reduction in force.
As Ruiz served in the position of SAC for the period required for tenure accrual, he claimed that when his position was abolished, he had accrued tenure as a SAC giving him a superior right to any position covered by the same certificate as the SAC for which he was qualified which was held a non-tenured staff member. He claimed a specific entitlement to two school psychologist positions covered by the educational services certificate which were held at the time by non-tenured staff members.
The Commissioner ruled against Ruiz. The Commissioner held that Ruiz never achieved tenured as a SAC because he had never obtained a standard educational certificate with a SAC endorsement. The Administrative Law Judge determined, and the Commissioner agreed, that Ruiz’s provisional certificate was a “substandard certificate that allow[ed] its holder to pursue the requirements necessary to qualify for a standard certificate, but that only a standard certificate qualifies as a proper certification under the tenure law, N.J.S.A. 18A:28-5.” As Ruiz had never obtained the standard educational certificate with a SAC endorsement during his actual service as the SAC, the Commissioner concluded, as had the ALJ before him, that Ruiz never achieved a tenure status as a SAC. Therefore, without tenure Ruiz could not claim a superior entitlement to positions covered by the educational services certificate and held by non-tenured staff members.
The Appellate Division agreed. It concluded that because the Commissioner’s decision was not “palpably arbitrary or in violation of the law,” it should not be disturbed.
Both the Feldman and the Ruiz decisions address the importance of understanding the certification process and completing its requirements. Staff members who are employed only with a certificate of eligibility must bear in mind that under Feldman, until actual possession of the provisional certificate, they are not qualified to serve in the position—i.e, to actually perform the duties of the position. In addition, pursuant to the Ruiz decision, staff members must remain vigilant in completing all of the requirements necessary to graduate from the provisional to the standard certification. Staff members who procrastinate in completing the requirements needed to obtain a standard certificate, do so at their own risk.