The Superior Court of New Jersey Appellate Division, has rendered their opinion on the case between the Wall Township School District v. the Wall Township BOE and Cheryl Dyer. This was argued on December 17, 2018 and decided today, March 14, 2019, before Judges Sumners and Mitterhoff. This case was heard on appeal from the Commissioner of Education, Flavio Komuves, arguing for the WTEA, Michael Gross, arguing for the BOE, Andrew Babiak, arguing for Cheryl Dyer and Gurbir Grewal, attorney for the Commissioner of Education.
In unanimous agreement, this appeal from a final decision by the Commissioner of Education concerns whether the BOE and Cheryl Dyer may mutually agree to “rescind” her employment contract prior to its expiration date and enter into a new contract without giving the public its requirement of notice as per NJSA 18A: 11-11.
NJSA 18A: 11-11 provides:
A board of education shall not renegotiate, extend, amend or otherwise alter the terms of a contract with a superintendent of schools, … unless notice is provided to the public at least 30 days prior to the scheduled action by the board. The board shall also hold a public hearing and shall not take any action on the matter until the hearing has been held. The board shall provide the public with at least 10 days’ notice of the public hearing.
On September 15, 2017, the BOE put Dyer’s proposed employment contract on the agenda for it’s approval at its September 19th public meeting. With neither public notice nor a public hearing, the BOE approved Dyer’s new employment contract that evening. A little over a month later, we, Gail, Gene, Kathy, Bob, Jaimielynn and Kristy, with Kathy Doran, a resident and parent of Wall Township School students, appealed to the Commission of Education to rescind the Board’s decision. We alleged that the BOE violated NJSA 18A:11-11 by altering the Superintendent’s employment contract without the thirty-day public notice and the public hearing. The Commissioner transferred the case to the Office of Administrative Law.
The Administrative Law Judge (ALJ) recommended that the petition be dismissed, and determined there was no merit to the petitioners (the WTEA) arguments pertaining to the public notice and public hearing. The Commissioner of Education issued his final agency decision adopting the ALJ’s recommendation and denied our motion.
We could not be deterred, we knew we were right, so we asked that the NJEA fund our attorney to present the case to the Superior Court and this past December, it was argued there. Through our attorney, we asserted that the Commissioner’s interpretation created an absurd result where the BOE merely amended their relationship without a real interruption of employment in order to provide the Superintendent an extended term of employment, a higher salary and increased vacation time.
Opinion of the Judges
- The fact that they (BOE) mutually “rescinded” Dyer’s existing contract should not circumvent the statute’s requirements, regardless of the County Executive Superintendent’s email instruction.
- NJAC 6A: 23 A-3.1 (c) (1) regulation suggests that since Dyer’s contract had not expired, and and the Board remained under the purview of NJSA 18A: 11-11, despite their “rescission” strategy.
- This would constitute the absurd result of allowing the BOE to “rescind” a contract to thwart the public debate.
- For the foregoing reasons, we (Judges Sumner and Mitteroff) reverse. The Board’s September 19, 2017 approval of Dyer’s contract is overturned. A board vote on a new employment contract can only occur subject to satisfying the public notice and public hearing requirements of NJSA 18A: 11-11.
There are now many questions that we all have, and those can only be answered after we hear from the BOE, as to their plans. We will hear more of their plans as the next few days roll out. Bottom line, the WTEA won! We worked on this for 18 months, to make sure all play by the same rules, not just the members of the Wall Township Education Association!