Tenure and Seniority Rights

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Abandonment
While an individual must be offered an available part-time position following a proper abolishment of his full-time position, he is under no obligation to accept such an offer and his failure to do so does not result in a waiver of seniority rights. Decision: 1 N.J.A.R. 196
Absent fraud, duress, mistake or recision, a voluntary agreement by which an individual surrenders any right to vindicate an alleged violation of tenure rights is valid. Decision: 2 N.J.A.R. 136
Acquisition
Board of Education ordered to reinstate as teaching staff members 31 properly certified Title I teachers who were terminated in an attempt to circumvent the acquisition of tenure and were reassigned to avoid pay parity. Decision: 2 N.J.A.R. 206
Supplemental instructors of educationally handicapped children are eligible for the acquisition of tenure under N.J.S.A. 18A:28-5(c). Fewer assigned pupils or nonperformance of some general teacher duties do not bar the acquisition of tenure since other tenured employees are similarly situated. Decision: 2 N.J.A.R. 294
Where a board of education treats a guidance counselor's position as if it were untenured for a two-year probationary period, the board has tacitly admitted that the position of guidance counselor is a tenure-eligible position. Decision: 3 N.J.A.R. 163
A negotiated labor agreement providing for the acquisition of tenure by a janitor after three years service is a valid agreement. Decision: 5 N.J.A.R. 018
Where a Board of Education treats a guidance counselor's position as if it were untenured for a two-year probationary period, the Board has tacitly admitted that the position of guidance counselor is a tenure-eligible position. Decision: 3 N.J.A.R. 163
Service as a speech correctionist rendered to nonpublic schools by an individual paid out of public funds may be counted for seniority purposes. Decision: 4 N.J.A.R. 445
Administrator's Certificate
Where an individual obtains an administrator's certificate by misrepresentation, serves in that position and is later removed, he may not recover the difference in salary for a position he should never have occupied in the first place. Decision: 7 N.J.A.R. 191
Where an individual has at times assumed administrative duties for which he lacked certification, the individual need not be placed in an administrative position or be credited for service prior to the date certification is received. Decision: 7 N.J.A.R. 191
Adult Basic Skills Teacher
Adult basic skills teacher acquired tenure because the position required a teaching certificate, petitioner was a teaching staff member and she had been employed for the requisite amount of time. Petitioner's termination violated her tenure rights. Decision: 13 N.J.A.R. 451
Cafeteria Duty
A tenured high school Department Chairman's willful and continual refusal to perform his assigned duties as evidenced by his refusal to perform assigned cafeteria monitoring duties constitutes insubordination and results in a forfeiture of his tenure as a Department Chairman; individual is permitted to retain tenure and all seniority as a teaching staff member. Decision: 1 N.J.A.R. 231
Coaches
Teacher was not entitled to a coach's stipend because he missed most of the season due to illness. Sick leave does not accrue to coaching position; it is not regular, steady employment. Decision: 13 N.J.A.R. 438
Corporal Punishment
While inflicting corporal punishment on students constitutes unprofessional conduct, it should not warrant forfeiting of tenure rights where the teacher did not intend to inflict any pain on the students nor was there any evidence of lack of self-control. Decision: 3 N.J.A.R. 237
Teacher's actions did not constitute corporal punishment, but she failed to exercise proper restraint. The appropriate penalty in light of the nature of her actions and her years of service is forfeiture of salary and loss of increments, rather than removal. Decision: 13 N.J.A.R. 297
Failure to Re-employ
The non-renewal of a teacher's contract is arbitrary and unreasonable where based on the fact that the teacher made written professional comments on the comments that had been made on her evaluation form. Decision: 1 N.J.A.R. 175
The non-renewal of a teacher's contract is arbitrary and unreasonable where based on a purely numeric calculation of the number of evaluative categories checked and where no consideration is given to positive recommendation from the teacher's principal and superintendent. Decision: 1 N.J.A.R. 175
Transfer of a guidance counselor to a classroom teaching position constitutes a demotion to a job of lesser rank, which cannot be accomplished without either the affected individual's consent, a reduction in force or a tenure hearing. Decision: 3 N.J.A.R. 163
Free Speech
While a teacher's freedom of speech is not absolute, reference to a teacher's advocacy of a view unpopular with the school administration has no place in an Annual Performance Evaluation; benefits derived from a free and open exchange outweigh any contrary legitimate state interest. Decision: 2 N.J.A.R. 080
Guidance Counselor
Where a board of education treats a guidance counselor's position as if it were untenured for a two-year probationary period, the board has tacitly admitted that the position of guidance counselor is a tenure-eligible position. Decision: 3 N.J.A.R. 163
Transfer of a guidance counselor to a classroom teaching position constituted a demotion to a job of a lesser rank, which cannot be accomplished without either the affected individual's consent, a reduction in force or a tenure hearing. Decision: 3 N.J.A.R. 163
Health Insurance
Cancellation of a school psychologist's health insurance benefits based upon his reduction in employment to 18 hours per week is proper when carried out in accord with established board personnel policy. Decision: 4 N.J.A.R. 105
Incompetency
Where evidence of lack of classroom control and incapacity to teach is so extensive and encompassing, a Board of Education's dismissal of a tenured teacher with 17 years of experience is justified. Decision: 2 N.J.A.R. 334
Board proved tenure charges against a teacher who demonstrated continued inability to control her class or educate her students, used abusive language and repeatedly walked out of her classroom. Decision: 13 N.J.A.R. 867
Indemnification
Petitioner was not entitled to indemnification of defense costs as the result of criminal charges being dismissed following completion of a Pretrial Intervention Program, when indictment was for sexual assault and endangering the welfare of children. Petitioner's actions did not arise out of his teaching duties and he cannot therefore be eligible for indemnification. In addition, dismissal of charges following PTI does not constitute final disposition in favor of petitioner. Decision: 12 N.J.A.R. 025
Inefficiency
If a teacher is charged with inefficiency, the teacher must be given 90 days in which to correct the alleged inefficiency and the Board of Education must render positive assistance to the teacher during that time. Decision: 10 N.J.A.R. 151
Adequate assistance to a teacher charged with inefficiency requires ongoing evaluative efforts that are related to specific charges. Decision: 10 N.J.A.R. 151
Insubordination
A tenured high school Department Chairman's willful and continual refusal to perform his assigned duties as evidenced by his refusal to perform assigned cafeteria monitoring duties constitutes insubordination and results in a forfeiture of his tenure as a Department Chairman; individual is permitted to retain tenure and all seniority as a teaching staff member. Decision: 1 N.J.A.R. 231
Janitor
A negotiated labor agreement providing for the acquisition of tenure by a janitor after three years service is a valid agreement. Decision: 5 N.J.A.R. 018
Jurisdiction
Although laid-off attendance counselors had been employed by Newark Board of Education, they were classified Civil ,Service employees and their employment rights were governed by Civil Service laws; thus, the Commissioner of Education cannot affect their rights of lay-off or re-employment. Decision: 2 N.J.A.R. 346
Lateral Transfer
While not giving his consent to a transfer, an individual's tenure rights were not violated when he was transferred from the position of elementary school principal to secondary school principal where he was certified to hold either position and his compensation was not reduced. Decision: 2 N.J.A.R. 016
Misrepresentation
Where an individual obtains., an administrator's certificate by misrepresentation, serves in that position and is later removed, he may not recover the difference in salary for a position he should never have occupied in the first place. Decision: 7 N.J.A.R. 191
Moral Turpitude
Acts which are not, in and of themselves, acts of vice or fraud do not automatically involve moral turpitude. Decision: 1 N.J.A.R. 381
A conviction of first degree murder and resultant notoriety are clearly related to an individual's duties as a school teacher and may support a revocation of a teaching Certificate. Decision: 3 N.J.A.R. 285
Negotiated Agreements
Where a statute sets both a maximum and a minimum level of employee rights or benefits, a negotiated labor agreement may fix a benefit level between the two extremes. Decision: 5 N.J.A.R. 018
A negotiated labor agreement providing for the acquisition of tenure by a janitor after three years service is a valid agreement. Decision: 5 N.J.A.R. 018
Differentiated salary schedules may be negotiated, so that part-time teachers may receive different salaries than full-time teachers. Decision: 11 N.J.A.R. 114
Ninety Day Rule
Failure to file a petition with the Commissioner of Education within 90 days of the complained- of event results in the action being time barred pursuant to N.J.A.C. 6:24-1.2. Decision: 3 N.J.A.R. 276
A cause of action arises on the day on which the right to institute and maintain that action first arose. Decision: 5 N.J.A.R. 175
Where no continuing violation of a statute occurs, petitioner may not claim to benefit from a continuing violation theory in order to circumvent the 90-day rule. Decision: 5 N.J.A.R. 175
Where a board of education's action in placing behind-the-wheel driver education in its adult school took place four years before an action is filed, the 90-day limit of N.J.A.C. 6:24-1.2 blocks such a petition. Decision: 6 N.J.A.R. 150
Petitioner is entitled to an evidentiary hearing on the question of whether his state of mind during the relevant period was such as to render his resignation involuntary and to warrant relaxation of the 90 day rule. Decision: 11 N.J.A.R. 499
One Hundred Twenty Day Rule
Under N.J.S.A. 18A:24, "substitute employment" is not limited to positions which have job responsibilities similar to that position from which the individual was suspended. Decision: 3 N.J.A.R. 206
Reduction in Force
Where evidence demonstrates that the reduction of a tenured Guidance Counselor's position from full to part-time was made for reasons of economy and carried out according to statute, that reduction is proper. Decision: 1 N.J.A.R. 300
Where school board abolished all full-time physical education teaching positions and replaced full-time physical education teachers with part-time teachers, the board violated tenure rights by maintaining more than the equivalent of one full-time position in physical education. Decision: 7 N.J.A.R. 111
A reduction in force is entirely within authority of Board of Education if done for reasons of economy. Decision: 7 N.J.A.R. 111
Reduction in Salary
While the conduct underlying conspiracy and bookmaking charges does amount to conduct unbecoming a teacher, it does not require dismissal of that teacher but does warrant a forfeiture of two month's salary. Decision: 1 N.J.A.R. 381
Resignation
Petitioner is entitled to an evidentiary hearing on his claim that his resignation was not voluntary because of his mental and physical condition at the time. Decision: 11 N.J.A.R. 499
Salary Guide
Although a board of education's policy for placement of teachers on its salary scale was unwritten and not generally disseminated, its uniform and unfailing application for 11 years supports a conclusion that the policy should be allowed to stand. Decision: 3 N.J.A.R. 157
A board of education did not improperly apply its own salary policy when it interpreted "present salary" to mean the teaching salary individuals were making on the date of promotion and not the teaching salary the individual would have been making in his first year as an administrator. Decision: 2 N.J.A.R. 116
Seniority Regulations
Under new seniority rules, high school physical education teacher acquired tenure and seniority only in the secondary education category. Therefore, teacher could be dismissed in reduction of force before non-tenured elementary teachers and elementary teachers with fewer years in service. Decision: 11 N.J.A.R. 129
Settlement
Settlement agreement violated school laws by permitting petitioner to be employed in the position of vice principal while holding the separately tenurable title of principal. Any such agreement must properly designate the position and assignment. Decision: 12 N.J.A.R. 010
Sex Discrimination
Where coaches of girls' basketball, softball and field hockey perform substantially the same duties and had substantially the same responsibilities as coaches of boys' sports, any wage differentials based on the sex of the students coached was found to be impermissible discrimination. Decision: 3 N.J.A.R. 249
Sick Leave
A local Board of Education may, in its discretion, grant extended sick leave benefits to a tenured teaching staff member beyond the allowed annual and accumulated sick leave. Since no vested rights result, however, the Board's action rescinding such benefits is not arbitrary since a board has discretionary authority to rescind any action taken at an earlier meeting. Decision: 2 N.J.A.R. 327
A board of education has no obligation to continue salary payments for any absence occurring more than 12 consecutive months subsequent to the date of an injury. Decision: 6 N.J.A.R. 040
Following the conclusion of a Worker's Compensation proceeding and the payment of full salary for one year after a work-related injury, an individual is not entitled to payment for unused sick time. Decision: 6 N.J.A.R. 371
Statutory right to use or be paid for accumulated sick leave ends upon the lawful termination of employment. An employee may be terminated because of a disability even though the employee's sick leave has not been exhausted. Decision: 11 N.J.A.R. 510
In claim for payment of sick leave benefits under Chapter 18A, where petitioner also seeks benefits under the Workers' Compensation Act, the Commissioner of Education should defer to the Division of Workers' Compensation on the issue of causal connection between employment and injury. Decision: 11 N.J.A.R. 520
Teacher was not entitled to a coach's stipend because he missed most of the season due to illness. Sick leave does not accrue to coaching position; it is not regular, steady employment. Decision: 13 N.J.A.R. 438
Standard of Proof
The standard of proof in teacher tenure matters should be proof by a preponderance of the evidence. Decision: 3 N.J.A.R. 237
Standing
Where the U.A.P.R. do not establish criteria governing standing, agency rules extant when the U.A.P.R. were adopted may be looked to for guidance. Decision: 5 N.J.A.R. 029
Restrictive principles of standing developed for good reason to apply in law suits between private parties should be applied with greater flexibility in the field of administrative law. Decision: 5 N.J.A.R. 029
Substitute Employment
Under N.J.S.A. 18A:6-24, "substitute employment" is not limited to positions which have job responsibilities similar to that position from which the individual was suspended. Decision: 3 N.J.A.R. 206
Summer Employment
Summer employment, by its temporary nature, may not count toward the accrual of tenure in the category of speech correctionist prior to actually serving in that position. Decision: 4 N.J.A.R. 445
Supplemental Instructors
Supplemental instructors of educationally handicapped children are eligible for the acquisition of tenure under N.J.S.A. 18A:28-5(1); fewer assigned pupils or non-performance of some general teacher duties do not bar the acquisition of tenure since other tenured employees are similarly situated. Decision: 2 N.J.A.R. 294
Suspension Pending Criminal Indictment
Custodian who was suspended after being arrested was entitled to back pay from the time he was suspended until the time he was indicted. Decision: 13 N.J.A.R. 963
Teaching Staff Member
Attendance officer did not acquire status as a teaching staff member within the meaning of the tenure law simply because the board required him to have a teaching certificate. A teaching staff member must perform teaching duties. Decision: 13 N.J.A.R. 095
Temporary Employment
Summer employment by its temporary nature, may not count toward the accrual of tenure in the category of speech correctionist prior to actually serving in that position. Decision: 4 N.J.A.R. 445
Tenure Hearing
DYFS reports of child abuse may not be ordered disclosed by an administrative forum in a tenure charge hearing. Disclosure violates the provisions of N.J.S.A. 9:6-8.10a because an administrative forum is not a court. Decision: 13 N.J.A.R. 297
Title I Teachers
Board of Education ordered to reinstate as teaching staff members 31 properly certified Title I teachers who were terminated in an attempt to circumvent the acquisition of tenure and were reassigned to avoid pay parity. Decision: 2 N.J.A.R. 206
Transfer Without Consent
Transfer of elementary school principal without his consent to position of high school vice principal violated tenure rights. Decision: 12 N.J.A.R. 010
Unbecoming Conduct
While the conduct underlying conspiracy and bookmaking does amount to conduct unbecoming a teacher, it does not require dismissal of a teacher. Decision: 1 N.J.A.R. 381
While inflicting corporal punishment on students constitutes unbecoming conduct, it should not warrant forfeiture of tenure rights where the teacher did not intend to inflict any pain on her students nor was there any evidence of lack of self-control. Decision: 3 N.J.A.R. 237
Teacher was ordered removed from his position based on incidents of improperly touching students and ridiculing them. On appeal, the case was reversed and remanded because the teacher was excluded from the hearing room while students testified. Decision: 12 N.J.A.R. 954
Withdrawal from School District
Employees of a new school district created by the withdrawal of one district from another have the same tenure, seniority, pension and leave-of- absence rights as they had before the withdrawal occurred. Decision: 1 N.J.A.R. 080
Withholding of Increment
A Board of Education's failure to specifically provide for the withholding of both an annual employment increment and an adjustment increment supports a conclusion that the Board intended to withhold only the employment increment. Decision: 1 N.J.A.R. 427
While a Board of Education has the authority to withhold an increment, a lack of knowledge on the part of teachers and principals as to the criteria used by the superintendent in making his recommendation to the Board renders such a denial arbitrary. Decision: 2 N.J.A.R. 199