August 12, 2010

Boards of education may struggle with the decision to file tenure charges against an employee in lieu of a less stringent disciplinary action. However, it appears from recent cases, including the Basulto case decided by the Appellate Division, that New Jersey’s courts are willing to uphold the termination of a tenured, public employee in a larger array of circumstances.

The West New York Board of Education filed tenure charges based upon unbecoming conduct and insubordination against Marcelino Basulto, a school custodian, after he was found to be taking naps in his car during work hours. After being caught sleeping in his car during work hours on one occasion, the Facilities Supervisor reviewed surveillance tapes of the school parking lot and found that Basulto had been in his car for periods of time exceeding his break time on several other occasions.

The Administrative Law Judge concluded that the Board had met its burden of proving the charges by a preponderance of the credible evidence and that Basulto should forfeit his tenure and be dismissed from his employment, and the Commissioner of Education approved the decision Basulto appealed.

In accordance with the appellate standard of review, the Appellate Division reviewed the case for an arbitrary, capricious or unreasonable finding, or a conclusion that lacked fair support in the record. In so doing, the court reviewed three specific arguments made by Basulto on appeal.

Basulto claimed that the Office of Administrative Law erred in allowing the Board’s Facilities Supervisor to serve as interpreter during his testimony at the tenure hearing. The Appellate Division rejects this argument because Basulto’s attorney unequivocally agreed to permit the interpreter even after Board counsel made clear on the record that the interpreter could be changed upon Basulto’s objection. The argument also fails because Basulto did not identify any error in the interpreting or any prejudice to his case.

The surveillance tapes utilized to support the Board’s case also came under fire as not properly authenticated. Aside from Basulto failing to raise this exception before his appeal, which precludes the appellate court from entertaining the argument, the court also noted that administrative proceedings are not bound by statutory or common law rules of evidence. Additionally, the surveillance tapes were entitled to a presumption of authenticity in the absence of a challenge since Basulto was provided with a copy of the videotapes more than ten days before the hearing.

The appellate court rejected Basulto’s final argument that the Commissioner failed to apply progressive discipline instead of terminating his employment. In the absence of a statutory or contractual provision requiring the application of progressive discipline, the court found no error in the decision of the Administrative Law Judge and Commissioner that termination was warranted in this circumstance.

It should be noted that Basulto had been the subject of past disciplinary actions prior to the conduct that gave rise to the tenure charges. Those past incidents were fairly minor in nature – leaving for lunch early and failing to clean areas of a school building during winter recess. At least one warning letter was placed in Basulto’s personnel file regarding these incidents. Had past disciplinary actions not existed, the progressive discipline argument could have been viewed differently by the Appellate Division.

This case and several others in the recent past provide valuable instruction to both public employers and their employees. A board of education should be mindful of the progressive discipline argument, and be sure that it is not required by statute or collective bargaining agreement before choosing to file tenure charges. Aside from any statutory or contractual requirements for progressive discipline, if the tenure charges are based upon inefficiency, the 90-day corrective action plan procedure must always be followed prior to the filing of tenure charges. Tenured, public employees should know that infractions they may view as minor could significantly impact their employment status.

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Hill Wallack LLP’s School Law Group

The School Law Group has experience in every area of school law and serves as counsel to a number of area school boards. Our attorneys represent clients before the Commissioner of Education, the State Board of Education, state and federal courts, and other administrative agencies, including the Public Employment Relations Commission and the United States Equal Employment Opportunity Commission.

We work with school district board members, superintendents, and administrative personnel to effectively protect the board's economic and legal interests. Our group is experienced in addressing taxpayer concerns and is sympathetic to budgetary constraints.

The group provides comprehensive in-house seminars for Board members, school administrators and other district staff. These inservice sessions help to promote harmonious labor management relationships as the group shares its diverse, yet pertinent experience in handling labor issues, including appointment and removal matters, tenure and special education matters, harassment, bullying and other topical issues.

For more information, contact one of the attorneys who work in this area: Rocky L. Peterson, Esq., Dana M. Lane, Esq. or Kenneth A. Skroumbelos, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.