A majority of tenure charges filed by school boards against teachers in New Jersey since a new tenure law took effect in 2012 have been upheld by state arbitrators assigned to hear them.
But in almost a third of the cases, following hearings, the arbitrators said the employee should not be fired and charges were instead downgraded to a suspension rather than termination. Education officials on both sides said the new system has expedited the process while still protecting teachers.
“It takes less time, it costs less, and our members are still getting due process,” said Steve Baker, spokesman for the New Jersey Education Association, which represents the majority of teachers in the state.
He said that since teachers were not fired in a substantial number of cases, it shows that tenure is still needed to protect teachers and principals from arbitrary firings.
The new tenure procedures are part of the TEACHNJ law passed by the Legislature and signed into law in August 2012. The process extended the time period for teachers to earn tenure protection from three years to four years. It also sets a strict timeline for the tenure charge process, which should be resolved in about four months, and a maximum amount of money the assigned arbitrator can earn, $7,500 per each case, paid by the state.
The new law developed amid complaints that tenure charges, which formerly required hearings before an administrative law judge, then approval of the judge’s recommendation by the state education commissioner, could drag on for years and cost tens of thousands of dollars in legal expenses.
Teachers are suspended without pay once charges are filed, but must be returned to the payroll if there is no decision within 120 days. Lengthy delays under the old system put teachers back on the payroll even while they were not teaching.
New Jersey School Boards Association spokeswoman Jeanette Rundquist said in an email that since the new process is shorter, it is saving money, both in attorney’s fees and because employees facing tenure charges are less likely to be returned to the payroll.
A review by The Press of Atlantic City found that of 37 tenure cases decided by arbitrators under TEACHNJ since 2012, charges were upheld in 23 cases and the employees were fired.
In 11 cases the arbitrator instead imposed a suspension without pay, reduced or eliminated a pay raise, or reaches some agreement. Two cases, both in Newark, were dismissed, and in one case the employee resigned, rendering the issue moot. Newark, the state’s largest school district with some 3,500 teachers, had nine of the 37 cases.
Joseph DelGrosso, president of the Newark Federation of Teachers, said they believe the new process is more fair. He said under the old system, an administrative law judge might hear the case and make a recommendation, but ultimately the education commissioner decided the case. Cases could drag on for years, which is unfair to teachers and taxpayers funding the cost.
Most cases so far have been for conduct unbecoming a teacher, and the real test will come when there are cases based on results of the new teacher evaluation systems. The new law requires districts to file tenure charges against any teacher who is rated ineffective two years in a row.
In one case against teacher Emil Nell in Beverly, Burlington County, decided in November, arbitrator Timothy Brown upheld charges of insubordination and inefficiency, but not a charge of incompetency, saying he was not persuaded that the district had made its case on that charge.
Vineland attorney Ned Rogovoy, who has represented five teachers in the new system, including Nell, said it will be interesting to see how cases will be heard with the new teacher evaluations as the model.
“I’m not sure yet how you can defend against that,” he said. “It’s going to be a big issue.”
DelGrosso said they are also concerned about the impact of the new evaluations. Newark’s most recent teacher contract includes a peer review process and teacher oversight committee so teachers can appeal evaluations.
“Under the new law, if you are rated ineffective for two years, you likely will be gone,” he said. “That’s why we fought so hard for peer review. Teachers really are pretty tough evaluators of their peers. They know who the bad teachers are and have no reason to protect them.”
Some cases filed before the new law took effect in 2012 were still in the pipeline even this year. Nineteen cases were decided in 2013 and four so far in 2014. Most were sustained, but one was dismissed, one was reduced to suspension, and one was declared moot because the person was convicted on criminal charges agreed to give up their license.
DelGrosso said districts still have some advantage since they can take time building their case before filing the tenure charges.
In the Atlantic City case of teacher Regina Dwozar, she was initially suspended with pay in October 2012, but the tenure charges were not filed until October 2013. An arbitrator ruled in Feburary 2014 she remain on unpaid suspension through the 2013-14 school year.
The administrative hearings are closed to the public, but details are included in the decisions, which are posted on the N.J. Department of Education website after the cases are decided.
Rogovoy said the arbitrators don’t waste any time, but are doing a professional job. He said he has not noticed any particular patterns in the decisions because there have not been that many, and they are so fact sensitive.
“I have lost some that I thought I’d win,” he said. “But I am there as an advocate for my client.”
He said and DelGrosso said most cases are settled before they get to a hearing. DelGrosso said 62 cases were filed n Newark last year and most were settled through retirements, resignations or payments to the teacher.
Rogovoy said new tighter timeline has also pushed settlements through more quickly. He is currently finishing two settlements.
“You probably settle as many as you try,” he said. “Sometimes a district doesn’t know if they can sustain the charges, but they just want the person out of the school system.”
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