April 21, 2011
HEATHER HUDSON, PETITIONER-APPELLANT,
BOARD OF EDUCATION OF THE TOWNSHIP OF MOUNT OLIVE, MORRIS COUNTY, RESPONDENT-RESPONDENT.
On appeal from the Commissioner of Education, Docket No. 145-5/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2010
Before Judges Sapp-Peterson and Fasciale.
Appellant, Heather Hudson (Hudson), formerly a non-tenured middle school teacher in the Mount Olive Township School District (District), appeals from the final decision of the Commissioner of Education (Commissioner) dismissing her appeal on jurisdictional grounds. The Commissioner concluded that she lacked jurisdiction to consider the matter because it concerned a contractual dispute between Hudson and the District rather than an interpretation of school law. We affirm.
Hudson admittedly disciplined a student by taping and wrapping a scarf around the student while the student was sitting on a chair. After an investigation, the District suspended her teaching duties and shortly thereafter sent a letter to her advising that it had decided to terminate her employment mid-year for cause. The letter listed the following reasons for her termination:
Unbecoming conduct in taping a student to a chair -- first using duct tape - then a scarf.
Unprofessional conduct in comporting [her]self inappropriately in front of students.
Not following [the] principal's directions in the handling of these instances.
Poor judgment in the use of "hip-hop" lingo and language that could result in students feeling uncomfortable in [the] classroom.
Inability to grasp the seriousness of these events and their inappropriateness.
A copy of this letter was also sent to the State Board of Examiners (Board).
The District also reported Hudson's conduct to the Division of Youth and Family Services (Division), and the Division launched an investigation into the matter through its Institutional Abuse Investigation Unit (IAIU). In an April 9, 2008 report, the IAIU found:
[T]he information gathered indicates that Ms. Hudson placed a piece of masking tape on [the student] and placed her scarf around him in response to this student's disruptive behavior and his failure to heed directives to stop. Ms. Hudson's actions were ostensibly taken in jest, did not confine [the student] in any way, and caused no injury to the child, who simply removed the tape and scarf; however, her actions were inappropriate. Ms. Hudson's actions placed [the student] at no appreciable risk of harm and were not to the degree required by statute to find abuse.
Prior to the Division's investigation, Hudson, through her union, the Education Association of Mount Olive (EAMO), filed a grievance with the Superintendent, alleging that she was "disciplined without just cause" when she was terminated. The Superintendent denied the grievance. The EAMO submitted a formal request that the matter proceed to the "next level[,] . . . a hearing with the [District,]" again claiming that Hudson's termination was "without just cause[.]"
The District denied the grievance. Hudson then filed a petition with the Commissioner alleging, among other things, that her termination was arbitrary and capricious*fn1 and that the District improperly reported her termination to the Board. After the District filed its answer to the petition, the matter was transferred to the Office of Administrative Law and assigned to an Administrative Law Judge (ALJ) as a contested case. See N.J.S.A. 52:14F-1 to -23; N.J.S.A. 52:14F-8.
The District filed a motion to dismiss the petition on the basis that the Commissioner lacked jurisdiction to consider the appeal because it was solely a contractual dispute between the District and Hudson. Although designated as a motion to dismiss, the ALJ treated the matter as a motion for summary decision pursuant to N.J.A.C. 1:1-12.5. The ALJ rejected Hudson's argument that the Commissioner's jurisdiction to consider the petition was pursuant to her statutory authority under N.J.S.A. 18A:6-9, which authorizes the Commissioner to hear and determine controversies under school law. Rather, the ALJ concluded that Hudson's contention that a finding of just cause was required before the District could terminate her "is derived from the collective negotiations agreement (CNA) entered into between [the District] and [EAMO]." Citing Board of Education of Township of East Brunswick v. Township Council of Township of East Brunswick, 48 N.J. 94, 102 (1966), the ALJ determined that the Commissioner's jurisdiction was limited to controversies and disputes arising under the school laws, and although a matter may pertain to a school board, that does not mean it arises under school laws. In reviewing her petition, the ALJ concluded the contention that the District was without just cause to terminate her was derived "from petitioner's rights under the CNA, Article 19[,]" and her petition therefore involved a contractual dispute rather than any statutory entitlement under school law.
Additionally, the ALJ rejected petitioner's contention that N.J.S.A. 18A:16-1.3 was triggered when the District notified the Board of her termination and, as such, the Commissioner's jurisdiction was invoked. The ALJ determined that this provision "has no relevance to a [District's] decision to terminate an employee or the reasons underlying the termination. Rather, this provision only concerns a board's actions after a non-tenured, certificated employee is terminated mid-year."
The Commissioner concurred that summary disposition was appropriate and adopted the ALJ's initial decision recommending dismissal of the petition. Finding that Hudson had not asserted any claims of a constitutional or statutory nature, the Commissioner agreed that she lacked jurisdiction to consider the petition. The Commissioner also adopted the ALJ's finding that the District prematurely reported Hudson's termination, but agreed, as the ALJ found, that this procedural violation was of no consequence because Hudson failed to properly exhaust her administrative remedies, which would have then resulted in postponing the required notice to the Board. The present appeal followed.
On appeal, Hudson raises the following points for our consideration:
THE COMMISSIONER OF EDUCATION WRONGLY FOUND THAT SHE LACKED JURISDICTION TO HEAR PETITIONER'S APPEAL AND WRONGLY DISMISSED THE APPEAL SUMMARILY.
A. THE COMMISSIONER WRONGLY FOUND THAT MS. HUDSON WAS REQUIRED TO ARBITRATE HER CLAIM PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT.
B. THE COMMISSIONER WRONGLY FOUND THAT MS. HUDSON'S CLAIM WAS A CONTRACT DISPUTE.
C. THE COMMISSIONER WRONGLY FOUND THAT MS. HUDSON'S CLAIM COULD HAVE BEEN ADDRESSED BY THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT.
D. BECAUSE N.J.S.A. 18A:16-1.3 WAS TRIGGERED, THE ALJ'S OPINION, WHICH THE COMMISSIONER ADOPTED, THAT PETITIONER'S CASE INVOLVED A MERE MID-YEAR TERMINATION, WAS LEGALLY ERRONEOUS.
Having considered these contentions in light of the record and applicable law, we affirm substantially for the reasons expressed by the Commissioner in her written decision of September 24, 2009. R. 2:11-3(e)(1)(D). We add, however, the following brief comments.
The Commissioner "has primary jurisdiction to hear and determine all controversies arising under the school laws." Bower v. Bd. of Educ. of E. Orange, 149 N.J. 416, 420 (1997); see N.J.S.A. 18A:6-9. However, "[w]here the controversy does not arise under the school laws, it is outside the Commissioner's jurisdiction even though it may pertain to school personnel." Bd. of Educ. of E. Brunswick, supra, 48 N.J. at 102. Thus, "[a] dispute between parties to a contract who simply happen to be a school board and an employee does not present a controversy over which the Commissioner has jurisdiction. . . . Such matters do not require the educational expertise of the Commissioner[.]" Smith v. Bd. Of Educ. of Twp. of Willingboro, 97 N.J.A.R.2d (Vol.7E) 205(EDU).
There is no dispute that Hudson's status with the District at the time of her termination was that of a non-tenured teacher. "[A]bsent constitutional constraints or legislation affecting the tenure rights of teachers, local boards of education have an almost complete right to terminate the services of a teacher who has no tenure and is regarded as undesirable by the local board." Dore v. Bd. of Educ. of Twp. of Bedminster, 185 N.J. Super. 447, 456 (App. Div. 1982). Moreover, subject only to constitutional or statutory constraints, any such termination is a matter of contractual dispute.
It is also undisputed that Hudson's employment contract was governed by the CNA, and in accordance with its provisions, the EAMO filed a grievance on her behalf alleging that she "was disciplined without just cause when her employment was terminated mid-year." Under the CNA, the District has "the right to take disciplinary action[, including termination,] for good and just cause." Consequently, in alleging that she was terminated without just cause, Hudson triggered the provisions of the CNA, under which she was also afforded the right to file a grievance if she believed that there was a "violation or misinterpretation of the terms of [the] [a]greement[.]" Hudson filed her grievance, first with the Superintendent and then with the District. When the District denied relief, she failed to take advantage of another CNA provision, to "[w]ithin ten (10) calendar days from receipt of the [District's] grievance determination," submit to EAMO a written request that it "invoke its authority . . . to pursue an impartial settlement by arbitration." The grievance procedures contained in the CNA further provide that "[a]ny grievance not processed in accordance with the time limits specified herein shall be deemed relinquished by the grievant." Hudson failed to exhaust the remedies available to her under the CNA. In failing to do so, she was not entitled to seek relief before the Commissioner concerning a matter that was purely contractual. Bd. of Educ. of E. Brunswick, supra, 48 N.J. at 102.
Nor do we agree that the District's premature notice to the Board of its action, pursuant to N.J.S.A. 18A:16-1.3, provided yet another basis to invoke the Commissioner's jurisdiction to consider Hudson's petition. N.J.S.A. 18A:16-1.3 provides:
A board of education shall notify the State Board of Examiners whenever a non-tenured, certificated employee is dismissed prior to the end of any school year for just cause as a result of misconduct in office. . . . The State Board of Examiners shall maintain a list containing the name and Social Security number of the employee and the reason for the dismissal. If a disciplinary grievance arbitration is conducted pursuant to section 8 of P.L.1989, c. 269 (C.34:13A-29) as to the dismissal, or if the dismissal is appealed to a court or administrative tribunal of competent jurisdiction the board of education shall not notify the State Board of Examiners unless just cause due to misconduct in office is found by the arbitrator, the court or administrative tribunal of competent jurisdiction.
As the Commissioner observed, this provision provides no right of appeal as to the validity of the Board's reasons for termination but, rather, contemplates that any challenge to the reasons for an individual's removal from employment be made in an appropriate forum and a challenge so made serves to postpone the Board's reporting responsibilities until a "court or administrative tribunal of competent jurisdiction" has made a determination on the individual's appeal.
Therefore, N.J.S.A. 18A:16.1.3 did not provide a separate basis for invoking the Commissioner's jurisdiction.
The remaining arguments advanced by Hudson are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).