Simadiris v. Paterson Public School District, 012121 NJSUP, A-0197-19T3

Docket NºA-0197-19T3
Opinion JudgeFISHER, P.J.A.D.
Party NameMARCELLA SIMADIRIS, Plaintiff-Respondent, v. PATERSON PUBLIC SCHOOL DISTRICT, Defendant-Appellant.
AttorneyKaren A. Murray argued the cause for appellant (The Murray Law Firm, LLC, attorneys; Karen A. Murray, of counsel and on the briefs). Alfred F. Maurice argued the cause for respondent (Springstead & Maurice, Esqs., attorneys; Alfred F. Maurice and Lauren E. McGovern, of counsel and on the brief). ...
Judge PanelBefore Judges Fisher, Gilson and Gummer.
Case DateJanuary 21, 2021
CourtSuperior Court of New Jersey

MARCELLA SIMADIRIS, Plaintiff-Respondent,

v.

PATERSON PUBLIC SCHOOL DISTRICT, Defendant-Appellant.

No. A-0197-19T3

Superior Court of New Jersey, Appellate Division

January 21, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2020

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1674-19.

Karen A. Murray argued the cause for appellant (The Murray Law Firm, LLC, attorneys; Karen A. Murray, of counsel and on the briefs).

Alfred F. Maurice argued the cause for respondent (Springstead & Maurice, Esqs., attorneys; Alfred F. Maurice and Lauren E. McGovern, of counsel and on the brief).

Cynthia J. Jahn argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, on the brief).

Zazzali, Fagella, Nowak, Kleinbaum & Friedman for amicus curiae New Jersey Education Association (Richard A. Friedman of counsel and on the brief; Craig A. Long, on the brief). 1

Before Judges Fisher, Gilson and Gummer.

OPINION

FISHER, P.J.A.D.

Defendant Paterson Public School District appeals a trial judge's summary determination that its decision to certify tenure charges against plaintiff Marcella Simadiris in private violated her alleged right to demand its consideration in public. The appeal pits that part of the Tenured Employees Hearing Law, N.J.S.A. 18A:6-10 to -25, which declares that a charge against a tenured employee "shall not" be discussed "at a public meeting," N.J.S.A. 18A:6-11, with that part of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, which permits a public body to exclude the public from personnel discussions "unless all [affected employees] request in writing that the matter. be discussed at a public meeting," N.J.S.A. 10:4-12(b)(8). The district relies on a published trial court decision, Cirangle v. Maywood Board of Education, 164 N.J.Super. 595, 601-02 (Law Div. 1979), as support for its position that the express language of N.J.S.A. 18A:6-11 controls. Plaintiff believes Cirangle's interpretation should be rejected and, in relying on the Supreme Court's recent decision in Kean Federation of Teachers v. Morell, 233 N.J. 566 (2018), argues that these statutes should be understood as prohibiting a discussion of charges against a board of education's tenured employee in public except when the affected employee so demands. We reject plaintiff's argument and conclude that N.J.S.A. 18A:6-11 unambiguously barred the board of education from entertaining a public discussion of the tenure charges.

The relevant facts and events are uncomplicated and undisputed. Tenure charges were brought against plaintiff, and her attorney was given informal notice by email on May 20, 2019, that, at a meeting two days later, the board of education would consider whether there was probable cause for the charges in private. Counsel objected due to the lack of proper notice, but the board's counsel responded that it didn't matter because N.J.S.A. 18:6-11 mandated a closed session.

Two days after the closed session, at which the board certified the charges, 2 plaintiff filed this action, seeking a judgment declaring the board's resolution void because plaintiff had not been given sufficient notice. In ruling on the parties' applications for summary relief, the judge concluded in a written opinion that the resolution was invalid; he determined that plaintiff had not received proper notice and was, therefore, deprived of the opportunity to demand that consideration of the tenure charges take place in public.

Before us is only a question of law: does N.J.S.A. 18A:6-11, which prohibits the discussion of personnel matters involving tenured employees in public, take precedence over N.J.S.A. 10:4-12(b)(8), which grants in general affected public employees the right to demand a public hearing? In considering the parties' arguments about the interplay of these statutes, it is helpful to start with Rice v. Union County Regional High School Board of Education, 155 N.J.Super. 64 (App. Div. 1977).

In Rice, after a public session concerning budget issues, seventeen employees3 were designated for termination at a private hearing. In considering the validity of the results of the private session, we concluded that N.J.S.A. 10:4-12(b)(8) guaranteed "all employees whose rights could be adversely affected" the right to request a public hearing and, to ensure this right, we concluded that N.J.S.A. 10:4-12(b)(8) entitled affected employees to "reasonable advanced notice." Rice, 155 N.J.Super. at 73. That required notice became known in this arena as a "Rice notice," what plaintiff claims - and the district does not dispute - was lacking here.

The district claims it had no obligation to provide a Rice notice because N.J.S.A. 18A:6-11 precludes a board of education's public discussion of personnel issues involving tenured employees like plaintiff. The district invites us to follow Cirangle, a trial court decision that supports the district's argument. In similar circumstances to those presented here, the trial judge in Cirangle identified a conflict between N.J.S.A. 10:4-12(b)(8) and N.J.S.A. 18A:6-11. Because the Open Public Meetings Act imposed broad requirements for the meetings of governmental bodies, while N.J.S.A. 18A:6-11 was "specific and limited [in] scope," the Cirangle judge concluded that the latter should control when applicable. Id. at 601.

Plaintiff's entitlement to a Rice notice logically depends on whether a tenured board-of-education employee is entitled to demand a public discussion of a board's probable-cause proceedings or whether the Rice notice requirement is irrelevant because there can never be a public discussion of such a matter. In turning to our history with these statutes and Rice, it is noteworthy, and somewhat surprising, that Cirangle has been cited only once, see Williams v. Board of Educ., Atlantic City Public Schools, 329 N.J.Super. 308, 316 (App. Div. 2000), in its forty-two years on the books and then only for a largely irrelevant reason.4 On the other hand, Rice has been cited numerous times by this court in published[5] and unpublished decisions, 6 and twice with approval by the Supreme Court, see Kean Fed. of Teachers, 233 N.J. at 586; S. Jersey Publ'g. Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991). Yet, in none of those decisions citing Rice was it held that a tenured employee is entitled to a Rice notice when a board meets to consider whether to allow tenure charges to proceed. And Kean Federation, on which plaintiff so greatly relies, upheld the notice requirement "created in Rice" but added that it "should not be stretched beyond its factual setting." 233 N.J. at 586.

Finding little guidance from these past examinations of Rice and Cirangle, finding no clarity in the arguments of the parties or the amici curiae as to the current practice in this State, and finding no legislative history to illuminate...

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