The Lakewood Board of Education transfered an administrative assistant from one school to another school. The Union filed an appeal to the New Jersey Appellate Division on the basis that the transfer was for disciplinary reasons, and therefore a violation of State Statue which prohibits transfers of school employees between work sites for disciplinary reasons. Feeling the heat, the Board caved in and transferred her back!
R.C. is an administrative assistant who has been employed by the Board of Education for 36 years. On March 17, 2021, the Board transferred her from Ella G. Clarke School to Spruce Street School. The issue of contention involves the alleged motive behind this transfer.
Just days prior to the transfer, on March 11, 2021, R.C. was directed by her supervisor, Clarke’s vice principal, to contact the Board’s Central Administration and inquire how the vice principal could access Clarke’s daily COVID-19 surveys.
The Board’s Technology department did not answer her inquiry. Instead, on March 14, 2021, Board Attorney Michael Inzelbuch Esq. sent the following email:
Good early Sunday morning.
I received a disturbing call late Friday afternoon.
Specifically, if I understood correctly, the administrative secretary at Clarke [R.C.] at the request of [her vice principal] contacted central administration to access contact tracing information that, again, demonstrates lack of knowledge as to the process and should have been available at the building level.
Essentially, the Board's position is that the COVID-19 surveys were instituted in September 2020, and at that time, the Board’s Director of.Technology showed office staff how to access the report because it had to be reviewed daily. Therefore, both the principal and vice principal should have been using this system during the entire 2020-2021 school year.
On March 15, 2021, R.C. received a “Rice notice” for the Board’s March 17 public meeting, and on the evening of March 17, R.C. was informed by a colleague that the Board had transferred her.
The Lakewood Education Association (the Teacher's Union) filed an appeal to the State's Public Employment Relations Commission (PERC), asserting that the transfer was a violation of N.J.S.A. 34:13A-25 which prohibits transfers of school employees between work sites for disciplinary reasons.
PERC has jurisdiction to determine whether a transfer is predominately disciplinary. In cases where they find that a school employee was transferred for disciplinary reasons, they can order that the employee is to be returned to the former work site. The petitioner has the burden of proving its allegations by a preponderance of the evidence.
In opposition to the Union's appeal, Superintendent Laura Winters stated that on March 25, 2021, she met with R.C. to discuss her transfer. She informed R.C. that it was not disciplinary, she was not accused of misconduct nor did she receive disciplinary action for following her supervisor’s directive. Additionally, the transfer was not based on work performance, but rather, the transfer was partly due to previous personnel issues that had arisen with a former Clarke vice principal, who was reassigned from Spruce to Clarke at the same March 17 Board meeting.
Ms. Winters asserted that at that meeting, R.C. was the one who expressed that she did not want to be at Clarke with the newly reassigned vice principal. Winters asserted that R.C.’s compensation was not reduced and there was no change to any other term or condition of employment.
Winters admitted that R.C. did not agree with the transfer, however, she did not characterize it as disciplinary at the meeting, and that R.C. received her request to take her keyboard, chair, and refrigerator with her to Spruce.
Winters added that along with the reassignment of Spruce’s vice principal to Clarke, Spruce’s administrative secretary was also transferred to Clarke, and that Clarke’s vice principal was going to be transferred to Spruce, along with R.C., but that did not happen because Clarke’s vice principal was placed on administrative leave for reasons unrelated to this matter.
Winters claimed that R.C. and Spruce’s vice principal did not have “a collegial relationship” from a previous period working together at Clarke.
Finally, Winters claimed that the above transfers occurred to meet the Board’s operational needs and staffing objectives by (1) increasing the effectiveness of contact tracing at Clarke and ensuring health and safety at the school; (2) improving relationships between staff members, and staff members and the contact tracer in order to get reliable and valid contract tracing information; (3) maintaining healthy relationships and creating a harmonious school environment.
The Union argued back that R.C. definitely was transferred as discipline for complying with her supervisor’s directive to inquire how the vice principal could access contact tracing information. They argued that the Board’s general counsel’s email, characterizing the incident as “disturbing,” is proof of the Board’s displeasure with R.C.’s actions, which shortly thereafter resulted in her transfer.
The Union further argued that the Board did not explain how the transfer furthered its educational, operational, and staffing objectives. Additionally, the Board did not provide details of the personnel and inter-personal issues which were allegedly being addressed by R.C.’s transfer. The Union further asserted that the Board did not establish how R.C.’s transfer would improve the effectiveness of contact tracing or create a harmonious working environment at Clarke.
The Union further argued that the Board did not traditionally discipline R.C. because it had no legitimate basis to do so due to her compliance with her supervisor’s direct, but nonetheless, the Board expressed its displeasure with R.C.’s actions by transferring her.
In a written decision released on February 24, 2022, PERC dismissed the Union's petition, finding that the Union did not sufficiently establish, by a preponderance of evidence, that R.C.’s transfer was predominately disciplinary.
"The record does not establish that R.C. was directly reprimanded, disciplined, or that the Board considered her following the Clarke vice principal’s directive to be misconduct.
The sole evidence proffered by the Union to demonstrate the Board’s displeasure with R.C.’s actions and disciplinary intent is the Board general counsel’s email calling the incident “disturbing.” However, the email explicitly states that R.C. requested the information “at the request of the [vice principal]” and expresses disappointment with a lack of understanding of the contact tracing protocol. The email does not contain any direct allegations of misconduct and does not sufficiently establish disciplinary intent by the Board.
"Additionally, Ms. Winters certified that R.C., at the March 25 meeting, expressed a reluctance to work with the newly transferred vice principal from Spruce, with whom she did not got along during that vice principal’s previous tenure at Clarke. The record shows that the Board had a need to replace the vice principal at Clarke, due to her administrative leave, and chose the Spruce vice principal because of her previous familiarity at Clarke. In tandem with that transfer, R.C. was transferred to eliminate any potential personnel issues given her expressed issues with Spruce’s vice principal in the past. The Board’s interest in diminishing or avoiding conflict in the work environment is a valid educational, operational, and non-disciplinary reason for a transfer," the PERC decision concluded.
PERC is officially a seven-person commission. However, at the time that this decision was released, there was one vacancy on the commission. The six commissioners who considered the matter split evenly, three in favor of and three against PERC's draft decision. In a letter dated the same day, PERC's chairperson notified the parties' counsel of the vote and advised: "In cases of a tie vote, the status quo between the parties prior to the Association's filing of the contested transfer petition stands."
Unhappy with this tie vote which did not adjudicate the matter in their favor, the Union filed an appeal to the New Jersey Appellate Division, arguing that PERC's action was arbitrary, capricious, and unreasonable because it "failed to actually adjudicate the subject controversy." The Union contended that PERC should have ordered an evidentiary hearing "to break the deadlock."
PERC filed Opposition, arguing that they have a long-standing policy in the case of an 'unbreakable' tie vote, which is logical and reasonable, and not arbitrary or capricious.
More significantly, PERC challenged the Union's position that the draft decision was a final agency decision. PERC stated it "could not and did not issue a final agency decision in this matter. The draft decision presented to the Commission failed to obtain the necessary votes, and therefore [PERC] was unable to take any action." Lastly, PERC contended the Association failed to establish substantial, disputed facts justifying an evidentiary hearing.
Magically, shortly before oral arguments on this appeal, the Board of Education transferred R.C. back to her original school. The Board therefore argued that the appeal should be moot because the Union had now received the relief it sought.
The Union, however, argued that the appeal was not moot, because the "voluntary, discretionary transfer" of R.C. could be reversed or modified at any time and lacked the authority of an order from PERC. The Union also argued that the Board's alleged violation of N.J.S.A. 34:13-25 was "capable of repetition, yet evading review." Additionally, the Union noted that by its terms, the notice of R.C.'s transfer back to her original school had a termination date of June 30, 2023, (oral arguments were held on February 14, 2023).
In a written ruling released today, Judges Messano, Gilson and Rose were not persuaded to issue such a ruling.
An issue is moot when the appellate court's decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Redd v. Bowman.
The typical remedy in contested transfer cases is to return the employee to the former worksite. See In re Wayne Twp. Bd. of Educ. That has already occurred, meaning that even if the Association were to prevail on the merits of this appeal, our judgment "can have no practical effect on the existing controversy."
However, despite dispositioning the appeal as moot, the Appellate judges added some harsh words for PERC.
PERC's written policy for resolving tie votes when the tie vote results because one or more commissioner is disqualified based on a conflict of interest, is that the tie is deemed "unbreakable," and "the Commission's final action is either an interim or recommended decision made by a Commission designee or officer (e.g. Hearing Officer) or the status quo of the parties' dispute that existed at the time the proceeding before the Commission was initiated." If, however, the tie vote results because a commissioner is absent, then the Commission "will place the matter on the agenda at its next regular meeting, or, if necessary, convene a special meeting to take up the case again."
Notably, the policy does not address the scenario in which there is a tie vote because of a vacancy or multiple vacancies on the Commission. It is clear PERC determined the vacancy in this case should be treated as a vacancy caused by a commissioner's disqualifying interest, because in his February 24, 2022 letter, the chairperson asserted the tie vote was "unbreakable." PERC opted not to refer the matter, consistent with the tie-vote protocol, to a hearing officer to make "an interim or recommended decision." Left undisturbed, the hearing officer's decision would have become PERC's "final action" reviewable by our court as of right. Instead, PERC exercised its other option under the protocol when there was an "unbreakable tie" and left the parties in their positions status quo ante.
However, pursuant to N.J.S.A. 34:13A-25, when PERC determines that "the basis for a transfer is predominately disciplinary," PERC "shall have the authority to take reasonable action to effectuate the purposes of the Act." N.J.S.A. 34:13A-27(b). In other words, the Legislature clearly intended PERC would take action to decide if the transfer were predominantly disciplinary and, if it was, order an appropriate remedy. PERC's own regulations for contested transfer determinations obligate the agency to "issue and serve on the parties its findings of fact and conclusions of law, including its determination as to whether the basis of the disputed transfer was predominantly disciplinary." N.J.A.C. 19:18-3.13.
That never happened in this case. Simply put, PERC failed to uphold its obligations under the Act, and it may not cite to its tie-vote protocol as justification for this failure, the court concluded.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment