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Non-Renewal Recommendation in Summative Evaluation Does Not Comply With Written Notice Requirement

By on June 28, 2022 in Labor & Employment with 0 Comments

By: Angela Reading, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

In New Jersey, spring brings critical deadlines related to renewal decisions for teachers. N.J.S.A. 18A:27-10 mandates that by May 15 of each year, the chief school administrator provide non-tenured teachers with either a new employment contract or written notice of non-renewal of the employee’s contract. If a non-tenured teacher does not receive an employment contract or written notice by the May 15 deadline, under N.J.S.A. 18A:27-11, the employee is presumed to have received an offer of employment for the upcoming school year under the same terms and conditions of employment.

On April 29, 2022, the New Jersey Appellate Division in Vakulchik v. Board of Education of the Borough of Dunellen issued an unpublished decision affirming a ruling by the New Jersey Commissioner of Education, which held that a recommendation for non-renewal in a summative evaluation did not comply with the “written notice from the chief school administrator” requirement of N.J.S.A. 18A:27-10. 

The controversy started on May 1, 2020, when Vakulchik, a non-tenured speech pathologist, received a summative evaluation from the district’s director of special services that included a recommendation that her contract not be renewed for the 2020-2021 school year. Based on this recommendation, Vakulchik emailed the superintendent on May 4, 2020, requesting a statement of reasons for the non-renewal.  On May 5, 2020, the Board voted to accept the superintendent’s recommendations for renewal, which did not include Vakulchik. 

Thereafter, Vakulchik did not receive a written notice from the superintendent that she was not being renewed by the May 15 deadline.  On May 18, 2020, she emailed the superintendent and members of the Board stating that since she had not received notice of non-renewal in accordance with N.J.S.A. 18A:27-10; 27-11, she accepted the offer of employment. The superintendent responded that she was not renewed and did not have a contract for the following year.  This was the superintendent’s first communication to Vakulchik about her non-renewal. After a Donaldson hearing, the Board non-renewed Vakulchik, thus terminating her employment.  

Vakulchik challenged the Board’s action.  An administrative law judge (“ALJ”) recommended upholding the non-renewal despite the Board’s failure to meet the notice requirements of N.J.S.A. 18A:27-10. The ALJ relied on Bernstein v. Board of Trustees of the Teachers’ Pension and Annuity Fund and concluded the Board substantially complied with the statute. The ALJ explained that Vakulchik did not suffer any prejudice, and the Board “was in general compliance with the purpose of the statute.” The ALJ further found that Vakulchik’s May 4, 2020, email established that she understood her contract would not be renewed, and this amounted to sufficient notice under Nissman v. Board of Education.

Vakulchik appealed the ALJ’s decision to the Commissioner of Education, who rejected the ALJ’s recommendation and found that the recommendation for non-renewal contained in the summative evaluation did not comply with the statutory demands of N.J.S.A. 18A:27-10, as that statute clearly requires “written notice from the superintendent,” which the Board did not provide. The Commissioner ordered that Vakulchik be reinstated with back pay.

The Board appealed to the Appellate Division, which upheld the Commissioner’s decision finding that the Board undisputedly did not meet the requirements of N.J.S.A. 18A:27-10. Therefore, N.J.S.A. 18A:27-11 required Vakulchik to be given a contract for the next year. The Court also rejected the Board’s argument that it substantially complied with N.J.S.A. 18A:27-10’s requirements.  Substantial compliance will sometimes excuse failure to strictly comply with a law’s requirements, but only if the other party was not prejudiced and there is a reasonable explanation why there was not strict compliance with the statute. The Court found that the Board did not explain why it couldn’t comply, and clearly, Vakulchik was prejudiced. 

The takeaway is that boards of education must strictly comply with the requirements of section N.J.S.A. 18A:27-10 – otherwise N.J.S.A. 18A:27-11 will require them to reemploy the employee the next school year, which might confer tenure.

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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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