Parsells v. Somerville Bd. of Educ., 254 N.J. 152 (2023). Justice Fasciale wrote the Court’s unanimous opinion in this case today. Plaintiff lost on the legal issue that prompted the Court to take the case up, but she won on the merits despite that.
The matter arose because plaintiff, a tenured, full-time pre-school teacher, expressed interest in moving temporarily to a part-time position, as she had a newborn child. She never formally applied for such a transfer, but the school district “approved [her] transfer from the position of full-time preschool teacher to the position of part-time . . . preschool teacher.” There followed a series of communications about whether plaintiff’s part-time position came with health benefits, which were very important to her. Plaintiff returned to work part-time, but without health benefits. She then applied six times for a full-time position but did not get hired. The defendant Board hired non-tenured teachers from outside the district for some of those positions.
Justice Fasciale concisely summarized the procedural history and plaintiff’s arguments, beginning with the following. “Parsells filed a petition in which she alleged that the Board violated her tenure rights by hiring non-tenured teachers for the full-time positions to which she applied. Parsells also alleged that she had not voluntarily relinquished her tenure rights by moving temporarily to a part-time position.”
After a hearing, an Administrative Law Judge ruled against plaintiff, finding that she had voluntarily changed her status from full-time to part-time, so that her tenure and seniority protections were never triggered. The ALJ also ruled that the Board had no duty to tell plaintiff about “the consequences of her decision,” rejecting her contention that Bridgewater-Raritan Educ. Ass’n v. Board of Educ. of Bridgewater-Raritan School Dist., 221 N.J. 349 (2015), required such notice.
The Commissioner of Education reversed that ruling. The Commissioner held that plaintiff had not waived her tenure rights. The Commissioner was also “unpersuaded that the Board has no notice obligation in the circumstances at issue,” the Bridgewater-Raritan issue.
In an opinion reported at 472 N.J. Super. 369 (App. Div. 2022), the Appellate Division affirmed that final agency decision. But the panel went beyond holding that plaintiff had not waived her rights, “explicitly extend[ing] Bridgewater-Raritan to impose a duty on school boards to ‘provide advance notice to their tenured full-time teachers that they may not get their full-time teaching job back if they voluntarily take a part-time teaching job.’” The basis for that decision was that “the mere existence of the Tenure Act,” according to the Appellate Division. The Board sought and obtained Supreme Court review, and today the Court rendered its ruling.
Justice Fasciale applied the arbitrary and capricious standard of review that governs judicial review of administrative agency actions. After carefully reviewing the facts, he concluded that plaintiff had not waived her rights, upholding the Appellate Division to that extent. That fact-intensive aspect of the case was doubtless not the reason that the Court granted review.
Instead, the key issue for the Court was the Bridgewater-Raritan notice issue. On that question, the Court parted company with the Appellate Division. Justice Fasciale said that “Bridgewater-Raritan is a different case. The Court there analyzed N.J.S.A. 18A:16-1.1 (permitting school boards to ‘designate’ temporary employees), a statute that created an exception to the general rule stated in N.J.S.A. 18A:28-5 that teachers ordinarily obtain tenure in a position when they serve for certain periods of time. The Court interpreted the term ‘designate’ in N.J.S.A. 18A:16-1.1 to impose an obligation that school boards make applicable employees ‘aware that [they are] being employed as a ‘replacement,’ because ‘the specialized designation [as a replacement] . . . takes the employee off the normal service road toward tenure.’ Bridgewater-Raritan, 221 N.J. at 361.”
Here, in contrast, “there is no use of the term ‘designate’ and indeed no specific provision of the Tenure Act that counsel have asked us to interpret. Contrary to the appellate court’s conclusion, the ‘mere existence of the Tenure Act’ does not supply a rationale for the imposition of a duty to notify.”
Nonetheless, the Court “encourage[d] school boards to address, at the time the request for part-time work is made, whether the tenured teacher is voluntarily and knowingly waiving rights to a full-time teaching position. Any waiver of a teacher’s tenure rights must be clear, knowing, and unequivocal. School boards, of course, may reject requests for part-time work for managerial and staffing reasons, among other grounds.”
Thus, plaintiff lost the legal battle but won the war based on the facts, which did not show that she waived her rights. That appears from the facts to be the right result. And the Court “encourage[d]” school boards to do what plaintiff here said Bridgewater-Raritan required (though the Court disagreed that that case required notice), so she clarified the law on that issue.