On appeal from interlocutory decision of State Board of Education.
Seidman, Michels and Devine.
[173 NJSuper Page 110] Respondent Sara Riely, an untenured teacher whose contract was not renewed for the 1976-1977 school year by appellant Board of Education of Hunterdon Central High School (board), filed a petition of appeal with the Commissioner of Education seeking reinstatement with back pay to her position as a teacher of English. The board moved to dismiss the petition on the ground that it had been filed out of time. It contended, additionally, that the petition was barred by reason of an adverse award in an arbitration proceeding instituted by the teacher under the grievance provisions in the collectively negotiated agreement between the board and the teachers' association. The Commissioner denied the motion to dismiss and directed that the matter "move forward expeditiously to a full plenary hearing to determine if petitioner is entitled to reinstatement." The board's appeal to the State Board of Education was dismissed. We granted the board's motion for leave to appeal and stayed further proceedings pending our determination of the matter. We are satisfied from our review of the record that the petition of appeal was filed out of time and should have been dismissed.
Respondent was notified of the nonrenewal of her contract in a letter from the supervisor of instruction dated April 13, 1976. She was accorded an informal hearing before the board at her request on May 10, 1976. The following day the board sent a letter informing her that its prior decision not to renew her contract remained unchanged.
In May 1976 respondent availed herself of the grievance machinery in the contract between the board and the teachers' association and demanded binding arbitration on the issue of the procedural propriety of the nonrenewal of her teaching contract. The board acquiesced and the issue framed by the parties for submission to binding arbitration was, "Did the Board violate the Agreement in terminating Sara Riely? If so, what shall the remedy be?" After a hearing the arbitrator found against respondent. He rejected as without substance her contention that the board had violated established procedures and past practice in failing to grant her an interview after notifying her of its intention not to renew her contract. He further found no factual or legal basis for any claimed violation of board rules, regulations or policies. Finally, the arbitrator dismissed the teacher's claim that the adverse evaluation of her proficiency was made by a department chairman who was not a certified supervisor, as required by State Board rules and regulations, and was therefore invalid. He concluded from the proofs that the department had been properly appointed and was, if not de jure , a de facto certified supervisor. The award, dated May 1, 1977, was that the "Board of Education of the Hunterdon Central High School did not violate the Agreement in terminating Sara Riely."
On June 20, 1977 respondent filed a petition of appeal with the Commissioner, averring therein that (1) despite previous excellent evaluations and observations, and without prior notification, she was notified orally of the nonrenewal of her contract; (2) the department chairman who made the underlying observations "lacked the appropriate certification to observe and evaluate,"
and (3) the reason given was untrue and not an appropriate ground for nonretention.
On September 19, 1978 the motion to dismiss the petition was denied. The Commissioner held that it had been filed within 90 days of the arbitrator's award and was therefore timely. The State Board's decision dismissing the appeal is dated December 6, 1978. It is to be noted that N.J.A.C. 6:24-1.2 states, in pertinent part, that a petition to the Commissioner to determine a controversy or dispute arising under the school laws must be filed within 90 days after receipt of the notice by the petitioner of the action concerning which the hearing is requested. However, this rule was adopted October 6, 1976, and thus was not in effect when the board's letter was issued. Nevertheless, the Commissioner's ruling runs counter to his own interpretation of the applicability of that regulation.
In Wagner v. Bridgewater-Raritan Reg'l School Dist. Bd. of Ed. , 1978 S.L.D. (November 3, 1978), a nontenured teacher who was notified in March 1976 that her contract would not be renewed for the 1976-1977 school year, filed a grievance and demanded arbitration. The board refused to participate in the arbitration and, on March 21, 1977, rejected the arbitrator's award which favored the teacher. The latter filed a petition with the Commissioner in June 1977, again challenging the nonrenewal. The board moved to dismiss and the Commissioner granted the motion. Recognizing that N.J.A.C. 6:24-1.2 was not in effect when the board gave notice to the teacher that her contract would not be renewed, the Commissioner nonetheless reasoned that it should have been obvious to petitioner after Union Cty. Bd. of Ed. v. Union Cty. Teachers Ass'n , 145 N.J. Super. 435, 437 (App.Div.1976), certif. den. 74 N.J. 248 (1977), and the "rule changes codified in Title 6, Chapter 24, that administrative relief should be requested from the Commissioner." He determined that the petitioner had 90 days from the adoption of the rule in which to file her appeal, and her waiting for the arbitrator's ruling and its rejection by the board before appealing
more than six months later clearly rendered the appeal out of time.
The Commissioner's rationale is buttressed by the recent case of Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass'n , 79 N.J. 311, 326-327, n. 4 (1979), in which the court cautioned that while advisory arbitration was an appropriate intermediate procedural step for handling a dispute over the withholding of a teacher's salary increment, a matter otherwise within the managerial discretion of the board of education, a teacher who proceeds to arbitration is not thereby relieved from compliance with the 90-day requirement of N.J.A.C. 6:24-1.2 for filing a petition of appeal with the commissioner. In such case the ...