MARCELLA SIMADIRIS VS. PATERSON PUBLIC SCHOOL DISTRICT (L-1674-19, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 21, 2021
• Docket: A-0197-19T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0197-19T3

MARCELLA SIMADIRIS,

Plaintiff-Respondent, APPROVED FOR PUBLICATION January 21, 2021 v. APPELLATE DIVISION

PATERSON PUBLIC SCHOOL DISTRICT,

Defendant-Appellant. ___________________________

Argued October 14, 2020 – Decided January 21, 2021

Before Judges Fisher, Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1674-19.

Karen A. Murray argued the cause for appellant (The Murray Law Firm, LLC, attorneys; Karen A. Murray, of counsel and on the briefs).

Alfred F. Maurice argued the cause for respondent (Springstead & Maurice, Esqs., attorneys; Alfred F. Maurice and Lauren E. McGovern, of counsel and on the brief).

Cynthia J. Jahn argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, on the brief). Zazzali, Fagella, Nowak, Kleinbaum & Friedman for amicus curiae New Jersey Education Association (Richard A. Friedman of counsel and on the brief; Craig A. Long, on the brief). 1

The opinion of the court was delivered by

FISHER, P.J.A.D.

Defendant Paterson Public School District appeals a trial judge's summary

determination that its decision to certify tenure charges against plaintiff

Marcella Simadiris in private violated her alleged right to demand its

consideration in public. The appeal pits that part of the Tenured Employees

Hearing Law, N.J.S.A. 18A:6-10 to -25, which declares that a charge against a

tenured employee "shall not" be discussed "at a public meeting," N.J.S.A.

18A:6-11, with that part of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -

21, which permits a public body to exclude the public from personnel

discussions "unless all [affected employees] request in writing that the matter.

be discussed at a public meeting," N.J.S.A. 10:4-12(b)(8). The district relies on

a published trial court decision, Cirangle v. Maywood Board of Education, 164

N.J. Super. 595, 601-02 (Law Div. 1979), as support for its position that the

1 The court invited the participation of the New Jersey Education Association after the case was orally argued. The court is appreciative of the excellent submissions of both amici, as well as the litigants. A-0197-19T3 2 express language of N.J.S.A. 18A:6-11 controls. Plaintiff believes Cirangle's

interpretation should be rejected and, in relying on the Supreme Court's recent

decision in Kean Federation of Teachers v. Morell, 233 N.J. 566 (2018), argues

that these statutes should be understood as prohibiting a discussion of charges

against a board of education's tenured employee in public except when the

affected employee so demands. We reject plaintiff's argument and conclude that

N.J.S.A. 18A:6-11 unambiguously barred the board of education from

entertaining a public discussion of the tenure charges.

The relevant facts and events are uncomplicated and undisputed. Tenure

charges were brought against plaintiff, and her attorney was given informal

notice by email on May 20, 2019, that, at a meeting two days later, the board of

education would consider whether there was probable cause for the charges in

private. Counsel objected due to the lack of proper notice, but the board's

counsel responded that it didn't matter because N.J.S.A. 18:6-11 mandated a

closed session.

Two days after the closed session, at which the board certified the

charges,2 plaintiff filed this action, seeking a judgment declaring the board's

2 In certifying the charges, the board suspended plaintiff without pay, and referred the matter to the Commissioner of Education, who later found the charges were sufficient to A-0197-19T3 3 resolution void because plaintiff had not been given sufficient notice. In ruling

on the parties' applications for summary relief, the judge concluded in a written

opinion that the resolution was invalid; he determined that plaintiff had not

received proper notice and was, therefore, deprived of the opportunity to demand

that consideration of the tenure charges take place in public.

Before us is only a question of law: does N.J.S.A. 18A:6-11, which

prohibits the discussion of personnel matters involving tenured employees in

public, take precedence over N.J.S.A. 10:4-12(b)(8), which grants in general

affected public employees the right to demand a public hearing? In considering

the parties' arguments about the interplay of these statutes, it is helpful to start

with Rice v. Union County Regional High School Board of Education, 155 N.J.

Super. 64 (App. Div. 1977).

In Rice, after a public session concerning budget issues, seventeen

employees3 were designated for termination at a private hearing. In considering

the validity of the results of the private session, we concluded that N.J.S.A. 10:4 -

warrant dismissal or a reduction in salary. The Commissioner then referred the matter for a tenure hearing before an arbitrator pursuant to N.J.S.A. 18A:6-16. 3 The Rice opinion specifically mentions that this group of employees included seven untenured teachers. Id. at 69. We assume from the opinion's entirety, despite its lack of further specificity, that the other employees were also untenured. A-0197-19T3 4 12(b)(8) guaranteed "all employees whose rights could be adversely affected"

the right to request a public hearing and, to ensure this right, we concluded that

N.J.S.A. 10:4-12(b)(8) entitled affected employees to "reasonable advanced

notice." Rice, 155 N.J. Super. at 73. That required notice became known in this

arena as a "Rice notice," what plaintiff claims – and the district does not dispute

– was lacking here.

The district claims it had no obligation to provide a Rice notice because

N.J.S.A. 18A:6-11 precludes a board of education's public discussion of

personnel issues involving tenured employees like plaintiff. The district invites

us to follow Cirangle, a trial court decision that supports the district's argument.

In similar circumstances to those presented here, the trial judge in Cirangle

identified a conflict between N.J.S.A. 10:4-12(b)(8) and N.J.S.A. 18A:6-11.

Because the Open Public Meetings Act imposed broad requirements for the

meetings of governmental bodies, while N.J.S.A. 18A:6-11 was "specific and

limited [in] scope," the Cirangle judge concluded that the latter should control

when applicable. Id. at 601.

Plaintiff's entitlement to a Rice notice logically depends on whether a

tenured board-of-education employee is entitled to demand a public discussion

of a board's probable-cause proceedings or whether the Rice notice requirement

A-0197-19T3 5 is irrelevant because there can never be a public discussion of such a matter. In

turning to our history with these statutes and Rice, it is noteworthy, and

somewhat surprising, that Cirangle has been cited only once, see Williams v.

Board of Educ., Atlantic City Public Schools, 329 N.J. Super. 308, 316 (App.

Div. 2000), in its forty-two years on the books and then only for a largely

irrelevant reason.4 On the other hand, Rice has been cited numerous times by

this court in published 5 and unpublished decisions, 6 and twice with approval by

the Supreme Court, see Kean Fed. of Teachers, 233 N.J. at 586; S. Jersey Publ'g.

Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991). Yet, in none of those

decisions citing Rice was it held that a tenured employee is entitled to a Rice

notice when a board meets to consider whether to allow tenure charges to

proceed. And Kean Federation, on which plaintiff so greatly relies, upheld the

4 Williams cited Cirangle with approval but the context of that decision – whether a news organization had a right to tenure-charge documents regarding a superintendent of schools – is inapposite to the situation presented in this appeal. 5 See McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 232 (App. Div. 2009); Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 500 (App. Div. 2008); Dunn v. Mayor & Council of Laurel Springs, 163 N.J. Super. 32, 35 (App. Div. 1978); Oliveri v. Carlstadt-East Rutherford Reg'l Bd. of Educ., 160 N.J. Super. 131, 133 (App. Div. 1978). 6 Because of Rule 1:36-3, we do not here cite the many unpublished decisions in which we have cited and relied on Rice. A-0197-19T3 6 notice requirement "created in Rice" but added that it "should not be stretched

beyond its factual setting." 233 N.J. at 586.

Finding little guidance from these past examinations of Rice and Cirangle,

finding no clarity in the arguments of the parties or the amici curiae as to the

current practice in this State, and finding no legislative history to illuminate the

Legislature's intent about the relationship between the Open Public Meetings

Act and the current version of N.J.S.A. 18A:6-11, we ultimately conclude – with

the assistance of familiar canons of statutory interpretation – that the district is

correct and that a tenured employee in this specific circumstance does not have

a right to a public discussion of matters falling within the scope of N.J.S.A.

18A:6-11.

In pursuing the "paramount goal" of ascertaining the legislative intent, we

start with the words the Legislature used. DiProspero v. Penn, 183 N.J. 477,

492 (2005); Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009).

N.J.S.A. 18A:6-11 specifically addresses the same subject matter involved here

– the practice and procedure for ascertaining whether there is probable cause for

charges made against a tenured board-of-education employee – and

unambiguously declares that a board of education must discuss charges against

a tenured employee in private. The Open Public Meetings Act, which generally

A-0197-19T3 7 applies to all public bodies, provides only broad strokes and recognizes that

other legislation provides exceptions to its sweeping declaration that "all

meetings of public bodies shall be open to the public at all times." N.J.S.A.

10:4-12(a). In N.J.S.A. 10:4-12(b), the Legislature clearly and expressly

declared that a public body "may exclude the public," N.J.S.A. 10:4-12(b), from

that portion of a meeting "at which the public body discusses any . . . matter

which, by express provision of federal law, State statute, or rule of court shall

be rendered confidential," N.J.S.A. 10:4-12(b)(1). In short, the Open Public

Meetings Act provides the general rule favoring open public meetings but not

when other legislation creates an exception. One of those exceptions is N.J.S.A.

18A:6-11 and its declaration that a board of education's discussion of charges

brought against a tenured employee must be held in private.

Plaintiff relies on another provision of the Open Public Meetings Act that

allows a public body to exclude the public when discussing employment matters

"unless all the individual employees or appointees whose rights could be

adversely affected request in writing that the matter . . . be discussed at a public

meeting." N.J.S.A. 10:4-12(b)(8). We find no conflict between N.J.S.A. 18A:6-

11 and N.J.S.A. 10:4-12(b)(8), nor any ambiguity in their application.

A-0197-19T3 8 To be sure, the tenure charges in question deal with "termination of

employment" or "disciplining" of a public employee, N.J.S.A. 10:4-12(b)(8), so

the matter falls within the general ambit of N.J.S.A. 10:4-12(b)(8). And, in that

broad sense, it might appear that plaintiff is permitted the right – as stated in

N.J.S.A. 10:4-12(b)(8) – to demand that the discussion occur in public. But

N.J.S.A. 10:4-12(b)(8) provides only broad strokes as to the rights of public

employees. The Legislature could determine that some specific groups of public

employees would be excepted from what N.J.S.A. 10:4-12(b)(8) allows. Again,

that possibility was acknowledged in N.J.S.A. 10:4-12(b)(1).

And, so, there is nothing inconsistent about the structure of the Open

Public Meetings Act when compared with the Legislature's later creation of a

different approach for tenured board-of-education employees. In dealing with

this smaller subset of public employees, the Legislature declared – without

equivocation or exception – that "[t]he consideration and actions of the board as

to any charge shall not take place at a public meeting," N.J.S.A. 18A:6-11

(emphasis added). Despite declaring in the Open Public Meetings Act that

employment matters involving public employees be discussed in private unless

otherwise demanded by the employee, this provision in the Tenured Employees

A-0197-19T3 9 Hearing Law offered no exception to its command that the "consideration and

actions" of a board "shall not" take place in public. N.J.S.A. 18A:6-11.

Was it an accident that N.J.S.A. 18A:6-11 failed to allow tenured board-

of-education employees the right to demand a public hearing when discussing

whether there is probable cause for the charge? Or did the Legislature – after

enacting the Open Public Meetings Act – enact N.J.S.A. 18A:6-11, believing its

reach was limited by the terms of N.J.S.A. 10:4-12(b)(8)? We think not. If that

was the Legislature's intention in enacting this statute – nineteen days after

enactment of the Open Public Meetings Act 7 – it likely would have said so. And,

while the Legislature did not provide extrinsic evidence of its intentions in

enacting N.J.S.A. 18A:6-11, or how it would interact with the Open Public

Meetings Act, the very language of all these provisions – none of them

ambiguous – demonstrates that the Open Public Meetings Act provided only

broad strokes and recognized that exceptions may be provided for elsewhere.

Guided by the plain and unambiguous language of N.J.S.A. 18A:6-11, which

makes no provision for a tenured employee's right to demand a public hearing,

7 The timing is particularly illuminating. While we presume the Legislature acts with knowledge of existing law, DiProspero, 183 N.J. at 494; State v. Federanko, 26 N.J. 119, 129 (1958), the Open Public Meetings Act was undoubtedly fresh in its mind when it crafted and enacted N.J.S.A. 18A:6-11. A-0197-19T3 10 we must assume the Legislature meant what it said when it declared that all such

discussions "shall not" occur at a public meeting.

And there is nothing peculiar about the choice the Legislature made in

declining to provide tenured employees with the opportunity to have a public

meeting when enacting N.J.S.A. 18A:6-11. A board of education's authority to

dismiss or take other disciplinary action with non-tenured employees is

extensive, so the fact that non-tenured board-of-education employees may

exercise the right to demand a public hearing as permitted by N.J.S.A. 10:4-

12(b)(8) sensibly allows the non-tenured employee some semblance of an

opportunity to persuade the employer – by compelling the discussion to occur

in the open – to act in the non-tenured employee's favor; that's the only process

due a non-tenured employee. But tenured board-of-education employees are

situated differently; they have far greater rights in any conflict with their

employers.

With tenured employees, a board of education is limited to determining

"whether there is probable cause to credit the evidence in support of the charge"

– which is provided by way of written statements of "position" and "evidence

under oath" – and "whether such charge, if credited, is sufficient to warrant a

dismissal or reduction of salary." N.J.S.A. 18A:6-11. The board must then

A-0197-19T3 11 notify the tenured employee of its determination and, when finding probable

cause, "forward such written charge to the [C]ommissioner [of Education] for a

hearing" pursuant to N.J.S.A. 18A:6-16. Once forwarded, the tenured employee

has the benefit of additional procedural rights and the opportunity to further

present a defense. The commissioner or a designee then "shall examine the

charges and certification," and the employee is permitted fifteen days, which

may be extended, "to submit a written response to the charges." Ibid. The

commissioner must then "render a determination on the sufficiency of charges"

within ten days after submission of the employee's written response. Ibid. If it

is determined that the charges "are not sufficient to warrant dismissal or

reduction in salary," the commissioner "shall dismiss the same." Ibid. If

determining otherwise, the commissioner must refer the case to an arbitrator,

ibid., and the proceeding that occurs before the arbitrator provides the tenured

employee with additional rights before a final determination is reached.

Considering a tenured board-of-education employee's extensive

procedural rights and opportunities to defend against a charge, it seems clear the

Legislature saw no reason to provide an additional right – that which was

generally granted all other public employees in N.J.S.A. 10:4-12(b)(8) – to a

public discussion at the probable-cause stage described in N.J.S.A. 18A:6-11.

A-0197-19T3 12 To adopt plaintiff's understanding of these statutes would require our

insertion into the end of N.J.S.A. 18A:6-11 a phrase like: "except if the

employee requests in writing that the discussion occur in public." To engraft an

exception to a statute, which unambiguously allows for no exception, far

exceeds the judiciary's role in such matters. Plastic Surgery Ctr., P.A. v. Malouf

Chevrolet-Cadillac, Inc., 457 N.J. Super. 565, 574-75 (App. Div. 2019), aff'd

o.b., 241 N.J. 112 (2020). That would be legislating, not interpreting. In the

final analysis, we cannot presume the Legislature "intended a result different

from what is indicated by the plain language or add a qualification to a statute

that the Legislature chose to omit." Tumpson v. Farina, 218 N.J. 450, 467-68

(2014). Finding no ambiguities in either the Open Public Meetings Act or in

N.J.S.A. 18A:6-11, we must simply "apply the law as written." State v. Hudson,

209 N.J. 513, 529 (2012).

We conclude N.J.S.A. 18A:6-11 constitutes one of the exceptions to the

Open Public Meetings Act, made possible by N.J.S.A. 10:4-12(b)(1), and

requires that when boards of education engage in the processes described in

N.J.S.A. 18A:6-11 that its "consideration and actions . . . shall not take place at

a public meeting." And, because such "consideration and actions" cannot occur

in public, plaintiff was not entitled to a Rice notice.

A-0197-19T3 13 Reversed and remanded for the entry of an order dismissing the complaint.

A-0197-19T3 14