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Appellate Division Clarifies Who May Issue Rice Notice to Superintendent

By on April 4, 2017 in Labor & Employment with 0 Comments

In 2013, the Appellate Division ruled that Daniel Woska, a former member of the Brick Township Board of Education (“Board”), exceeded the scope of his authority and violated the New Jersey School Ethics Act (“Act”) when he directed the Business Administrator to issue a Rice notice to the Superintendent. As a result of that Rice notice, the Board discussed the Superintendent’s employment and then terminated him. In the 2013 decision, the Appellate Division remanded the case to the School Ethics Commission (“SEC”) to determine who is authorized to issue a Rice notice for the purposes of reviewing the Superintendent’s employment. Ultimately, this issue became the subject of an appeal before the Appellate Division in Persi v. Woska, 2017 N.J. Super. Unpub. LEXIS 625 (2017), which was decided on March 10, 2017.

After the Appellate Division remanded the case to the SEC in 2013 to determine who is authorized to issue a Rice notice to the Superintendent, the SEC found that it lacked jurisdiction on this issue and transferred the case to the Commissioner of Education (“Commissioner”). In analyzing the issue, the Commissioner highlighted that matters relating to a chief school administrator’s employment are “serious and time-sensitive” and analogous to the kind of issue that would trigger a special meeting of the board of education. According to the Commissioner, the issuing of a Rice notice to the Superintendent is a significant procedural matter. Therefore, the Commissioner relied upon N.J.A.C. 6A:32-3.1(a), the procedure for calling a special board meeting. Pursuant to N.J.A.C. 6A:32-3.1(a), (a), the Board Secretary must call a special board meeting whenever:

  1. Requested by the president of the district board of education;
  2. Requested by the chief school administrator when the district board of education fails to meet within two months during the period in which the schools in the district are in session; or
  3. Presented with a petition signed by a majority of the full membership of the district board of education requesting the special meeting.

The Commissioner concluded that an individual board member is without authority to direct the issuance of a Rice notice to the Superintendent and such authority rests with the board president or majority of the full membership of the board.

On appeal, the Appellate Division affirmed the Commissioner’s determination. It rejected Woska’s argument that he requested the Business Administrator to send the Rice notice rather than direct him, as this contention was not supported by the record. Further, the Appellate Division rejected Woska’s argument that he did not violate the Act since the board ratified the issuance of the Rice notice to the Superintendent. According to the Appellate Division, the composition of the Board was different at the time Woska directed the issuance of the Rice notice than the Board which later voted to terminate the Superintendent. Moreover, a Board’s ratification of unethical conduct does not make that conduct ethical. For these reasons, the Appellate Division upheld the Commissioner’s decision.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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