By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research
The “Pass the Trash” law, formally P.L. 2018 c.5, codified at N.J.S.A. 18A:6-7-6 et. seq., and effective June 1, 2018, requires school districts, charter schools, nonpublic schools, or contracted service providers working with school districts, nonpublic schools, or charter schools from employing a person serving in a position which involves regular contact with students unless the school district, charter school, nonpublic school, or contracted service provider conducts a review of the employment history of the applicant by contacting former and current employers to determine if the prospective employee has any pending or substantiated allegations of child abuse or sexual misconduct over the past 20 years. The idea behind the law was to ensure that a prospective employer would be aware of those pending or substantiated allegations of child abuse or sexual misconduct before hiring the employee. The “trash” would not be passed from one school employer or contractor to another school employer or contractor. This article outlines the key components of this law and reviews an important decision interpreting the law and showing the broad reach of the law in terms of staff behavior., and the application of the law even if cases where nondisclosure agreements may exist.
N.J.S.A. 18A:6-7.6 provides specific definitions of child abuse and sexual misconduct.
- “Child abuse” means any conduct that falls under the purview and reporting requirements of P.L. 1971, c.437 (N.J.S.A. 9:6-8.8 et. seq.) and is directed toward or against a child or student, regardless of the age of the child or student. These are the allegations that must be reported to the Division of Child Protection and Permanency (DCP&P, formerly DYFS)
- “Sexual misconduct” means any verbal, nonverbal, written or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student. It should be noted that this definition potentially includes actions that may not have been reported to DCP&P but may have only been investigated by the school district.
The “Pass the Trash” law imposes certain requirements on prospective employees of school districts, charter schools, nonpublic schools, or contracted service providers. Pursuant to N.J.S.A. 18A:6-7.7 the prospective employee must:
- Provide a list of the current employer and all former employers within the last 20 years that were schools or where the applicant was employed in a position that had involved direct contact with children;
- Sign a written authorization that allows for prior employers to release relevant information and releases those employers from any liability; and
- Sign a written statement attesting to whether there are any substantiated or pending allegations of child abuse or sexual misconduct.
The prospective employee must also disclose if the prospective employee
- Has been the subject of any child abuse or sexual misconduct investigation in the last 20 years unless the investigation resulted in a finding that the allegations were false or not substantiated;
- Has ever been disciplined, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or
- Has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct.
The “Pass the Trash” law imposes certain requirements on school districts, charter schools, nonpublic schools, or contracted service providers as prospective employers. Pursuant to N.J.S.A. 18A:6-7.9 the prospective employer must conduct a review of the applicant’s employment history by contacting applicable former employers to determine if
- any investigation of child abuse or sexual misconduct is pending or if the allegations have been substantiated;
- the employee was discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or
- the employee has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct.
Once receiving this request for information, the prior in-state employer:
- Must disclose the requested information no later than 20 days after receiving a request if the person in question was employed within the last 20 years
- Failure of prior employer to respond within 20 days may be grounds for automatic disqualification of the applicant for employment. This requirement could result in the prospective employee being penalized because of a non-responsive prior employer.
Out-of-State prior employers cannot be compelled to cooperate. However, a prospective employer must document, with specificity, diligent efforts to gather the information in question. A best practice would be to send a written request to out-of-state prior employers and follow-up if no response is received within a short time period.
Pursuant to N.J.S.A. 18A:6-7.9, the “Pass the Trash” law allows a school district, charter school, nonpublic school, or contracted service provider the right to immediately terminate an individual’s employment or rescind an offer of employment if the applicant is offered or begins employment and relevant information regarding the applicant’s history of sexual misconduct or child abuse is subsequently discovered or obtained by the employer that the employer determines disqualifies the applicant or employee from employment. Termination of employment shall not be subject to any grievance or appeals procedures or tenure proceedings pursuant to any collectively bargained or negotiated agreement or any law, rule, or regulation.
The “Pass the Trash” law also allows a school district, charter school, nonpublic school, or contracted service provider to employ an applicant on a provisional basis, pending review of received information under certain circumstances. N.J.S.A. 18A:6-7.10 allows provisional employment for up to 90 days if
- The applicant has submitted the required documentation regarding prior employment;
- The school district or related entity has no knowledge or information pertaining to prior allegations of child abuse or sexual misconduct; and
- The school district or related entity determines that “special or emergent circumstances exist.”
Lastly, the “Pass the Trash” law, at N.J.S.A. 18A:6-7.12, bars settlement agreements, contracts, or collective bargaining agreements from including language that has the effect of
- Suppressing or destroying relevant information related to an investigation;
- Limiting the right of an employer to report suspected incidents; or
- Expunging relevant information from employment records.
In a recent 10/5/23 decision, the Appellate Division affirmed a 10/21/21 Commissioner of Education determination upholding a board of education disclosure of personnel information pursuant to the “Pass the Trash” law.
In A.B. v. BOE of the City of Hackensack a teacher challenged the board of education release of information concerning her former employment as a teacher in the Hackensack school district to her prospective employer, the Clifton BOE. The Hackensack BOE contended that it was obligated to release the information.
Pursuant to “Pass the Trash,” N.J.S.A. 18A:6-7.6 through 7.13, the Clifton BOE submitted a questionnaire to the Hackensack BOE inquiring about whether the prospective employee teacher, A.B., had been the subject of a child abuse or sexual misconduct investigation. The Hackensack BOE answered “Yes” and that A.B. had resigned while the allegations were pending or under investigation. As a result, the Clifton BOE withdrew its offer to hire the teacher.
While employed in with the Hackensack BOE in 2013, teacher A.B. shared two sexually explicit posts on social media to which several students had access. “Kiss me, I’m Irish, F*** me, I’m Irish,” “Women say, men only think with their penis – Ladies, don’t be afraid to blow their minds.”
The Hackensack BOE became aware of the posts, and considered taking disciplinary action. Teacher A.B., her union representatives, and her legal counsel met with the Board and its legal representation, resulting in a settlement agreement, dated 4/25/13, including teacher A.B.’s resignation. The agreement contained a confidentiality provision with the disclaimer “to the extent provided by law.”
The administrative law judge (ALJ) determined that both posts met the definition of “sexual misconduct” and that the BOE rightfully conducted an investigation. The Hackensack BOE’s disclosure of the information was required by “Pass the Trash”, N.J.S.A. 18A:6-7.7.
The Commissioner agreed with the ALJ finding that it was reasonable that the Board conducted an investigation into sexual misconduct based on petitioner’s actions. Petitioner’s social media posts could meet the definition of electronic communications that are directed toward or with a student that are designed to establish a sexual relationship with the student, such as making sexually suggestive comments. It is sufficient that her actions could meet the definition and that the Board opened an investigation. Commissioner agreed with the ALJ that the Hackensack BOE appropriately disclosed information regarding the sexual misconduct investigation into petitioner as a response to Clifton’s employment questionnaire.
The Commissioner also agreed with the ALJ that N.J.S.A. 18:6-7.12 did not exempt settlement agreements entered into before June 1, 2018 from the mandatory disclosure provisions of the “Pass the Trash” statute. Teacher A.B. also consented to the disclosure of information by signing an authorization form and her settlement agreement provided a waiver of its confidentiality provision when required by law.
Having followed the requirements of the “Pass the Trash” statute, the ALJ determined that the Hackensack BOE was immune from liability, civil or criminal. N.J.S.A. 18A:6-7.11. The Commissioner agreed, upheld the Hackensack BOE actions and dismissed the case.
The Appellate Division affirmed, finding no basis to disturb the Commissioner’s findings and concluded that the Commissioner’s decision was not arbitrary, capricious, or unreasonable. The Hackensack BOE’s release of information pursuant to the “Pass the Trash” law was upheld.
The Pass the Trash statute is a remedial piece of legislation intended to identify those who pose a threat to the well-being of students. Given the recent Appellate Division decision in A.B. v. BOE of the City of Hackensack, boards of education should feel confident that if they follow the requirements of the law, their actions will be upheld and students will be protected.