NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0857-13T2 A-1012-13T2

FELICIA PUGLIESE,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. May 19, 2015

APPELLATE DIVISION STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK,

Defendant-Respondent. __________________________________

EDGARD CHAVEZ,

Plaintiff-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK,

Defendant-Respondent. __________________________________

Argued March 17, 2015 – Decided May 19, 2015

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket Nos. C-84-13 and C-98-13.

Richard A. Friedman argued the cause for appellant Felicia Pugliese (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Friedman, of counsel and on the brief; Marissa A. McAleer, on the brief).

Jason E. Sokolowski argued the cause for appellant Edgard Chavez (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Sokolowski, of counsel and on the brief).

Brenda C. Liss argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, attorneys; Ms. Liss, of counsel and on the brief; John Atkin, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

In these appeals from termination, which we consolidate for

the purposes of this opinion, tenured teachers Felicia Pugliese

and Edgard Chavez assert that their legal defenses were not

considered by the Commissioner of Education, the arbitrator

hearing the case, or the trial court. We reverse and remand to

the Commissioner to explicitly decide those legal defenses that

the Commissioner does not expressly delegate to the statutorily-

mandated arbitrator to decide. The Commissioner must also

inform the arbitrator what legal standards to utilize, after

which the arbitrators must review the facts anew within this

legal framework.

We first discuss the factual situation of each teacher. We

then review the common statutes that apply to both matters, and

the reasons why we are compelled to remand to the agency to

2 A-0857-13T2 determine in the first instance those issues implicating policy

considerations and statutory interpretation in the educational

context.

The Chavez matter

At the time of the arbitrator's decision in February 2013,

Chavez had been employed by defendant, the State-operated school

district of the City of Newark,1 or its predecessor the Board of

Education of Newark, for approximately twenty years, eighteen of

which were spent successfully teaching math and other subjects

in the adult education/GED2 program. In August 2010, after that

program was cancelled, Chavez was assigned to teach sixth grade

math using a math curriculum he had not previously taught.

Chavez holds an Instruction Certificate with an Elementary

Teacher (K-8) endorsement and has passed the National Teacher's

Examination in math.

The school principal anticipated that it would take a few

months for Chavez to transition to teaching sixth graders. Over

1 As permitted by the then-applicable provisions of the Public School Education Act of 1975, L. 1975, c. 212, § 15 as amended by L. 1987, c. 398, § 3, in 1995, the State Board of Education authorized the removal of the Newark Board of Education and the creation of a State-operated school district after a determination that Newark's students were not being provided a thorough and efficient system of education. Contini v. Bd. of Educ. of Newark,

(App. Div. 1995), certif. denied,

(1996). 2 "GED" is the abbreviation for General Educational Development.

3 A-0857-13T2 the course of the next two school years, Chavez was provided

with numerous teaching supports, including ongoing in-class

assistance from a technology coordinator during the first year

and a math coach for both years, as well as help from the vice

principal to assist him in modifying the behavior of disruptive

children in his class.

In spite of the ongoing support provided, Chavez was unable

to adjust satisfactorily to the change in teaching assignment.

He received negative memoranda from school administrators,

including letters of reprimand and a letter of warning

concerning his lack of classroom management skills, setting

forth two incidents where he failed to follow proper reporting

procedures when students were injured in his classroom.

During this two-year time period, teachers were evaluated

using a scale in which they were rated either "distinguished,"

"proficient," "basic," or "unsatisfactory." For the school

years 2010-2011 and 2011-2012, despite the ongoing support and

feedback, Chavez received a rating of "basic" and

"unsatisfactory," respectively.

In March 2012, Chavez was notified that defendant intended

to file tenure inefficiency charges, and he was given a ninety-

day improvement plan, as required by the then-existing provision

in N.J.S.A. 18A:6-11. After Chavez failed to demonstrate

4 A-0857-13T2 improvement, tenure charges were filed in July and certified by

the Commissioner of Education in September 2012.

At the subsequent arbitration hearing, undertaken pursuant

to the recently enacted Teacher Effectiveness and Accountability

for the Children of New Jersey Act (TEACHNJ), the arbitrator

based his review on whether defendant's findings were true,

reasoning that 1) matters were referred to arbitration only

after the Commissioner of Education reviewed the tenure charges

and deemed them sufficient, if true, to warrant dismissal; and

2) TEACHNJ arbitration review criteria were inapplicable because

they were based on a new teacher evaluation rubric that had not

yet been implemented. By statute, the new evaluation rubric was

to be adopted by December 31, 2012 and implemented in the 2013-

2014 school year. Looking at the factual merits of the case,

the arbitrator noted that defense witnesses were credible,

"extraordinary efforts" had been undertaken to help Chavez

succeed, and no animus was directed toward him by defendant.

Chavez's discharge was sustained.

At the subsequent appeal to the trial court, Chavez argued

that the arbitrator "violated the law by not reviewing or even

considering" his legal defenses. The trial court upheld the

arbitrator's decision, finding that the arbitrator correctly

analyzed which provisions of TEACHNJ he was to apply. The trial

5 A-0857-13T2 court also found "substantial evidence"3 in the record, and that

it was "reasonably debatable"4 that the arbitrator had fulfilled

his task to decide whether or not the tenure charges were

appropriate and true.

The Pugliese matter

Pugliese also seeks reversal of the same trial court's

September 2013 confirmation of a different arbitrator's decision

in which she was dismissed from her tenured teaching position.

Pugliese was employed by defendant from 2004-2013. She has an

undergraduate degree in sociology and a master's degree as a

reading specialist. She holds an elementary certification and

is "highly qualified" to teach language arts literacy.

Beginning in the school year 2010-2011, Pugliese was reassigned

from teaching reading to small groups of students to teaching

large social studies classes for grades five through eight.

3 See Div. 540, Amalgamated Transit Union v. Mercer Cnty. Improvement Auth.,

(1978) (stating that when "the arbitration process is compulsory, . . . judicial review should extend to consideration of whether the award is supported by substantial credible evidence present in the record."). 4 In Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko,

(2010), our Supreme Court stated: "In the public sector, an arbitrator's award will be confirmed 'so long as the award is reasonably debatable.'" (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown,

(2007)) (citations and internal quotation marks omitted)). Arbitration there was required by the parties' collective bargaining agreement, id. at 272, and differs from the arbitration here, which is statutorily required pursuant to TEACHNJ.

6 A-0857-13T2 As with Chavez, at the time of her reassignment, teachers

were evaluated using a scale in which they were rated either

"distinguished," "proficient," "basic," or "unsatisfactory."

For the school years 2010-2011 and 2011-2012, Pugliese received

a rating of "basic" and "unsatisfactory," respectively.

Pugliese received services to help rectify identified problems,

but did not improve. In addition, numerous memoranda, some pre-

dating her reassignment, chronicled ongoing classroom management

issues.

In March 2012, tenure charges alleging inefficiency were

filed against her. In her answer, Pugliese asserted that

defendant could not claim that she was inefficient in a position

defendant illegally required her to hold. She argued it was

illegal because she was not "highly qualified" to teach social

studies.

At the subsequent arbitration hearing, the arbitrator

concluded that defendant had demonstrated a valid educational

framework for the evaluations and the absence of personal animus

or improper bias in making them. He further concluded that

teaching social studies fell within the scope of Pugliese's

licensure. He determined that she satisfied the criteria for

being highly qualified, as defined by federal statute, and that

her shortcomings were related to her inability to control a

7 A-0857-13T2 classroom and create level-appropriate lesson plans, rather than

a lack of substantive knowledge. Pugliese appealed the

arbitrator's decision.

The trial court upheld the arbitrator's decision, stating

that there was substantial evidence to support the arbitrator's

decision that Pugliese was capable of teaching social studies.

The court stated that just because she was teaching a subject in

which she claimed to not be highly qualified did "not render the

arbitrator's decision illegal or contrary to public policy."

General law

The No Child Left Behind Act (NCLB),

to

-7941,

reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards.

[Horne v. Flores,

,

,

(2009) (citing

(b)(2)).]

"[E]ach State educational agency receiving assistance . . .

shall develop a plan to ensure that all teachers teaching in

core academic subjects . . . are highly qualified not later than

8 A-0857-13T2 the end of the 2005-2006 school year."

(a)(2). "The term 'core academic subjects' means English,

reading or language arts, mathematics, science, foreign

languages, civics and government, economics, arts, history, and

geography."

(11). A state receiving federal

funds is required to report annually "the professional

qualifications of teachers in the State . . . and the

percentage of classes in the State not taught by highly

qualified teachers . . . ."

(h)(1)(C)(viii).

If a states fails to meet any of the requirements of the Act,

"then the Secretary may withhold funds . . . until the

Secretary determines that the State has fulfilled those

requirements."

(g)(2) (emphasis added).

TEACHNJ was enacted in August 2012. Its goal "is to raise

student achievement by improving instruction through the

adoption of evaluations that provide specific feedback to

educators . . . ." N.J.S.A. 18A:6-118(a). The Legislature

declared: "Changing the current evaluation system to focus on

improved student outcomes . . . is critical to improving teacher

effectiveness, raising student achievement, and meeting the

objectives of the federal '[NCLB] of 2001'[.]" N.J.S.A. 18A:6-

118(b).

9 A-0857-13T2 A key provision of TEACHNJ, N.J.S.A. 18A:6-123, pertains to

the creation, review and approval of evaluation rubrics for

teachers, principals, assistant principals, and vice-principals.

"The State Board of Education shall promulgate regulations

pursuant to the 'Administrative Procedure Act[]' . . . to set

standards for the approval of evaluation rubrics. . . ."

N.J.S.A. 18A:6-123(b). Among the "minimum" standards identified

was that each educator was to be rated as "ineffective,"

"partially effective," "effective" or "highly effective."

N.J.S.A. 18A:6-123(b)(1). "A board of education shall adopt a

rubric approved by the commissioner [of education] by December

31, 2012." N.J.S.A. 18A:6-123(c). By "January 31, 2013, a

board of education shall implement a pilot program to test and

refine the evaluation rubric." N.J.S.A. 18A:6-123(d).

"Beginning with the 2013-2014 school year, a board of education

shall ensure implementation of the approved, adopted evaluation

rubric for all educators in all . . . schools in the district."

N.J.S.A. 18A:6-123(e). "The commissioner shall establish a

model evaluation rubric that may be utilized by a school

district to assess the effectiveness of its teaching staff

members." N.J.S.A. 18A:6-123(f).

The following procedures are contained within the Tenure

Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1. A tenured

10 A-0857-13T2 teacher shall not "be dismissed or reduced in compensation . . .

except for inefficiency, incapacity, unbecoming conduct, or

other just cause, and then only after a hearing . . . ."

N.J.S.A. 18A:6-10. Any charge against a tenured employee "shall

be filed with the secretary of the board [of education] in

writing, and a written statement of evidence under oath to

support such a charge shall be presented . . . ." N.J.S.A.

18A:6-11. If "the board finds that such probable cause exists

and that the charge, if credited, is sufficient to warrant a

dismissal . . . then it shall forward such written charge to the

commissioner for a hearing pursuant to N.J.S.[A.] 18A:6-16,

together with a certificate of such determination."

TEACHNJ amended N.J.S.A. 18A:6-11 by eliminating a requirement

that an employee be given ninety days in which to correct or

overcome the alleged efficiency, prior to the board "making its

determination as to certification . . . ." L. 1967, c. 271 as

amended by L. 1975, c. 304, § 1, as amended by L. 2012, c. 26, §

5.

Importantly, pursuant to the amendment contained in

TEACHNJ, if the commissioner determines that the charge is

sufficient to warrant dismissal, the case is referred to an

arbitrator. N.J.S.A. 18A:6-16. "The Commissioner of Education

shall maintain a panel of [twenty-five] permanent arbitrators to

11 A-0857-13T2 hear matters pursuant to N.J.S.[A.] 18A:6-16." N.J.S.A. 18A:6-

17.1(a). Pursuant to TEACHNJ, if the matter before the

arbitrator is employee inefficiency, then four factors shall be

considered by the arbitrator in rendering a decision:

[W]hether or not:

(1) the employee's evaluation failed to adhere substantially to the evaluation process, including, but not limited to providing a corrective action plan;

(2) there is a mistake of fact in the evaluation;

(3) the charges would not have been brought but for considerations of political affiliation, nepotism, union activity, discrimination as prohibited by State or federal law, or other conduct prohibited by State or federal law; or

(4) the district's actions were arbitrary and capricious.

[N.J.S.A. 18A:6-17.2. (emphasis added.)]

Pursuant to TEACHNJ, the arbitrator must therefore determine if

the evaluation adhered to the evaluation process, and provided

the corrective action plan. To accomplish this task, the

arbitrator must first identify the proper evaluation process.

"The arbitrator's determination shall be final and binding

and may not be appealable to the commissioner or the State Board

of Education. The determination shall be subject to judicial

review and enforcement as provided pursuant to N.J.S.[A.] 2A:24-

12 A-0857-13T2 7 through N.J.S.[A.] 2A:24-10." N.J.S.A. 18A:6-17.1(e)

(emphasis added). A reviewing court may vacate an arbitration

award due to corruption, fraud, undue means, partiality or

misconduct, or if the arbitrators "so imperfectly executed

their powers that a mutual, final and definite award upon the

subject matter submitted was not made." N.J.S.A. 2A:24-8.

Prior to its amendment in 2012 pursuant to TEACHNJ,

N.J.S.A. 18A:6-16 had stated that if the commissioner determined

that charges, if sufficient, warranted dismissal, the matter was

referred to an administrative law judge (ALJ). L. 1967, c. 271,

as amended by L. 1998, c. 42, §2. The ALJ issued a recommended

decision, which the commissioner could adopt, modify or reject.

N.J.S.A. 52:14B-10(c). Thus, the agency, using its expertise,

reviewed the ALJ's decision. Thereafter, an agency

determination could be appealed directly to the Appellate

Division. N.J.S.A. 18A:6-9.1(a). Pursuant to TEACHNJ, the

agency review process no longer exists.

Arbitrators apply different standards

The performance evaluations for both Chavez and Pugliese

took place prior to the enactment of TEACHNJ, using evaluation

rubrics in place at that time as well as a rating scale that was

superseded by TEACHNJ. Their tenure charges, however, were

filed after TEACHNJ's enactment. An arbitrator's determination

13 A-0857-13T2 as to what evaluation process should apply in such a situation

is a question of statutory interpretation. The two arbitrators

here interpreted the statutes differently.

The Chavez arbitrator stated that the case presented two

issues: one procedural and one related to the underlying merits

of the charges. The Chavez arbitrator framed the procedural

issue by stating that there needed to be "a determination of the

appropriate processes and standards to apply . . . given

that[:](a) the underlying facts occurred prior to the effective

date of . . . [TEACHNJ][;] and b) the referral of the matter [to

arbitration] occurred after the effective date of [TEACHNJ]."

Chavez had argued that his case should be decided under the

standards and procedures that preexisted TEACHNJ, because

TEACHNJ specified four factors that an arbitrator shall consider

when evaluating inefficiency charges, but did so in the context

of a yet-to-be determined evaluation rubric in which the

educator was to be rated using newly established designations.

The Chavez arbitrator analyzed TEACHNJ, in which a charge

of inefficiency may be filed whenever an employee receives an

annual rating of ineffective or partially effective in one year,

followed by an annual rating of ineffective the next year.5

5 A charge of inefficiency may also be filed if an employee receives two consecutive annual ratings of partially effective, (continued)

14 A-0857-13T2 N.J.S.A. 18A:6-17.3(a)(1). But "[t]he only evaluations which

may be used for purposes of this section are those evaluations

conducted in accordance with a rubric adopted by the board and

approved by the commissioner pursuant to [TEACHNJ]." N.J.S.A.

18A:6-17.3(d). The arbitrator in the Chavez matter thus

concluded that since the evaluation rubrics referenced were not

in place, he was precluded from basing his review on the four

factors designated in N.J.S.A. 18A:6-17.2.6

The arbitrator in the Pugliese matter, however, did not

determine he was constrained by the absence of the evaluation

rubrics to be implemented under TEACHNJ, finding instead that

he was to "determine whether the tenure charges brought . . .

demonstrate that [Pugliese] failed to perform in a satisfactory

manner for two consecutive years, the criterion established by

(continued) or if an employee receives an annual rating of ineffective followed by an annual rating of partially effective. N.J.S.A. 18A:6-17.3(a)(2). 6 The arbitrator cited to N.J.S.A. 18A:6-17.5, which states:

Any tenure charge transmitted to the Office of Administrative Law pursuant to N.J.S.[A]. 18A:6-16 prior to the effective date of [TEACHNJ] 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, N.J.S.[A.] 18A:6-10 et seq., as the same read prior to the effective date of [TEACHNJ].

15 A-0857-13T2 [TEACHNJ]." Both arbitrators cannot be correct in applying

different standards to similar procedural matters. Which

standard is appropriate for teachers whose tenure charges are

brought after the passage of TEACHNJ, but before the TEACHNJ

evaluation rubric is implemented, is a determination better

resolved in the first instance by the agency with particular

expertise in matters of educational policy. See In re Election

Law Enforcement Comm'n Advisory Op. No. 01-2008,

(2010) ("[A] state agency brings experience and specialized

knowledge to its task of administering and regulating a

legislative enactment within its field of expertise.").

"[T]he promulgation of administrative rules and

regulations lies at the very heart of the administrative process

. . . ." In re N.J.A.C. 7:1B-1.1 Et Seq.,

(App. Div.), certif. denied,

(2013). "'[T]he

basic purpose of establishing agencies to consider and

promulgate rules is to delegate the primary authority of

implementing policy in a specialized area to governmental bodies

with the staff, resources and expertise to understand and solve

those specialized problems.'"

(quoting Bergen Pines Cnty.

Hosp. v. N.J. Dep't of Human Servs.,

(1984)).

16 A-0857-13T2 Other legal defenses raised

Chavez and Pugliese also raised various other legal

defenses, which were not resolved by the arbitrators or the

trial court, including: the application of Tenure Employees

Hearing Law, N.J.S.A. 18A:6-10 to -18.1, specifically N.J.S.A.

18A:6-11 and the ninety-day improvement plan requirement deleted

by the TEACHNJ amendment; the District's policies with respect

to tier implementation guidelines; and contentions that,

pursuant to NCLB, it was illegal to assign them to teach a

course for which they were not designated "highly qualified."7

Defendant argues that by sending both of these matters to

arbitrators, the Commissioner implicitly considered and rejected

both teachers' legal defenses. We do not accept this argument.

An agency has the obligation to make decisions clearly with

its reasons spelled out on the record. An implicit, silent

rejection of legal defenses based on overlapping statutory

7 We note that both teachers cite to two administrative law decisions in support of their contentions concerning the relevance of a "highly qualified" designation. Neither of these decisions is precedential and both concern teacher seniority rather than teacher inefficiency, which is at issue here. We further note that NCLB provides for a discretionary penalty for non-compliance with the "highly qualified" designation or other requirements of the Act.

(g)(2). In addition, while NCLB seeks to ensure that teachers of "core academic subjects" are "highly qualified,"

(a)(2), social studies is not among the core academic subjects identified.

(11).

17 A-0857-13T2 regulations does not meet that criteria. As we have said

previously, "we insist that the agency disclose its reasons for

any decision, even those based upon expertise, so that a proper,

searching, and careful review by this court may be undertaken."

Balagun v. N.J. Dept. of Corrs.,

(App.

Div. 2003).

"Courts . . . have discretion to remand administrative

action for further agency proceedings in the interest of

justice." Texter v. Dep't of Human Servs.,

(1982)(citing Wilson v. Mountainside,

(1964)).

We recognize "'that certain subjects are within the peculiar

competence of that agency.'" D.I.A.L., Inc. v. N.J. Dep't of

Cmty. Affairs,

(App. Div. 1992)(quoting

In re Amendment of N.J.A.C. 8:31B-3.31,

(1990)). "[W]e may not substitute our judgment for the

expertise of the agency."

(citing Doughtery v. Dep't of

Human Servs.,

(1982)).

Thus, we remand both matters to the Department of Education

to determine the validity of those legal defenses raised by each

teacher deemed appropriate by the agency for resolution by the

agency, so that a uniform educational policy will be

promulgated. The agency should determine the appropriate

standards to be used by arbitrators when adjudicating tenure

18 A-0857-13T2 hearings, thus determining a consistent procedure for teachers

in positions similar to Chavez and Pugliese, who have received

tenure charges after the effective date of TEACHNJ, alleging

poor performance that occurred prior to the implementation of

the statute's new standards.

Reversed and remanded to the Department of Education. We

do not retain jurisdiction.

19 A-0857-13T2