The commissioner of education recently issued decisions on harassment, intimidation and bullying; tenure and indemnification that may be of interest to boards of education and their administrative teams.
Board Member Indemnification When a board member was found to have violated the School Ethics Act, the commissioner determined that the board member was entitled to indemnification by the board to cover his reasonable expenses in defending himself in the dispute. The dispute arose out of an ethics complaint that had been filed against the board member in which the School Ethics Commission determined that he violated the School Ethics Act when he “replied to all” in an email about his concerns with a board response to a parent concern. The parent was inadvertently included in the “reply to all.” The SEC found that by including the parent in the email, the board member violated N.J.S.A. 18A:12-24.1(g) requiring confidentiality because it harmed the deliberative process of the board and may have given the impression to the parent that the board’s decision was not final.
The board member sought indemnification for his reasonable costs of his defense in the ethics matter. N.J.S.A. 18A:12-20 requires “Whenever a civil, administrative, criminal or quasi-criminal action or other legal proceeding has been or shall be brought against any person for any act or omission arising out of and in the course of the performance of his duties as a member of a board of education…. the board of education shall defray all costs of defending such action.” The board of education in this dispute asserted that “replying to all” to express his concerns about the board decision was outside of the scope of his duties as a board member because the board member lacked the authority to disclose the confidential deliberations. The commissioner rejected this assertion, determining that a liberal approach should be applied to the statute “so as not to inhibit a board member from freely expressing himself or herself and acting for the public good without fear of economic loss.” Thus, the commissioner concluded that the board member was entitled to indemnification for his defense in the ethics matter.
Tenure The commissioner determined that a tenured director of early childhood whose position was eliminated was entitled to the director of special services position in the district despite never having served in that position before.
The commissioner agreed with an administrative law judge in finding that the petitioner had achieved tenure in a previous director position and was entitled to tenure protection for all other director positions for which she was qualified, even if she had not served in those positions before. This conclusion does not apply to any position enumerated in N.J.S.A. 18A:28-5 because the commissioner upheld precedent that establishes that unenumerated positions that require an administrative certificate have tenure protection that can be transferred between positions.
The petitioner was a director of early childhood who held an administrative certificate with endorsements from the school administrator, principal and supervisor, as well as an instructional certificate with a teacher of psychology endorsement. After her position was eliminated in July 2020, she was reassigned to the principal position. The petitioner asserted that the board “violated her tenure rights by failing to assign her to the position of director of special services and instead appointing a non-tenured employee to that position.”
The administrative law judge found that the petitioner had earned tenure in a previous director position, entitling her to tenure protections in all other director-level positions. The commissioner agreed and relied on the well-established principle that an “educator who has attained tenure by virtue of the requisite service in a specific position will have tenure with respect to all positions under the particular certificate.” The board argued that the petitioner was ineligible to be the director of special services because she “did not possess an adequate knowledge of special education law and practice.” The commissioner rejected this argument because a specific degree of experience and substantive knowledge of special education was not necessary for her to hold the position, and the board had failed to show that it was.
The petitioner was entitled to the director of special services position because tenure protection transfers between positions that are unenumerated and require an administrative certificate. The commissioner found that the tenure law N.J.S.A. 18A:28-1 et seq., “should be liberally construed to achieve its beneficent ends.” Further, tenure protections do not transfer between positions based on the subject material but are largely based on the responsibilities of each position. The commissioner concluded the petitioner had ample experience as a director and was well-equipped to be director of special services, notwithstanding her lack of experience with the precise subject matter.
HIB Parents need not have a hearing before the board of education to appeal their child’s harassment, intimidation, and bullying matter to the commissioner. In the case, a superintendent met with parents prior to presenting the results of an HIB investigation to the board. The parents then appealed the superintendent’s determination by requesting a hearing with the board, but prior to the board’s upcoming meeting where a final determination would be made. After the superintendent emailed the parents to inform them that they filed an appeal prematurely, the parents filed an appeal with the commissioner, still prior to having the upcoming board meeting. The appeal challenged the superintendent’s authority to deny their request for a hearing and raised questions that were allegedly not taken into consideration in the HIB investigation. Throughout their appeals process, the parents also indicated their desire to have a hearing in front of the board.
After the board received the results of the HIB investigation, the petitioners filed an amended appeal about the superintendent’s denial of their request for a board hearing and a ruling on their HIB/amended HIB complaint. They also alleged a hostile educational environment for their child, that the investigation was biased and inappropriate, among other things.
The administrative law judge concluded that the petition should be dismissed because the petitioners sought a hearing and filed their appeal prematurely, which is a failure to exhaust remedies afforded them under New Jersey’s Anti-Bullying Bill of Rights Act. The commissioner disagreed and found that a party challenging the board’s HIB decision need not request and participate in a hearing before the board as a prerequisite to filing a petition of appeal with the commissioner. Nothing in the Anti-Bullying Bill of Rights Act requires a board hearing, so the petitioners could not be shown to have failed to exhaust administrative remedies.
The right to appeal was triggered after the board did not take action to hold a hearing within 10 days of the parents’ request, as well as an email from the superintendent that effectively denied their request. Despite their successful appeal to the commissioner, the parents still wished to have a hearing in front of the board, which was ordered by the commissioner.
For further information about these or other school law decisions, please contact NJSBA Legal and Labor Relations at 609-278-5279 or your board attorney.