Governor Christie recently signed the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act, P.L. 2012, c.26. The act’s purpose is to "raise student achievement by improving instruction through the adoption of evaluations that provide specific feedback to educators, inform the provision of aligned professional development, and inform personnel decisions." N.J.S.A. 18:A:6-118(a).

The TEACHNJ Act radically changes how public school "teaching staff members" are evaluated, acquire tenure and fight tenure charges.

As before, a tenured "teaching staff member" can only be dismissed or have her compensation reduced "during good behavior" for "inefficiency, incapacity, or conduct unbecoming [ ] such a teaching staff member or other just cause." Likewise, tenure still provides procedural safeguards before major discipline. (Tenure does not prevent layoffs for economic reasons or reduced enrollment, provided seniority rules are followed.)

According to N.J.S.A. 18:6-A-119, "teaching staff members" are employees in the professional staff, including:

Teachers

Principals, except administrative principals

Assistant and vice-principals

Assistant superintendents

All school nurses, including supervisors, head school nurses, coordinators and any other nurse performing school nursing services

Athletic trainers

Other employees in positions which require certificates

Shared school business administrators.

Acquiring Tenure

Since 1909, the benchmark for tenure has been three years, and remains so for those employed before the 2012-13 year. See N.J.S.A. 18A-28-5(a). However, new teaching staff members must now serve four years with the same employer, which may be satisfied three ways:

Service for "four consecutive calendar years;" or

Service for "four consecutive academic years, together with employment at the beginning of the next succeeding academic year"; or

Service for "the equivalent of more than four academic years within a period of any five consecutive academic years."

N.J.S.A. 18A:28-5(b). These are similar to the three-year requirements for those hired before the 2012-13 academic year, except that employers may no longer shorten the consecutive calendar years option. See N.J.S.A. 18A-28-5(a).

Evaluation and Training Provisions

The TEACHNJ Act significantly changes evaluations and training procedures.

The act requires each school to establish a "school improvement panel" to ensure teacher effectiveness. The panel includes the principal (or designee), an assistant or vice-principal, and a teacher. The panel oversees new teacher mentoring and teacher evaluations, and identifies professional development opportunities. It only conducts evaluations when a teacher has been rated ineffective or partially ineffective in her most recent annual evaluation, or if provided in a union contract. N.J.S.A. 18A:6-120, -122.

The board is required to develop and implement a "research-based" mentorship program. New teachers must complete the mentorship program during their first year. N.J.S.A. 18A:6-122. This program is overseen by the school improvement panel. N.J.S.A. 18A:6-120.

The school district must also establish standards and "rubrics" for evaluations. These must be approved by the New Jersey Commissioner of Education. However, the district can choose to rely on rubrics which the commissioner must establish. Minimum standards for the rubrics will be promulgated by the commissioner, but must meet at least the minimum requirements of N.J.S.A. 18A:6-124. Whichever are used, the act’s requirements are not subject to collective negotiation, while those not superseded by statute are. N.J.S.A. 18A:6-128.

Whichever is used, evaluations must have four specific ratings: "ineffective, partially effective, effective, and highly effective." N.J.S.A. 18A:6-125; N.J.S.A. 18A:6-129. The act requires a "teacher" to achieve a rating of "effective" or "highly effective" in her annual evaluations for at least two of her first three years after her mentorship year. N.J.S.A. 18A:28-5(b). Principals, assistant principals and vice-principals must receive "effective" or "highly effective" in two of their first three years, and for the third and fourth years. N.J.S.A. 18A:28-5(b).

Principals and superintendants must provide struggling members with additional professional development. A teaching staff member who is rated ineffective or partially effective must develop a corrective action plan with her supervisor. N.J.S.A. 18A:6-128.

A tenured teaching staff member who is rated effective or highly effective on her most recent evaluations, and who consents to transfer to an underperforming school in the same position, obtains tenure in the new position after receiving a rating of effective or highly effective in just one of her first two annual evaluations. N.J.S.A. 18A:28-6. Tenured teaching staff members who consent to transfer or promotion to other positions obtain tenure in the same manner as for initial tenure, but with the four-year periods reduced to two years. N.J.S.A. 18A:28-5.1.

New Procedures for Fighting Tenure Charges

The act rewrites the process for fighting tenure charges. The act eliminates hearings before the commissioner and the Office of Administrative Law, and places the decision solely with an arbitrator. It limits appeals.

Initial procedures are unchanged. Charges are instituted by the employer. The employee is served with a copy of the charges and evidence, and can respond. The board reviews the evidence in closed session and decides if it supports probable cause. It also evaluates whether the charges warrant dismissal or reduction in salary, which tenure protects. If so, the board forwards the charges to the commissioner. Charges are dismissed if a determination is not made within 45 days. N.J.S.A. 18:A:6-11; N.J.S.A. 18:A:6-13.

The employee has 15 days after the charges are forwarded to the commissioner to respond. The commissioner determines the sufficiency of the charges within 10 days after the employee must respond. If the commissioner determines they are insufficient, they are dismissed. N.J.S.A. 18:A:6-16.

Up until this point, the provisions remain unchanged. Further proceedings are drastically changed. See N.J.S.A. 18A:6-17.1.

The commissioner must now refer the tenure charges to an arbitrator. N.J.S.A. 18:A:6-9; N.J.S.A. 18:A:6-16. The TEACHNJ Act requires that the commissioner maintain a panel of 25 permanent arbitrators. The arbitrators must serve for the American Arbitration Association (AAA) and be members of the National Academy of Arbitrators. Nine are designated by the New Jersey School Boards Association; eight by the New Jersey Education Association (NJEA); three by the American Federation of Teachers (AFT); and five by the New Jersey Principals and Supervisors Association. N.J.S.A. 18A:6-17.2.

Hearings must be conducted within 45 days of referral. The parties must be served with the other’s evidence in advance. Discovery is allowed. Hearings are conducted under the AAA’s labor arbitration rules, except where they conflict with the TEACHNJ Act. N.J.S.A. 18A:6-17.2(b). The employer has the burden of proof. N.J.S.A. 18A:6-17.2(d).

In most cases, the arbitrator may look at the whole case. N.J.S.A. 18A:6-17.2 -17.3. Inefficiency is treated differently, however. If a teacher, principal, assistant principal or vice-principal is rated for two consecutive years as "ineffective" or "partially effective," tenure charges are required. However, if the superintendent finds "exceptional circumstances," she may defer filing charges for one year if the second year is "partially ineffective." Nonetheless, tenure charges must be filed the third year if that evaluation is not at least "effective." The board then has limited options. It must send the charges to the commissioner unless it determines the evaluation process was not properly followed. While the employee has the opportunity to respond, unless the commissioner finds the evaluation process was not followed, he must forward the charges to an arbitrator. N.J.S.A. 18A:6-17.4.

For inefficiency charges, the arbitrator can look only at whether or not: the evaluation adhered substantially to the evaluation process, including the corrective action plan; there was a mistake of fact; the charges were brought because of political affiliation, nepotism, union activity, discrimination or otherwise prohibited by law; or the district’s actions were arbitrary and capricious. N.J.S.A. 18A:6-17.3(a). If the arbitrator finds any of these factors present, she can examine if that affected the evaluation. However, the evaluator’s determination of teaching quality is not reviewable. N.J.S.A. 18A:6-17.3(b). A written decision must be issued within 45 days. N.J.S.A. 18A:6-17.2(d).

The act limits the employee’s appeal rights. Arbitration decisions may be appealed to the courts only on the narrow grounds provided for in New Jersey’s statutes governing the arbitration of collective bargaining agreements. N.J.S.A. 18A:6-17.2(e). A court may vacate the arbitrator’s award only when it was procured by "corruption, fraud or undue means"; when arbitrator partiality or corruption is evident; when the arbitrator was "guilty of misconduct in refusing to postpone the hearing …, or in refusing to hear evidence, pertinent and material to the controversy, or of any other [prejudicial] misbehaviors…"; when the arbitrator exceeded his powers; or when an arbitrator executed his powers "so imperfectly… that a mutual, final and definite award upon the subject matter submitted was not made." N.J.S.A. 2A:24-8. A court may modify the award only when there is a math error; a mistake in description of a person or thing; when the award is on a matter not submitted; and there was a defect in the decision "in a matter of form not affecting the merits of the controversy." N.J.S.A. 2A:24-9.

Regulations

The Commissioner of Education is required to write rules to carry out the TEACHNJ Act’s provisions. N.J.S.A. 18A:6-129. These will determine how the act affects public school teaching staff members.

Regardless of these regulations, however, the TEACHNJ Act is a sea change in New Jersey’s tenure system. ¢

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