Amid the flurry of legislative activity that typically coincides with adoption of the annual state  budget and related bills, the Legislature fast-tracked a measure that seeks to enhance the state’s capacity to handle an expected increase in the number of tenure arbitration cases that will be heard in the upcoming school year.

Introduced on June 26, and passed unanimously by the General Assembly the same day, A-4608 would increase the number of arbitrators serving on the panel that determines contested cases involving tenured employees in school districts, and give the education commissioner discretion on setting arbitrator fees.  The bill’s Senate counterpart, S-3055, cleared the upper house on June 29 and currently sits on the Governor’s desk.  The NJSBA supports the legislation.

Enacted in 2012, the historic tenure reform law known as the “Teacher Effectiveness and Accountability for the Children of New Jersey Act,” or “TEACHNJ,” established binding arbitration for contested cases involving the dismissal or reduction in compensation of tenured employees in school districts. TEACHNJ required the commissioner of education to maintain a permanent panel of 25 arbitrators to hear those cases.  The New Jersey Education Association, the American Federation of Teachers, the New Jersey School Boards Association, and the New Jersey Principals and Supervisors Association each designate a specified number of arbitrators to the panel.

If enacted, this bill will increase the total number of arbitrators on the panel from 25 to 50, doubling the number of arbitrators designated by each entity.  Currently, for example, the NJSBA has the statutory authority to designate nine of the 25 arbitrators on the panel.  Should A-4608 be signed into law, that number would increase to 18.

TEACHNJ requires that, under certain circumstances, a district superintendent must file tenure charges of inefficiency against a teacher, principal, assistant principal or vice-principal to the board of education, and that in some cases, charges may be filed.  For instance, a superintendent must file such charges against a teacher who receives an annual summative evaluation rating of “ineffective” or “partially effective” in one year, plus a rating of “ineffective” in the second year.  If such an employee is rated “partially effective” in two consecutive annual summative evaluations, or is rated “ineffective” in one year and “partially effective” in the following year, then the superintendent may file a tenure charge of inefficiency or may defer such a filing until after the next annual evaluation upon a written finding of exceptional circumstances.  Tenure charges are then forwarded to the Commissioner of Education who refers the case to an arbitrator to determine the potential loss of tenure.

The introduction and passage of A-4608/S-3055 was likely triggered by the widespread expectation that the number of tenure arbitration cases will increase in the near future.  During the Legislature’s  budget deliberations this year, the Office of Legislative Services (OLS) asked the Department of Education to estimate of the number of tenure cases it anticipates being initiated during the 2015-2016 school year.  The OLS also inquired as to whether Gov. Christie’s FY2016 budget proposal provided adequate resources for the possible increase in tenure cases.  The DOE acknowledged that it expects a substantial increase in the number of tenure cases filed in the upcoming school year.

“The number of tenure cases will likely rise into the hundreds; which is up from 61 cases brought during the 2013-2014 school year and 75 brought during the 2014-2015 school year,” the DOE stated in a written response to OLS.  The legislative changes encapsulated in A-4608/S-3055 represent an attempt to ensure a sufficient number of qualified arbitrators are available to meet that increased demand.

The bill also alters the fee provision for arbitrators.  Under TEACHNJ, arbitrators could receive no more than $1,250 per day and no more than $7,500 per case.  The bill provides that arbitrators will receive no less than $1,250 per day and eliminatesthe $7,500-per-case limitation.  The bill also gives the education commissioner discretion to establish the amount to be received by the arbitrators.  In doing so, the bill requires the commissioner to consider the average per diem rate of arbitrators eligible to serve on the panel who reside in New Jersey, New York, and Pennsylvania.

Left unchanged is the TEACHNJ provision stipulating that the cost of the arbitrator be borne by the state and not by local school districts.

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