III. NEW JERSEY SUPERIOR COURT APPELLATE DIVISION
In a settled NJLAD and NJ Civil Rights Act complaint, the Appellate Division reduced attorney’s contingent fee award from 45% to the 25% mandated by R. 1:21—where the contingency fee matter was successfully resolved in favor of a minor. No evidence was presented that the parent was aware of fee-shifting provisions in the LAD and NJCRA. A.W. v. Mount Holly Bd. of Educ., Dkt. No. A-01.65-16-T2, 2018 N.J. Super. Lexis 15, (App. Div. Feb 1, 2018).
Boards of Education
The Municipal Rehabilitation and Economic Recovery Act (MRERA) language is clear in granting Camden citizens the right to a school district classification vote, and nothing in QSAC restricts that right. Significantly, granting Camden citizens the right to a school district classification vote does not interfere with the State's full intervention because the Board will continue to serve in an advisory role until the conditions of QSAC are satisfied. Save Camden Pub. Schs v. Camden City Bd. of Educ., ____ N.J. Super ____.(2018)
A Board Member cannot simultaneously serve on two elected boards at the same time. N.S.J.A. 19:3-5.2 does not contain an exception for board of education members. Fischer v. Attorney General of N.J., No. A-1736-16T3 (App. Div. May 30, 2018)
OPRA’s reference to a citizen does not limit the ability of persons outside New Jersey from requesting public records. Scheeler v. Atlantic County Mun. Joint Ins. Fund, ____ N.J. Super ______ (App. Div. May 16, 2018)
The Appellate Division affirmed the Commissioner’s decision revoking the substitute teaching certificate of a long-term physical education teacher eight years after allegedly inappropriate contact with fourteen-year-old student. While the teacher was terminated subsequent to the incident, the reasons for termination were unclear from the record. Appellate Division reiterated its standard of review over Commissioner decisions was limited by Barrick v. State Dep’t of Treasury, 218 N.J. 247 (2014), and found that telephone contact with the student, meeting the student outside of regular school hours, and unzipping his fly was conduct sufficiently severe to warrant revocation of his certificate, without imposing progressive discipline. I.M.O. Certificate of Bell, State Board of Examiners, A-4135-14T2. (App. Div. Dec. 19, 2017).
Educational Services Commission
The Appellate Division approved the Middlesex Regional Education Services Commission's request to change its name to the Educational Services Commission of New Jersey (ESCNJ). The Court found it unreasonable to assume that the legislature authorized the State Board of Education to approve the Educational Services Commission's original name --and approve any change in its purpose-- but not to approve a change of its initial name. The Court ruled that by granting the State Board of Education broad oversight over the Educational Services Commissions, the Legislature also impliedly granted the State Board the authority to approve any request for a name change. The Court also rejected the idea that a name change would cause confusion and provide the Educational Services Commission of New Jersey with a competitive advantage. The State Board of Education had previously granted the Educational Services Commission of New Jersey the right to expand the services it offers statewide, thus this name change did not imply that there was a competitive advantage or that it was state-sanctioned by virtue of the name change. In re Middlesex Reg'l Educ. Svs. Comm'n Name Change Request, Dkt. No. A3359-15T4, 2018 N.J. Super. LEXIS 20, (App. Div. February 2, 2018).
Charitable Immunity Act
The Appellate Division determined that the university was immune from suit under the Tort Claims Act where, despite being a non-profit entity, it leased its premises to a for-profit entity which held a public performance during which plaintiff was injured. The university was permitted to open concerts to the public to advance education as part of its public purpose. The university could rent its facilities to for-profit entities unless non-charitable activities became its dominant motive. Green v. Monmouth Univ., Dkt. No. A-1652-15T2, 2018 N.J. Super. LEXIS 4, (App. Div. January 8, 2018).
The Appellate Division affirmed the Commissioner’s decision approving expansion of a charter school. The Appellate Division refused to consider the allegation that the charter school was operating as a statewide charter in violation of its charter because the allegation was not raised before the Commissioner of Education. Charter schools may accept students outside its district of residence and school districts of resident students are required to pay 90% of budget year equalization aid per pupil and the pre-budget year general fund tax levy per pupil inflated by the Consumer Price Index. Highland Park Bd. of Educ. v. Hespe, Dkt. No. A-3890-14T1, 2018 N.J. Super. Unpub. LEXIS 158, (App. Div. January 24, 2018).
The Appellate Division denied parents' claim that a sectarian school violated the NJ Law Against Discrimination (NJLAD) by refusing to contract with another based on sex, gender identity or expression, affectional or sexual orientation. Students were subjected to verbal abuse of a sexual nature and bullying after which their parents complained to the administration. The Administration allegedly did not seek to resolve the matter but did agree that it would be best if the family left the school. The Appellate Division agreed that a cause of action did exist under the NJLAD for student-on-student harassment but determined that the school did not refuse to contract based on sex, gender identity or expression, affectional or sexual orientation. G.A. v. St. Mary of the Lakes School, Dkt. No. A-0638-15T1, 2017 N.J. Super. Unpub. Lexis 3130, (App. Div. Dec. 20, 2017).
The Appellate Division reversed and remanded to the trial Court a decision barring expert witness testimony as a net opinion. The Court noted that "[e]xpert opinions must "be grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." The net opinion rule is a corollary of the rule which forbids the admission of an expert's conclusions that are not supported by factual evidence or other data. The Court concluded that simply because an expert opinion may be subject to attack on cross examination does not make that opinion a net opinion. Mascari v. Bordentown Reg’l High Sch., Dkt. No. A-0315-1611, 2018 N.J. Super. Unpub. LEXIS 175, (App. Div. January 25, 2018).
The Appellate Division reversed and remanded summary judgment granted in favor of the mayor and board of education. A terminated secretary alleged she was terminated in retaliation for political affiliation. The question as to the district's motivation for termination was a disputed issue of material fact where plaintiff’s claims about a hit list and political retaliation were corroborated by other independent testimonial evidence. Demarquet v. Roque, Dkt. A-1251-15T3, 2017 N.J. Super. Unpub. LEXIS 2881, (App. Div. Nov. 17, 2017).
The Court upheld the Commissioner's determination that a wrestling coach committed HIB when he said that he hoped one of his students, who was a special education student, did not have access to any weapons or keys to the gun closet. The Court upheld the Commissioner’s determination that the coach was entitled to a hearing before the board. S. G. v. Board of Educ. of the Hunterdon Cent. Reg'l Sch. Dist., No. A-5199-15T3 (March 1, 2018)
Open Public Records Act
The Appellate Division determined that draft minutes of the Government Records Council were advisory, consultative, and deliberative materials not subject to disclosure under the Act. Libertarians for Transparent Gov't v. Gov't Records Council, Dkt. No. A-5563-15T4, 2018 N.J. Super. LEXIS 14, (App. Div. January 26, 2018).
Grounds for drawing an adverse inference existed in the mayor's assertion of his 5th Amendment privilege against self-incrimination during his deposition, especially where the Office of Fiscal Compliance (OFAC) report concluded improper mayoral involvement in the termination. While the OFAC report may not have been admissible as a public record, plaintiff had the right to use the report to develop the testimony of witnesses named in that report. The Court also determined that courts have a range of actions available where a defendant refuses to comply with discovery, including striking defendant's testimony or drawing an adverse influence from defendant's exercise of the 5th Amendment. In addition, the mayor failed to sufficiently demonstrate good cause to warrant the entry of a protective order over his deposition in the matter. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning," do not establish good cause. Demarquet v. Roque, Dkt. A-1251-15T3, 2017 N.J. Super. Unpub. LEXIS 2881, (App. Div. Nov. 17, 2017).
A supervisor of special education may testify for the district in special education matters but is not part of the litigation control group. Therefore, no disqualification was needed by the law firm when tenure charges were brought against the supervisor, as she is not a former client. Tobia v. Lakewood BOE, No. A-5336-15 (March 12, 2018)
Public School Contract Law
The Appellate Division determined that the board properly withheld payment in excess of $300,000 to a general contractor who provided an addition to the district school. The Board asserted that the project was not complete because "closeout documentation" was not provided, including proof of payment of all vendors, proof of insurance, subcontractor waivers, recorded drawings, proof of tests and inspections, and the maintenance package containing manufacturers' warranties. The Court noted that the Board did not submit a "final punch list" until after the building had been occupied for two years and was not submitted with the certificates of substantial completion. Remanded to determine whether vendor fully completed the contract. Wallace Bros., Inc., v. East Brunswick Bd. of Educ., Dkt No. A-1432-15t3, 2017 N.J. Super. Unpub. Lexis 2802 (App. Div. Nov. 9, 2017).
The Appellate Division affirmed that "'Domicile” is defined as 'the place where [a person] has his [or her] true, fixed, permanent home and principal establishment, and to which whenever he [or she] is absent, he [or she] has an intention of returning."' The Court then upheld the Commissioner's residency determination in favor of the school district. T.L. v. Union Twp. Bd. of Educ., Dkt. No. A-5566-15t4, 2017 N.J. Super. Unpub. Lexis 3177, (App. Div. December 27, 2017).
The Appellate Division determined that school district employees properly retained payments tendered by the school district subsequent to duties requested by the city during Superstorm Sandy to use district properties as emergency shelters. The City paid for all service but the Office of Fiscal Accountability and Compliance determined that payments to two employees of over $16,000 were improper because they were exempt employees. The Court affirmed that the district would be unjustly enriched if the employees, who were working outside of their school contractual obligations, were required to return the money paid for their work at the emergency shelters. Parker v. Atlantic City Bd. of Educ., Docket Nos. A-3472-15t3, A-3610-15t3, 2017 N.J. Super. Unpub. Lexis 2939, (App. Div. November 29, 2017).
The Appellate Division determined that the tenure acquisition statute pertaining to state colleges and universities, in authorizing tenure upon hire for faculty members, was not preemptive so as to preclude negotiations on the topic. In addition, the Appellate Division concluded that the definition of "faculty" was not limited to faculty who serve in a collegial governance and managerial capacity and did not therefore exclude faculty who serve in a union member capacity. The Court concluded that tenure-upon-hire procedures were negotiable. I.M.O. New Jersey, Council of New Jersey State College Locals, AFT, Dkt. No. A-4948-15T3, 2017 N.J. Super. Unpub. LEXIS 2909, (App. Div. Nov. 21, 2017).
Tenure Dismissal – Inefficiency
The Appellate Division dismissed discharged teacher's claims of retaliatory discharge and violations of the Law Against Discrimination more, an employer's filing of a disciplinary action cannot form the basis of an LAD complaint." In addition the teacher's complaint failed to set forth facts supporting a claim of a hostile work environment, an action upheld by the arbitrator and confirmed on appeal to the Chancery Division. Moreover, decisions by an arbitrator are "given collateral estoppel effect by reviewing courts." Mansfield v. Newark Public Schools, Dkt. No. A-1704-16t1, 2017 N.J. Super. Unpub. Lexis 3032, (App. Div. December 8, 2017).
Tenure Dismissal — Salary
The Appellate Division determined that the district improperly refused to return a tenured teacher to the payroll where prosecution of the underlying tenure matter exceeded 120 due to motion for summary dismissal of the tenure charges filed by the teacher. The arbitrator referred the teacher's motion back to the Commissioner who returned it to the arbitrator, delegating authority to decide the motion. The arbitrator ordered the teacher to be returned to the payroll and subsequently decided both the motion and tenure charges in the district's favor. The Appellate Division supported restoration while tenure charges remained pending and found no bias in the arbitrator's nine minute review of the district's opposition to the teacher's interim application for restoration to the payroll. Lefkowitz v. Camden City State Op., Dkt No. A-5433-15T4, 2017 N.J. Super. Unpub. Lexis 2941, (App. Div. Nov. 29, 2017).
The Appellate Division reversed and remanded the Commissioner’s decision concluding that tenure and seniority rights of part time teachers under the Tenure Act did not protect them from the reduction because the collective bargaining agreement and their individual employment contracts omitted a guaranteed minimum number of work hours. Appellate Division held that "[t]he failure to guarantee a minimum number of hours in the contract documents cannot strip petitioners of their tenure rights, specifically the protection against reduction in compensation." Remanded for a factual determination as to whether the reduction in hours reduced petitioners' compensation under N.J.S.A. 18A:28-5 and whether the reduction in hours triggered petitioners' seniority rights. Zimmerman v. Sussex Cty. Educ. Svs. Comm'n, Dkt. No. A-1003-16T4, 2018, N.J. Super. LEXIS 24, (App. Div. Feb. 13, 2018). Tenure Dismissal upheld where school nurse had a series of incidents that imperiled student and staff safety as well as failure to maintain records and adequate supplies in office. The nurse's claim that the arbitrator's reliance on psychologist report rather than a psychiatrist's report was without merit. No law has been proffered by the nurse whereby the use of a psychologist examination report as evidence in the arbitration hearing is prohibited. Psychologists are specifically authorized by law to perform assessments of job suitability and assessments in connection with legal proceedings and in the action of governmental agencies including but not limited to cases involving education. The argument that progressive discipline should have been used was without merit. Progressive disciple has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons. Costello v. Northfield Bd. of Educ., No. A-3688-15T3 (April 5, 2018).
Tort Claims Act
The Appellate Division dismissed a motion to file late notice of tort claim against the district where a former student alleged that a French teacher sexually abused him when he was a student between 1991 and 1993. Plaintiff/former student argued that his claim did not accrue until May 2015, when he finally recognized he was a victim of sexual abuse by the former teacher, asserting that he began experiencing symptoms of PTSD and other psychological disorders, which constituted "extraordinary circumstances" justifying the late filing. J.C. v. D'Annunzio, Dkt. No. A-198416T3, 2017 N.J. Super. Unpub. LEXIS3151, (App. Div. December 21, 2017).
The Appellate Division dismissed a complaint asserting an injury on school property where notice was sent to the wrong address. The Complaint was timely served on the city and board at a city address. The handwritten note was timely provided to the district but did not comply with the notice requirements of the Act. The District was not responsible for inaccurate yellow page listing. The Doctrine of substantial compliance was inapplicable because the board was not put on notice of an intent to sue and therefore could not undertake a prompt investigation. Hernandez v. Snyder High Sch., Dkt. No. A-131116T1, 2018 N.J. Super. Unpub. LEXIS 155, (App. Div. January 24, 2018).
*John J. Burns, Esq. is Counsel to the New Jersey School Boards Association . This presentation is reprinted from the 2018 Spring School Law Forum with permission.
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