Policy Updates and Alerts in New Jersey School Law

1. School Law/Policy UpdateNew Jersey Association of School Business OfficialsSpring 2017 Conference Presented by Philip W. Nicastro, Esquire Strauss Esmay Associates, LLP 1886 Hinds Road – Suite 1 Toms River, NJ 08753 732-255-1500

2. A Year in ReviewSchool Business Administrator/Board SecretaryPolicy Issues

3. June 2016 through May 2017 • Districts Need to Stay Current with Board Policies and Regulations • 2016-2017 School Year • 68 - New or Revised Policy Guides • 37 - New or Revised Regulation Guides • Total - 105 New or Revised Policy and Regulation Guides in the past 12 months • Policy Issues Requiring Quick Action – 60 day adoption notice • Ensuring Educational Stability for Children in Foster Care • Special Educational Policies and Regulations

4. Policy Updates - June 2016 - May 2017Policy and Regulation Issues • TEACHNJ & Achieve NJ Teaching Staff Member Evaluation Policy and Regulation Guides (3221, 3222, 3223, and 3124) • Code is very complex because it is combined for all categories of teaching staff members (teachers, educational services, administrators, and principals, assistant principals and vice principals. • Wellness Policy (8505) • NJ Department of Agriculture (NJDOA) referred school districts to USDOA website and other websites for policy guidance. • Strauss Esmay’s recently updated Policy Guide must be adopted by Boards that participate in NSLP for the 2017-2018 school year.

5. Policy Alerts - June 2016 - May 2017Policy and Regulation Issues • Bed Bug Policy (&424) and Head Lice Policy (8454) • No statute or code that addresses what a school must do when bed bugs are brought into a school or when a student has head lice. • School districts have flexibility on how to address these issues • NJDOE is recommending students should only be excluded from school under limited circumstances. • District Sustainability Policy (7461) • Districts are considering adoption of sustainability policies and applying for certification for Sustainable Jersey for Schools Program that qualifies schools for grants, professional development, etc.

6. Policy Alerts - June 2016 - May 2017Policy and Regulation Issues • Unpaid Meal Charges (8550) • USDA is requiring all school districts that participate in NSLP to have unpaid meal charge Policy. • Policy does not have to permit students be able to charge for breakfast or lunch, but if district does permit a charging Policy is required. • Policy must be consistent with N.J.S.A. 18A:33-21 – Notification to parents on lunch charges in arrears. • NJ statute permits cutting off meals to student, after notice to parent, if bill is not paid. • Policy recommends district establish a threshold to begin collection process, continuing to offer alternative meal, involving parent, contact to DC&F, etc.

7. Policy Alerts - June 2016 - May 2017Policy and Regulation Issues • Administering an Opioid Antidote in Schools (5330.04) • This issue is not addressed in N.J.S.A. 18A and/or N.J.A.C. 6 & 6A – unlike the administration of epinephrine. • NJDOE issued Memorandum encouraging districts to adopt a policy with provisions similar to administering epinephrine. • School districts are not required to provide for the administration of an opioid antidote on school grounds. • Strauss Esmay Policy Guide is aligned with statute for general administration of opioid antidote

8. Policy Alerts - June 2016 - May 2017Policy and Regulation Issues • Board of Education Website Accessibility Policy – (1511) • Several school districts investigated by the USDOE based on complaints being filed throughout the country and it was found the school distirct websites were not accessible to people with certain disabilities. • Strauss Esmay developed Policy Guide with Board Attorney and Policy Guide was approved by USDOE – Office of Civil Rights as part of the districts’ required action plan. • Compliance will involve school district resources.

9. Policy Alerts - June 2016 - May 2017Policy and Regulation Issues • School Security Program (7446) • P.L. 2016, Chapter 68, enables municipalities to hire Class Three Special Police Officers for public schools. • Class Three Officers must be retired from full-time police officer work, retired in good standing, and less than 65 years old. • Class Three Police Officers may offer district a less expensive option than the previous school resource officer options. • School districts have several options: • Traditional Resource Officer Program, including Class Three Officers • School District Employed Security - Unarmed • School District Employed Security - Armed and/or Unarmed

10. A Year in ReviewSchool Business Administrator/Board SecretarySchool Law Issues

11. NJ Supreme Court Determines Teachers Must Receive Notice of Their Replacement Status • The Supreme Court of New Jersey held N.J.S.A. 18A:16-1.1 requires a Board of Education to give an employee notice of his or her “designation” as a replacement teacher and without such notice a person serving in a replacement position would accrue tenure while in that replacement position. • The Court indicated withholding notice of a teacher’s designation as a replacement could allow school districts to manipulate designations to avoid tenure, thereby undermining the Legislature’s efforts to prevent Boards from abusing their power over teachers in contract negotiations. • The Supreme Court remanded the matter for a fact-finding hearing to determine if one of the teachers knew, based on the evidence, that she was a replacement teacher for the 2007-2008 school year and that time served in this position would not count toward her tenure accrual. See Bridgewater-Raritan Educ. Ass’n v. Board of Educ. of Bridgewater-Raritan School Dist., Somerset County, A-85 September Term 2013, 073873, Supreme Court of New Jersey, 06 May 2015.

12. Commissioner Approves Severing Sending-Receiving Relationship - No Major Negative Impact • The elementary district requested severance of its grade 9 through 12 sending-receiving relationship with the respondent K-12 school district in favor of establishing a new sending-receiving relationship with a neighboring K-12 school district. • The ALJ indicated the law indicates the Commissioner shall grant the request if no substantial negative financial, educational, or racial impact would result. • The ALJ concluded this change is not significant and other evidence indicates severing the relationship between the elementary district and the respondent district would produce no substantial negative impact on the quality of education or the financial condition of each district • ALJ concluded the elementary district’s request to sever the relationship be granted subject to the elementary district entering into a new sending-receiving relationship with the neighboring school district for a minimum duration of five years. The Commissioner concurred. See Board of Education of the Borough of Merchantville, Camden County v. Board of Education of the Borough of Pennsauken, Camden County, DKT. NO. 10-1/12, Commissioner of Education, 10 April 2015.

13. Bus Driver’s License Suspended for Not Inspecting Bus at the End of Route • Bus driver appealed 6 month suspension of bus driver’s license for not inspecting bus at end of route. • Exchange student was asleep on the bus and the driver did not see him and when he drove the bus to the school bus depot the student woke up and approached the front of the bus and spoke to the driver who was still seated in the front seat. • ALJ indicated N.J.S.A. 18A:39-28 requires a school bus driver to visually inspect the school bus at the end of the transportation route to determine that no student has been left on the bus. • The driver’s argument was he complied with the statute as he did not leave the child alone on the bus. • The ALJ indicated the Commissioner made it clear in prior cases the law requires an inspection be conducted when the last child is dropped off during the route and not after the vehicle has finished its bus drop offs and has returned to the bus garage. See Klein v. New Jersey State Dep’t of Educ., Crim. Hist. Rev. Unit,EDU 00852-11, Initial Decision (January 5, 2012), rev’d, Comm’r (February 21, 2012). • The ALJ concluded the driver failed to inspect his bus in the manner required by the statute and a student was left on the bus after the end of his route. N.J.S.A. 18:39-29 mandates a six-month suspension of the bus driver’s license considering this was the first offense. The Commissioner concurred. See Robert Vickery v. New Jersey Department of Education, Office of Criminal History Review Unit, DKT. NO. 338-11/14, Commissioner of Education, 09 July 2015.

14. Bus Driver Must Inspect School Bus at the End of Each Route • The Commissioner in reversing the ALJ’s decision that determined the bus driver did not violate the Act, indicated the heart of the controversy is the parties’ differing interpretations of the phrase “end of the transportation route,” which is not defined in the statute or the regulations. • The bus driver maintained the “end of the transportation route,” is signified by arrival at the bus depot or bus yard, while the Board cites a previous Commissioner’s decision that indicates the “end of the transportation route” is “the point where all of the children in that group leave the bus to enter their school and the bus is empty of riders, and before the driver moves on to their next route. At that point, the driver shall inspect the bus for any remaining student.” • The Commissioner indicated recent decisions reinforced the Act’s requirement that the visual inspection of the school bus should have occurred before departing the elementary school at the end of the transportation route when all the PM Kindergarten students exited the bus. • The Commissioner affirmed a Criminal History Review Units’ Decision determining that the school bus driver’s license should be suspended for six months. See Susan J. Herman v. New Jersey State Department of Education, Criminal History Review Unit, DKT. NO. 168-7/14, Commissioner of Education, 30 July 2015.

15. Commissioner Determines Teacher Gets 30 Days Seniority Credit During Leave of Absence • Appellate Court decision gave one year tenure credit to a teacher on a full year approved leave and remanded to Commissioner to determine seniority rights and other relief. • Commissioner, in accordance with N.J.A.C. 6A:32-5.1(b), indicated the first 30 days of unpaid leave shall count towards seniority and any additional leave time is not credited for seniority purposes and the teacher is entitled to receive 30 days of seniority credit for the one year credit. • Commissioner indicated at the time of the RIF the teacher had acquired 3.9 years of seniority credit and as a result, the teacher had .1 years more seniority credit than another teacher and should have not been RIFFED • Note - The Commissioner indicated it is undisputed had there been a tie, a Board of Education has the discretion to determine which teacher to retain or recall. • Commissioner held the teacher is entitled to retroactive back-pay in the amount of $137,212 as the teacher should not have been RIFFED in June 2007 as she had acquired tenure and had .1 years more seniority than a teacher that was retained. See Darcy Kolodziej v. Board of Education of the Southern Regional High School District, Ocean County, DKT. NO. 188-7/07, Commissioner of Education, 19 June 2015.

16. Appellate Court Requires Boards to RICE Notice For All Employment Actions on Agenda • Court held a public body is now required to send a Rice notice anytime it has placed on its agenda any matters “involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body”. • Court indicated this approach will provide all the affected employees with the opportunity to decide whether they desire a public discussion and to prepare and present an appropriate request in writing. • Court indicated a decision not to send a Rice notice in which personnel matters are listed as an agenda item implies the Board has decided in advance of the meeting that executive session discussion is not warranted. • Court indicated a silent unexplained note to approve a list of pre-approved candidates in public session gives the impression the Board colluded to circumvent the OPMA’s requirements. • Court indicates this protocol will provide the Board with the flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity to request any of the proposed discussion occur publicly. See Kean Federation of Teachers, James Castiglione and Valera Hascup v. Ada Morell, Board of Trustees of Kean University, and Kean University, a body Corporate and Politic, DKT. NO. A-5481-14T3, Superior Court of New Jersey Appellate Division, 08 February 2017.

17. The Kean Court’s Decision • The Appellate Court held “that a public body is required to send a Rice notice any time it has placed on its agenda any matters involving the employment, appointment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body.” • The ruling in Kean makes clear a public body is required to provide a Rice notice even where it has absolutely no intention of actually discussing the staff member’s employment status. • The Kean decision also clarifies that an employee must be provided with a Rice notice even where there is no potential for an adverse impact on the terms and conditions of his or her employment.

18. The Kean Court’s Decision • In addition to its holding regarding Rice notices, the Court also weighed in on a board’s obligation to make meeting minutes “promptly available” to the public. • Although the Court rejected a bright-line requirement that minutes be available to the public within 45 days, the Court did order that the Board adopt a meeting schedule that would enable it to “formally consider, approve, and release the meeting minutes within a timeframe of thirty to forty-five days of the last meeting, unless extraordinary circumstances prevent the Board from meeting.”

19. The Kean Court’s Decision • To satisfy the now clarified Rice notice requirements, Boards of Education should now provide notice to all employees listed on an action agenda regardless of the potential impact on employment and regardless of whether the Board intends to actually discuss the employee. • The requirement to provide Rice notices now pertains to any agenda items affecting the employment of any prospective or current employee, including, but not limited to: • The approval of leaves of absence • Transfer of personnel • Appointments of coaches or extracurricular advisors • Approval of stipend positions such as curriculum writing • The promotion of an employee

20. The Kean Court’s Decision • A Board must now provide a Rice notice to any employee on its action agenda, but provision of a Rice notice does not mean that the Board plans, or is required, to actually conduct a discussion of that employee. • Moreover, a Board is not required to hold a discussion regarding an employee simply because that employee requests any discussion regarding his or her employment be conducted in public.

21. What is the Board’s Liability if it Does not Provide the Requisite Rice Notice? • Employee may file an Order to Show Cause in Court to void any action taken. • This would have be filed in 45 days of the Board action. • Board may be directed to redo the action and provide the requisite Rice notice. • Board may be fined for knowingly violating the OPMA.

22. School Ethics Act

23. Board Member Violates Act Voting for Firm with a Business Partnership with Interest in Firm • The Commissioner concurred with SEC recommendation that reprimand is the appropriate penalty as the Board member voted to appoint an auditing firm for the Board when the Board member was engaged in a separate business partnership with a principal member of the auditing firm. • The Board member admitted voting to retain the firm at the annual reorganization meeting although he had historically abstained from this vote. • The Board member further argued he is not required to abstain from the vote and his vote was not a critical vote to secure the appointment. • The SEC indicated the Board member engaged in a business partnership in a property co-owned with a partner in the auditing firm and the Board member operated a restaurant at that location and it would be reasonable for a member of the public to believe that a conflict, whether direct or indirect, might reasonably impair the Board member’s objectivity or independent judgement. • SEC indicated the Board member provided an additional financial benefit to the auditing firm where one of the auditing firm partners is in a separate business partnership with the Board member. • The SEC recommended a penalty of censure and the Commissioner concurred. See In the Matter of Armenio Monteiro, Jr., a/k/a/ Tony Monteiro, Elizabeth Board of Education, Union County, Commissioner of Education, DKT. NO. 8-7/14A, 24 June 2014.

24. Commissioner Affirms SEC Decision Regarding Private Action with Board Members-Elect • The Commissioner, on appeal, affirmed SEC decision that held the Board member took private action which involved discussions with three Board members-elect resulting in the Board member becoming the new Board President, coupled with the Board member’s plan to terminate and replace the Interim Superintendent’s contract without the Board’s knowledge, as such action was beyond the scope of duties and responsibilities of a Board member. • Commissioner indicated the evidence fully supported the SEC’s determination that the Board member’s private action that resulted in him becoming the new Board President, coupled with a plan to terminate the Interim Superintendent’s employment contract, and appointing a new Interim Superintendent at the reorganization meeting without the Board’s knowledge was beyond the scope of duties and responsibilities of a Board member and constituted a violation of N.J.S.A. 18A:12-24.1(e). • Moreover, the Commissioner indicated the Board member’s private action compromised the Board because it resulted in significant litigation over the terminated Interim Superintendent’s contract. The Commissioner also indicated that reprimand was the appropriate penalty for this action. See MelindoPersi v. Daniel Woska, Township of Brick Board of Education, Ocean County, Commissioner of Education, DKT. NO. C03-14, 28 October 2014.

25. A Year in ReviewSchool Business Administrator/Board SecretaryArbitrator Decisions

26. Recent Arbitrator Attendance DecisionsStaff Member Dismissed

27. Arbitrator Terminates Teacher for 560 Absences Over 7 years • Teacher absent 560 days over 7 years • Record indicated the district used progressive discipline with multiple written warnings over several years • District withheld increment during 2012-2013 school year • Arbitrator indicated despite repeated warning, teacher has shown no growth and minimal likelihood teacher would do things differently if returned to his position • Arbitrator Dismisses Teacher See In the Matter of the Tenure Hearing of Carson Steltz, School District of the City of Elizabeth, Union County, DKT. NO. 260-9/14, Robert C. Gifford, Esquire, 20 Jan. 2015

28. Recent Arbitrator Attendance DecisionsStaff Members Not Dismissed

29. Arbitrator Does Not Terminate Teacher for Chronic Absenteeism Due to Mitigating Factors • Tenured teacher missed 284 sick and personal days from 2010-2011 through 2013-2014. • Teacher indicated a series of circumstances such as brother died unexpectedly at 46 years old, uncle died, and husband diagnosed with cancer and died in 2009. • Arbitrator indicated no evidence the teacher had an attendance problem until 2009; teacher’s evaluations were satisfactory. • Arbitrator indicates teacher should be suspended without pay and increment withheld, but teacher not terminated. See In the Matter of the Tenure Hearing of the State Operated School District of the City of Newark, Essex County and Elizabeth Corbacho-Musngi, DKT. NO. 314-10/14, Melissa H. Biren, Esquire, Impartial Arbitrator, 12 May 2015.

30. Arbitrator Does Not Terminate Teacher for Chronic Tardiness • Teacher was tardy 49 times and punched in late 16 times during the 2013-2014 school year • Teacher was tardy 40 times and punched in late 6 times during the 2014-2015 school year • Arbitrator indicated Board proved its case and Board withholding increment did not capture teacher’s attention • Arbitrator indicated teacher had decade and one half of good service , progressive discipline, and due process mitigate against summary discharge of teacher • Arbitrator ordered suspension without pay for 4 months See In the Matter of Tenure Charges Against Arnold Anderson, filed by The City of New Brunswick School District, Middlesex County, DKT. NO. 96-4/15, David L. Gregory, Arbitrator, 19 August 2015.

31. Arbitrator Does Not Terminate Teacher for 490 Days Absent Over 7 years • Testimony indicated the district provided many notices of attendance being unacceptable • District provided numerous opportunities to improve • Staff member always had doctor notes • Arbitrator saw no indication of adverse impact • Evaluations were all positive • Arbitrator suspends teacher for the remainder of the year and increment to be withheld See In the Matter of the Tenure Hearing of the School District of the City of Elizabeth, against Leslie Ann Ramos, DKT. NO. 261-9/14, Randi E. Lowitt, Arbitrator, 05 Jan. 2015

32. Recent Arbitrator Unbecoming Conduct DecisionsStaff Members Dismissed

33. Arbitrator Holds Tenured Secretary’s Conduct Egregious to Warrant Termination • Board certified tenured charges against the secretary for insubordination, excessive tardiness, and accepting a substitute teaching assignment in the school district while simultaneously accepting payment for her secretarial job. • The Board also charged during the 2015 school year the secretary was excessively tardy and frequently left work early without obtaining approval. • The district provided a detailed list of dates the secretary was tardy and the dates the secretary left work mid-day without getting approval. • The Board also charged the secretary with neglect of duties for failure to properly file pupil records as directed and for failing to shred two boxes of documents as directed by her supervisor. • The Arbitrator, after carefully considering evidence presented by both parties, found the secretary’s conduct was sufficiently egregious to warrant termination. See In the Matter of the Arbitration of the Tenure Charge Between Trenton Board of Education and Charai Bowman, DKT. NO. 24-2/16, Susan Wood Osborn, Arbitrator, 23 May 2016.

34. Arbitrator Terminates Tenured Bus Driver for a Clear Pattern of Misconduct • Board certified tenure charges alleging the bus driver engaged in a pattern of dangerous, reckless, unlawful, and unbecoming conduct alleging the driver’s conduct included, but was not limited to, improper use and false reporting of sick/medical leave; repeatedly failing to comply with Board policy and applicable law regarding use of a cellular telephone while operating a school bus; repeatedly failing to safely operate a school bus; failing to comply with the Board policy regarding mandated child safety school bus inspection procedures; repeatedly causing damage to private property while operating a school bus; failure to comply with procedures to obtain updated bus routes, maps, and seating charts; and failure to comply with administrative directives. • The bus driver denied most of the allegations stating she was not using her cell phone while operating the bus, but only did so when the bus was parked in front of the school and there were no students left on the bus, she did not cause any damage to personal property, and no one was disadvantaged by the bus driver not immediately having the bus routes, maps, and seating charts updated. • The bus driver argued she worked for the school district for nineteen years and there were no other write-ups and she was a good employee during these years. • The Arbitrator concluded the Board demonstrated a clear pattern of misconduct that warranted removal of the bus driver’s tenure. See In the Matter of the Tenure of Heather Grey and School District of the Township of Lower, Cape May County, New Jersey, DKT. NO. 254-9/15, Alan A. Symonette, Esquire, Impartial Arbitrator, 23 May 2016

35. Arbitrator Terminates Tenured Secretary for Inappropriate Language and Physical Altercation with Co-Worker • Board certifies tenure charges against tenured secretary for inappropriate language and a physical altercation with a co-worker. • Testimony indicated the secretary made a provocative comment to a co-worker and when confronted, the secretary denied making such a comment. • Testimony indicated the co-worker got up from her desk and slapped the secretary and the two started to wrestle, punch, push, and pull hair. • The Arbitrator concluded the conduct of the tenured secretary crossed the line of acceptable behavior and instead of backing-off when confronted by the co-worker, the tenured secretary responded in kind, using fighting words and physical violence. • The Arbitrator indicated it was clear the co-worker threw the first punch or slap, but the tenured secretary became fully engaged. • The Arbitrator indicated violence in any work place need not be tolerated and the fight was in a public setting and was highly publicized. • The Arbitrator indicated the district had no choice but to respond and the tenured secretary’s dismissal shall be upheld. See In the Matter of the Tenure Charges Against Daniyelle Lyles-Barnes, Pleasantville Board of Education, Atlantic County, DKT. NO. 89.3/16, Lewis R. Amis, Arbitrator, 29 June 2016.

36. Arbitrator Determines Teacher Not Entitled to 2nd Last Chance Agreement for Drinking on Job • Board certified tenure charges alleging the teacher, while on school premises during school hours and in the presence of students, was in a state of intoxication due to his consumption of alcohol which resulted in a .111% blood alcohol content level constituting legal intoxication. • The teacher admitted he consumed alcohol during work hours while in the workplace. • In response to a previous incident several years earlier, the Superintendent permitted the teacher to come back to work indicating “In closing, I informed you that there would be no second chances in the future and the Board is prepared to file tenure charges against you should there be another incident.” • On May 26, 2016, the teacher agreed to submit to blood alcohol testing and results came back at .111%. When tenure charges were filed the teacher filed a request for unpaid leave of absence to enter a 60 to 90-day inpatient addiction treatment program in South Florida and on September 9, 2016 the program’s physician wrote the teacher had successfully completed the program and was fit to return to work with no restrictions effective 9/12/16. • The Arbitrator indicated the teacher was given a second chance and it was clear that six hours after the beginning of the school day he was over the intoxicated limit and the Board’s decision to terminate the teacher is therefore upheld. See In the Matter of the Arbitration of the Tenure Charge between Greater Egg Harbor Board of Education and Patrick Lynch, DKT. NO. 267-9/16, Susan Wood Osborn, Arbitrator, 10 January 2017.

37. Arbitrator Terminates Teacher after 2nd Incident of Shoplifting • Board certified tenure charges against a teacher for shoplifting, failure to report an arrest, violation of district policies, and a pattern of unbecoming conduct over a period of time. • 2/7/15 the teacher was arrested for shoplifting with property valued at $230. The arrest was made on 2/7/15 and the Superintendent was informed of the arrest on 3/3/15. • The Superintendent suspended the teacher pending an investigation of the shoplifting incident and for the teacher not reporting the incident within fourteen days as required by district policy and law. The Superintendent lifted the suspension when the retailer’s apprehending agent failed to appear in court to testify against the teacher. • On 3/5/16 teacher was arrested again for shoplifting an item worth $60 and teacher pleaded guilty to shoplifting and was admitted into a Conditional Dismissal Program. • The Arbitrator acknowledged although the district did not impose discipline after the teacher’s first admitted incident its failure to do so did not waive its ability to consider her admitted conduct in addressing the second incident. • The Arbitrator also stated evidence of the teacher’s mental health history cannot serve to mitigate against the district’s decision to impose the penalty of removal. Teacher dismissed. See In the Matter of the Tenure Hearing of Michele Schwab: Woodbridge Township Board of Education, Middlesex County, New Jersey and Michele Schwab, DKT. NO. 125-5/16, James W. Mastriani, Arbitrator, 05 January 2017.

38. Recent Arbitrator Unbecoming Conduct DecisionsStaff Members Not Dismissed

39. Arbitrator Does Not Dismiss Tenured Secretary for Filing False Residency Document and for Poor Attendance • Board certified tenure charges against secretary for attendance and failure to exhibit good behavior by falsely certifying to the district that her daughter resided in the district during the 2014-2015 school year. • Board alleged the secretary signed and submitted a Temporary Guardianship Authorization Form falsely declaring she placed her child in the care of a temporary guardian who resided in the school district. • Board also alleged the secretary displayed poor attendance during 19 years of her employment with the school district during which time she had been absent on 379 occasions. • Arbitrator reviewed secretary’s attendance record for the last four years and concluded the absences were not excessive due to the secretary’s health situation. • As to the residency issue, the Arbitrator indicated the overwhelming evidence throughout the hearings established the secretary actually placed her daughter in the temporary care of her brother, a resident of the school district, who has a one bedroom apartment and slept on a sofa using a privacy screen for the student. • Arbitrator dismissed tenure charges and ordered the secretary be reinstated with back-pay. See In the Matter of Tenure Charges Elizabeth Board of Education, Union County and Nikita Clarke-Huff, DKT. NO. 290-9/15, Ruth Moscovitch, Arbitrator, 15 January 2016.

40. Arbitrator Dismisses Tenure Charges as District Did Not Provide Secretary Adequate Safeguards • District filed tenure charges alleging the secretary had a lack of competency in word processing, computer data base, and organizational skills; failed to: demonstrate communication skills and proper etiquette, organize and maintain files, exhibit a mature attitude, exercise good professional judgement, cooperate with school district staff, perform her duties skillfully, exhibit good work habits, accept constructive criticism, establish and maintain rapport with parents and administrators, maintain confidentiality, and maintain regular attendance and punctuality at work. • The secretary was placed on a CAP and at the end of the 2014-2015 school year the Vice Principal reviewed the CAP with the secretary and noted the secretary made no progress on the areas in the CAP. • The Arbitrator found most of the charges were not supported by the record. • The Arbitrator further evaluated the district’s use of a CAP in dealing with the secretary’s deficiencies and indicated teachers are well aware that termination may result following a CAP, but this process does not apply to secretarial staff and there was no indication the secretary would have known a failure to fulfill the elements stated in the CAP or that a single poor evaluation would lead directly to discharge from her position she held successfully for sixteen years. • The Arbitrator found the procedures and processes employed by the school district did not provide adequate notice to the secretary, an opportunity to improve, and support to do so and dismissed charges against the tenured secretary and restored the secretary to her position with full back-pay and benefits. See In the Matter of the Tenure Hearing Charges Regarding Responda Sims and the State-Operated School District of the City of Paterson, Passaic County, DKT. NO. 360-12/15, Jacquelin F. Drucker, Esquire, Arbitrator, 27 March 2016.

41. Arbitrator Does Not Terminate Payroll Secretary Despite Untruthful Conduct to Administration • Board certified tenure charges alleging the payroll secretary failed to transfer funds to process payroll and she was absent two hundred and sixty-seven days in less than five years of employment. • On 12/20/15 the secretary informed the SBA/BS by text message she would not be returning to work on 1/4/16 with a Dr.’s note indicating the secretary would be out of work starting 1/4/16 for two to three months, but the note did not contain any diagnosis, provided no explanation of the treatment, and no insight into why the secretary was unable to work. • After more than two months of requesting clarification from the secretary on the reason for being out and receiving none, the Superintendent recommended the certification of tenure charges. • Arbitrator concluded the secretary submitted information to the district that indicated the dates of her surgery even though she fabricated the dates. • Arbitrator dismissed the charges of incapacity and excessive absenteeism noting the Board had notice from the secretary regarding the surgeries, but the secretary’s untruthful conduct toward the administration justifies withholding of the secretary’s salary increment for the 2016-2017 school year. See In the Matter of the Arbitration of the Tenure Charge between School District of the City of Burlington, Burlington County and Penny Keough, DKT. NO. 119-4/16, Michael J. Pecklers, Esquire, Arbitrator, 15 December 2016.

42. Discussion