On appeal from a Final Decision of the Commissioner of the Department of Education of the State of New Jersey, Docket No.354-11/07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Yannotti,Espinosa and Skillman.
Renee Pollack (Pollack) appeals from a final determination of the Commissioner of Education (Commissioner) dated February 8, 2010, in which the Commissioner found that the Board of Education of South Orange and Maplewood (Board) did not violate Pollack's tenure or contract rights by terminating her employment effective December 31, 2007. We reverse.
I. Pollack began her employment in the South Orange and Maplewood school district (district) in August 2002, and was assigned to the position of principal of Columbia High School. Pollack continued in that position from 2002 into the 2005-2006 school year. She became tenured on August 26, 2005. In April 2006, Pollack was placed on administrative leave with pay.
It appears that there had been racial discord at Columbia High School, and Pollack had become the focal point of the discontent among certain faculty members and students. In addition, lawsuits had been commenced by students and faculty members against the Board and Pollack. The Board believed that Pollack's removal from her position as principal of Columbia High School would be an appropriate first step in attempting to diffuse the situation.
Sidney Sayovitz (Sayovitz), the Board's outside counsel, engaged in negotiations concerning Pollack's status with Pollack's attorneys: Robert H. Greenwood (Greenwood) and later Robert M. Schwartz (Schwartz). These discussions resulted in a letter dated August 18, 2006, from Schwartz to Sayovitz in which Schwartz made an offer on Pollack's behalf to settle the dispute on certain terms.
The terms included the following. (1) Pollack would agree to reassignment to "a commensurate title in accordance with her rights of tenure." (2) She would submit a letter of resignation, effective as of December 31, 2007. (3) Pollack would be paid for all of her unused vacation and sick days and receive payment for the attorney's fees she had incurred for Greenwood's legal services. (4) If Pollack obtained "other full-time employment" before July 1, 2007, she would be paid her contractual salary through July 1, 2007. (5) Pollack would continue to be fully indemnified for damages and potential attorney's fees with respect to any legal actions that pertain directly or indirectly to her employment by the district. (6) The Board would continue to fulfill its obligations to Pollack's son, a student in the district.
Sayovitz told Schwartz that he would present the proposal to the Board. Thereafter, he wrote a letter to Schwartz dated August 29, 2006, stating that he had been authorized to inform Schwartz that "your proposed resolution is acceptable, subject to our ability to execute a mutually satisfactory settlement agreement and the receipt of an irrevocable letter of resignation." Sayovitz stated, however, that certain terms in Schwartz's August 18, 2006, letter "require[d] clarification".
Sayovitz said that the payment of "reasonable fees" for Greenwood's services was acceptable but he proposed a cap of $2000. He stated that the Board assumed that the provision regarding Pollack's securing "other full time employment" referred to employment in "a school setting." Sayovitz also stated that Pollack's right to indemnification was statutory and the settlement would neither increase nor reduce those rights.
In addition, Sayovitz stated that, although the Board believed that its obligations to Pollack's son should not be included in the agreement, "such obligations [would be] neither increased nor reduced as a result of the settlement." Sayovitz concluded his letter by stating that he would draft the proposed agreement and forward it to Schwartz for his review.
With a letter dated September 5, 2006, Sayovitz provided Schwartz with the proposed settlement agreement, which incorporated the "clarifications" set forth in his August 29, 2006, letter. On September 13, 2006, Schwartz wrote to Sayovitz to "confirm" that Pollack had retracted her offer of settlement, as set forth in his letter of August 18, 2006, and had rejected the Board's "counter offer" as set forth in Sayovitz's August 29, 2006, letter.
Schwartz wrote that Pollack's position regarding the settlement was predicated on a "recent" favorable evaluation she had received from the superintendent of schools, as well as a decision of the United States District Court in an action brought against the Board and Pollack. According to Schwartz, the federal court had given "very little credence" to the claims against Pollack. Schwartz stated ...