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Boards of Education Prohibited from Discussing Tenure Charges During Public Session

By on January 22, 2021 in Labor & Employment with 0 Comments

On January 21, 2021, the New Jersey Appellate Division issued a published decision in Simadiris v. Paterson Public School District in which it decided whether a board of education’s decision to certify tenure charges against an employee during private session violated that employee’s right to request such consideration in public. In short, the Appellate Division agreed with the school district and ruled that a board of education was prohibited from discussing the tenure charges during public session.

Tenure charges were brought against an employee of the Paterson Board of Education (“Board”). The employee’s attorney received notice two days before a Board meeting stating that the Board would consider during private session whether there was probable cause for the tenure charges. The employee objected to the notice. The Board responded that N.J.S.A. 18A:6-11 requires the discussion to occur in private session.

The employee sued, and the case made its way to the Appellate Division.  The employee essentially argued that N.J.S.A. 10:4-12(b)(8) gave her the right to demand that the discussion by the Board regarding her employment – whether to certify tenure charges – was to occur in public session. Further, the employee argued that the Board improperly failed to provide her with a Rice notice to allow the discussion to occur in public session. The Board argued that N.J.S.A. 18A:6-11 is the controlling statute and precludes such discussion and/or voting regarding tenure charges to occur in public session, as N.J.S.A. 18A:6-11 states, in part, “The consideration and actions of the board as to any charge shall not take place at a public meeting.”

Ultimately, the Appellate Division agreed with the Board and determined that N.J.S.A. 18A:6-11 clearly does not provide an employee the right to have the discussion and vote regarding whether to certify tenure charges in public session. In reaching this conclusion, the Appellate Division reasoned that while the Open Public Meetings Act generally favors all discussions and actions to be public, there are legislative exceptions, such as the one created by N.J.S.A. 18A:6-11. The employee’s rights in this case were not violated.

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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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