NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0857-13T2 A-1012-13T2
FELICIA PUGLIESE,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. May 19, 2015
APPELLATE DIVISION STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK,
Defendant-Respondent. __________________________________
EDGARD CHAVEZ,
Plaintiff-Appellant,
v.
STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK,
Argued March 17, 2015 – Decided May 19, 2015
Before Judges Koblitz, Haas and Higbee.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket Nos. C-84-13 and C-98-13.
Richard A. Friedman argued the cause for appellant Felicia Pugliese (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Friedman, of counsel and on the brief; Marissa A. McAleer, on the brief).
Jason E. Sokolowski argued the cause for appellant Edgard Chavez (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Sokolowski, of counsel and on the brief).
Brenda C. Liss argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, attorneys; Ms. Liss, of counsel and on the brief; John Atkin, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
In these appeals from termination, which we consolidate for
the purposes of this opinion, tenured teachers Felicia Pugliese
and Edgard Chavez assert that their legal defenses were not
considered by the Commissioner of Education, the arbitrator
hearing the case, or the trial court. We reverse and remand to
the Commissioner to explicitly decide those legal defenses that
the Commissioner does not expressly delegate to the statutorily-
mandated arbitrator to decide. The Commissioner must also
inform the arbitrator what legal standards to utilize, after
which the arbitrators must review the facts anew within this
legal framework.
We first discuss the factual situation of each teacher. We
then review the common statutes that apply to both matters, and
the reasons why we are compelled to remand to the agency to
2 A-0857-13T2 determine in the first instance those issues implicating policy
considerations and statutory interpretation in the educational
context.
The Chavez matter
At the time of the arbitrator's decision in February 2013,
Chavez had been employed by defendant, the State-operated school
district of the City of Newark,1 or its predecessor the Board of
Education of Newark, for approximately twenty years, eighteen of
which were spent successfully teaching math and other subjects
in the adult education/GED2 program. In August 2010, after that
program was cancelled, Chavez was assigned to teach sixth grade
math using a math curriculum he had not previously taught.
Chavez holds an Instruction Certificate with an Elementary
Teacher (K-8) endorsement and has passed the National Teacher's
Examination in math.
The school principal anticipated that it would take a few
months for Chavez to transition to teaching sixth graders. Over
1 As permitted by the then-applicable provisions of the Public School Education Act of 1975, L. 1975, c. 212, § 15 as amended by L. 1987, c. 398, § 3, in 1995, the State Board of Education authorized the removal of the Newark Board of Education and the creation of a State-operated school district after a determination that Newark's students were not being provided a thorough and efficient system of education. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 112-14 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). 2 "GED" is the abbreviation for General Educational Development.
3 A-0857-13T2 the course of the next two school years, Chavez was provided
with numerous teaching supports, including ongoing in-class
assistance from a technology coordinator during the first year
and a math coach for both years, as well as help from the vice
principal to assist him in modifying the behavior of disruptive
children in his class.
In spite of the ongoing support provided, Chavez was unable
to adjust satisfactorily to the change in teaching assignment.
He received negative memoranda from school administrators,
including letters of reprimand and a letter of warning
concerning his lack of classroom management skills, setting
forth two incidents where he failed to follow proper reporting
procedures when students were injured in his classroom.
During this two-year time period, teachers were evaluated
using a scale in which they were rated either "distinguished,"
"proficient," "basic," or "unsatisfactory." For the school
years 2010-2011 and 2011-2012, despite the ongoing support and
feedback, Chavez received a rating of "basic" and
"unsatisfactory," respectively.
In March 2012, Chavez was notified that defendant intended
to file tenure inefficiency charges, and he was given a ninety-
day improvement plan, as required by the then-existing provision
in N.J.S.A. 18A:6-11. After Chavez failed to demonstrate
4 A-0857-13T2 improvement, tenure charges were filed in July and certified by
the Commissioner of Education in September 2012.
At the subsequent arbitration hearing, undertaken pursuant
to the recently enacted Teacher Effectiveness and Accountability
for the Children of New Jersey Act (TEACHNJ), the arbitrator
based his review on whether defendant's findings were true,
reasoning that 1) matters were referred to arbitration only
after the Commissioner of Education reviewed the tenure charges
and deemed them sufficient, if true, to warrant dismissal; and
2) TEACHNJ arbitration review criteria were inapplicable because
they were based on a new teacher evaluation rubric that had not
yet been implemented. By statute, the new evaluation rubric was
to be adopted by December 31, 2012 and implemented in the 2013-
2014 school year. Looking at the factual merits of the case,
the arbitrator noted that defense witnesses were credible,
"extraordinary efforts" had been undertaken to help Chavez
succeed, and no animus was directed toward him by defendant.
Chavez's discharge was sustained.
At the subsequent appeal to the trial court, Chavez argued
that the arbitrator "violated the law by not reviewing or even
considering" his legal defenses. The trial court upheld the
arbitrator's decision, finding that the arbitrator correctly
analyzed which provisions of TEACHNJ he was to apply. The trial
5 A-0857-13T2 court also found "substantial evidence"3 in the record, and that
it was "reasonably debatable"4 that the arbitrator had fulfilled
his task to decide whether or not the tenure charges were
appropriate and true.
The Pugliese matter
Pugliese also seeks reversal of the same trial court's
September 2013 confirmation of a different arbitrator's decision
in which she was dismissed from her tenured teaching position.
Pugliese was employed by defendant from 2004-2013. She has an
undergraduate degree in sociology and a master's degree as a
reading specialist. She holds an elementary certification and
is "highly qualified" to teach language arts literacy.
Beginning in the school year 2010-2011, Pugliese was reassigned
from teaching reading to small groups of students to teaching
large social studies classes for grades five through eight.
3 See Div. 540, Amalgamated Transit Union v. Mercer Cnty. Improvement Auth., 76 N.J. 245, 253-54 (1978) (stating that when "the arbitration process is compulsory, . . . judicial review should extend to consideration of whether the award is supported by substantial credible evidence present in the record."). 4 In Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276-77 (2010), our Supreme Court stated: "In the public sector, an arbitrator's award will be confirmed 'so long as the award is reasonably debatable.'" (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)) (citations and internal quotation marks omitted)). Arbitration there was required by the parties' collective bargaining agreement, id. at 272, and differs from the arbitration here, which is statutorily required pursuant to TEACHNJ.
6 A-0857-13T2 As with Chavez, at the time of her reassignment, teachers
were evaluated using a scale in which they were rated either
"distinguished," "proficient," "basic," or "unsatisfactory."
For the school years 2010-2011 and 2011-2012, Pugliese received
a rating of "basic" and "unsatisfactory," respectively.
Pugliese received services to help rectify identified problems,
but did not improve. In addition, numerous memoranda, some pre-
dating her reassignment, chronicled ongoing classroom management
issues.
In March 2012, tenure charges alleging inefficiency were
filed against her. In her answer, Pugliese asserted that
defendant could not claim that she was inefficient in a position
defendant illegally required her to hold. She argued it was
illegal because she was not "highly qualified" to teach social
studies.
At the subsequent arbitration hearing, the arbitrator
concluded that defendant had demonstrated a valid educational
framework for the evaluations and the absence of personal animus
or improper bias in making them. He further concluded that
teaching social studies fell within the scope of Pugliese's
licensure. He determined that she satisfied the criteria for
being highly qualified, as defined by federal statute, and that
her shortcomings were related to her inability to control a
7 A-0857-13T2 classroom and create level-appropriate lesson plans, rather than
a lack of substantive knowledge. Pugliese appealed the
arbitrator's decision.
The trial court upheld the arbitrator's decision, stating
that there was substantial evidence to support the arbitrator's
decision that Pugliese was capable of teaching social studies.
The court stated that just because she was teaching a subject in
which she claimed to not be highly qualified did "not render the
arbitrator's decision illegal or contrary to public policy."
General law
The No Child Left Behind Act (NCLB), 20 U.S.C.A. § 6301 to
-7941,
reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards.
[Horne v. Flores, 557 U.S. 433, 461, 129 S. Ct. 2579, 2601, 174 L. Ed. 2d 406, 428 (2009) (citing 20 U.S.C.A. § 6311(b)(2)).]
"[E]ach State educational agency receiving assistance . . .
shall develop a plan to ensure that all teachers teaching in
core academic subjects . . . are highly qualified not later than
8 A-0857-13T2 the end of the 2005-2006 school year." 20 U.S.C.A. §
6319(a)(2). "The term 'core academic subjects' means English,
reading or language arts, mathematics, science, foreign
languages, civics and government, economics, arts, history, and
geography." 20 U.S.C.A. § 7801(11). A state receiving federal
funds is required to report annually "the professional
qualifications of teachers in the State . . . and the
percentage of classes in the State not taught by highly
qualified teachers . . . ." 20 U.S.C.A. § 6311(h)(1)(C)(viii).
If a states fails to meet any of the requirements of the Act,
"then the Secretary may withhold funds . . . until the
Secretary determines that the State has fulfilled those
requirements." 20 U.S.C.A. § 6311(g)(2) (emphasis added).
TEACHNJ was enacted in August 2012. Its goal "is to raise
student achievement by improving instruction through the
adoption of evaluations that provide specific feedback to
educators . . . ." N.J.S.A. 18A:6-118(a). The Legislature
declared: "Changing the current evaluation system to focus on
improved student outcomes . . . is critical to improving teacher
effectiveness, raising student achievement, and meeting the
objectives of the federal '[NCLB] of 2001'[.]" N.J.S.A. 18A:6-
118(b).
9 A-0857-13T2 A key provision of TEACHNJ, N.J.S.A. 18A:6-123, pertains to
the creation, review and approval of evaluation rubrics for
teachers, principals, assistant principals, and vice-principals.
"The State Board of Education shall promulgate regulations
pursuant to the 'Administrative Procedure Act[]' . . . to set
standards for the approval of evaluation rubrics. . . ."
N.J.S.A. 18A:6-123(b). Among the "minimum" standards identified
was that each educator was to be rated as "ineffective,"
"partially effective," "effective" or "highly effective."
N.J.S.A. 18A:6-123(b)(1). "A board of education shall adopt a
rubric approved by the commissioner [of education] by December
31, 2012." N.J.S.A. 18A:6-123(c). By "January 31, 2013, a
board of education shall implement a pilot program to test and
refine the evaluation rubric." N.J.S.A. 18A:6-123(d).
"Beginning with the 2013-2014 school year, a board of education
shall ensure implementation of the approved, adopted evaluation
rubric for all educators in all . . . schools in the district."
N.J.S.A. 18A:6-123(e). "The commissioner shall establish a
model evaluation rubric that may be utilized by a school
district to assess the effectiveness of its teaching staff
members." N.J.S.A. 18A:6-123(f).
The following procedures are contained within the Tenure
Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1. A tenured
10 A-0857-13T2 teacher shall not "be dismissed or reduced in compensation . . .
except for inefficiency, incapacity, unbecoming conduct, or
other just cause, and then only after a hearing . . . ."
N.J.S.A. 18A:6-10. Any charge against a tenured employee "shall
be filed with the secretary of the board [of education] in
writing, and a written statement of evidence under oath to
support such a charge shall be presented . . . ." N.J.S.A.
18A:6-11. If "the board finds that such probable cause exists
and that the charge, if credited, is sufficient to warrant a
dismissal . . . then it shall forward such written charge to the
commissioner for a hearing pursuant to N.J.S.[A.] 18A:6-16,
together with a certificate of such determination." Ibid.
TEACHNJ amended N.J.S.A. 18A:6-11 by eliminating a requirement
that an employee be given ninety days in which to correct or
overcome the alleged efficiency, prior to the board "making its
determination as to certification . . . ." L. 1967, c. 271 as
amended by L. 1975, c. 304, § 1, as amended by L. 2012, c. 26, §
5.
Importantly, pursuant to the amendment contained in
TEACHNJ, if the commissioner determines that the charge is
sufficient to warrant dismissal, the case is referred to an
arbitrator. N.J.S.A. 18A:6-16. "The Commissioner of Education
shall maintain a panel of [twenty-five] permanent arbitrators to
11 A-0857-13T2 hear matters pursuant to N.J.S.[A.] 18A:6-16." N.J.S.A. 18A:6-
17.1(a). Pursuant to TEACHNJ, if the matter before the
arbitrator is employee inefficiency, then four factors shall be
considered by the arbitrator in rendering a decision:
[W]hether 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; or
(4) the district's actions were arbitrary and capricious.
[N.J.S.A. 18A:6-17.2. (emphasis added.)]
Pursuant to TEACHNJ, the arbitrator must therefore determine if
the evaluation adhered to the evaluation process, and provided
the corrective action plan. To accomplish this task, the
arbitrator must first identify the proper evaluation process.
"The arbitrator's determination shall be final and binding
and may not be appealable to the commissioner or the State Board
of Education. The determination shall be subject to judicial
review and enforcement as provided pursuant to N.J.S.[A.] 2A:24-
12 A-0857-13T2 7 through N.J.S.[A.] 2A:24-10." N.J.S.A. 18A:6-17.1(e)
(emphasis added). A reviewing court may vacate an arbitration
award due to corruption, fraud, undue means, partiality or
misconduct, or if the arbitrators "so imperfectly executed
their powers that a mutual, final and definite award upon the
subject matter submitted was not made." N.J.S.A. 2A:24-8.
Prior to its amendment in 2012 pursuant to TEACHNJ,
N.J.S.A. 18A:6-16 had stated that if the commissioner determined
that charges, if sufficient, warranted dismissal, the matter was
referred to an administrative law judge (ALJ). L. 1967, c. 271,
as amended by L. 1998, c. 42, §2. The ALJ issued a recommended
decision, which the commissioner could adopt, modify or reject.
N.J.S.A. 52:14B-10(c). Thus, the agency, using its expertise,
reviewed the ALJ's decision. Thereafter, an agency
determination could be appealed directly to the Appellate
Division. N.J.S.A. 18A:6-9.1(a). Pursuant to TEACHNJ, the
agency review process no longer exists.
Arbitrators apply different standards
The performance evaluations for both Chavez and Pugliese
took place prior to the enactment of TEACHNJ, using evaluation
rubrics in place at that time as well as a rating scale that was
superseded by TEACHNJ. Their tenure charges, however, were
filed after TEACHNJ's enactment. An arbitrator's determination
13 A-0857-13T2 as to what evaluation process should apply in such a situation
is a question of statutory interpretation. The two arbitrators
here interpreted the statutes differently.
The Chavez arbitrator stated that the case presented two
issues: one procedural and one related to the underlying merits
of the charges. The Chavez arbitrator framed the procedural
issue by stating that there needed to be "a determination of the
appropriate processes and standards to apply . . . given
that[:](a) the underlying facts occurred prior to the effective
date of . . . [TEACHNJ][;] and b) the referral of the matter [to
arbitration] occurred after the effective date of [TEACHNJ]."
Chavez had argued that his case should be decided under the
standards and procedures that preexisted TEACHNJ, because
TEACHNJ specified four factors that an arbitrator shall consider
when evaluating inefficiency charges, but did so in the context
of a yet-to-be determined evaluation rubric in which the
educator was to be rated using newly established designations.
The Chavez arbitrator analyzed TEACHNJ, in which a charge
of inefficiency may be filed whenever an employee receives an
annual rating of ineffective or partially effective in one year,
followed by an annual rating of ineffective the next year.5
5 A charge of inefficiency may also be filed if an employee receives two consecutive annual ratings of partially effective, (continued)
14 A-0857-13T2 N.J.S.A. 18A:6-17.3(a)(1). But "[t]he only evaluations which
may be used for purposes of this section are those evaluations
conducted in accordance with a rubric adopted by the board and
approved by the commissioner pursuant to [TEACHNJ]." N.J.S.A.
18A:6-17.3(d). The arbitrator in the Chavez matter thus
concluded that since the evaluation rubrics referenced were not
in place, he was precluded from basing his review on the four
factors designated in N.J.S.A. 18A:6-17.2.6
The arbitrator in the Pugliese matter, however, did not
determine he was constrained by the absence of the evaluation
rubrics to be implemented under TEACHNJ, finding instead that
he was to "determine whether the tenure charges brought . . .
demonstrate that [Pugliese] failed to perform in a satisfactory
manner for two consecutive years, the criterion established by
(continued) or if an employee receives an annual rating of ineffective followed by an annual rating of partially effective. N.J.S.A. 18A:6-17.3(a)(2). 6 The arbitrator cited to N.J.S.A. 18A:6-17.5, which states:
Any tenure charge transmitted to the Office of Administrative Law pursuant to N.J.S.[A]. 18A:6-16 prior to the effective date of [TEACHNJ] shall be determined in accordance with the provisions of subarticle B of Article 2 of chapter 6 of Title 18A of the New Jersey Statutes, N.J.S.[A.] 18A:6-10 et seq., as the same read prior to the effective date of [TEACHNJ].
15 A-0857-13T2 [TEACHNJ]." Both arbitrators cannot be correct in applying
different standards to similar procedural matters. Which
standard is appropriate for teachers whose tenure charges are
brought after the passage of TEACHNJ, but before the TEACHNJ
evaluation rubric is implemented, is a determination better
resolved in the first instance by the agency with particular
expertise in matters of educational policy. See In re Election
Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254,
262 (2010) ("[A] state agency brings experience and specialized
knowledge to its task of administering and regulating a
legislative enactment within its field of expertise.").
"[T]he promulgation of administrative rules and
regulations lies at the very heart of the administrative process
. . . ." In re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super. 100,
115 (App. Div.), certif. denied, 216 N.J. 363 (2013). "'[T]he
basic purpose of establishing agencies to consider and
promulgate rules is to delegate the primary authority of
implementing policy in a specialized area to governmental bodies
with the staff, resources and expertise to understand and solve
those specialized problems.'" Ibid. (quoting Bergen Pines Cnty.
Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)).
16 A-0857-13T2 Other legal defenses raised
Chavez and Pugliese also raised various other legal
defenses, which were not resolved by the arbitrators or the
trial court, including: the application of Tenure Employees
Hearing Law, N.J.S.A. 18A:6-10 to -18.1, specifically N.J.S.A.
18A:6-11 and the ninety-day improvement plan requirement deleted
by the TEACHNJ amendment; the District's policies with respect
to tier implementation guidelines; and contentions that,
pursuant to NCLB, it was illegal to assign them to teach a
course for which they were not designated "highly qualified."7
Defendant argues that by sending both of these matters to
arbitrators, the Commissioner implicitly considered and rejected
both teachers' legal defenses. We do not accept this argument.
An agency has the obligation to make decisions clearly with
its reasons spelled out on the record. An implicit, silent
rejection of legal defenses based on overlapping statutory
7 We note that both teachers cite to two administrative law decisions in support of their contentions concerning the relevance of a "highly qualified" designation. Neither of these decisions is precedential and both concern teacher seniority rather than teacher inefficiency, which is at issue here. We further note that NCLB provides for a discretionary penalty for non-compliance with the "highly qualified" designation or other requirements of the Act. 20 U.S.C.A. § 6311(g)(2). In addition, while NCLB seeks to ensure that teachers of "core academic subjects" are "highly qualified," 20 U.S.C.A. § 6319(a)(2), social studies is not among the core academic subjects identified. 20 U.S.C.A. § 7801(11).
17 A-0857-13T2 regulations does not meet that criteria. As we have said
previously, "we insist that the agency disclose its reasons for
any decision, even those based upon expertise, so that a proper,
searching, and careful review by this court may be undertaken."
Balagun v. N.J. Dept. of Corrs., 361 N.J. Super. 199, 203 (App.
Div. 2003).
"Courts . . . have discretion to remand administrative
action for further agency proceedings in the interest of
justice." Texter v. Dep't of Human Servs., 88 N.J. 376, 383
(1982)(citing Wilson v. Mountainside, 42 N.J. 426, 442 (1964)).
We recognize "'that certain subjects are within the peculiar
competence of that agency.'" D.I.A.L., Inc. v. N.J. Dep't of
Cmty. Affairs, 254 N.J. Super. 426, 435 (App. Div. 1992)(quoting
In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531, 543
(1990)). "[W]e may not substitute our judgment for the
expertise of the agency." Ibid. (citing Doughtery v. Dep't of
Human Servs., 91 N.J. 1, 6 (1982)).
Thus, we remand both matters to the Department of Education
to determine the validity of those legal defenses raised by each
teacher deemed appropriate by the agency for resolution by the
agency, so that a uniform educational policy will be
promulgated. The agency should determine the appropriate
standards to be used by arbitrators when adjudicating tenure
18 A-0857-13T2 hearings, thus determining a consistent procedure for teachers
in positions similar to Chavez and Pugliese, who have received
tenure charges after the effective date of TEACHNJ, alleging
poor performance that occurred prior to the implementation of
the statute's new standards.
Reversed and remanded to the Department of Education. We
do not retain jurisdiction.
19 A-0857-13T2