On November 1, 2000, the State Board of Education modified a decision by the Commissioner of Education which would have severely hampered the ability of school districts to settle tenure proceedings with employees. We successfully persuaded the State Board that, even if the Commissioner should approve a tenure settlement, an employee does not waive her right to challenge the revocation of her license before the State Board of Examiners. This important decision will make it easier for districts to settle tenure disputes.
In In the Matter of the Tenure Hearing of Lenore M. Allen, School District of the Township of Old Bridge, the Old Bridge Township Board of Education certified tenure charges against Ms. Allen on the ground of conduct unbecoming. Prior to a hearing on the merits, the parties agreed to a settlement which was reviewed and approved by the Administrative Law Judge (ALJ) pursuant to N.J.A.C. 1:1-19.1. The Commissioner, however, rejected the ALJ's recommendation, stating that he was not convinced that the settlement met the standards set forth in n re Cardonick, 1990 S.L.D. 842 (Comm'r of Educ. Apr. 7, 1982), aff'd, 1990 S.L.D. 846 (State Bd. of Educ. Apr. 6, 1983) ("Cardonick").1
The Commissioner's concern was that the State Board of Examiners would not be able to meaningfully determine whether or not Ms. Allen's certificate should be revoked or suspended because there was neither an admission by Ms. Allen of the facts alleged by the Board of Education, nor a factual record created. As such, the Commissioner disagreed with the ALJ's finding that the settlement protects the public's interest, and was reluctant to dismiss the case. The Commissioner remanded the matter to the Office of Administrative Law (OAL) for a hearing, unless Ms. Allen agreed to revise the settlement agreement to include a statement that she would not oppose revocation proceedings before the State Board of Examiners.
On behalf of the Board of Education, we appealed the Commissioner's decision, arguing that there is no authority for the Commissioner's requirement that Ms. Allen, in effect, relinquish her certificate as part of a tenure proceeding settlement. In addition, we argued that, because many teaching personnel will be unwilling to agree to forego defending their certificate, the Commissioner's decision, if allowed to stand, will tax local boards of education with the responsibility to undertake the risk and expense of litigating tenure disputes that they believe should be settled in the public interest. In short, the Commissioner's decision would only serve to effectively bar future settlement of most tenure disputes, unnecessarily costing untold dollars in local budgets and forcing local boards to shoulder the statewide responsibility of license revocations.
The State Board of Education agreed with our position, stating:
[W]e find that it is not necessary for the proposed settlement in this case to include an express agreement by [Allen] not to oppose referral to the State Board of Examiners. Rather, we conclude that the acknowledgement of the Commissioner's duty to make the referral already included in the proposal is sufficient to insure that, as required by Cardonick, [Allen] understands that one of the implications of the settlement is referral to the Board of Examiners and, consequently, the potential for that oard to initiate proceedings to revoke or suspend her certification.
Although the State Board of Education agreed with the Commissioner that the public interest extends beyond the boundaries of the particular district certifying tenure charges, the State Board of Education stressed that dismissal from a tenured position and the revocation of a teacher's certification serve different purposes.
The State Board of Education distinguished the Commissioner's responsibilities to the public under N.J.S.A. 18A:6-10 from those of the State Board of Examiners under N.J.S.A. 18A:6-38. Just as a hearing record would have to be developed in the tenure proceeding in the absence of a settlement, the State Board of Examiners likewise may develop a factual record by transmitting the case to the OAL for a hearing to discern facts relating to the conduct underlying the tenure charges. This record would enable the State Board of Examiners to determine whether the offenses warrant suspension or revocation of the teacher's certification. The responsibility, therefore, rests with the State Board of Examiners (and not the particular district certifying the charges) to decide whether a teacher who has been dismissed from tenured employment should be precluded from future employment in any school district in New Jersey. Through this process, the interests of the public are protected.
In sum, the settlement between the Board and Ms. Allen was approved, and the matter transmitted to the State Board of Examiners for possible license suspension or revocation. We believe that this result not only protects the due process rights of teachers, but will assist local boards of education in their attempts to negotiate settlements with tenured employees and reduce the number of cases which proceed to a hearing.
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1In Cardonick, the State Board of Education found that a proposed tenure settlement should be accompanied by supporting documentation as to the nature of the charges, circumstances justifying settlement, consent by the board of education and teacher to the agreement, and the ALJ's findings that the agreement is consistent with the public interest and was entered into by the teacher with a full understanding of his or her rights, including the Commissioner's duty to refer tenure determinations to the State Board of Examiners for possible suspension or revocation of certification pursuant to N.J.A.C. 6:11-3.6.
