In a quiet yet important decision announced on Feb. 1, 2021, the New Jersey Commissioner of Education unequivocally upheld the rights of local boards of education, and only local boards, to seek discipline against their own staff.

For decades, the statutory framework has been clear that the local board of education is responsible for administering the employment of its staff. That includes decisions to employ, transfer, promote, discipline and dismiss employees. While the district is certainly required to comply with all school laws, regulations and local district policies in this regard, the ultimate decision to pursue or not pursue a certain action is vested with the local board of education.

Pursuant to N.J.S.A. 18A:27-4:

Each board of education may make rules, not inconsistent with the provisions of this title, governing the employment, terms and tenure of employment, promotion and dismissal, and salaries and time and mode of payment thereof of teaching staff members for the district, and may from time to time change, amend or repeal the same, and the employment of any person in any such capacity and his rights and duties with respect to such employment shall be dependent upon and governed by the rules in force with reference thereto.

However, from time to time, parents or other members of the public seek administrative action in the form of forcing a board to take certain employment actions against an employee.

In the case at issue, a parent of a student attending the district alleged that the principal discriminated against her son during several interactions with her child over a period of time. Ultimately, when the school district saw fit to not take any action against the principal, the parent filed a complaint with the New Jersey Commissioner of Education demanding that the commissioner require the board to bring discipline against the principal for the alleged actions.

Specifically, the parent alleged that the principal had improperly removed the student from a particular class due to the student’s disruptive behavior, that he made an inappropriate gesture toward two students mimicking that he was going to knock two students’ (one of the students  is the parent’s child) heads together, and that he failed to follow statute when the student was brought to the nurse’s office after teachers reported suspected drug use on the part of the child.

Upon an investigation by the school board into all of these matters, the board found that the principal had followed all policies, procedures, regulations and laws. As such, there was no finding of any impropriety and no discipline was pursued.

The parent thereafter filed a complaint with the commissioner seeking the initiation of tenure charges against the principal in the form of a suspension, decrease in pay and/or dismissal as well as a formal apology from the board. The matter was transferred by the commissioner to the Office of Administrative Law for fact-finding and a recommendation on the issues. The Administrative Law Judge (ALJ) saw fit to decide the matter on the papers as a matter of law finding that the parent had failed to file a claim upon which relief may be granted.

Very simply, the ALJ found clearly that it was not within the commissioner’s purview to require a school district to issue tenure charges against an employee. Additionally, the ALJ held that it is untenable, if not impossible to accept as a working principal of governing school board business that an aggrieved parent could compel a board of education to discipline one of its principals or other employees.

Moreover, the ALJ held that “the decision of the board as to whether to offer an apology, ‘is at the sound discretion of the BOE.’”

The ALJ relied on a 2008 Commissioner’s ruling in Galante v. Board of Education of the City of North Arlington, Bergen County, OAL Dkt. 11478-96 (Final Decision August 21, 2008). The ALJ cited this case in confirming the premise that “the local board of education is vested with the discretion to accept or reject tenure charges … Further the Commissioner of Education may not impose other discipline such as suspension, or decrease of pay of a principal as demanded by petitioner. The Legislature has vested that authority to make and enforce rules governing tenure terms of employment and dismissal of its employees.”

In the final agency decision on the matter, the commissioner agreed with the ALJ’s findings and held that the commissioner does not have the authority to compel a board of education to file tenure charges against an employee. As such, the parent’s complaint was dismissed in its entirety.

While this case stands for the unequivocal discretion of boards of education in such matters, it is imperative that boards use this discretion in full compliance with school statutes, regulations, and local district policies. More information about this case is available on the website.

If you have any questions, please feel free to contact the local board attorney or the NJSBA Legal, Labor and Policy Department at (609) 278-5254.

Kathleen Asher is counsel in NJSBA’s Legal, Labor and Policy Department.