Breaking Up is Hard to Do…
…but not impossible. A legal primer on what you must do to terminate a subpar employee.

By Carl Tanksley, Esq.

The decision to terminate an employee is often a difficult one for board members for many reasons. That decision can be made even more difficult by the complex array of statutory and regulatory procedures surrounding the termination of district employees. While New Jersey’s non-renewal and tenure dismissal procedures can be cumbersome, the difficult decision to non-renew a non–tenured staff member or to dismiss an employee who has tenure (through a process of certifying tenure charges to the Commissioner of Education) can proceed fairly and efficiently to a successful conclusion with appropriate documentation and detailed attention to procedures. Here’s how it works in each case:

Tenure Dismissal A common misconception is that a board conveys tenure on its employees. Actually, tenure rights are acquired through operation of statute. So long as the employee meets all of the statutory qualifications, tenure is conferred upon the employee; via statute, not through board action. Accordingly, tenured employees may only be removed through a similar operation of statute. Once an employee has acquired tenure within the district, the board may not dismiss that employee or reduce their compensation unless tenure charges have been filed with the Commissioner of Education or the employee has been suspended because he or she has been the subject of a criminal indictment.

When the board seeks to dismiss a tenured employee, the charges must conform to the requirements contained in both N.J.S.A. 18A:6-10 et seq. and N.J.A.C. 6A:3-5 et seq. Tenure charges must assert inefficiency, incapacity, unbecoming conduct, or other just cause. Incapacity, unbecoming conduct, and other just cause charges may be filed by any person, however, inefficiency charges (which can encompass such problems as repeated bad performance reviews) may only be filed by a school district administrator. Inefficiency charges against the superintendent may only be filed by the board.

Tenure charges must be filed with the board secretary and must include a written statement of evidence. Both the charges and statement of evidence must be executed under oath by the person filing the charges. Once charges are filed, the board must provide the employee with a copy of the charges within three school days. The employee then has 15 calendar days to respond to the charges by filing a sworn statement of position and written statement of evidence with the board secretary. After that, the board has 45 calendar days to determine whether there is probable cause to credit the evidence supporting the tenure charges and if so, whether the conduct, if credited as true, warrants a dismissal or reduction in compensation. The board must make its determination to certify the charges to the Commissioner by a majority vote of its full membership and the board’s deliberations and vote may not take place at a public meeting. The board’s failure to act within 45 days leads to an automatic dismissal of those charges. Tenure actions are one of the few exceptions to the Open Public Meetings Act. Upon receipt of the board’s certification, the Commissioner will schedule a public tenure hearing.

It is important to clearly understand the board’s role during a certification determination. When determining to certify charges to the Commissioner, the board does not sit as a jury, seeking to determine guilt or innocence. Rather, its role is more like that of a grand jury, seeking to determine whether there is probable cause to believe that misconduct occurred and if so, whether that misconduct warrants punishment. It should be noted that the standard for the board is merely a probable cause standard. In other words, the board must determine whether, given the evidence that will be presented to the Commissioner during the public tenure hearing, it is more likely than not that the alleged conduct occurred. This is a low standard and very unlike the criminal standard of “beyond a reasonable doubt.” The lower standard is due to the fact that the board must protect the best interests of the district and students instead of the employee’s interests in maintaining a position with the district.

Non-Renewal The dismissal of non-tenured employees follows a very different path than the dismissal of a tenured employee. The superintendent has unilateral authority to non-renew any non-tenured employee. According to N.J.S.A. 18A:27-4.1, once the superintendent determines not to recommend the employee for continued employment, that employee is deemed non-renewed. The superintendent must notify the board of the decision to non-renew the employee and the reasons for that decision before notifying the employee of the non-renewal. Any employee who has been non-renewed by the superintendent has 15 days within which to make a written request for a written statement of reasons for the non-renewal, which must be provided to the employee within 30 days.

The non-renewed employee also has the right to an informal appearance before the board in order to convince the board to offer re-employment despite the superintendent’s decision to non-renew. This informal appearance, known as a “Donaldson Hearing,” is a right that was established by the New Jersey Supreme Court in Donaldson v. North Wildwood Bd. of Ed., 65 N.J. 236 (1974). The employee has 10 days from the receipt of the statement of reasons for non-renewal to request a Donaldson Hearing, which must then be scheduled within 30 days. The employee may be represented by counsel at the hearing and may present witnesses. However, because the Donaldson Hearing is an informal hearing, the witnesses need not be sworn in and the board may not cross-examine any witnesses that appear. While the hearing may be conducted in executive session, the employee also has the right to a public discussion according to Rice v. Union County Reg. H.S. Bd. of Ed. 155 N.J. Super. 64 (App. Div. 1977), unlike tenure certification determinations, which must not take place during a public meeting. After the Donaldson hearing has been conducted, the board then has three days in which to notify the employee of the board’s decision.

Conclusion Boards that are contemplating tenure charges or non-renewal actions are urged to consult with the board attorney in order to ensure compliance with some of the more technical aspects of the law. Additionally, actions to terminate both tenured and non-tenured employees should be supported by the particular facts of the matter and by appropriate documentation. By following these guidelines, boards can take action to terminate an employee whose skills do not meet the needs of the district. sl

Carl Tanksley, Esq. is counsel for the New Jersey School Boards Association. He can be reached at ctanksley@njsba.org.