Winston v. Bd. Ed. So. PlainfieldWinston v. Bd. Ed. So. Plainfield
Appellant Marilyn Winston was an elementary school teacher employed by respondent Board of Education of South Plainfield (board). She had been employed in a nontenured capacity under annual contracts for each of the school years 1968-1969, 1969-1970 and 1970-1971. Her employment contract was not renewed for the year 1971-1972, and as a result she did not acquire tenure.
An evaluation report was submitted by Winston‘s principal on or about February 23, 1971. The board thereafter determined not to renew Winston‘s employment contract. Among other matters, the report contained “administrator‘s remarks” to the effect that Winston had been overly critical of administrative policy and action, had not sufficiently focused her attention on her duties and had not supported administrative policy and the like. On March 11, 1971 Winston invoked the grievance procedures provided in the current “collective bargaining agreement” between the board and appellant South Plainfield Education Association, the recognized exclusive representative of teachers and certain other employees of the board under the New Jersey Public Employer-Employee Relations Act, L. 1968, c. 303;
The gist of her grievance was the unfavorable evaluation report and, in particular, as set forth in Part 1, a claim that the report was “unconstitutional by penalizing the aggrieved [i.e. Winston] for her proper exercise of the First
On May 18, 1971, about the same time that the board‘s decision was rendered, a list of teachers to be rehired was approved and Winston was not among them. Thereafter, on or about June 16, 1971, the Association on behalf of Winston endeavored to invoke the fifth level for processing grievances by demanding arbitration. It was alleged that there had been a denial of constitutional rights as well as a recommendation that Winston not be re-employed. At an arbitration hearing conducted on October 14, 1971 the issue of arbitrability was argued and the board was given the opportunity to seek judicial relief on this issue. It then filed an action on November 16, 1971 in the Superior Court, Chancery Division, which issued an injunction on February 8, 1972 restraining the arbitration proceedings until administrative remedies had been exhausted.
There followed a petition of appeal to the Commissioner of Education. The board filed a motion to dismiss which was
I
Appellants contend that the Commissioner of Education erred in failing to afford them the opportunity to object to the report of the hearing examiner before issuing his decision. They also contend that the State Board of Education committed comparable error by not affording them the opportunity to object to the report of its Law Committee prior to the rendering of its decision.
The decision of the Commissioner makes it quite clear that he was furnished with and relied upon a report of the Deputy Commissioner designated as the hearing examiner who heard the appellants’ petition in the first instance.* Respondents argue that there was no requirement that the report of the hearing examiner be furnished the parties prior to its utilization by the Commissioner in deciding the controversy. Among the reasons advanced were that the Commissioner of Education is not the “head of the agency” within the meaning of
These arguments carry no weight. The law is firmly settled where a final decision is made by one who did not hear the evidence but who relies in part upon a report of a hearing officer, there is a risk that the ultimate decision may be based upon findings not supported by the evidence. To secure essential fair play and to minimize the risk of fundamental error it is necessary that
* * * prior to its submission to the deciding officer the hearer‘s report be made available to the parties and * * * they then be given an opportunity to correct any mistakes that may appear in the report. This simple requirement, while imposing no hardship on the agency, does protect the individual against the strong possibility of a miscarriage of justice or the suspicion thereof. [Mazza v. Cavicchia, 15 N.J. 498, 523-524 (1954)]
There can be not the slightest doubt that this axiom of administrative due process is applicable to hearings before the Commissioner of Education. See In re Masiello, 25 N.J. 590, 604 (1958); cf.
The decisional law in this respect has been underscored and codified by the Administrative Procedure Act, L. 1968, c. 410, particularly
(c) When a person not empowered to render an administrative adjudication is designated by the head of the agency as the presiding officer, his recommended report and decision containing recommended findings of fact and conclusions of law shall be filed with the agency and delivered or mailed to the parties of record; and an opportunity shall be afforded each party of record to file exceptions, objections and replies thereto, and to present argument to the head of the agency or a majority thereof, either orally or in writing, as the agency may order. The head of the agency shall adopt, reject or modify the recommended report and decision. The recommended report and decision shall be a part of the record in the case.
The requirement that the hearing examiner‘s report be furnished the parties prior to its submission to the Commissioner
At the next level the State Board of Education, in accordance with its rules, submitted the appeal for preliminary review by the Law Committee.
The procedure followed was defective in not providing the parties the opportunity to address the report of the committee before it was transmitted to the State Board for final action. In re Masiello, supra, 25 N.J. at 605; Quinlan v. Bd. of Ed., North Bergen Tp., supra, 73 N.J. Super. at 53; cf. Redcay v. State Board of Education, 128 N.J.L. 281 (Sup. Ct. 1942).
This serious procedural dereliction cannot be ignored. Respondent suggests that “[t]he State Board never engages in independent fact-finding of its own” and also that the Law Committee is “concerned primarily with an evaluation of the Commissioner‘s conclusions of law, with an eye only to the reasonableness of the findings of fact.” To the contrary, the State Board “is not precluded from making its own independent findings of fact.” Quinlan v. Bd. of Ed., North Bergen Tp., supra, 73 N.J. Super. at 51; cf. In re Masiello, supra. And the Law Committee is
II
It is argued that it was error to dismiss the South Plainfield Education Association as a party to the proceedings before the Commissioner of Education. Respondents, in defense of this ruling, take the position that the Association is a “bargaining agent of employees” under L. 1968, c. 303;
In general, disputes involving teachers are cognizable as controversies under the school laws.
Appellants’ unilateral initiation of the grievance procedures under the contract does not imply that the dispute should now be regarded as one not amenable to the jurisdiction of the Commissioner as a controversy arising under the school laws. In this case, not all grievable complaints under the collective bargaining agreement are entitled to be resolved ultimately by arbitration. This agreement specifically provides that “[n]o claim by a teacher shall constitute a grievable matter beyond level four or be processed beyond level four [review of Superintendent‘s decision by Board of Education] if it pertains to * * * [a]ny complaint of a non-tenure teacher which arises by reason of his not being re-employed.” If such a complaint cannot by the terms of the operative contract be resolved by means of arbitration, then its ultimate disposition should follow the course applicable to any other controversy or dispute, namely, by successive appeals to the Commissioner of Education and the State Board of Education.
Here Winston‘s initial complaint focused upon the adverse evaluation report as such. But quite obviously this had a tangible bearing upon her employment status since the report itself recommended that Winston not be re-employed. In fact, her employment was discontinued by the nonrenewal of her contract before her complaint could be taken beyond the level four grievance procedure to arbitration. Her claim was then expanded to include the specific charge that she had not been re-employed and that the nonrenewal
The Association, having been duly selected the exclusive employee representative pursuant to
The concern of an exclusive representative of public employees with respect to matters touching their employment is tangible and genuine; it is an interest sufficient to enable such an entity to participate as a party in proceedings before the Commissioner and State Board of Education.
The local Board of Education moved before the commissioner to dismiss the petition for failure to state a cause of action and to plead essential facts. The Commissioner ruled that the allegations of the petition “stand alone” and there was no “offer of proof that the Board failed to renew petitioner‘s contract because she exercised her right of free speech.” Appellants contend that the Commissioner of Education erred in dismissing Winston‘s appeal without a hearing. Respondents argue that the petition was based upon “bare allegations” and was properly dismissed where “no additional proofs were offered.”
A nontenured teacher does not have the right to have an employment contract renewed; nor is such a teacher ordinarily entitled to a statement of reasons for such nonrenewal or to a hearing prior to such action. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Zimmerman v. Board of Education, Newark, 38 N.J. 65 (1962), cert. den. 371 U.S. 956, 83 S.Ct. 508, 9 L.Ed.2d 502 (1963); Donaldson v. Bd. of Ed., North Wildwood, 115 N.J. Super. 228 (App. Div. 1971), certif. granted 59 N.J. 272 (1971). The discretion vested in a board over these matters is extremely broad. Nevertheless, this wide latitude enjoyed by a board of education with respect to such matters as the appointment, transfer, dismissal or nonrenewal of teachers is conditioned upon Fourteenth Amendment limitations. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2964, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); cf. Burlington County Evergreen Park Mental Hospital v. Cooper, 56 N.J. 579 (1970). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811
It may be acknowledged that the bare assertion or generalized allegations of infringement of a constitutional right does not create a claim of constitutional dimensions. Cf. Trap Rock Industries, Inc. v. Kohl, 63 N.J. 1 (1973). In this case, however, petitioner‘s claim of a deprivation of her constitutional rights was adequately detailed and corroborated, sufficient to require consideration of her complaint. Specifically the petition of appeal to the Commissioner set forth several instances in some detail indicating that Winston had questioned policy decisions, made suggestions and recommendations, sought information or reasons for certain administrative decisions, expressed criticisms among teachers concerning certain administrative directives, and the like. These allegations were verified by petitioner. Additionally, while the evaluation report contains other reasons which might justify the recommendation that appellant not be re-employed, the “Administrator‘s remarks” raise an inference that Winston‘s speech and expressions were considered too captious and contentious, and that this may have been a material factor in the discontinuance of her employment. Compare Hetrick v. Martin, 480 F.2d 705 (6 Cir. June 15, 1973).
In Perry v. Sindermann, supra, the United States Supreme Court decided that a teacher‘s lack of tenure or the
In this case, of course, the respondent has yet to show that the decision not to renew his contract was, in fact, made in retaliation for his exercise of the constitutional right of free speech. The District Court foreclosed any opportunity to make this showing when it granted summary judgment. Hence, we cannot now hold that the Board of Regents’ action was invalid.
But we agree with the Court of Appeals that there is a genuine dispute as to “whether the college refused to renew the teaching contract on an impermissible basis — as a reprisal for the exercise of constitutionally protected rights.” 430 F.2d, at 943. The respondent has alleged that his nonretention was based on his testimony before legislative committees and his other public statements critical of the Regents’ policies. And he has alleged that this public criticism was within the First and Fourteenth Amendment‘s protection of freedom of speech. Plainly, these allegations present a bona fide constitutional claim. For this Court has held that a teacher‘s public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of his employment. Pickering v. Board of Education, supra. [408 U.S. at 598, 92 S.Ct. at 2698, 33 L.Ed.2d at 578]
Here, Winston has made a sufficient showing that the decision by the respondent local board may have been prompted by her exercise of the right of speech protected under the First and Fourteenth Amendments. In this sense she presented a bona fide claim of constitutional stature and was, therefore, entitled to a full evidentiary hearing on this contention before the Commissioner of Education.
For the foregoing reasons the matter is reversed and remanded to the Commissioner of Education for further proceedings in accordance with this opinion. We do not pass upon the additional contention urged on this appeal that appellant should receive her normal salary under
Jurisdiction is not retained.