ASSEMBLY, No. 3947

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED MAY 5, 2011

 


 

Sponsored by:

Assemblyman  PATRICK J. DIEGNAN, JR.

District 18 (Middlesex)

Assemblyman  CRAIG J. COUGHLIN

District 19 (Middlesex)

 

Co-Sponsored by:

Assemblyman Amodeo

 

 

 

 

SYNOPSIS

     Requires binding arbitration to determine contested cases involving dismissal or reduction in compensation of tenured public school employees.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning arbitration, amending and supplementing chapter 6 of Title 18A of the New Jersey Statutes, and repealing parts of the statutory law.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.18A:6-9 is amended to read as follows:

     18A:6-9.  The commissioner shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws, excepting those governing higher education, or under the rules of the state board or of the commissioner.  For the purposes of this Title, controversies and disputes concerning the conduct of school elections shall not be deemed to arise under the school laws. 

     Notwithstanding the provisions of this section to the contrary, an arbitrator shall make the final determination on a controversy and dispute arising under subarticle B of article 2 of chapter 6 of Title 18A of the New Jersey Statutes (C.18A:6-10 et seq.).

(cf: P.L.1995, c.278, s.24)

 

     2.    N.J.S.18A:6-10 is amended to read as follows:

     18A:6-10.  No person shall be dismissed or reduced in compensation,

     (a)   if he is or shall be under tenure of office, position or employment during good behavior and efficiency in the public school system of the state, or

     (b)   if he is or shall be under tenure of office, position or employment during good behavior and efficiency as a supervisor, teacher or in any other teaching capacity in the Marie H. Katzenbach school for the deaf, or in any other educational institution conducted under the supervision of the commissioner;

     except for inefficiency, incapacity, unbecoming conduct related to the employee’s office, position, or employment, or other just cause, and then only after a hearing held pursuant to this subarticle, [by the commissioner, or a person appointed by him to act in his behalf,] after a written charge or charges, of the cause or causes of complaint, shall have been  preferred against such person, signed by the person or persons making the same,  who may or may not be a member or members of a board of education, and filed  and proceeded upon as in this subarticle provided.

     Nothing in this section shall prevent the reduction of the number of any such persons holding such offices, positions or employments under the conditions and with the effect provided by law.

(cf: N.J.S.18A:6-10)

     3.    N.J.S.18A:6-14 is amended to read as follows:

     18A:6-14.  Upon certification of any charge to the commissioner, the board may suspend  the person against whom such charge is made, with or without pay, but, if the determination of the charge by the [Commissioner of Education] arbitrator is not made within 120 calendar days after certification of the charges, excluding all delays which are granted at the request of such person, then the full salary (except for said 120 days) of such person shall be paid beginning on the one hundred  twenty-first day until such determination is made.  Should the charge be dismissed, the person shall be reinstated immediately with full pay from the first day of such suspension.  Should the charge be dismissed and the suspension be continued during an appeal therefrom, then the full pay or salary of such person shall continue until the determination of the appeal.  However, the board of education shall deduct from said full pay or salary any sums received by such employee or officers by way of pay or salary from any substituted employment assumed during such period of suspension.  Should the  charge be sustained on the original hearing or an appeal therefrom, and should such person appeal from the same, then the suspension may be continued unless and until such determination is reversed, in which event he shall be reinstated immediately with full pay as of the time of such suspension.

(cf: P.L.1971, c.435, s.2)

 

     4.    N.J.S.18A:6-16 is amended to read as follows:

     18A:6-16.  Upon receipt of such a charge and certification, or of a charge lawfully made to the commissioner, the commissioner or the person appointed to act in the commissioner's  behalf in the proceedings shall examine the charges and certification.  The individual against whom the charges are certified shall have  15 days to submit a written response to the charges to the commissioner.  Upon a showing of good cause, the  commissioner may grant an extension of time.  The commissioner shall render a determination on the sufficiency of charges as set forth below within 15 days immediately following the period provided for a written response to the charges.

     If, following receipt of the written response to the charges, the commissioner is of the opinion that they are not sufficient to warrant dismissal or reduction in salary of the person charged, he shall dismiss the same and notify said person accordingly.  If, however, he shall determine that such charge is sufficient to warrant dismissal or reduction in salary of the person charged, he shall within 10 days of making that determination refer the case to [the Office of Administrative Law] an arbitrator pursuant to section 6 of P.L.   , c.    (C.    ) (pending before the Legislature as this bill) for further proceedings, except that when a motion for summary decision to dismiss the charges has been made by the person charged prior to that time, the commissioner may retain the matter for purposes of deciding the motion.

(cf: P.L.1998, c.42, s.2)

 

     5.    N.J.S.18A:6-20 is amended to read as follows:

     18A:6-20.  Any party to any dispute or controversy or charged therein, may be represented by counsel at any hearing held in or concerning the same and shall have the right to testify, and produce witnesses to testify on his behalf and to cross-examine witnesses produced against him, and to have compulsory process by subpoena to compel the attendance of witnesses to testify and to produce books and documents in such hearing when issued by (a) the president of the board of education, if the hearing is to be held before such board, or (b) the commissioner, if the hearing is to be held before him or on his behalf, or (c)  the president and secretary of the State board, if the hearing is to be held before such board or before one of its committees, or (d) the chairman of the board of trustees of the State or county college or industrial school, if the hearing is to be held before such board , or (e) an arbitrator, if the hearing is to be held before such person

     The subpoena shall be served in the same manner as subpoenas issued out of the Superior Court are served. 

(cf: P.L.1994, c.48, s.50) 

 

     6.    (New section)  a.  The Commissioner of Education shall maintain a panel of 20 permanent arbitrators to hear matters pursuant to N.J.S.18A:6-16 and N.J.S.18A:6-18.  Of the 20 arbitrators, 10 arbitrators shall be designated by the New Jersey Education Association and 10 arbitrators shall be designated by the New Jersey School Boards Association.  All arbitrators designated pursuant to this section shall serve on the American Arbitration Association panel of labor arbitrators and shall be members of the National Academy of Arbitrators.  Arbitrators on the permanent panel shall be listed in alphabetical order and shall be assigned by the commissioner in that order to hear cases.  When an arbitrator is assigned, the Commissioner of Education shall notify the American Arbitration Association of the assigned arbitrator.

     b.    The following provisions shall apply to a hearing conducted by an arbitrator pursuant to N.J.S.18A:6-16 and N.J.S.18A:6-18:

     (1)   The hearing shall be held before the arbitrator within 60 days of the assignment of the arbitrator to the case;

     (2)   The costs and expenses of the arbitrator and any administrative costs for the services of the American Arbitration Association shall be borne by the State of New Jersey; and

     (3)   Upon referral of the case for arbitration, the employing board of education shall provide all evidence including, but not limited to, documents, electronic evidence, statements of witnesses, and a list of witnesses with a complete summary of their testimony, to the employee or the employee’s representative.  The employing board of education shall be precluded from presenting any additional evidence at the hearing, except for purposes of impeachment of witnesses.  At least 10 days prior to the hearing, the employee shall provide all evidence upon which he will rely including, but not limited to, documents, electronic evidence, statements of witnesses, and a list of witnesses with a complete summary of their testimony, to the employing board of education or its representative.  The employee shall be precluded from presenting any additional evidence at the hearing except for purposes of impeachment of witnesses.

     c.     The arbitrator shall determine the case under the American Arbitration Association labor arbitration rules.  In the event of a conflict between the American Arbitration Association labor arbitration rules and the procedures established pursuant to this section, the procedures established pursuant to this section shall govern.

     d.    Notwithstanding the provisions of N.J.S.18A:6-25 or any other section of law to the contrary, the arbitrator shall render a decision within 30 days of the close of the hearing.

     e.     The decision of the arbitrator shall be final and binding and may not be appealed to either the Commissioner of Education or the State Board of Education.  The decision of the arbitrator shall be subject to judicial review and enforcement as provided pursuant to N.J.S.2A:24-7 through N.J.S.2A:24-10.

 

     7.    (New section)  Any tenure charge received by the Commissioner of Education pursuant to N.J.S.18A:6-16 prior to the effective date of P.L.   , c.   (C.    ) (pending before the Legislature as this bill), shall be determined in accordance with the provisions of subarticle B of article 2 of chapter 6 of Title 18A of the New Jersey Statutes, as the same read prior to the effective date of P.L.   , c.   (C.     ) (pending before the Legislature as this bill).

 

     8.    The following sections are repealed:

     N.J.S.18A:6-17;

     Section 1 of P.L.1998, c.42 (C.52:14B-10.1).

 

     9.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill will require binding arbitration for contested cases involving the dismissal or reduction in compensation of tenured employees of a school district.  The Commissioner of Education will continue to determine whether or not there is a contested case.  If a determination is made that there is a contested case, an arbitrator will be assigned by the commissioner to hear the case and make a final determination.  These contested cases will no longer be referred to Administrative Law Judges, and the final determination on the case will no longer be made by the Commissioner of Education, which is the process under current law.

     Under the bill the arbitrators will be chosen from a panel of 20 permanent arbitrators maintained by the Commissioner of Education.  These arbitrators will serve on the American Arbitration Association panel of labor arbitrators and be members of the National Academy of Arbitrators.  Of the 20 arbitrators, 10 will be designated by the New Jersey Education Association and 10 by the New Jersey School Boards Association.

     The bill provides that the hearing before the arbitrator will be held within 60 days of the assignment of the arbitrator to the case and that the arbitrator will render a decision within 30 days of the close of the hearing.  The decision of the arbitrator will be deemed final and binding, and will not be appealable to the Commissioner of Education or State Board of Education.  The bill provides for a limited number of instances in which the decision of the arbitrator will be subject to judicial review, enforcement, or vacation.

     The bill also alters the reasons for which a person under tenure may be dismissed or reduced in compensation.  The reasons currently stated in law (inefficiency, incapacity, conduct unbecoming, or other just cause) remain, but if the reason is “conduct unbecoming,” that conduct must now be related to the public school employee’s position.