By Marc H. Zitomer and Christopher J. Sedefian

The New Jersey Supreme Court issued its opinion this week in Catherine Parsells v. Board of Education of the Borough of Somerville, a case that was recently argued by Partner Marc H. Zitomer on behalf of the Board. By way of background, Parsells was a full-time tenured preschool teacher who requested to move to a part-time position in May of 2016, to which the Board agreed.  She subsequently sought to return to a full-time position for the 2018-2019 school year, but her requests were denied by the administration.

Parsells filed a petition of appeal with the New Jersey Commissioner of Education (“Commissioner”), wherein her main contention was that “she had not voluntarily relinquished her tenure rights by moving temporarily to a part-time position” and that she had an automatic right to return to her full-time position.  The case was assigned to an Administrative Law Judge (“ALJ”), who “found that Parsells had voluntarily changed her full-time teaching status, that her tenure and seniority protections were not therefore triggered, and that the Board therefore did not violate her rights.”  However, the Commissioner reversed the ALJ’s decision, finding that Parsells did not “knowingly and voluntarily waive her tenure rights” and that the administration was legally required to inform her of the tenure implications of her move to part-time, pursuant to the New Jersey Supreme Court’s holding in Bridgewater-Raritan Education Ass’n. v. Board of Education of Bridgewater-Raritan School District, 221 N.J. 349 (2015).  That case pertained to boards being required to notify employees whether they are serving in positions in which their time served counts towards tenure accrual.

The Board appealed the Commissioner’s determination to the Appellate Division, which affirmed the Commissioner’s decision in a published opinion.  Importantly, the Appellate Court “explicitly extended Bridgewater-Raritan to impose a duty on school boards to ‘provide advance notice to their tenured full-time teachers that they may not get their full-time teaching job back if they voluntarily take a part-time teaching job.’”  In doing so, the Appellate Division stated that “the mere existence of the Tenure Act” provided the basis for the imposition of this new legal duty.

The New Jersey Supreme Court granted the Board’s Petition for Certification, presumably recognizing the issue of public importance at stake. The Board’s primary argument before the Supreme Court was “that the Appellate Division erred by imposing a duty on school boards to ‘notify, in advance, full-time teachers who consider voluntarily transferring to part-time teaching positions that they may not have a right to return to their full-time position consistent with the principles espoused in [Bridgewater-Raritan].’”  The Board argued that the Appellate Division misinterpreted and misapplied the Supreme Court’s Bridgewater-Raritan holding, and that it was improper for the Appellate Division to impose a new duty on school boards absent any specific legislative enactment.

The Supreme Court affirmed the Appellate Division’s holding, but with important modification.  It held that Parsells did not waive her right to the full-time position, but reached this determination based “on principles on common law waiver.”  Crucially, however, the Supreme Court stated that it “agree[d] with the Board that Bridgewater-Raritan and ‘the mere existence of the Tenure Act’ provide no basis for a notification duty, and [the Supreme Court] find[s] the Appellate Division’s imposition of a duty to constitute error.

The Supreme Court’s modification of the Appellate Division’s opinion is significant for multiple reasons.  Firstly, if permitted to stand, the holding would have created a new legal duty for school boards throughout the State.  The Supreme Court modified the Appellate Division’s holding to clarify that “[t]here is no basis for that duty.”  Secondly, the Appellate Division’s determination would have set a precedent that “the mere existence of the Tenure Act,” absent any specific statute or regulation, could be used to create new legal obligations, which other courts and labor representatives could have used in other contexts by simply citing to and relying upon “the mere existence of the Tenure Act.”  The Supreme Court held that the Tenure Act, in and of itself, is not enough to impose such a duty.  Finally, given the Appellate Division’s overly broad application of Bridgewater-Raritan, it was important for the Supreme Court to clarify its limited applicability.

The Supreme Court did note that it “encourage[d] school boards to address, at the time the request for part-time work is made, whether the tenured teacher is voluntarily and knowingly waiving rights to a full-time teaching position.”  Thus, while there is no legal duty to do so, we do believe that it is a good practice for school districts to address the tenure issues up front to avoid any confusion later.

If you have any questions about this legal alert or any other related issues, please contact Schenck Price School Law Chair Marc H. Zitomer at MHZ@spsk.com or 973-540-7329.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.