PRIMER – THE NEW TENURE LAW
By: Robert M. Schwartz,
Chief Counsel, NJPSA
The statutory concept of tenure has existed in New Jersey for over 100 years. The idea of tenure was “to aid in the establishment of a competent and efficient school system by affording to principals and teachers a measure of security in the ranks they hold after years of service.” Viemeister Board of Ed. of the Borough of Prospect Park 5 N.J. Super. 215 (App. Div. 1949). That was the context in which tenure was seen by its original framers and for much of the time since. However, in recent years the politics of tenure has changed. Clearly, there is still a need to protect teaching staff members from political interference; to offer them a measure of security in the positions they hold. However, the current political spotlight is not so much on the benefits of tenure, which include protecting teaching staff members from the vagaries of politics and arbitrariness, as it is on improving student performance through better classroom instruction with more rigorous educational standards and greater accountability. The result is the 2012 enactment of the “Teacher Effectiveness and Accountability for the Children of New Jersey Act,” otherwise known as TEACHNJ.
The new law lengthens the time to acquire tenure, conditions both the acquisition and continuation of tenure to the receipt of “effective” or “highly effective” performance evaluations and changes the tenure removal process.
The purpose of this primer is to review the new law and the significant changes it makes.
Conditions required for tenure to be achieved.
The case law says that for tenure to be achieved the precise conditions of the statute must be met. Zimmerman v. Board of Ed. of the City of Newark, 38
N.J.65 (1962). This is still the case.
What are those conditions?
The law still requires teaching staff members to:
(1) hold appropriate certificates in full force and effect issued by the State Board of Examiners;
(2) hold a position delineated in the tenure statute or in an otherwise certificated position for the required period, and
- be a United States citizen;
But, the new tenure law now also requires that to acquire tenure a teaching staff member must receive a rating of “effective” or “highly effective” in two annual summative evaluations within the initial three years of employment after the probationary year of employment.
Length of Service for tenure acquisition has changed.
In addition, teaching staff members employed on or after August 6, 2012, the effective date of the law, must now serve in a certificated position for:
(1) four consecutive calendar years; or
(2) four consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(3) the equivalent of more than four academic years within a period of any five consecutive academic years.
The initial year of employment is designated as a probationary year.
During the probationary year the statute provides that a “teacher” must complete “a district mentorship program.”
Pursuant to N.J.S.A.18A:6–127 a board of education shall implement a researched-based mentoring program that pairs effective, experienced teachers with first-year teachers to provide:
- observation and feedback;
- opportunities for modeling;
- confidential support and guidance in accordance with the Professional Standards for Teachers and the evaluation rubric.
The mentoring program is to:
- enhance teacher knowledge of and strategies related to, the core curriculum content standards in order to facilitate student achievement and growth;
- identify exemplary teaching skills and educational practices necessary to acquire and maintain excellence in teaching;
- assist first-year teachers in the performance of their duties and adjustment to the challenges of teaching. To the greatest extent feasible, mentoring activities shall be developed in consultation with the school improvement panels. (See below)
Effective or highly effective – what does it mean?
“Effective” or “highly effective” means the employee has received an annual summative evaluation rating of “effective” or “highly effective” based on the performance standard for his/her position established through an evaluation rubric adopted by the board of education and approved by the Commissioner.
Pursuant to N.J.S.A. 18A:6-22 a school district shall annually submit to the Commissioner of Education, for review and approval, the evaluation rubrics that the district will use to assess the effectiveness of its teachers, principals, assistant principals, and vice-principals and all other teaching staff members.
The board shall ensure that an approved rubric meets the minimum standards established by the State Board of Education. Those standards are to be completed and adopted by the State Board of Education for the 2013-2014 school term.
N.J.S.A, 18A:6–123 provides that the Commissioner of Education shall review and approve evaluation rubrics submitted by school districts.
Standards for the evaluation rubrics.
The standards for the evaluation rubrics for teachers, principals, assistant principals, and vice–principals require at a minimum the following:
(1) four defined annual rating categories consisting of highly effective, effective, partially effective ineffective,;
(2) a provision requiring that the rubrics be partially based on multiple objective measures of student learning that use student growth from one year’s measure to the next year’s measure;
(3) a provision that allows a district in which a standardized test is not required, to determine the methods for measuring student growth;
(4) a provision that multiple measures of practice and student learning be used in conjunction with professional standards of practice using a comprehensive evaluation process in rating effectiveness with specific measures and implementation processes. Standardized assessments shall be used as a measure of student progress but shall not be the predominant factor in the overall evaluation of a teacher;
(5) a provision that the rubric shall be based on the professional standards for that employee;
(6) a provision ensuring that performance measures used in the rubric are to be linked to student achievement;
(8) a provision that requires that at each observation of a teacher, either the principal, his designee who shall be an individual employed in the district in a supervisory role and capacity and who possesses a school administrator certificate, principal certificate, or supervisor certificate, the vice-principal, or the assistant principal shall be present;
(9) an opportunity for the employee to improve his effectiveness from evaluation feedback;
(10) guidelines for school districts regarding training and the demonstration of competence on the evaluation system to support its implementation;
(11) a process for ongoing monitoring and calibration of the observations to ensure that the observation protocols are being implemented correctly and consistently;
(12) a performance framework, associated evaluation tools, and observation protocols, including training and observer calibration resources;
(13) a process for a school district to obtain the approval of the commissioner to utilize other evaluation tools;
(14) a process for ensuring that the results of the evaluation help to inform instructional development; and
Timeline for evaluation rubric.
All boards of education were to adopt evaluation rubrics no later than December 30, 2012.
Evaluation rubric to be in place for the 2013-2014 school term.
The adopted evaluation rubrics for all educators in all elementary, middle, and high schools in the district were to be implemented in the 2013–2014 school year.
Results of evaluations shall be used to identify and provide professional development to teaching staff members. Results of evaluations also shall be provided to the Commissioner, as requested, on a regular basis.
School Improvement Panels.
N.J.S.A. 18A:6–120. requires each school to have a school improvement panel (SIP).
A SIP shall include the principal, or his/her designee, an assistant or vice-principal, and a teacher.
The principal’s designee shall be an individual employed in the district in a supervisory role and capacity who possesses a school administrator certificate, principal certificate, or supervisor certificate.
In the event that an assistant or vice-principal is not available to serve on a SIP, the principal shall appoint an additional member to the panel, who is employed in the district in a supervisory role and capacity and who possesses a school administrator certificate, principal certificate, or supervisor certificate.
The teacher shall be a person with a demonstrated record of success in the classroom who shall be selected in consultation with the majority represntative
An individual teacher shall not serve more than three consecutive years on any one SIP.
Shared Services Agreement.
An outside contractor with which the district has entered into a shared services agreement may perform the functions of a SIP.
Purpose of the School Improvement Panel.
The SIP is to oversee the mentoring of teachers and conduct evaluations of teachers, including an annual summative evaluation.
The panel shall conduct a mid-year evaluation of any teacher who is evaluated as ineffective or partially effective in his or her most recent annual summative evaluation.
The evaluation shall remain confidential.
Teacher role in the evaluation process.
The teacher on a SIP shall not be included in the evaluation process, except when agreed to by the majority representative.
School improvement panels are to identify professional development opportunities.
A SIP shall identify professional development opportunities for all instructional staff members that are tailored to meet the unique needs of the students and staff of the school.
Evaluation of principals, assistant and/or vice principals.
N.J.S.A. 18A:6–121 requires the superintendent of schools or his designee to conduct evaluations of each principal employed by the school district, including an annual summative evaluation. Tenured principals and vice principals shall be observed at least two times each year. Non-tenured principals and/or vice principals shall be observed at least three times a year. See N.J.A.C. 6A:10-5.4.
The principal, in conjunction with the superintendent or his designee, is required to conduct evaluations of each assistant principal and vice-principal employed in his school, including an annual summative evaluation.
The superintendent or his designee and the principal, as appropriate, are also required to conduct a mid-year evaluation of any principal, assistant principal, or vice-principal who is evaluated as ineffective or partially effective in his most recent annual summative evaluation.
The evaluation shall remain confidential.
Post Observation Conference
Supervisor conducting observation shall conduct post-observation conference within 15 working days following the observation.
The post-observation conference shall be for the purpose of reviewing the data collected at the observation, connecting the data to the principal practice instrument and the principal, assistant principal, or vice principal’s individual professional development plan, collecting additional information needed for the evaluation, and offering areas to improve effectiveness.
With the consent of the observed principal, assistant principal, or vice principal, post-observation conferences for individuals who are not on a corrective action plan may be conducted via written communication, including electronic communication.
The principal, assistant principal, or vice principal shall submit his or her written objection(s) of the evaluation within 10 working days following the conference. The objection(s) shall be attached to each party’s copy of the annual written performance report. N.J.A.C. 6A:10-5.4.
N.J.S.A. 18A:6–128 requires that a board of education, principal, or superintendent provide its teaching staff members with (1) ongoing professional development that supports student achievement and (2) an individual professional development plan.
To the greatest extent feasible, professional development opportunities shall be developed in consultation with the SIP.
A board of education, principal, or superintendent shall provide additional professional development for any teaching staff member who fails or is struggling to meet the performance standards established by the board, as documented in the teaching staff member’s annual summative evaluation.
The additional professional development shall be designed to correct the needs identified in the annual summative evaluation.
Corrective Action Plan.
When the employee is rated ineffective or partially effective a corrective action plan (CAP) shall be developed by the teaching staff member and the teaching staff member’s designated supervisor to address deficiencies outlined in the evaluation.
The CAP shall include timelines for corrective action and responsibilities of the teaching staff member and the school district for implementation of the plan.
If the summative evaluation is “calculated” prior to the end of the school year, the teaching staff member and the designated supervisor shall meet to discuss the CAP prior to September 15 of the following school year.
If the ineffective or partially effective summative evaluation rating is received after the start of the school year following the year of the evaluation, then a corrective action plan must be developed, and the teaching staff member and his or her designated supervisor shall meet to discuss the corrective action plan within 15 working days following the school district’s receipt of the teaching staff member’s summative rating.
The content of the corrective action plan shall:
- Address areas in need of improvement identified in the educator evaluation rubric;
- Include specific, demonstrable goals for improvement;
- Include responsibilities of the evaluated employee and the school district for the plan’s implementation; and
- Include timelines for meeting the goal(s).
Promotional tenure –length of service unchanged.
The promotional tenure statute, N.J.S.A. 18:28-6, still provides that tenure in a promotional position shall be achieved upon:
(1) the expiration of a period of employment of two consecutive calendar years in the new position; or
(2) employment for two academic years in the new position together with employment in the new position at the beginning of the next succeeding academic year; or
(3) employment in the new position within the period of three consecutive academic years, for the equivalent of more than two academic years.
Rating of effective or highly effective required.
The promotional tenure statute provides that to achieve tenure as a teacher, or as a principal, assistant principal, or a vice principal, when promoted, the employee shall be evaluated as effective or highly effective in two annual summative evaluations within the first three years of employment in the new position.
Service in an underperforming school.
N.J.S.A. 18A:28-5.1 provides that a tenured teaching staff member who has been rated effective or highly effective in his or her most recent annual summative evaluation in his/her current district, and who accepts employment in the same position in a new district in an underperforming school shall receive tenure in the new district during good behavior and efficiency after the staff member receives in the new district a rating of effective or highly effective in at least one of the summative evaluations received within the first two years of employment in the new district.
This means that a tenured teaching staff member who accepts employment in an underperforming school in a new district in the same position may acquire tenure after only one year of service in the new district.
But, as under the former statute, upon leaving a district to go to a new district in an underperforming school, the staff member relinquishes the tenure he/she may have had in the former district.
Defining an underperforming school.
As used in this section, N.J.S.A. 18A-28-5.1 defines “underperforming school” as a school which has been identified by the Department of Education as a “focus school” or a “priority school” for any year within a two–year period.
TENURE CHARGE PROCESS
In addition to significantly changing the manner in which tenure is to be achieved, the legislature also significantly changed the process by which tenure can be removed.
Commissioner no longer decides tenure charges.
N.J.S.A.18A:6-9 states that the Commissioner shall have jurisdiction to hear and determine without cost to the parties all controversies and disputes under the school laws. However, under the new law, tenure charge matters are to be assigned by the Commissioner to be heard by an arbitrator whose decision shall be binding.
Tenure charge process – arbitration.
N.J.S.A.18A:6-11 still requires that:
(1) any charge made against an employee of a board of education under tenure during good behavior and efficiency shall be filed with the secretary of the board in writing;
(2) the written statement of evidence under oath to support the charge shall be presented to the board;
(3) the board of education shall forthwith provide to the employee a copy of the charge, a copy of the statement of the evidence and an opportunity to submit a written statement of position and a written statement of evidence under oath with respect thereto;
(4) after consideration of the charge and any statements of position and/or evidence presented, the board shall determine by a majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal or reduction of salary;
(5) the board of education shall forthwith notify the employee against whom the charge has been made of its determination, personally or by certified mail directed to his last known address;
(6) in the event that a board of education finds that probable cause exists to credit the charge, it shall forward the written charge to the Commissioner.
N.J.S.A.18A:6-13 still requires that a board of education act within 45-days after receipt of the charge. If no action is taken, the charge shall be deemed to be dismissed and no further proceedings shall occur.
N.J.S.A.18A:6-14 provides that:
(1) upon certification of any charge to the Commissioner a board of education may suspend the person against whom such charge is made with or without pay;
(2) if the arbitrator does not make a determination of the charges within 120-calendar days after the charges have been certified, excluding all delays which are granted at the request of the employee against whom the charges are filed, then the employee’s salary shall recommence on the 121st day, assuming that the suspension has been without pay;
(3) should the charge be dismissed at any stage of the process the employee shall be reinstated immediately with full back pay from the first day of the suspension;
(4) should the charges be dismissed at any stage and an appeal is taken by the board of education, the employee must be reinstated with back pay pending any appeal of the board of education, unless otherwise ordered by a court;
(5) should the charges be sustained by the arbitrator, the arbitrator shall fashion an appropriate remedy which shall include dismissal;
(6) if a suspended employee obtains substitute employment during the suspension period, any pay received from the substitute employment shall be deducted from the pay received by the employee from the district which has brought the charges;
Tenure charges of inefficiency no longer require a 90-day period of improvement to precede the filing of charges.
N.J.S.A.18A:6-16 provides that if the Commissioner credits the charge as sufficient to warrant dismissal or reduction in pay he shall refer the case to an arbitrator.
Arbitrator may not review quality of assessment of classroom performance.
The evaluation’s determination as to the quality of the employee’s classroom performance shall not be subject to the arbitrator’s review.
Burden of proof.
The board of education has the ultimate burden of demonstrating that the statutory criteria for tenure charges have been met.
No depositions are permitted. Interrogatories shall be limited to 25 without subparts.
(1) A hearing shall be held within 45-days of the assignment of the arbitrator to the case.
(2) The arbitrator shall receive no more than $1,250.00 per day and no more than $7,500.00 per case. The costs and expenses of the arbitrator shall be borne by the State.
(3) Upon referral of the case for arbitration, the employing board of education shall provide all evidence, including but not limited to, documents, electronic evidence, statement of witnesses, and a list of witnesses with a complete summary of their testimony, to the employee or the employee’s representative.
(4) The employing board shall be precluded from presenting any additional evidence at the hearing except for purposes of impeachment of witnesses.
N.J.S.A.18A:6-17.2 provides that an arbitrator who hears an inefficiency charge shall only consider whether or not:
(1) the employee’s evaluation failed to adhere substantially to the evaluation process, including, but not limited to providing a corrective action plan;
(2) there is a mistake of fact in the evaluation;
(3) the charges would not have been brought but for considerations of political affiliation, nepotism, union activity, discrimination as prohibited by State or Federal law, or other conduct prohibited by State or Federal law;
(4) the district’s actions were arbitrary and capricious.
In the event that the employee is able to demonstrate either a mistake of fact in the evaluation, or a failure to adhere substantially to the evaluation process, or that the charges are based on political affiliation, nepotism, union activity or discrimination, or that the district’s actions were arbitrary and capricious, the arbitrator shall determine if any of these factors materially affected the outcome of the evaluation.
If the determination is that the aforementioned factors did not materially affect the outcome of the evaluation the arbitrator shall render a decision in favor of the board.
Panel of arbitrators.
At the moment the process provides a panel of 25 permanent arbitrators to hear matters pursuant to N.J.S.A.18A:6-16.
A proposal is now being considered to expand the panel of arbitrators to 50.
Currently, all arbitrators are to serve on the American Arbitration Association panel of labor arbitrators and shall be members of the National Academy of Arbitrators. Arbitrators are to have knowledge and experience in the school employment sector.
Hearings and Decision.
(1) The arbitrator shall determine the case under the American Arbitration rules;
(2) The arbitrator shall render a written decision within 45-days from the start of the hearing.
(3) The arbitrator’s determination shall be final and binding and may not be appealable to the Commissioner or the State Board of Education, but is subject to judicial review and enforcement pursuant to N.J.S.A.2A:24-7 -N.J.S.A.2A:24-10.
N.J.S.A.2A:24-7 provides that the award must be in writing and that a party may, within 3-months of the review, commence a summary action for its confirmation or its vacation, modification or correction.
Standard for judicial review.
N.J.S.A.2A:24-8 provides that an arbitration award may be vacated:
(1) if it was procured by corruption, fraud or undo means;
(2) where there was evident partiality or corruption by the arbitrator;
(3) where the arbitrator was guilty of misconduct in refusing to postpone the hearing for sufficient cause;
(4) where the arbitrator exceeded or so imperfectly executed his/her powers that a mutual, final and definite award upon the subject matter submitted was not made.
N.J.S.A.2A:24-9 provides that a modification or correction of an award may occur when:
(1) there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to;
(2) where the arbitrator’s award was imperfect in a manner of form not effecting the merits of the controversy;
(3) where the arbitrator awarded upon a matter not submitted to him/her unless it effects the merits of the decision.
N.J.S.A.2A:24-10 states that an order confirming, modifying or correcting an award or a judgment in any action shall have the full force of a judgment.
TEACHNJ, as it relates to tenure charges, was intended to directly tie in the evaluations in inefficiency cases and to streamline the tenure charge process.
We now have a three year track record of arbitration decisions. What is readily apparent is that there has been an increase in the number of tenure charges brought and given the narrow confines of the arbitrators’ authority, issues of procedure have been a pivotal component of the decisions rendered.
In a series of decisions coming out of the State Operated School District of Newark, arbitrators have dismissed charges brought under TEACHNJ that did not comply with required two year evaluation cycle.
Specifically, Newark was a pilot district for the new evaluation rubrics in the 2012-2013 school term. In a number of cases, Newark included the pilot year as part of the two year evaluation cycle. The consistent conclusion of the arbitrators has been that the pilot year cannot be included in the two year evaluation cycle. The arbitrators have consistently determined that TEACHNJ, which was passed in August 2012, was not implemented until October 2013. Thus, the “clock” for the evaluation cycle did not begin to run until the 2013-2014 school term. As a result, all the performance cases brought, whose evaluation cycle included any period prior to the full implementation of TEACHNJ, were dismissed.
Similarly, arbitrators have dismissed cases in which districts (1) have not complied with the statutory CAP requirements for teaching staff members receiving less than effective evaluations; or (2) have not provided to a teaching staff member on a CAP with the additional observation required; or (3) have not complied with internal procedures such as pre and post observation conferences; or (4) have paid only “lip service” to correcting noted deficiencies.
The role of following process in good faith was specifically discussed In the Matter of LaRhonda Ragland and the State Operated School District of the City of Newark, Agency Docket # 285-9/14. The arbitrator, ruling in favor of the teaching staff member, said that TEACHNJ “contemplates” that before a teaching staff member may be dismissed, that he or she must receive “a real – rather than feigned – prolonged effort to provide guidance and mentorship from the most advanced and knowledgeable educators in the teacher’s school; the principal and high level administrators.”
So, what we know at this point is that TEACHNJ has engendered the filing of more charges, which in all probability will increase even further in the 2015-2016 school terms because all districts will have completed the two year evaluation cycle. The DOE has also recognized the need for more arbitrators and greater flexibility in terms of the length of hearings, particularly inefficiency charges. That’s why the DOE is about to add an additional 25 arbitrators on its list, and to provide a process whereby arbitrators can ask for additional hearing dates – beyond the current limit – and be compensated for them. We also know that by and large the arbitrators are looking for strict adherence with procedures, statutory, regulatory and internal as well.
The new framework for tenure contains significant differences from what previously existed.
- There is now a statutory probationary period of employment for new employees, which makes tenure acquisition a four year process. But, the time frame for acquiring tenure in a promotional position remains two years. N.J.S.A. 18A:28-6.
- Performance as measured by evaluations is now a key and direct component to not only achieving tenure, but keeping it as well. Two consecutive ineffective evaluations require the filing of tenure charges as does a partially effective evaluation followed by an ineffective evaluation.
- The tenure removal process is now in the hands of arbitrators, whose authority is defined by statute. While arbitrators may determine if the facts presented match the conclusions of the evaluations, their primary focus are on issues of process.
Going forward, teaching staff members who are on the receiving end of evaluations should carefully review their contents, and be sure to place on the record rebuttals to assessment with which they disagree. As for evaluators, they should make sure that they understand the process and what is required, and adhere to those requirements.