In our May, 1996 School Law Update, we discussed the June 19, 1995 enactment of the "Rotondo Act" and its effect on a superintendent 's role in school employment decisions. Since that time, the State Board of Education has rendered a decision on the issue and empowered a board of education to overrule the superintendent's recommendation for the nonrenewal of certain staff members.
The Rotondo Issue
The "Rotondo Act" refers to N.J.S.A. 18A:27-4.1(b) which states that a board of education shall renew the employment contract of a certificated or non-certificated officer or employee only upon the recommendation of the Chief School Administrator ("CSA"), and by a recorded roll call majority vote of the full membership of the board. The statute further provides that those nontenured officers or employees who are not recommended for renewal by the CSA are deemed nonrenewed. Prior to notification to the officer or employee, the CSA must notify the board of the recommendation for nonrenewal and the reasons therefor. The nonrenewed officer or employee is then entitled to a written statement of the reasons underlying the decision of nonrenewal, as well as an opportunity to appear informally before the board in an attempt to convince board members to offer reappointment. The statute is unclear, however, regarding whether the board is then authorized to unilaterally offer reemployment to a staff member absent the recommendation of the CSA. This question has become the "Rotondo" issue.
At the time of our last update, the legislative history of the Rotondo Act, together with its interpretation by the State Commissioner of Education in the matter of Velasquez v. Board of Education of Borough of Brielle, suggested that school boards are not vested with the authority to overrule a superintendent's decision regarding the reappointment of staff. Thus, upon a superintendent's nonrenewal recommendation, the staff member could appear before the board, but success remained contingent on convincing the superintendent, sitting as a board member, to reconsider.
On August 6, 1997, however, the State Board of Education reversed the Commissioner's interpretation of the Rotondo Act in Velasquez, and held that a board of education may reappoint a staff member notwithstanding the superintendent's nonrenewal recommendation.
Velasquez v. Bd. of Educ. of Brielle
In Velasquez, Angelo Velasquez ("petitioner") became a teaching staff member for the Board of the Borough of Brielle ("Brielle Board") in September, 1992. In May, 1995, the Superintendent recommended to the Brielle Board that petitioner not be renewed, and his name was accordingly removed from the list of reappointed staff members.
Petitioner was notified of the nonrenewal and reasons therefor, and was provided with an informal appearance before the Brielle Board. The Brielle Board chose not to reverse its earlier decision and petitioner's contract was not renewed. At no point did the Brielle Board take formal action on the renewal by a recorded roll call vote. Petitioner filed a petition with the Commissioner of Education ("Commissioner") challenging the Brielle Board's action under, among other things, N.J.S.A. 18A:27-4.1, the Rotundo Act. Specifically, Count One of the petition requested that the matter be remanded to the Brielle Board for a vote on petitioner's request for reemployment.
The Administrative Law Judge ("ALJ") noted that the Rotundo Act was enacted in response to the Appellate Division decision in Rotondo, which held that a board is not bound to follow the CSA's recommendation regarding reemployment. The ALJ reasoned that the "least absurd interpretation" of the amended statute was that a nontenured officer or employee who was not recommended for renewal by the CSA was to be deemed nonrenewed unless the employee exercised his or her right to an informal appearance before the board of education ("board"). Notwithstanding the superintendent's recommendation, the board could determine that the employment contract would be renewed.
The ALJ recommended dismissing the petition, however, because despite having found that the Brielle Board possessed reappointment power, the ALJ found that petitioner exhausted his informal appearance and received all consideration afforded by the statute. Petitioner was merely unsuccessful in convincing the Brielle Board to renew his employment contract.
The Commissioner reviewed the ALJ's decision and agreed that petitioner had received all that he was entitled to under the Rotundo Act and, therefore, that there was no relief available. The Commissioner disagreed with the ALJ's interpretation of the Rotundo Act, however, stating:
In the case of contract renewal for nontenured staff, the law specifically provides that contracts shall be renewed only upon the superintendent's recommendation and a majority vote of the full board. That the Legislature chose to amend the original bill to retain the employee's existing right to a statement of reasons and appearance before the board in the event of a nonrenewal was not intended to, and does not, alter this result. Rather, it simply provides a mechanism by which a staff member whose renewal has not been recommended by the superintendent can appeal to the board, on which the superintendent specifically sits as a nonvoting member pursuant to N.J.S.A. 18A:17-20, in the hope of persuading district decision makers to take favorable action on his or her renewal.
Commissioner's Decision, slip op. at 25.
The Commissioner therefore affirmed the dismissal of Count One for this additional reason.
The State Board of Education ("State Board") granted petitioner's motion for leave to appeal and affirmed the ultimate determination of the Commissioner to dismiss Count One of the petition. However, the State Board rejected the analysis used by the Commissioner. The State Board agreed with the ALJ that while the statute clearly indicates that a board can renew an employment contract only upon CSA recommendation, it also expressly permits an employee whose contract is not renewed to request an informal board appearance for the purpose of attempting to convince board members to offer reemployment. The State Board concluded:
[W]e agree with the ALJ that the statute as enacted does not effectuate an intent to remove district board consideration of reemployment of an employee not recommended by the superintendent ... [A]ll a nonrenewed employee has to do under the statute is to request an informal appearance before the board in an attempt to convince the members of the board to offer him or her reemployment ... We find the Commissioner's explanation, which is predicated on the fact that the chief school administrator is a nonvoting member of the board, to be a strained interpretation of the plain language of the statute.
The State Board, however, agreed with the Commissioner that the statute does not require the board to vote on a staff member's renewal after his or her informal appearance before the board. Accordingly, petitioner was not entitled to a Brielle Board vote on his renewal, and Count One of the petition was dismissed.
Conclusion
In sum, the State Board has interpreted the Rotondo Act as vesting school boards with the authority to reappoint a staff member irrespective of the superintendent's nonrenewal recommendation. We anticipate that the Appellate Division will revisit this issue in the near future. Until it does, however, boards are free to overrule superintendents' nonrenewals.
