Lora, Allcorn and Handler. Handler, A.j.a.d.
Appellant Marilyn Winston was an elementary school teacher employed by respondent Board of Education of South Plainfield (board). She had been employed in a nontenured capacity under annual contracts for each of the school years 1968-1969, 1969-1970 and 1970-1971. Her employment contract was not renewed for the year 1971-1972, and as a result she did not acquire tenure.
An evaluation report was submitted by Winston's principal on or about February 23, 1971. The board thereafter determined not to renew Winston's employment contract. Among other matters, the report contained "administrator's remarks" to the effect that Winston had been overly critical of administrative policy and action, had not sufficiently focused her attention on her duties and had not supported administrative policy and the like. On March 11, 1971 Winston invoked the grievance procedures provided in the current "collective bargaining agreement" between the board and appellant South Plainfield Education Association, the recognized exclusive representative of teachers and certain other employees of the board under the New Jersey Public Employer-Employee Relations Act, L. 1968, c. 303; N.J.S.A. 34:13A-1 et seq.
The gist of her grievance was the unfavorable evaluation report and, in particular, as set forth in Part 1, a claim that the report was "unconstitutional by penalizing the aggrieved [ i.e. Winston] for her proper exercise of the First
Amendment Guarantees of freedom of expression, etc." In the processing of her grievance Winston was represented by the Association. The grievance was taken through four administrative levels, including an appeal to the local board on April 30, 1971. The board concurred in the conclusion of the superintendent that the matters complained of were "non-grievable" and it rejected the grievance noting, in part, that "[a]lthough the grievance is couched in language suggesting violations of a constitutional dimension, it appears that the primary distress of the teacher is the possibility of her non-re-employment in the school system." It indicated further that the board was under "no compulsion to announce reasons for not re-hiring a probationary employee" and that Winston had not given any detailed support for her request for a hearing. The board also stated that it was "unable to conclude that the evaluation report submitted by Mr. Reilly [the principal] was composed with the intention of, or that it has a substantial tendency to, abridge Mrs. Winston's right to free speech * * *."
On May 18, 1971, about the same time that the board's decision was rendered, a list of teachers to be rehired was approved and Winston was not among them. Thereafter, on or about June 16, 1971, the Association on behalf of Winston endeavored to invoke the fifth level for processing grievances by demanding arbitration. It was alleged that there had been a denial of constitutional rights as well as a recommendation that Winston not be re-employed. At an arbitration hearing conducted on October 14, 1971 the issue of arbitrability was argued and the board was given the opportunity to seek judicial relief on this issue. It then filed an action on November 16, 1971 in the Superior Court, Chancery Division, which issued an injunction on Feburary 8, 1972 restraining the arbitration proceedings until administrative remedies had been exhausted.
There followed a petition of appeal to the Commissioner of Education. The board filed a motion to dismiss which was
argued before a Deputy Commissioner who presented a report to the Commissioner. The Commissioner ruled that the Association had no standing as a party to the proceedings and determined that Winston's appeal be dismissed. Both Winston and the Association appealed this determination to the State Board of Education which, after a referral of the matter to its Law Committee, affirmed the decision of the Commissioner.
Appellants contend that the Commissioner of Education erred in failing to afford them the opportunity to object to the report of the hearing examiner before issuing his decision. They also contend that the State Board of Education committed comparable error by not affording them the opportunity to object to the report of its Law Committee prior to the rendering of its decision.
The decision of the Commissioner makes it quite clear that he was furnished with and relied upon a report of the Deputy Commissioner designated as the hearing examiner who heard the appellants' petition in the first instance.*fn* Respondents argue that there was no requirement that the report of the hearing examiner be furnished the parties prior to its utilization by the Commissioner in deciding the controversy. Among the reasons advanced were that the Commissioner of Education is not the "head of the agency" within the meaning of N.J.S.A. 52:14B-10(c) and consequently the report of a hearing examiner designated by the Commissioner is not subject to the mandate of that statute; also, that since the Commissioner's decisions are
reviewed by the State Board of Education, the parties there have the opportunity "to except and object to the findings of fact and conclusions of law of both the Departmental hearing ...