PEERP OF COUNSEL. MARC H. ZITOMER: MARK SIT IN OTHER WORDS SHE KNOW PRICE
ON BEHALF OF APPELLANT SOMERVILLE BOARD OF EDUCATION. PARSELLS. APPEARANCES GIVEN.
BOARD OF EDUCATION. ALBERT LEONARDO ON BEHOOVE OF AMICUS NEW JERSEY EDUCATION ASSOCIATION.
THE COURT: I TABLTH THE GOOD MORNINGS ARE A SIGN YOU'VE FORGIVEN US FOR
THE LENGTHY ARGUMENTS. WE APPRECIATE THAT. MR. MARC H. ZITOMER: MER.
MARC H. ZITOMER: GOO YA NOON MAY Is RESERVE APPROXIMATELY 5 MINUTES FOR
REBUTTAL PLEASE. CHIEF JUSTICE RABNER: YES R. MARC H. ZITOMER:
ASSOCIATES JUSTICES, COUNSEL, MAY IT PLEASE THE COURT. OF THE APPELLATE DIVISION IN THE
UNDERLYING PUBLISHED OPINION IMPROPERLY EXTEND THE THIS COURT'S HOLDING IN THE
BRIDGEWATER-RARITAN EDUCATION ASSOCIATION CASE 221 NEW JERSEY 349 FROM 2015, TO NOW UM
POSE REQUIREMENTS ON SCHOOL BOARDS THROUGHOUT THE STATE OF NEW JERSEY TO HAVE NOTIFY TENURED
EMPLOYEES OF THE CONS VENS KWENSS WHEN THEY KOL FARELY GO FROM A FULL-TIME POSITION TO
A PART-TIME POSITION. THE APPELLATE COURT DID NOT ARE BASE ITS HOLDING ON
ANY PARTICULAR STATUTE TO REACH THIS CONCLUSION. AND IN FACT, WENT SO FAR ON PAGE 11
OF ITS OPINION TO THAT STATE THAT "NO SPECIFIC STATUTORY PROVISION IS NEEDED TO TRIGGER
NIS DUTY. AND THAT THEY REJECT THE BOARD'S ARLG MENT ON THIS POINT. INSTEAD THE COURT
WENT 0 TO SAY "THE MERE EXISTENCE OF THE TENURE ACT" BY THE WAY THE 10-YEAR ACT IS COMPRISED
OF ABOUT 18 DIFFERENT STATUTES, COURT SAID SUPPLIED THE RATIONALE FOR THIS DUTY.
THIS QUITE DIFFERENT THAN THE ANALYSIS THAT THIS COURT PERFORMED IN THE BRIDGEWATER
CASE. IN BRIDGEWATER, THIS COURT HELD THAT EVEN IF THERE WAS NO EXPRESSED NOTICE PROVISION
IN THE STATUTE AT ISSUE 18 HACHLT 161.1, THE STATUTE STILL HAD THE TO BE AM LIEFD
ACCORDING TO ITS PLAIN MEANING AND COURT LOOK AT THE STATUTE, IT STUDIED THE STATUTE AND
SAW THE WORD DESIGNATE HAD APPEARED APPROXIMATELY THREE TIMES WITHIN THE BODY OF THAT
STATUTE AND THE COURT SAID THAT THAT STATUTE COULD THEN REASONABLY BE CONSTRUED TO REQUIRE
BOARDS TO INFORM EMPLOYEES THAT THEY WERE SERVING AS REPLACEMENT TEACHERS AND THAT THEIR
TIME WOULD NOT COUNT TOWARD TENURE. IT'S IMPORTANT TO CLARIFY THAT WE DID
NOT ARGUE IN THE CASE BELOW THAT THERE HAD TO BE SOME EXPRESS LANGUAGE IN A STATUTE TO
IMPOSE THIS REQUIREMENT. CONTRARY TO THE APPELLATE DIVISION'S CHARACTERIZATION. WE
DID, HOWEVER, ARGUE THAT THERE HAD TO BE SOME PLAIN LANGUAGE IN SOME STATUTE WITHIN 18A
OR THE TENURE ACT 12 FOR THE COURT TO RELY ON, LIKE THE BRIDGEWATER COURT DID, IN ORDER
TO IMPOSE THIS OBLIGATION. OTHERWISE, IT'S OUR POSITION THAT THE COURT WAS ESSENTIALLY
CROSSING INTO THE LINE OF 11 LATING AND WE VIET NUM RIS CASES IN OUR BRIEF GOING BACK
TO THE MID 19 HUNDREDS STAN TO THE BROP POSITION THAT THE COURT JOB IS TO INTERPRET THE
LAW, NOT TO ENACT IT. WE ALSO CITED NUMEROUS CASES IN OUR PETITION BRIEF
WHERE THIS COURT ANALYZED PARTICULAR STATUTES WITHIN 18A, WITHIN THE 10 ACT. IT DIDN'T
RELY AND ENTIRE STATUTORY SCHEME IN GENERAL. IN LA MARS VERSUS BOARD OF EDUCATION, 134
NEW JERSEY TWO 64, AT PAGE 274 FROM 1993, THIS COURT ACKNOWLEDGED THAT THE TENURE LAWS
ARE CERTAINLY TO BE LIBERALLY CONSTRUED, HOWEVER THE COURT WENT 0 TO SAY THAT THE LIBERAL
CONSTRUCTION MUST BE REASONABLE IN LIGHT OF THE PLAIN LANGUAGE OF THE CONTROLLING STATUTES.
OUR DULT TEE IS TO CONSTRUE AND APPLY THE STATUTE AS ENACT THE, WE'RE NOT
AT LIBERTY TO PRUNL THE LEGISLATURE INTENDED SOMETHING OTHER THAN WHAT IS INTENDSED BY
THE PLAIN LANGUAGE. THIS COURT WILL NOT ENGAGE IN CONJECTURE OR SURMISE WHICH WILL CIRCLE
VENT THE PLAIN MEAN PG OF THE ACT. THE SAD STRAF LAW JICH OF JUDGE ISN'T THE TAS BELOW
PROPERLY CONCLUDED THAT THE PETITIONER HAD NOT CITED NOR HAD THE COURTS RESEFRPED, LOCATED
ANY PARTICULAR AUTHORITY FOR THE PROPOSITION THAT A SCHOOL BOARD THOOS NOTIFY THE TENURE
THE EMPLOYEE OF THE CONSEQUENCES OF VOLUNTARILY GOING FROM A FULL-TIME TO A PART-TIME
JOB. IT'S OUR POSITION THE APPELLATE DIVISION EXTRAPOLATED WAY TOO FAR WHEN IT CREATE
THE THE NOTICE REQUIREMENT BASED ON THE BRIDGEWATER DECISION. THIS ING
BRS ME TO THE ISSUE OF WAIVER. THE PRUKS OF THE PETITIONER'S CASE IS THAT THE PETITIONER
DID NOT WAIVE HER TENURE RIGHTS, AND I THINK THAT'S A MISCHARACTERIZATION OF WHAT
OCCURRED. OUR COURT, THE SUPREME COURT IN SPIEWAK VERSUS HAMILTON BOARD OF HE 90 R 1963
FROM 1982 WENT TO GREAT LENGTH TO EXPLAIN THE TENURE LAWS DON'T DISTINGUISHES BETWEEN
FULL TIME TENURE AND PART TO MY TENURE, YOU'RE TENURED As A TEACHER, YOU'RE NOT TENORED
PART TIECHL. SHE DID NOT WAIVE HER TENURE RIGHTS, TENURE RIGHTS SHE'S A TENURED
EMPLOYEE NOBODY DISPUTE THE THE FAK THOSE A TEVEN YURED EMPLOYEE AND COULDN'T BE REDUCED
OTHER THAN BRINGING HER UP ON TENURE CHARGES OR SOME SORT OF REDUCTION IN FORCE WHICH
IS ALSO ALLOWED BY STATUTE. SOCIETIES A OUR POSITION THAT THAT ISSUE OF
WAIVERLY TENURE RIGHTS IS REALLY A RED HEAR HERRING HER. FULL-TIME POSITION AFTER SHE
VOLUNTARILY REQUESTED. WE ARGUED AND CONTINUE TO ARGUE THAT UNLIKE CASES WHERE THE EMPLOYER
UNILATERALLY REDUCES AN EMPLOYEE'S POSITION FROM FULL TIME TO PART TIME OR ELIMINATES
IT FOR REASONS OF ECONOMY, IN THOSE CIRCUMSTANCES, CERTAINLY AN EMPLOYEE WOULD KR
RECALL RIGHTS, THEY HAVE A RIGHT TO THEIR POSITION ONCE THE BECAME AVAILABLE AGAIN AT SOME
POINT IN THE FUTURE, THAT'S VERY DIFFERENT THAN WHAT OCCURRED IN THIS PARTICULAR CASE.
T THIS SUPREME COURT IN A LICK MAN VERTSZ BOARD OF ED. NE FROM 1983 A PART
TIEMENT LIBRARIAN WHO HAPPENED TO BE TENURED WHOSE POSITION WAS ELIMINATED HAD A RIGHT
TO A POSITION THAT BECAME, FULL-TIME POSITION IN THE FUTURE, AND WE THINK THAT'S ABSOLUTELY
CORRECT. A PETITION MER HAD BEEN RIFFED, IF THE BOARD WREE DUFD HER FROM FULL TIME TO
PART TO MY OR SOMETHING ALONG THOSE LINES, SHE CERTAINLY WOULD HAVE HAD A LEGAL ENTITLEMENT
TO RETURN TO HER POSITION, BUT THAT'S NOT WHAT OCCURRED HERE. CHIEF JUSTICE
RABNER: DID SHE EVER LOSE HER TENURE RIGHTS AS YOU UNDERSTAND IT. MARC H.
ZITOMER: SHE DID NOT, SHE RESIGNED THAT'S A WHOLE SEPARATE SITUATION, SHE CAME BACK TO
HER EMPLOYMENT AS A PART-TIME TENURED TEACHER. CHIEF JUSTICE RABNER: SO
CORRECT ME IF I HAVE THIS WRONG SHE AP EMPLOYED FOR 6 FULL-TIME POSITIONS AND WAS NOT
SELECTED FOR ANY OF THEM, HOW DO THEY UNTHAT J. MARC H. ZITOMER: WE TOOK
THE POSITION THAT SHE WAS IN A PART-TIME POSITION AND THAT IF THEY WANTED TO RETURN TO
A FULL-TIME POSITION, SHE DVEN HAVE AN AUTOMATIC LEGAL ENTITLE THE TO IT, THAT SHE COULD
CERTAINLY APPLY FOR AN OECH FULL-TIME POSITION IF ONE BECAME AVAILABLE BECAUSE THE ACT
OF GOING FROM FULL TIME PART TIME WAS OF HER OWN CHOICE, HER OWN VOE LAGS RGS CONVERSELY,
IF HAD HE HAD TAKEN THE POSITION THAT WE DON'T NEED YOU ANY MORE IN THIS FULL-TIME POSITION
AND YOU'RE NOW GOING TO PART TIME, THEN SHE ABSOLUTELY WOULD HAVE HAD A LEGAL ENTITLEMENT
UNDER THE RECALL STATUTE TO GO BACK TO HER FULL-TIME JOB. JUSTICE SOLOMON:
EVEN THOUGH SHE SPECIFICALLY EXPRESSED THE INTENT THAT HER PART TIME STATUS WOULD BE TEMPORARY?
MARC H. ZITOMER: YOU KNOW, THE LETTER THAT YOU'RE REFERRING TO, JUSTICE,
WHERE SHE SAID SOMETHING TO THE EFFECT OF I'M REQUESTING A PART-TIME POSITION, SO, BUT
I WOULD LIKE TO KEEP, SOMETHING ALONG THE LINES I'D LIKE TO KEEP THE DOOR OPEN IN THE
EVENT THAT MY FAMILY CIRCUMSTANCES CHANGE, SOMETHING ALONG THOSE LINES, THAT WAS PRETTY
EP ENDED. THE BOARD RESOLUTION THAT'S IN THE RECORD THAT APPOINTED HER DIDN'T HAVE ANY
CONDITIONS ATACHLTD I THINK IT WAS A LITTLE BIT OF -- JUSTICE SOLOMON: YOU'RE
DISPUTING THAT SHE EXPRESSED THE DESIRE FOR THIS TO BE A TEMPORARY OF POSITION, A TEMPORARY
STATUS? MARC H. ZITOMER: I THINK THAT'S A QUESTIONABLE POINT BECAUSE I DON'T
THINK IT WAS VERY CLEAR. JUSTICE WAINER APTER: THE ALJ CREDITED MS. PARSELLS
TESTIMONY THAT SHE WOULD BE ABLE TO RETURN TO HER FORMER FULL-TIME POSITION WHEN SHE NO
LONGER ANT WANTED TO HAVE A PART-TIME SKERM AND HAD SHE KNOWN OTHERWISE SHE WOULD HAVE
NOT P CHOSE THE PART TIME TEACHING STATUS, I THOUGHT THE ALJ MADE THAT AS A FACTUAL
DETERMINATION. MARC H. ZITOMER: THAT'S TRUE THE JUDGE DID CONCLUDE SHE WAS
UNDER THE IMPRESSION IF SHE AT SOME POINT IN THE FUTURE WAVENTED TO GO BACK TO HER FULL
-TIME JOB SHE COULD HAVE DONE SO, YES. JUSTICE WAINER APTER: SHE WOULD NOT
HAVE CHOSEN PART TIME TEACHING STATUS HAD SHE KNOWN OTHERWISE. MARC H.
ZITOMER: THAT WAS HER TESTIMONY, CORRECT. JUSTICE SOLOMON: THAT WAS ACCEPTED
BY THE ALJ. MARC H. ZITOMER: YES. JUSTICE SOLOMON: HOW IS THAT
CHALLENGED NOW. MARC H. ZITOMER: THE QUESTION SHE A LEGAL ENTITLEMENT.
FACTUALLY SPEAKING. THE YEAH I THINK THE WORD SPEAKS FOR ITSELF SHE WAS UCHT THE BELIEF
THAT SHE COULD RETURN BACK TO HER FULL-TIME JOB. THE QUESTION ON THE TABLE WAS WHETHER
WE HAD TO NOTIFY HER AT THE TIME THAT IF IN THE FUP CHERP SHE WVENTED TO GO BACK TO THE
JOB THE POSITION WOULD HAVE BEEN AVAILABLE FOR HER. JUSTICE SOLOMON: GCH
SHE EXPRESSED THE DESIRE THAT THE PART-TIME POSITION BE TEMPORARY, SHE BE ABLE, SIGH
SEEMED TO BE SAYING I'D LIKED TO GO BACK TO PERMANENT FULL TIME, THAT THE NO NOTICE, THAT
DOESN'T FACTOR INTO THE EQUATION AT ALL. MARC H. ZITOMER: YEAH, I DON'T BELIEVE
IT FACTORS INTO IT EQUATION AT ALL BECAUSE GEVEN IT'S DIFFERENT WHEN THE EMPLOYEE MAKES THE
REQUEST VOLUNTARILY TO GO TO A POSITION VERSUS HAVING IT IMPOSED ON HIM OR HER BY THE
EMPLOYER WHICH DOES BY STATUTE GIVE THE EMPLOYEE THE LEGAL RIGHT TO GO BACK TO THE JOB.
THAT'S VERY DIFFERENT THAN AN EMPLOYEE, SAYING, HEY, I'D LIKE TO HAVE A PART-TIME POSITION
AND, OH, BY THE WAY RS AT SOME POINT IN THE FUTURE, WHEN KWLEFR I GUIDE I LIKE TO HAVE
M MY JOB BACK, THAT'S THE, THESE WERE THE FACTS OF THIS CASE. APARTMENT.
JUSTICE PATTERSON: WE TYPICALLY DEFER TO THE COMMISSIONER'S FINDINGS TO A LARGE DEGREE
BECAUSE THE XHEGS IN OTHER WORDS EX TER PER TEASE IN THESE MATTERS, WHY AN EXCEPTION TO
THAT HERE. MARC H. ZITOMER: I THINK THIS IS MORE OF A LEGAL ISSUE, JUS
TICE, IN TERMS OF THE INTERPRETATION AND EXTRAPOLATION OF THIS IMPROPER PEFR
EXTRAPOLATION OF THIS COURT HOLD IN BRIDGE WAUT, THIS IS A LEGAL ISSUE MORE THAN A FACT
WUM ISSUE. IN MY OPINION, IF THE COMMISSIONER VEN EVEN THE APPELLATE COURT HAD SAID,
YOU KNOW SOMETHING, WE FIND SHE DIDN'T NECESSARILY WAIVE HER RIGHT TO GO BACK TO A
FULL-TIME JOB, IN MY VIEW THE COURT COULD HAVE EN THE INFIR RETHERE BUT UP FOFRPLY THEY
WENT ONE STEP TUR THEY ARE HERE AND WHAT THEY'VE DONE IS TAKEN THE BRIDGEWATER CASE VEN
SAY IF YOU LOOK AT THE ENTIRE TENURE SCHEME WE NOW ARE GOING TO IMPOSE A DULT TEE ON SCHOOL
DISTRICTS THROUGH YACHT THE STATE TO HAVE TO NOTIFY EMPLOYEES OF THE CONSEQUENCES OF THEIR
ACTION. AND I SUBMIT TO WHAT END? APARTMENT AT DOEVEN WENDY FER TO ADMINISTRATIVE AGENCIES
TO INTERPRETATION OF STATUTES AND REGULATIONS WITHIN ITS IMPLEMENTING AND EN RS FOS
RESPONSE ANLT AS LONG AS THOSE ARE REASONABLE? MARC H. ZITOMER: THIS COURT
OF LAW DE NOVO. I DON'T THINK THERE'S ANY DEFERENCE REQUIRED IN THIS PARTICULAR CASE.
APARTMENT AT EVEN THOUGH THE COMMISSIONER OF THE HE HAD KAEGS WAS INTERPRETING IN YOUR
ZU A STATUTE THAT SHE IS STATUTORILY CHARGED WITH INTERPRETING AND ENFORCING AND IMPLEMENTING?
MARC H. ZITOMER: I WOULD SAY IF YOU RAID THE COMMISSIONER'S DECISION I
WOULD SHE SHE WAS INTERPRETING MORE SO THIS COURT'S INTERPRETATION IN BRIDGEWATER THAN
SHE WAS THE TENURE ACT AS A WHOLE. THAT WAS MY READING OF THE COMMISSIONER'S CASE THAT
IT WAS REALLY AN EX TRAP OCCASION OF THIS COURT'S OPINION AND THE FEELING WAS IN BRIDGEWATER
THE COURT SAID THEY HAVE TO DESIGNATE EMPLOYEES AS REPLACEMENT TEACHERS AND TAKE THE 1
STEP FURTHER AND REQUIRE THAT WE HAVE TO INFORM EMPLOYEES OF POTENTIALED AVERSE COULDN'T
KWEN OF I HE RESDIS THEY MAKE FORWARD IN ABS SENSE OF A STAFT. CHIEF JUSTICE
RABNER: YOU ASKED TO WHAT IPD RHETORICALLY, ISN'T THE END SO TENURED FULL TIME TEACHERS
UNDERSTAND THE CONSEQUENCES IF THEY MOVE TO PART. MARC H. ZITOMER: I THINK
THAT WAS THE INAT THE PRESENT TIME CERTAINLY JUSTICE RABNER. HOWEVER, IF YOU LOOK AT
WHAT HAPPENS IN THE DAY-TO-DAY OPERATIONS OF A SCHOOL DISTRICT, THERE ARE FAR REACHING
ICHL MRI OCCASIONS FOR THIS DECISION, EMPLOYEES SWITCH BETWEEN GRADE LEVELS VOLUNTARY,
THEY SWITCH BETWEEN ERR OCCASIONS THEY TAKE OVEN EXTRACURRICULAR A SIGN. S, HE NOW TO
WRAED THIS COURT'S APPELLATE DIVISION AND NJEA WILL TO REQUIRE EMPLOYERS TO SIT DOWN WITH
EMPLOYEES RNGS IF YOU DO X PLEASE UNDERSTAND THAT Y MAY FOLLOW FROM THAT. I THINK THAT'S
11 LATING SORRY. JUSTICE WAINER APTER: DOESN'T CHANGING FULL TIME TO PART
TO MY INVOLVE LESS COMPENSATION? MARC H. ZITOMER: LESS COMPENSATION AND
POTENTIALLY IN THIS CASE LOSS OF BENEFITS AS WELL, YES. IS THAT THE. JUSTICE
WAINER APTER: AND THE TENURE ACT SPECIFICALLY SPECIFIES, THIS IS UNDER 18A 288, THAT'S
THE ONE THAT'S TALKING ABOUT RELINQUISH, 18A 295 AND 18A 610 SPECIFICALLY ARE DISCUSSING
THAT SOMEONE CANNOT BE REDUCED IN COMPENSATION UNLESS THEY GO THROUGH A HEARING, BEFORE
THE COMMISSION NEVER OF EDUCATION AND IT'S FOR CAUSE AND THE STATUTE SPECIFIES EXACTLY
WHEN THAT HAS TO HAPPEN, THAT TYPE OF PROCEEDING OBVIOUSLY NEVER TOOK PLACE HERE, CORRECT?
MARC H. ZITOMER: CORRECT AND THE DISTIVENGS BETWEEN WHAT THE ON NEVER ABL
JUSTICE JUST MEPGED IS THE SITUATION WHERE THE EMPLOYER EITHER WANT TO DISMISS A TENURED
EMPLOY THAT REQUIRES THE PROCESS THAT YOU KRIEBD IS BEFORE HASN'T ARBITRATOR OR EVEN A
BOL MISH LIR. MENT TEVEN YERED EMPLOYEES POSITION OR REDUCTION IN NORS, TAKING SOME
FROM PART TIME TO FULL TIME, THAT WOULD BE A VIOLATION OF TENURE EMPLOYEE'S RIGHTS EXCEPT
IF IT'S DONE VOLUNTARILY WHICH WAS THE CASE HERE. JUSTICE WAINER APTER:
DOESN'T 288 SET OUT SPECIFIC RULES FOR WHAT IT IS MEANS FOR SOMETHING TO BE VOLUNTARILY
RELINQUISHED AND IT SPECIFICALLY SAYS ANY TEACHING STAFF MEMBER UNDER TENURE DESIREING
TO LOOK TO RELINQUISH THE WIGS SHALL GIVE THE EMPLOYS BOARD OF EDUCATION AT LEAST 60 DAYS
OF NOTICE AND THERE'S CASE LAW, THE O'TOOLE WHERE THE COURT FOUND THAT THE RELINQUISHMENT
HAS TO BE WHERE THE TEACHER IS AWARE OF LEGAL EFFECT OF THE RELIPG WISH MENT. SO HERE
WHERE IS IS THERE ANY EVIDENCE THAT MS. PARSELLS EVER INTENTIONALLY RELINQUISHED HER FULL
-TIME JOB IN A WAY WHERE SHE WAS AWARE OF THE LEGAL EFFECT OF THE THAT RELINQUISHMENT,
MEANING SHE WAS AWARE THAT SHE WERE NOT BE ABLE TO YOU WERE TO BEING FULL #250I78 IN THE
FUTURE? SIT IS THE THE DISCUSSION NEVER HAPPENED AT THE TIME SHE MADE THAT REQUEST.
I DON'T THINK IT WAS ON THE FOREFRUNLT OF ANYBODY'S MINDS AT THE TIME. SHE HAD
SUBMITTED THIS LETTER WE JUST REFRTSED, IT WAS PRETTY OPEN ENDED. OF BUT AGAIN I THINK
THE STATUTE TO WHICH HAPT APARTMENT WHEN DO YOU THINK HER RELINQUISH. DID OCCUR, IF SHE
NEVER RELINQUISHED THEN WHY DID SHE NOT HAVE THE RIGHT TO GO PACK FULL-TIME POSITION.
IT SEEMS THE STATUTE SAYS YOU CANNOT RETUESDAY SOMEONE'S SALARY UNLESS YOU GO THROUGH
THIS WHOLE PROCESS THAT YOU ACKNOWLEDGE DIDN'T HAPPEN HERE OR IF THEY RELIPG WISH THEIR
RIGHT, BUT IF SHE NEVADA RELIPG PIRNED HER RIGHT TO THE FULL TILE SALARY AND YOU DIDN'T
GO THROUGH THE BRO SAYS TO REMOVE HER FROM THE FULL TIME SAL WREE, THEN HOW COULD YOU
TELL HER, SORRY, YOU CAN'T HAVE THE FULL TIME SALARY? MARC H. ZITOMER:
YEAH, AGAIN, THE STATUTES THAT YOU'RE REFERRING TO AND THE CASES THAT INTERPRET THEM APPLY
ONLY IN SITUATIONS WHERE THE EMPLOYER UNILATERALLY BRINGS AN EMPLOYEE UP ON TENURE
CHAMPS, REDUTS THEIR COMPENSATION, PUTS THEM FROM A FULL-TIME POSITION TO A PART-TIME POSITION.
JUSTICE WAINER APTER: WHERE DOES IT SAY THAT IN 288, ANY TEACHING STAFF
MEMBER UNDER TEP YER OF IRRELEVANT VIS DESIRING RELINQUISH HIS POSITION SHALL I HAVE IF
THE EMPLOYEEING BOARD OF HE HAD KATHS AT LEAST 60 DAYS OF NOTICE, I DON'T EE SAYING WHERE
IT SAYS THIS IS THE SKOL BOARD IS TRYING TO FORCE YOU TO RELIPG WISH OR SOMETHING LIKE THAT?
OF SIT IS THE 18 TO 18A 28-8? JUSTICE WAINER APTER: Y. MARC
H. ZITOMER: THAT DOESN'T ACH APPLIED TO NESTLE TEP YURED EMPLOYS, IT DOESN'T.
JUSTICE WAINER APTER: UNDER TENURE OF SERVICE, SO THAT APPLIES TO TENURE, RIGHT?
MARC H. ZITOMER: THAT STATUTE SIMPLY REFER TS A FACT THE TENURE THE EMPLOYEE IN THE STATE OF
NEW JERSEY HAS TO GIVE THE EMPLOYER 60 DAYS NOTES, A NOTICE STATUTE THAT THEY HAVE TO LET
US KNOW SO WE HAVE AMPLE TIME TO FIND A REPLACEMENT, 60 DAYS NOTICE AND THE IF A ET
YER OF THE EMPLOYEE TO GIVE THAT REQUISITE 60 DAYS NOTICE IS GROUPDZ FOU FOR THE EMPLOYING
BORDER OF EDUCATION TO FILE AN OR TO SHOW CAUSE BEFORE THE STATE WORD OF CERTIFICATE REVOKED
SEFRMLY. THIS REALLY AN OBL GATHS THAT'S DUE TO THE EMPLOYER NOT SOMETHING THAT'S SAYS
WE CAN'T REDUCE THE TENURED EMPLOYEE SALARY AS A RESULT OF ANY 60-DAY REQUIREMENT HERE.
JUSTICE WAINER APTER: O'TOOLE IN THE APPELLATE DIVISION FOUND THAT A RE
LINQUISHMENT HAS TO BE WHERE THE TEACHER IS AWARE OF THE LEGAL EFFECT OF THEIR REJUK.
ARE YOU SAYING THAT THAT JUST SHOULD NOT APPLY HERE (RELINQUISHMENT). MARC H.
ZITOMER: THAT CAUSE IF I RECALL INVOLVES A REDUCTION IN FORCE REMAINED ON A PREEFD HE
WILL 11 HAS BEEN LIST MEANS THE EMPLOYER MAINTAINS A LIST OF EMPLOYEES WHO HAD BEEN REDUCED
OR ABOLISHED SHTHS WHEN AN POSITION OPENS THE EMPLOYER NEEDS FO DPOE TO THE EMPLOYEE AND
SAYS HEY THERE'S A POSITION OPEN FOR YOU, WOULD YOU LIKE IPT. IF THE EMPLOYEE THEN DECLINES
THAT POSITION, THEY'VE NOW RELINQUISHED THEIR RIGHTS, THAT'S SET FORNL IN THE CASE LAW
INTERPRETING THAT PARTICULAR STATUTE BUT AGAIN THOSE STATUTES INVOLVE THE EMPLOYER REDUCING
SOMEBODY, WE MAINTAINING SOMEBODY'S NAME ON A LIST AND THEN THEY HAVE WHAT ARE CALLED
RECALL RIGHTS AND IF THEY DECLINE AFTER BEING OFFERED A JOB, THEN THAFSH WAIVING THEIR
RIGHTS. JUDGE SABATINO: YOU EARLIER ALLUDED TO A RIGHT OF WURN OR RIGHT
OF RECALL YOU HAD SOME WORD YOU USED TO RECALL WHEN A FULL-TIME POSITION OPENS UP. ISN'T
ONE OF THE OF BENEFITS OR OF QUALITIES OF BEING TENURED IS TO GET PREFERENCE WHEN THAT
POSITION OPENS UPSET SIT ABSOLUTELY, 100 PERCENT. SO, YES. JUDGE SABATINO:
HOW DO YOU TELL US AT THE GIPING OF THE ARGUMENT SHE'S NEVER LOST ANY OF HER TENURE RIGHTS?
SHE DID LOSE TENURE RIGHTS, SHE LOST THE RIGHT, WHAT'S THE WORD AGAIN RECALL.
MARC H. ZITOMER: RECALL. JUDGE SABATINO: SHE'S DI PIN NISHD HER TENURED
RIGHT TO RECALL, NO? MARC H. ZITOMER: SHE STILL TENURE AS A PART-TIME
EMPLOYEE. SHE LAUT HER RIGHT TO GO BACK TO THE FULL-TIME JOB BECAUSE AGAIN THIS WAS NOT
A PREFERRED ELIGIBLE LIST SITUATION WHERE WE REDUCED HER. SHE REQUESTED IT, WE DIDN'T
HAVE ANY OBLIGATION IN THAT SITUATION FO MAINTAIN HER NAME ON A PREFERRED ELIGIBLE LIST
TO HAD HE GIVE HAD HE EVER HER JOB BOOK R SAAB SIDE-BAR SHE'S NOLY ERR FULLY EN CAN URD
SHE LOST SOME OF THE RIGHTS SHE HAD BEFORE AS A TENURED FACULTY MEMBER SIT IS THE NO I'M
NOT SURE I. JUSTICE PATTERSON: YOU'RE MAKING A DISTINCTION, IF SOMEONE
IS TENURED FULLY FIEM TO TENURED PASHT TIME THEY HAVE TENURE RIGHTS UNDER THE TENURE ACT.
MARC H. ZITOMER: 100 PERCENT CORRECT. JUSTICE PATTERSON:
FULL TIME TO PART TIME OBVIOUSLY THERE'S LOSS OF COMPENSATION AND THERE'S, THERE ARE ON THE
RAMIFICATIONS OF THAT, BUT IN TERMS OF THEIR TENURE STATUS, IT REMAY IT PLEASE THE SAME
SIT IS THE THAT'S EXACTLY THE SAME AND THAT'S WHAT HIS COURT STATED IN THE LICK MAN CASE.
CHIEF JUSTICE RABNER: COULD THE BOARD OF EDUCATION NTS FUTURE NOT AS PART
OF A RIFF TELL TO ANY TEACHER YOU'RE ONLY GOING TO BE WORKING PARLT TIME NEXT YEAR, TENURED
FULL TIME TEACHER BUT WE SDIET WE WEREN'T TO MOVE THIPGS A ROUND A LITTLE BIT.
MARC H. ZITOMER: WITH CERTAIN CAVEATS, THAT'S A REDUCTION IN FORCE EVEN THOUGH IT'S.
CHIEF JUSTICE RABNER: NOT JUSTIFYING IT THROUGH REDUCTION OF FORCE, JUST
BY THE DECISION OF A CHIEF ADMINISTRATOR. MARC H. ZITOMER: IT WOULD HAVE
TO BE DONE PURCHASE SUVEN TO THE STATUTE, IT WOULD BE CALLED A REDUCTION IN FORCE THE
SEMANTICS WOULD BE THAT IT WOULD BE A REDUCTION IN FORCE. BUT SO. CHIEF JUSTICE
RABNER: ARE YOU SUGGESTING HER ASKING TO BE PLACED ON PART TIME WITHOUT HAVING ANY
UNDERSTANDING OF THE CONSEQUENCES DO A CHIEF THE SAME THING? MARC H. ZITOMER:
YES BECAUSE THAT THAT CASE SHE'S REQUESTING IT, THE BOARD DIDN'T HAVE TO GRANT IT, BY
THE WAY, THEY DIDN'T HAVE TO GIVE HER THE PART-TIME JOB, THEY CHOSE TO ACCOMMODATE HER
REQUEST. OF. JUSTICE WAINER APTER: WHERE SHOULD SHE HAVE UNDERSTOOD JUST
FROM READING THE STATUTE ON THAT HER OWN OR MAYBE THERE'S A REGULATION, WHERE SHOULD SHE
HAVE UNDERSTOOD THAT WHEN SHE REQUESTED TO DPOE FAMILIARITY TO MY SHE WAS LOSING THE TENURED
PREFERENCE TO A FULL-TIME POSITION? MARC H. ZITOMER: WHEN SHE SHOULD HAVE
REEL LEAFED IS THAT THE QUESTION R. JUSTICE WAINER APTER: FROM WHERE, WRA
STATUTE SAYS OR WHAT REGULATION SAYS? MARC H. ZITOMER: THERE IS NO STATUTE,
THERE IS NO REGULATION, AND THAT'S MY ISSUE QUITE FRANKLY WITH THE APPELLATE DIVISION'S
DECISION BECAUSE THEY HAVE NOW IMPOSED A NOTES REQUIREMENT WHEN ONE DOES NOT EXIST AND
WE CITE -- JUSTICE WAINER APTER: I'M SAYING IT THE 0 WAY, I'M SORRY, I'M
NOT SAYING WHERE IN THE STATUTE, YOU MUST HAVE NOTE TIDE HER, I'M SAYING YOU DIDN'T HAVE
TO NOTIFY HER BECAUSE SHE SHOULD HAVE BEEN ABLE TO FIGURE IT OUT HERDS FROM WHERE SHOULD
SHE HAVE FIGURE THE OUT. WHERE IN THE STATUTE OR REGULATION COULD SHE HAVE DEDUCED THAT
BY GOING FROM FULL TIME TO PART TIME SHE WAS LOSING HER TENURED POSITION AS A FULL-TIME
TEACHER AND SHE WOULD NOT HAVE BEEN, SHE IS NOT LONGER ENTITLED TO GO BACK FULL TIME?
MARC H. ZITOMER: I WOULD SAY THE ANSWER TO THAT IS THAT SHE'S A MEMBER OF
NJEA, ONE OF THE LAMP EFT LABOR UNIONS, SHE HAS WHOLE COD DRA OF TOERPS SHE COULD HAVE
ASKED THAT ATTORNEYS AND I'M SURE THEY WOULD HAVE ENLIGHTENED HER TO THE FACT IF THE LAW
DOES NOT DISTINGUISH TWOEN FULL TIME TENURE AND PART TIME TENURE AND HER ENTITLEMENT WAS
TO A TENURED POSITION IF SHE WANTED TO AND THE BOARD WANTED TO GRANT HER THAT, BUT THERE
IS NOTHING IN THE STATUTE TO HTHAT GIVING HER THAT LEGAL ENTITLEMENT AND NOW THERE IS.
JUSTICE WAINER APTER: THIS HAS APD MANY TIMES AND PEOPLE HAVEN'T COMPLAINED
ABOUT IN THE PAST SO IT'S COMMON FOR A TEACHER TO GO FROM FULL TIME TO PART TIME AND THEN
SEEK TO DPOE BACK TO FULL TIME BECAUSE THEY SAID ALL ALONG THAT'S WAS ONLY TEMPORARY P
SCOOT BOARD ALWAYS TELL THEM NO AND SHE HAVEN'T COMPLOIND DMROU THE IN THE PAST.
MARC H. ZITOMER: I DON'T THINK WE HAVE THAT NECESSARILY ON THE RECORD BUT WE DO HAVE,
THERE WAS TESTIMONY FROM THE SUPERINTENDENT OF SCHOOLS WHO SAID THAT OVER I THINK A 20
TWO OR 3-YEAR SPAN OF TIME THERE HAD BEEN 15 OR SO SCENARIOS WHERE EMPLOYEES WENT I THINK
FULL TIME TO PART TIME OR PART TIME TO OF FULL TIME, I DON'T KNOW IF IT ENDED UP WITH
THE EMPLOYEE SAYING I WANT MY OLD JOB BACK, WE DIDN'T GET THAT FAR INTO THE RECORD BUT
AETS A FAIRLY COMMON OCCURRENCE THAT EMPLOYEES INTICH BETWEEN FULL TIME TO PART TIME BECAUSE
OF MATERNITY ISSUES OR WHAT DWREFR, FAMILY ISSUES, FOLKS MIGHT HAVE.
JUSTICE FASCIALE: LET ME FOLLOW UP WITH YOU. IT SOUNDS LIEBLG YOU'RE SAYING SHE COULD HAVE
LEARNED THE CONSEQUENCES OF HER DECISION EITHER FROM THE BOARD OR FRF THE UNION?
MARC H. ZITOMER: Y. JUSTICE FASCIALE: THE IMPOSITION OF A DUTY
ORDINARILY REALLY COMES DOWN TO NOTIONS OF FAIRNESS, COMMON SENSE. SHE'S COMMUNICATING
WITH THE BOARD, SHE'S EXPLAINING SHE WANTS TO GO PART TO MY TEMPORARILY. SHE'S TELLING
YOU THAT SHE WANTS BENEFITS. SHE'S ALREADY BEEN TOLD ONCE THAT SHE COULD YOU WERE BACK
TO FULL-TIME POSITION. MARC H. ZITOMER: RIGHT. JUSTICE
FASCIALE: SHE REJECTED THAT AND REMAINED ON PART TIME STATUS. IF WE THINK BOULT IMPOSITION
OF A DULT TEE FROM THE SENSE OF FAIRNESS, WHY SHOULDN'T THE P BOARD SIMPLY BE OBL OBLIGATED
TO COMMUNICATE TO THE EMPLOYEE IF YOU GO PART TIME VOLUNTARILY, JUST BEWARE SHTHS YOU'LL
STILL BE A PART-TIME TEP YURED TEACHER BUT YOU MIGHT GIVE UP YOUR RIGHT TO FULL TIME.
MARC H. ZITOMER: RIGHT. JUSTICE FASCIALE: WHAT'S THE BIG
DEAL WITH THAT. MARC H. ZITOMER: I UNDERSTAND, AND LOOK I UNDERSTAND OUR
SUPREME COURT HAS SETD IN EMPLOYERS SHOULDN'T KEEN EMPLOYEES IN THE BARK, I AGREE YONL
ANYBODY WOULD AGREE WITH THAT LDISPUTE THAT FACT BUT IMPOSE A REQUIREMENT ON THAT A SCHOOL
BORE THAT THAT MUST DO SOY HAS TREMENDOUS ICHL MRI OCCASIONS, FOR INSTANCE.
CHIEF JUSTICE RABNER: WHAT ARE THE I AM MRI KATHSS. MARC H. ZITOMER: MAY
I PROCEED, HERE ARE THE SOME OF THE THIPGS I SEE R FIRST OF ALL, AT WOULD POINT IS THE
EMPLOYEE, WHAT IF THEY INADVERTENTLY FOR WHATEVER REASON FAILED FO GIVE THE NOETSDZ, IT
HAPPENS, YOU KNOW, WE HAVE LOTS OF EMPLOYEES, WE FAIL FO GIVE THE NOTICE, DOES THAT MEAN
THE EMPLOYEE HAT ANY POINT IN TIME NOW IN THE FUTURE CAN ESSENTIALLY SNAP THEIR SIPG
DPERS AND SAY I WANT MY OLD JOB BACK? AT WHAT POINT IN THE ENGINEER DOES THAT HAPPEN,
WHAT HAPPENS TO THE PERSON THAT PREVIOUSLY HELD THE JOB THAT THE PERSON PREVIOUSLY HELL,
ARE THEY NOW A REPLACEMENT TEACHER, DOES THEIR TIME NOT COUNT TOWARDS TECH YER BECAUSE
THE PERSON WHO IS NOW PART TIME SAYS, HEY, FOLKS I GOT MY JOB BACK. I THINK THERE ARE
SERIOUS IMPLICATIONS AND LIKE I WAS SAYING BEFORE THERE'S LOTS OF SCENARIOS THAT HAPPEN
IN SCHOOL SDRIKS WRS EMPLOYEES TRANSFER BETWEEN GRADE LEVELS, THEY HAVE EXTRACURRICULAR
POSITIONS DO EMPLOYERS BASED ON EN READ READING OF THE TENURE ACT NOW HAVE TO TELL EMPLOYEES
OF ALL THE POTENTIAL ADVERSE CONSEQUENCES OF HIR AKS? I THINK THAT IS SERIOUS ICHL MRI
OCCASIONS. CERTAINLY RESULT IN A LOT OF LITIGATION. SIR. CHIEF JUSTICE
RABNER: AREN'T YOU ARGUING THE NKS CASE INSTEAD OF THIS 1 WITH SOME OF THOSE RAMIFICATIONS,
THERE'S A VERY FOCUSED HOLDING FROM THE APPELLATE DIVISION, IT SAYS: FULL TIME TEACHERS
WHO CONSIDER VOLUNTARILY TRANSFERRING TO PART TIME TEACHING POSITIONS THERE'S A DULT TEE
TO NOTIFY THEM THAT THEY MIGHT LOSE THAT OPPORTUNITY. WE'RE NOT TALKING ABOUT
INTICHING BETWEEN GRADE LEVELS OR EXTRACURRICULARS, THIS A FOCUSED HOLDING.
WHAT IS SO DIFFICULT TO IMPLEMENT ABOUT IT? MARC H. ZITOMER: I THINK THE
LOGICAL EXTENSION OF THAT, I DPREE IT'S A NARROW HOLDING I DPES FROM THE APPELLATE DIVISION
BUT I THINK THAT LOGICAL EX STEPS IS THAT THE UNION IS NOW GOING TO ARGUE, NOT FARFETCHED
THOUGHT THAT THIS NOTICE OBLIGATION IS GOING TO APPLY IN LOTS OF OTHER CASES NOW BECAUSE
THE COURT DIDN'T RELY ON ANY PARTICULAR LAW TO REACH THIS HOLDING, THEY ESSENTIALLY 11
LATED A REQUIREMENT HERE THAT DOESN'T EXIST. ON THE STATUTE. ACHT APARTMENT WHAT IF
WE WERE TO RELY ON PROVISIONS IN THE STATUTE LIKE, FOR EXAMPLE, 285, 610, 288, AUM OF
WHICH ARE SETTING FORTH HOW SOMEONE CANNOT, THEIR SALARY REDUCED UNLESS THEY GO THROUGH
THIS PARTICULAR PROCESS AND SOMEONE CANNOT RELIPG WISH THEIR RIGHT UNLESS THEY'RE AWARE
OF RELIPG WISH MENT AND SOMEONE CANNOT BE REMOVED WITHOUT GOING THROUGH THIS PARTICULAR
PROCESS THAT DIDN'T HAPPEN. SIT IS THE THOSE ARE GREAT EXAMPLES OF WHERE THE LEGISLATURE
SAW FIT TO IMPOSE CERTAIN LEGAL AND NOTICE REQUIREMENTS THAT SCHOOL BOARDS ARE REQUIRED
TO FOLLOW AND IF WE DON'T FOLLOW THEM, THEY ARE REPERCUSSIONS. SO OUR POSITION IS IF
A LEGISLATURE KNEELS IN THESE SAN NAR YO WHICH ARE FAIRLY COMMON IN DISTRICTS TO HAVE
SOME SORT OF NOTICE OBLIGATION AND THEN WHAT IS THE EFFECTIVE NOTICE ISN'T GIVEN AND SO
FORTH THAT'S CERTAINLY THE LEGISLATURE CAN DO BUT I DON'T THINK IT WAS A LOGICAL EXTENSION
OF THE BRIDGEWATER CASE WHICH DID RELY ON A PARTICULAR STATUTE. THEY RELIED ON A LAW,
THEY SAID EVEN IF THERE'S NO EX INTRES LANG WISH IN THE STATUTE WE HAVE TO POINT OUR FIPG
DPER AT SOME STATUTE HERE TO COME UP WITH THIS HOLDING AS OPPOSED TO JUST SAYING HERE
GOING TO EXTEND BRIDGEWATER WHICH SH SKAEKTLY WHAT THEY DID. JUSTICE SOLOMON:
CLARIFY TWO THINGS FOR ME. THE FIRST NOBODY, NO OPINION SAYS THAT SHE'S ENTITLED TO
HER OLD JOB BACK. IT SAYS SHE'S ENTITLED TO A FULL-TIME POSITION. IF IT BECOMES AVAILABLE.
Z P. MARC H. ZITOMER: I DON'T THINK SO JUSTICE. AS A RESULT OF THE
COMMISSIONER'S DECISION PUT BACK IN A FULL-TIME JOB WITH BACK PAY AND BEEN FILTS.
JUSTICE SOLOMON: A FULL-TIME POSITION. MARC H. ZITOMER: A TEACHING POSITION.
JUSTICE SOLOMON: YES. MARC H. ZITOMER: THE HAS TO BE WITHIN
THE SCOPE OF HER SET OCCASION. JUSTICE SOLOMON: IT'S NOT NECESSARILY HER
POSITION, IT'S A FULL-TIME POSITION. SOMETHING HE WILL IN THE SCHOOL, IT MIGHT BE SOMETHING
ELSE MAYBE THE ADJACENT SCHOOL, I DON'T KNOW. BUT THE COURT DIDN'T SAY HER POSITION,
IT JUST SAID A FULL TILE POSITION. MARC H. ZITOMER: UNDERSTOOD.
JUSTICE SOLOMON: AS I READ IT. MARC H. ZITOMER: MB IS GOING TO LOSE THEIR
JOB AS A RESULT OF THE. JUSTICE SOLOMON: MAYBE, MAYBE NOT.
MARC H. ZITOMER: JUST TO CLARIFY. JUSTICE SOLOMON: WHAT I SAID SHTHS OKAY,
THEY DIDN'T SAY YOU HAVE TO BUMP SOMEBODY TO T PUT HER BACK IN A FULL-TIME POSITION.
SHE ASKED FOR A PULL TIME POSITION IF IT BECAME AVAILABLE, SHE WANTED -- IN OTHER WORDS,
I DIDN'T SEE ANYTHING IN THE OPINION THAT SAID THEY WOULD HAVE TO BUMP OR REMOVE.
JUSTICE WAINER APTER: SPECIALLY WEREN'T THERE. MARC H. ZITOMER: GIVE KNEE
ONE SECOND TO ANSWER THAT. THEY DID R TO DO THAT. THEY, THE HOLDING WASN'T WAIT UNTIL
SOMETHING BECOMES AVAILABLE TO GIVE HER JOB BACK, THE FACT WAS THE COURT, THE COMMISSIONER
AND THE APPELLATE COURT SAID THAT SHE WAS EP TIEMENTED TO GO BECOME TO HER JOB.
CHIEF JUSTICE RABNER: BUT THAT'S, SIT IS THE NOT WAIT UNTIL SOMETHING HAPPENS, NOT
WAIT UNTIL THAT WAS A VACANCY, SOL SL I SIMPLY READ IT AS SHE NEEDS, SHE WOULD HAVE THE
RIGHT TO GO BACK TO A FULL-TIME POSITION. A FULL-TIME POSITION. IT DIDN'T MEAN THAT
SOMEBODY ELSE WOULD HAVE TO BE BUMPED OR A POSITION WOULD HAVE TO BE CREATED. APARTMENT
AT ESPECIALLY BECAUSE THE COMMISSIONER RELAYED TO THE POSITION THERE WERE SIX PIGSS AVAILABLE
AND SHE INTERVIEWED FOR 6. MARC H. ZITOMER: SHE DID INTERVIEW FOR SIX.
JUSTICE SOLOMON: TURNED DOWN FOR ALL OF THEP. CHIEF JUSTICE
RABNER: YOU CAME BEFORE US THE DUTY TO NOTIFY IS A SIGNIFICANT PROBLEM. MARC H.
ZITOMER: RIGHT. CHIEF JUSTICE RABNER: VEN YOU FOCUSED ON THE CHALLENGE,
THE REASONING OF THE APPELLATE DIVISION AND THE IMPLICATIONS FOR IT. MARC H.
ZITOMER: YES. CHIEF JUSTICE RABNER: THE HOLDING OF THE TUT HDUTY IN THIS
CASE DOESN'T TALK ABOUT SHE HAS TO BE PUT BACK ON HER JOB, WHAT IT BASICALLY TELLING BOARD
OF EDUCATION IS YOU MUST NOTIFY SOMEONE BEFORE THEY MAKE THE DECISION. WHAT'S SO HARD
ABOUT THAT? MARC H. ZITOMER: THAT'S TRUE THSHS IS THE HOLDING THAT WE HAVE
TO NOTIFY THEM, BUT THEN YOU HAVE TO ASK JUST LIKE RICE NOTICES, WE HAVE TO TELL EMPLOYEES
WHEN WE'RE DISCUSSING THEM IN A CLOSED SESSION AT BOARD MEETING WHAT THE IMPLICATIONS
IF WE DON'T TO THAT THERE IS OBLIGATION BUT WE HAVE TO THINGING ABOUT WHAT IS THE
IMPLICATION IF IT DOESN'T HAPPEN. CHIEF JUSTICE RABNER: WHY WOULDN'T IT
HAPPEN, I'M STRUGGLING TO UNDER THE DIFFICULTY. YOU DON'T HAVE THAT MANY TEACHERS.
MARC H. ZITOMER: WE DO. CHIEF JUSTICE RABNER: THAT COMES TO YOU, IT
PRIT TEET STRAIGHTFORWARD MATTER THAT ADMINISTRATOR COULD UNDERSTAND. THERE ARE
MITS TAKES MADE BUT THE FACT THAT THERE MIGHT BE A MISTAKE DOESN'T NETSDZ RL MEAN THAT THE
DOCK FRIN SHOULD BE CAST TO ONE SIDE. P. MARC H. ZITOMER: IEN THE ARGUMENT
JUSTICE. WE HAVE EMPLOYEES, YOU'RE RIGHT, MISTAKE RS MADE. BUT TO IMPOSE A LEGAL
REQUIREMENT WHEN ONE REALLY DOESN'T EXIST IN TITLE 18A, TO ME IS CONTRARY TO THIS COURT'S
MANY OPINIONS THAT COURTS IN GENERAL SHOULD INTERPRET LAWS, NOT ENACT THEM. AND I FEEL
IN EM POELGS THIS NOSE RIERM, WHETHER IT'S AN EASY NOTICE RIERMENTS OR DIFFICULT AND
SOMEBODY SAYS BIG DEAL, JUST TELL SHE CAN'T GO FOK AT A FULL TIME JO. JUSTICE
PATTERSON: I THINK YOU WOULD HAVE A STRONGER ARGUMENT IF THE NOTICE REQUIREMENT IS YOU
HAVE TOED A ADVISE HER OF THE RAM FI CASES OF HER DECISION BECAUSES TALKED THERE MIGHT BE
LOTS OF DECISIONS THAT MAY BE MADE BY TEACHERS P THEY HAVE LOTS OF RAMIFICATIONS NEXT
ERR 82 AND THEN 10 YEARS FROM NOW AND ULTIMATELY THEIR COMPENSATION, BUT THIS SEEMS TO
ME TO BE A NARROW REQUIREMENT WHICH IS YOU HAVE TO, YOU HAVE TO TELL HER, JUST LET ME
GET THE. CHIEF JUSTICE RABNER: YOU MAY NOT HAVE THE RIGHT TO TURN.
JUSTICE PATTERSON: YOU MAY NOT HAVE THE RIGHT TO TURP, THERE'S NO REQUIREMENT THERE THAT YOU
HAVE TO GO THROUGH SOME SORT OF DECISION CHART TO FIGURE OUT WHAT COULD HAPPEN DEPENDING
ON THAT WHAT SHE DECIDES. MARC H. ZITOMER: I THINK THAT'S THE QUESTION
ON THE SABLE, IF CAN HE DEN DO TO FOR WHATEVER REASON, WE DON'T GIVE HER THIS NOTIFICATION.
CHIEF JUSTICE RABNER: RESPECTFULLY I DON'T UNDERSTAND HOW THAT'S A QUESTION
ON THE TABLE THAT. ISN'T THE QUESTION ON THE TABLE OF IS THE DUT TOE TO NOELT IF I
APPROPRIATE, IS IT GROUNDED IN LAW, YOUR FIRST ARGUMENT, NOT THE PARADE OF HORRIBLES IF
MIGHT FOLLOW IF IT ISN'T FOLLOWED, THAT'S NOT THE QUESTION, THAT THE NOT WHAT THE COURT
HELD. MARC H. ZITOMER: UNDERSTOOD, BUT THE POINT IS IF WE ALLOW THE APPELLATE
COURTS TO NOW READ THE TENURE ACT IN GENERAL, VERY LARGE STATUTORY SCHEME TO IMPOSE THOSE
NOTICE REQUIREMENTS, I UNDERSTAND IT'S NOT ON THE TABLE TODAY BUT I'M WE DO HAVE TO THINK
ABOUT THE IMPLICATIONS OF THAT TYPE OF HOLING. JUDGE SABATINO: WENT IT
WHEELED HOUSE AND THE COMMISSIONER, WE DON'T HAVE ANY P EVIDENCE BEFORE US THAT THE NARROWLY
DEFINED NOTICE REQUIREMENT HERE WHICH THE COMMISSIONER FIRST ADOPTED AND THE APPELLATE
DIVISION RATIFIED IS UNDULY BURR DUMB SUM, WE DON HAVE THE SKOL BOARD ASSOCIATION SITTING
WITH YOU TODAY SAYING OH, MY GOSH, THIS A STATEWIDE PROBLEM, THIS IS TERRIBLE BURDEN,
I DON'T KNOW IF YOU REPRESENT OTHER SCHOOL BOARDS, I PRESUME YOU MIGHT HAVE. BUT WHERE
IS THE EVIDENCE THAT THE COMMISSION NEVER MISJUDGED HOW BURDENSOME THIS WOULD BE?
MARC H. ZITOMER: I DON'T THINK THE ISSUE OF BURDEN EVER CAME UP ON THAT THE ROAR
BELOW. JUDGE SABATINO: YOU ORGED THIS THITSDZ A TERRIBLE BURDEN.
MARC H. ZITOMER: POTENTIAL BURR DEP AND I THINK IT HAS SERIOUS LEGAL RAMIFICATIONS IS
THE POINT BECAUSE I LIKE I SAID BEFORE, I COULD SEE EVERY TIME WE DON'T NOTIFY AN EMPLOYEE,
FOR INSTANCE, YOU'RE TAKING A FAMILY MEDICAL LEAVE, HOOPS HAUM THE TIME IN SCHOOLS, YOU'RE
TAKING AT A FAMILY MEDICAL MREEFSH, MREESD RUNDZ IF YOU TAKE THIS FAMILY MEDICAL LEAVE
AND EGS STEP THE FOR X NUFB WEEKSON THAT, THAT MAY STOP THE TENURE CLOCK, THAT WAS THE
KLUTZ KIN CASE BEFORE THIS COURT, THERE WAS NOTHING IN THERE THAT SAID WE HAVE TO SIT
DOWN WITH THE EMPLOYEE AND ADD SLIDES THEM, THEY'RE MEMBERS OF UNITS, #24E6 THEIR OPEN
LEGAL COUNSEL TO ADVISE THEM. I UNDERSTAND TRANSPAR KEN REN SEE, WE BROUGHT THAT UP
BEFORE, HIENL WE HAVE TO ASK THE QUESTION BEFORE DOES THE ONUS FALL ON THAT THE EMPLOYEE
AND ET BIGGEST LABOR UNITY STATE IN TERMS OF ADD ZIEZING THEIR EMPLOYEES ALSO, IMPOSE
NEW LEGAL DUT TOES ON THAT BOARDS THAT DOESN'T EXIST IN THE STATUTE. JUDGE
SABATINO: WHY WAS THE COMMISSIONER ASH TWRAER AND KA FLEESHS EE VOOL WAITING I WAS THE
THINGS YOU'RE SAYING AND THE 0 SIDE OF IT. MARC H. ZITOMER: THEY SAID WE HAVE
THIS BRIDGEWATER CASE THAT LOOKED AT A STATUTE THAT HAD THE WORD DEBTS SIGNAL 98 THAT,
WE'RE GOING TO EXTRAPOLATE THAT NOW TO I AM POETS A DUTY ON BOARDS CHF IS NOT FOUND IN
TITLE 18A. JUSTICE SOLOMON: DOES A PART-TIME TEP YURED POSITIONED TEACHER
HAVE ALL THE RIGHTS OF A FULL-TIME TEP YURED TEACHER? MARC H. ZITOMER:
YES. ABSOLUTELY. JUSTICE WAINER APTER: NO TO HEALTH BENEFITS.
MARC H. ZITOMER: THAT'S A CONTRACT ISSUE. SO THEY COULD BY VIRTUE OF COLLECTIVE BAR GONING
AGREEMENT IF YOU WORTH A TLESH OILED CERTAIN NUMBER OF HOURS, THAT'S NOT STATUTORY,
FEDERAL HEALTH CARE LAWS BUT GENERALLY A CONTRACT ISSUE. JUSTICE PIERRE-LOUIS:
BEING A PART-TIME EMPLOYEE FOR THIS PARTICULAR PLAINTIFF DID NOT AND CLUED THOSE
CONTINUATION OF THOSE HEALTH BENEFITS. MARC H. ZITOMER: THAT'S RIGHT.
JUSTICE PIERRE-LOUIS: SHE GOT THEM. JUSTICE PATTERSON: THAT'S
THE C BA? MARC H. ZITOMER: ALSO HAVE TO BY THE FACT THEP HAD ADDITIONAL
POSITION WITH TEAM LEADER AND SO SHE GOT SOME ADDITIONAL HOURS AS A RESULT BENEFITS AS A
RESULT OF THAT. CHIEF JUSTICE RABNER: HOW DOES A PART-TIME TEP YURED
TEACHER ACHIEVE A FULL TIME TEACHING POSITION? MARC H. ZITOMER: THEY CAN
APPLY. THEY CAN APPLY. IF YOU'RE HIRED AS A PART-TIME FEATURE, IF YOU WORK THE
RECOLLECTION KWI SILT YEARS OF SERVICE, NOURTS '4-YEAR AND A DAY, YOU BECOME TENURED AS
A TEACHER. IF A TEACHER WANTS TO THEP APPLY FOR A FULL-TIME POSITION THAT OPENS UP, THAT'S
THEIR RIGHT TO DO SO AND IF THEY GET IT, TERRIFIC. AND ONCE THEY'RE -- HAPT APARTMENT
DOES THE TEP YUR HELP THEM TO DPET IT, THE WHOLE POINT OF FEP YUR IS THAT IF THEY ARE
APPLYING FOR THIS POSITION THEY SHOULD GET PREFRTS OVER PEOPLE WHO DON'T HAVE TENURE.
MARC H. ZITOMER: TEP YUR DOES NOT HELP THEM GET THE FULL-TIME JOB, THE
FACT THEY'RE 10 NURD INJURED DID NOT HELP THEM GET THE FULL TIM POSITION. TEP YER GIVES
EMPLOYEES JOB PROTECTION, JOB SECURITY AGAINST UNLAWFUL TERMINATIONS OR REDUCTIONS IN
COMPENSATION. BUT IT WOULD NOT GIVE SOMEBODY A PREFERENCE NECESSARILY TO HAVE A FULL-TIME
JOB. MAT PAT IT WOULD GIVE A PREFERENCE TO A FULL-TIME TENURED, WHAT WOULD BE THE RIGHTS
OF A FULL-TIME TENURED TEACHER WHO WAVENTED A PARTICULAR FULL-TIME JOB VERTSZ THE PART
TIME FELONY YURED EMPLOYEES. MARC H. ZITOMER: A FULFILL TECH YURED TEACHER
COULDN'T BE REDUCED IN XEN OCCASION, REDUFRD IN HOURS WITHOUT GOING THROUGH THIS RIFF
PROCESS AND OF COURSE WE HAVE TO MRIM 98 THE NONTER 81ED FOLKS THEIRS, WE HAVE TO REDUCE
OTHER FOLKS HOURS SO THEY WOULD HAVE CERTAINLY PREFERENCE TO NONTENURED EMPLOYEES. MAT
PAT WHAT ABOUT IF THEY'RE SEEKING A JOB, THERE'S A PRESCHOOL JOB ABOUT TO OPEN THAT'S
FULL TIME, IT'S IN DEMAND, A NUMBER OF PEOPLE WANT IT. DOES THE FULL TIME TENURED TEACHER
FROM A DIFFERENT HE WILL MEP TREE SCHOOL OR SOME OTHER JOB HAVE ANY PREFERENCE OVER OTHER
APPLICANTS? MARC H. ZITOMER: THEY WOULDN'T HAVE ANY PREFERENCE OVER ON THE
APPLICANTS. JUSTICE WAINER APTER: WHO ARE NONTENURED. MARC H.
ZITOMER: OVER ANYBODY. THEY HAVE A RIGHT AT THE POSITION THAT THEY'RE IN. AND THE LAW
IS CLEAR THAT THE BOARD HAS A RIGHT TO TRANSFER AND REASSIGN EMPLOYEES, TENURED EMPLOYEES
AS WELL WITH THAT THE SCOPES OF THEIR CERTIFICATION. CHIEF JUSTICE
RABNER: YOU AUS UNDER THE LAW SOMEONE LIKE MS. PAR SAYS COULD REMAIN THE PART TIME TEEP
ERR FOR THE REST OF HER SERVICE. MARC H. ZITOMER: UNLESS WE DECIDE WE'RE
GOING TO ELIMINATE THE POSITION FOR IGS REASONS OF POSITION OR ECONOMY OR BRING HER UP
ON TENURE CHARGES FOR UNBECOMING CONDUCT ESSENTIALLY. JUSTICE FASCIALE:
CAN YOU CLARIFY FOR ME, AT SOME POINT SHE WAVENTED TO CONTINUE PART TIME WITH BENEFITS,
THE BOARD SAID NO, YOU CAN STAY PART TIME WITHOUT BENEFITS OR GO BACK FULL TIME. SHE
EXTENTED HER MATERNITY LEAVE FOR ANOTHER YEAR. AND THEN SHE WAS NOT GIVEN THE OPPORTUNITY
TO RETURN FULL TIME. WHAT HAPPENED BETWEEN THE TIME ON THE BOARD OFFERED
HER TO RETURN FULL TIME AND THE TIME WHEN THE BOARD SAID YOU CANNOT RETURN FULL TIME?
WE KNOW AFTERWARDS, OF COURSE, THERE WERE SIX SLOTS AVAILABLE BECAUSE SHE APPLIED. MY
QUESTION IS WHY WAS THE BOARD WILLING TO GIVE HER FULL TIME AT ONE POINT BUT NOT FULL
TIME AT ANOTHER? MARC H. ZITOMER: MY RECOLLECTION AND I'M NOT 100 PERCENT
POSITIVE, I THINK THERE WAS A POSITION THAT OPENED UP THAT THEY FELT WAS SUITABLE FR HER
SKILL SET. AND AGAIN TO THE ISSUE OF WAIVER, SHE WAS GIVEN AN OPPORTUNITY TO GO BACK
TO THAT FULL-TIME POSITION AND DECLINED. NOW, SHE WAS HON A BREEFRD ELIGIBLE LIST, IF
SHE HAD BEEN REDUCED BY US AND DECLINED, THE LAW IS PRETTY CLEAR THAT SHE WOULD HAVE HAD
WAIVED HER RIGHTS. I WOULD SAY THE SAME PROMISE, SHE WAIVED HER P RIGHT TO THE FULL-TIME
JOB FASH FASH DID THE BOARD P SAY TO HER IF YOU DON'T GO BACK TO FULL TIME ALL BETS ARE
OFF. YOU DON'T HAVE A RIGHT TO TURN. MARC H. ZITOMER: I DON'T BELIEVE SO
NO. CHIEF JUSTICE RABNER: ISN'T KNOWING A KNOWING RELINQUISHMENT OF A RIGHT?
MARC H. ZITOMER: SDWRSHGS IT IS, JUSTICE, IT IS, IF YOU READ HER LETTER
I THINK IT, SHE DID REFERENCE THE FACT THAT, YOU KNOW, AT SOME POINT IN THE FUTURE SHE
MIGHT LIKE TO RETURN TO HER JOB. SHE HAD COMPETENT ASSOCIATION REPRESENTING HER IN
THIS PROCEEDING TO ME. I THINK IT WAS KNOWING THERE WERE NO CONDITIONS NO STRNGS ATTACHED
AND THE RESOLUTION THAT MADE HER A PART-TIME EMPLOYEE DIDN'T SAY WE'RE MAYBE K YOU A
PART-TIME EMPLOYEE SUBJECT TO MS. PARSELLS AT SOME POINT TWO YEARS FROM NOW WANTING HER
FULL-TIME JOB BACK, IT WAS PRETTY STRAIGHTFORWARD. JUSTICE WAINER
APTER: DID SHE AP MRI FOR THE PART-TIME POSITION? SIT IS THE YOU MEEP WAS THERE A FORMAL
APPLICATION PROCESS INITIAL, IS THAT THE QUESTION. JUSTICE WAINER APTER:
CORRECT. MARC H. ZITOMER: NO, I DON'T THINK SO, BECAUSE SHE WAS AN INTERNAL
CANDIDATE IT WAS A LESS FORMAL PROCESS, THEY HAVE THE SYSTEM CALLED APPLE TRASHGS YOU
PUT YOUR NAME INTO THE COMPUTER AND I THINK THAT'S WHAT HAPPENED HERE. I DON'T THINK
IT WAS THAT FORMAL. FASH FASH BUT. JUSTICE FASCIALE: THE BOARD STILL HAD
A TO APPROVE IT. IT WASN'T JUST SUPERINTENDENT ON. MARC H. ZITOMER: YEAH,
RIGHT, HER NAME AND WEFR THE RESOLUTION IN THE WORD, THE SUPERINTENDENT RECOMMENDED IT
BECAUSE ALL PERSONNEL AKS HAVE BEEN TO BE RECOMMENDED BY THE SUPERINTENDENT AND THEN IT
WAS APPRISED BY THE BOARD OF EDUCATION, SHE RECEIVED A LETTER THE NEXT DAY SAYING YOU'VE
BEEN APPROVED ARS A PART-TIME EMPLOYEE FOR THE 16-17 SCHOOL YEAR. JUSTICE
SOLOMON: SDIT THE MA, THE ALJ BUT SERPLY THE COMMISSIONER CONCLUDED THAT HER REQUEST TO BE
NF A TEMPORARY IN, A PART-TIME MISSION WHICH THEY BOTH CONCLUDED THAT THE TEACHER SPECIFICALLY
SAID TEMPORARILY, IT WAS ALSO CONDITION THE UPON HER RECEIVING HEALTH BENEFITS. THAT'S
WHAT THE COMMISSIONER FOURNSD I BELIEVE THAT'S WHAT THE ALJ FOUND AS WELL.
MARC H. ZITOMER: THAT'S RIGHT. JUSTICE SOLOMON: DOES THAT MATTER BECAUSE
THEY WERE TAPE AWAY FROM HER. MARC H. ZITOMER: SHE DID TESTIFY THAT HAD
SHE KNOWN SHE COULDN'T DPOE BACK FULL TIME OR SH WOULD SOMEHOW LOSE HER BETS FITS IN THE
#2350U7 CHER SHE WOULD HAVE NEVER ACH APPLIED FOR THE PART-TIME POSITION. SCYTHE THAT'S
WHAT THE RECORD ESTABLISHED. JUSTICE SOLOMON: THEY FOUND HER TO BE
CREDIBLE AND THEY FOUND THAT THE BOARD KNEW OR AT LEFT THEY CONCLUDED THAT THE BOARD KNEW
THAT SHE WAS REQUESTING A TEMPORARY ASSIGN IT, TEMPORARY TO BE PART TO MY ON TEMPORARY
BASIS AS LONG AS SHE RECEIVED HEALTH BENEFITS. MARC H. ZITOMER: I DON'T KNOW
THAT THE WORD ESTABLISHED THAT WE KNEW. JUSTICE SOLOMON: THE DMIGS XHER
NAD CLEAR THAT HER INTEREST IN FAMILIARITY TIME POSITION WAS TEMPORARY AND CONTINGENT
ON THE INCONTINUED P INCLUSION OF HEALTH BENEFIT, DOES THAT MATTER, THAT FINDING WAS
MADE, DOES THAT MATTER? MARC H. ZITOMER: THAT GOES BACK TO MY ARGUMENT IF
WE'RE GOING TO HOLD NN PARTICULAR CASE WITH RESPECT TO THIS PARTICULAR EMPLOYEE THAT
THERE REALLY WASN'T THIS KNOWING WAIVER, SHE THOUGHT FOR WHATEVER REASON AND WE JUCHTD
STOOD THAT SHE WANTED ALT SOME POINT IN THE FUTURE TO DPOE PACK TO HER FULL-TIME JOB,
THAT'S FINE, THE COURT AND COMMISSIONER KOFR PUT HER BACK AND WE PROBABLY WOULDN'T BE HERE
DACHLT THE PROBLEM IS THEY'VE NOW IMPOSED A LEGAL DUTY BASED ON IN MY VIEW AN ERRONEOUS
INTERPRETATION OF THIS COURT'S HOLDING IN BRIDGEWATER. JUSTICE WAINER
APTER: THE COMMISSIONER'S ORDER WAS THAT SHE BE PUT BACK TO HER JOB, I'M READING JUST
FROM THE LAST LINE, TR DECISION OF O A L IS, REEN STATES THILTS POSITION IN OTHER WORDS
AGS A FULL FILE TEEP RET TREE TROK TO THE TWOJ TWEENL 2019 BY WITH WUL KNACK A MONTHLY
MEPTS OF EMPLOYEE LESS MITIGATION, IF THREW NO PROBLEM WITH THAT, WHY DID YOU APPEAL?
MARC H. ZITOMER: BECAUSE OF THE ISSUES THAT SHE RAISED WITH RESPECT TO THE
BRIDGEWATER CASE. THAT THE COMMISSION NEVER OF THIS CASE SAYS THAT WE NOW HAVE TO NOTIFY
EMPLOYEES IN THE SCENARIOS, CREATING A DUTY, AN OBLIGATION ON BOARDS TO OF NOTIFY IN THE
AB SEVENS OF ANY PARTICULAR STATUTE. SO THAT'S WHY WE APPEALED. I WOULDN'T HAVE, IEPG
WHAT YOU'RE GOING TO ASK WOULD I ACCEPTED IT ON THE LAST PARAGRAPH WITHOUT ALL THE
BRIDGEWATER STUFF. JUDGE SABATINO: YEAH, IF WE VACATED HYPOTHETICALLY VACATED
THE RULINGS OF THE COMMISSION THEY ARE AND THE APPELLATE DIVISION AFFIRMING AN A FIFRM
TIFF DUTY BUT REACHED THE SAME RESULT WAS BECAUSE WE'RE SFD ON THE RECORD SHE NEVER NOIGLY
WAIVED HER STATUS, YOU COULD LIVE WITH THAT OUTCOME. MARC H. ZITOMER: WHY
WERE HAVE MUCH LESS HE SHALL WITH THAT. JUDGE SABATINO: AND TENSIVE FOR
WELL ADVISED SCHOOL DISTRICTS TO PROVIDE NOTICE ANYWAY AND TO ESTABLISH FACTUALLY THAT
THERE IS A KNOWING WAIVER BECAUSE SHE LAID THE OUT IN THE LETTER WHEN A DECISION IS MADE.
MARC H. ZITOMER: TRANSPARENCY, WE TAUKTD ABOUT THAT EARLIER AND IN A PERFECT
WOFRLD IN A SUPERINTENDENT HAD CONSULTED ME OR ANOTHER SUPERINTENDENT HAD CONSULTED ME
ON THE ISSUES, I WOULD TELL THEM SEND AND SOMETHING COULDN'T FIRST OF ALLING IN
WRIELTING WHAT THE UNDERSTANDING IS. THE. JUSTICE WAINER APTER: JUST TO
MAKE SURE I UNDERSTAND. I UNDERSTOOD THE COMMISSIONER'S HOLDING AND JUST FROM THE
COMMISSIONER'S DECISION, THE BOARD VIOLATED THIS MS. PARCEL'S RIGHTS BECAUSE SHE HAD NEVER
RELINQUISHED HER TWIPTD 288 AND THERE WAS NO KNOWING P VOLUNTARY WAIVER OF HER FULL TIME
RIGHTS AND SO SHE DESERVED TO HAVE THE OPPORTUNITY TO HAVE HER FULL-TIME JOB BACK.
JURY SAYING THAT YOU UNDERSTOOD IT NOT ONLY TO BE SAYINGLY THAT WHICH YOU DON'T OBJECT
TO, BUT ALSO TO BE CREATING WHAT YOU'RE CALLING SOME SHORT OF ABSTRACT LEGAL RIGHT THAT
HAD NO BATDZ IN THE STATUTE AND THAT'S OPENLY PART YOU'RE SUP SET ABOUT. MARC
H. ZITOMER: PRIMARILY. JUSTICE SOLOMON: WHERE DOES THE COMMISSIONER'S
DECISION SAY THIS, I KNOW THEY COULD CITE TO BRIDGEWATER, BUT WHEN THEY REACH THEIR
CONCLUSION, THEY DON'T RELY ON, THEY DON'T I AM POLLS THAT AS A SOME KIND OF A RIGHT AKIN
TO WHAT WAS FOUND IN THE STATUTE IN BRIDGEWATER, POP REVIEW OF THE DECISION WE, AND FINE
THE PETITIONER DID NO IN NOT, AUM HE SAYS, DID NOT KNOWINGLY VOLUNTARILY WAIVE HER RIGHT
TO A FULL-TIME POSITION AND THE COMPENSATION ASSOCIATED WITH IT. SHE'S THEREFORE ENTITLED
TO RETURN TO A FULL TIM POSITION AND NEVER MEPGSS BRIDGEWATER AGAIN AS FAR AS I RECALL.
MARC H. ZITOMER: IF YOU LOOK AT PAGE 6 OF THE COMMISSIONER'S DECISION, THE
COURT AND I BELIEVE THEY WERE TAUBLGING ABOUT BRIDGEWATER SHTHS YEAH, THE COURT SAYS IT
SAYS ON THAT PAGE 6 TOP PARAGRAPH THE FACT APARTMENT AT BEYOND THE PAGE 6 OF THE
COMMISSIONER'S DECISION? MARC H. ZITOMER: YES. JUSTICE WAINER
APTER: OKAY. SIT IS THE THE FAK THAT ET LEGISLATURE HAS NO EN TAKTED A STATUTE TO
DEFINE A BOARD OF EDUCATION NOTES OBLIGATIONS REGARDING CHAFRMS FROM FULL FIEM TO PART
-TIME EMPLOYMENT IS KNOWS DISPOTS TIFF IN LIGHT OF THE BROAD PURPOSE OF THE TEP YUR ACT.
JUSTICE WAINER APTER: COULDN'T THAT BE JUST NOT DISPOSITIVE OF WHETHER THEY HAD
KNOWLY VOLUNTARILY RELIVE WISHED HER RIGHT? OF. JUSTICE SOLOMON: AS FAR AS
I CAN TELL THAT'S WHAT THE CONDITION, COMMISSIONER SAID. OF. MARC H.
ZITOMER: THE APPELLATE DIVISION TOOK THE ONE STEP FURTHER. CHIEF JUSTICE RABNER:
THE THAT'S WHY WE'RE HERE. MARC H. ZITOMER: THE APPELLATE DIVISION DECISION
IS ON THE TABLE DAY. CHIEF JUSTICE RABNER: AND HERE WE ARE. IS THAT THE
PT A PT A YOU WOULD ONLY OBJECT TO THE ONE STEP FURTHER. SIT IS THE YOU'RE COUCH AGO
LITTLE MORE PLAQUE AND WHITE THAN I WOULD, IF THE XHILGS NIR SIMPLY BUT PUT HER BACK TO
WORK AND SAID SHE DIDN'T FULLY UNDER, THAT'S A FACTUAL ISSUES, IT'S THE NEW RULE OF LAW
THAT THE SCHOOL BOARD HAVE ISSUE AND IMPROPER PEFR EXTRAPOLATION OF THIS COURT'S HOLDING,
THIS COURT IN THE ROBBINSVILLE DPRAS TWOJ TWOENT, 227 NEW JERSEY GRANTED CERTIFICATION
TO CORRECT THE APPELLATE DIVISION'S OVERLY BROAD AND MISTAKEN READING OF AN APPELLATE
COURT DETERMINATION, I'M SORRY APPELLATE CAN THE OR DORT TERP HAGS OF THIS COURT'S HOLDING
I WOULD RESPECTFULLY REQUEST THIS COURT REVERSE THE APPELLATE DIVISION IN THIS CASE BECAUSE
OF THE OVERBROAD RAIDING AS WELL. PAT PAY WITH A INSEN CIVILIAN CREATE BY THIS EXPERIENCE
NOT THAT YOU'RE P ENJOYING THIS AFTERNOON, BUT IP SEN CIVILIAN P CREATE BY THIS CASE, I'M
NOT ASKING TORE YOUR LEGAL ADVICE, BUT YOU HAVE NO PROBLEMS WITH THE BOARD MAKING A PRACTICE
OF IN THEIR LETTER SAY LONG WE'RE GOING TO GRAPTS YOU A PART-TIME POSITION OR IN THEIR
LETTER SAYING THIS WILL ACKNOWLEDGE YOUR REQUEST PURSUANT TO STATUTE THAT JUST HIS WAINER
APTER WAS TALKING ABOUT, YOU NOSE PROVIDED US WITH A SENTENCE THAT SAID PLEASE BE ADVISED.
MARC H. ZITOMER: ISN'T HAD A PERFECT WORLD THAT'S EXACTLY WHAT I WOULD
LIKE TO HAPPEN THE THAT'S HOW I WOULD ADVISE MY XHIENT, TO THE JUSTICE'S POINTS BE OPEN
AND TRANSPARENT. AGAIN A LOT OF MOVING PARTS IN THE SCHOOL, IT SDVEN ALWAYS HAPPEN
UNFORTUNATELY. JUSTICE PATTERSON: YOUR CERTAIN AS YOU'VE BEEN ARTICULATING
IT, IS IF THERE'S AN UNSTATED OBLIGATION WITH PARTICULAR NOTICE REQUIREMENT, THAT'S NOT
GROUNDED IN ANY ONE OF THE STAFRPTS, EITHER OOEP A OR THE TEP YUR ACT, THENTS' REALLY
LARD TO SEE WILL THAT WHERE THAT STOPS. MARC H. ZITOMER: CORRECT, EXACTLY
CORRECT. CHIEF JUSTICE RABNER: SHOULD THE COURT BE CONCERNED THAT WITH
THE NUMBER OF SCHOOLS THAT EXIST THAT THE MESSAGE WOULD NOT GET ACROSS AND THAT TEEP
CHERTS WOULD BE LEFT IN THE DARK IN MANY INSTANCES WITHOUT FSHLTHS WE DON'T FOLLOW THE
DUTY TO NOTIFY. MARC H. ZITOMER: I THINK THE ANSWER TO THAT QUESTION LIES
DOWN THE STREET WITH THE LEGISLATURE. THE LEGISLATURE IN LOTS OF STATUTES IN FIELT 18A
HAS IMPOSED NOTICE REQUIREMENTS T 18A 27-TEP SAYS A BOARD OF EDUCATION BY MAY 15TH HAS
TO NOTIFY NONTENURED EMPLOYEES WHETHER THEY'RE GOING TO BE REEMPLOYED FOR THE NEXT SCHOOL
YEAR. AND IF WE DON'T, BY THE WAY, THEY GET A YOB, THEY DPET CONTRACT FOR THE NEXT SCHOOL
YEAR. THAT'S A NOTICE REQUIREMENT SET FORNL BY LEGISLATURE, THE IF THE LEGISLATURE WAPTS
TO DEAL WITH THIS SITUATION, THEY CERTAINLY CAN. CHIEF JUSTICE RABNER:
A VERY FAIR ARGUMENT FOR YOU TO THERE'S NO LEGAL BASE FOR THE TUT TEE TO NOTIFY THAT JUVENT
LYING THE HOLING HERE. YOU EARLIER SAID, THOUGH, THAT THIS EMPLOYEE CAN GO TO THE TEACHER'S
UNION AND ASK THEM FOR ADVICE, YET IN RESPONSE TO JUST HIS WAINER APTER'S QUESTIONS EARLIER,
YOU SAID TEACHER, IF SHE DID HER DUE DILIGENCE AND WENT LOOKING WOULD NOT FIND ANY GUIDANCE
FOR THAT QUESTION, NOT ON THE REGULARS, NOT IN THE TACHT THE NOWHERE THEY'RE. T.
MARC H. ZITOMER: I THINK THE "J E A TOERPS WOULD HAVE DONE THE TAPG THING I DID, LOOK AT
THE ALL THE CASE LAW AND FIGURED OUT WHAT THE PARTICULAR HANS IS TO THE PARTICULAR KWIGS.
AND I PROBABLY WOEF WOULD HAVE SAID IN THE ABS SENT, I DON'T WANT TO DI VUCH ANY
ATTORNEY/CLIENT ADVICE HEEFR BUT I WOULD HAVE LOOKED VEN SAID IN THAT SCENARIO OR WHERE
IT'S A VOLUNTARY SITUATION, EMPLOYEE DOES NOT HAVE A LEGAL ENTITLEMENT TO HAVE HER JOB
BACK UNLESS THERE'S HASN'T UNDERSTANDING RIGHT UP FRONT, I KNOW THAT'S WHAT WE'RE TALKING
ABOUT HERE AS TO WHAT THE EXPECTATION IS AND IF THE EX KT TAGS WAS THIS ONLY GOING TOK A
ONE YEAR AND GIVE YOU YOUR FULL-TIME JOB BACK IN A YEAR, THAT'S SHOULD HAVE BEEN CODIFIED
IN A LETTER THAT SHOULD HAVE PERHAPS BEEN INCLUDED IN THE BOARD RESOLUTION APPROVING IT
IN THE FIRST MACE, THEN THEN WILL WOULD HAVE BEEN A QUESTION. JUSTICE WAINER
APTER: PT COMMISSIONER DISAGREED, RIGHT. MANY. MARC H. ZITOMER: THE THE
ECONOMICS IN OTHER WORDS LOOK AT THIS BRIDGEWATER CASE AND EX STECHED THAT BASED AND TN YUR
ACT. JUSTICE WAINER APTER: I REED THE COMMISSIONER'S DECISION SAYING IN THIS
CASE SHE DID NOT KNOWINGLY RELINQUISH HER RIGHTS. AND TLFRP SHE HATS TO BE PUT BACK AS
TO EXACTLY WHERE SHE WAS BECAUSE THERE WAS NO KNOWING RELIPG WISH MENT. MARC
H. ZITOMER: THE COMMISSIONER'S FOCUS WAS PRIMARILY ON THE WAIVER ISSUE AND THEN THE
INTERPRETATION OF THE TENURE ACT AND THEN BRIDGEWATER, THEY LOOK AT THAT AS WELL.
JUSTICE PATTERSON: LET ME ASK YOU, OBVIOUSLY THERE'S A YEAR TO YEAR EMPLOYMENT,
THERE'S A SCHOOL YEAR, IT'S A DISTINCT TIME PERIOD UNLESS SOMEONE IS ON, ON LEAVE OR
RESIGNS OR WHAT DWREFR. OEF IT SEEMS TO ME THAT THERE HAS TO BE SOME WAY OF CREATING ORDER
IN SITUATIONS WHERE SOMEONE P LEAVE AS POSITION AND THEN RETURNS TO THE POSITION THAT
DOESN'T GET THE PERSON WHO TOOK THAT POSITION THROWN OUT IN JANUARY AND DOESN'T HAVE THE
DISRUPTION TO THE STUDENTS THAT MAY HAPPEN. WHERE IS THAT FOUND IN THE LAW
THAT GOVERNS SCHOOL BOARDS? IN OTHER WORDS, IF SHE WERE, IF SHE WERE GIVEN A PART-TIME
POSITION AND THEN TOLD YOU CAN COME BACK TO, YOU KNOW, YOU MAY COME BACK TO YOUR FULL-TIME
POSITION, JUST HYPOTHETICALLY, WHERE WOULD IT BE, WHERE WOULD IT BE STATED WHEN THAT WOULD
OI OCCUR? IT'S NOT THE MOMENT SHE WANTS TO COME BACK. MARC H. ZITOMER:
I DON'T THINK THAT REALLY IS ADDRESSED IN THE SCHOOL LAW, IT'S ONLY ADDRESSED IN THE
SITUATION I WAS DISCUSSING EARLIER WHERE WE IMPLEMENT A REDUCTION IN FORCE, IF A POSITION
THEN BECOMES, IF SOMEBODY IS ON, SAY THEIR POSITION HAS BEEN ELIMINATED EP TIRELY,
THEY'RE A TEACHER, SITTING HOME, AS SOON AS THAT POSITION BECOMES VACANT, WHENEVER THAT
IS, JANUARY, SEPTEMBER, OR WHATEVER, THAT'S WHEN THEIR ENTITLEMENT TO THAT POSITION WOULD BE
ESTABLISHED, BUT HERE WE'RE TALKING ABOUT A SITUATION WHERE THE POSITION IS NOW OCCUPIED
BY SOMEBODY ELSE. JUSTICE PATTERSON: YEAH, YEAH, I WAS JUST 1 DIRING
HOW THAT, THAT IS ONE RARE WHERE IT COULD BE REALLY DISRUPTIVE. MARC H.
ZITOMER: HAB RAB RACK ACHE WOULD YOU LIKE ADD THAT THAT POINT R. MARC H.
ZITOMER: HIGH APPRECIATE IT. MR. WECHSLER. TLIE KOUP STL ON OIS I'D FRTD OIR I ASK
YOU TO ADOPT ARGUMENTS TO MAKE SENSE IN THE INTERRUPT OF TIME AS WE PROESHGSD MREETSZ GO
AHEAD HOP T. WECHSLER: MAY IT PLEASE THE COURT AND MAY IT MAKE THE COURT VERY
HAPPY BECAUSE I WILL BE VERY, VERY BRIEF. I WILL RELY PRIMARILY ON MY BRIEF WHICH YOU
ALL HAVE READ AND JUST I WOULD LIKE TO JUST AMPLIFY A FEW POIPTS THAT YOU ALL DISCUSSED
IN THE LASZ INTERVAL. I WOULD ACTUALLY LIKE TO FWIN WITH JUST STIS FASH'S
POINT ABOUT FAIRNESS. THE RECORD IS CLEAR THAT UNDER THE FACTS OF THIS PARTICULAR
CASE, MS. PARSELLS'S SUPERINTENDENT AT THAT TIME WHO WAS THE PERSON WHO RECEIVED THE LETTER
EXPRESSING WHAT JUSTICESOME APTLY CHARACTERIZED AS MS. PARSELLS'S TEMPORARY INTENT HE
DID UNDERSTAND HOW TENURE LAW WORKED. HE TESTIFIED AT THE HEARING THAT HE HAD TAKEN AN
EDUCATION LAW COURSE THAT COVERED TENURE AN SENIORITY LAW AS PART OF HIS FWRAJ YACHT DPRE
PROGRAM BEFORE HE BECAME AN ADMINISTRATOR. ALSO, THERE IS A LOSE PUBLICATION
PUBLISHED BY A COMPANY CALLED KAL LIF PHENOMENON CONSULTANTS OUT OF WEST CALDWELL NEW
JERSEY. IT'S UPDATED EVERY YEAR AND IT'S CONSIDERED THE GOLD STANDARD FOR CASE LAW
UPDATES IN THOSE SUBJECT AREAS BY NEW JERSEY SCHOOL DISTRICTS AND THIS SUPERINTENDENT
TESTIFIED THAT HE HAD A COPY OF THIS PUBLICATION SITTING IN THE SCHOOL DISTRICT'S OFFICES
WHERE HIS OWN SUPERINTENDENT'S OFFICE WAS LOCATED. THIS WAS IN THE HEARING TRANSCRIPTS
THAT ARE PART OF THE RECORD. HE ALSO TESTIFIED, WHICH THE APPELLATE PANEL
NOTED IN ITS PUBLISHED DECISION THAT HE WAS UNAWARE OF ANY CIRCUMSTANCE IN WHICH A MOVE
TO PART TIME POSITION FROM A FULL TIME POSITION WAS CONSIDERED TEMPORARY. HE SAID THIS
AN YET HE READ MS. PARSELLS SELL'S LETTER ASKING TO MOVE TO A PART-TIME POSITION TEMP
ORARILY APPEND HE SAID NOTHING. HE NEVER TOLD HER THAT WAS IMPOSSIBLE. IN FACT, AS HAS BEEN
NOTED, HE RECOMMENDED TO THE BOARD THAT THEY' PROVED THE TRANSFER. MY ARGUMENT
COMES DOWN TO THAT UNLESS SCHOOL BOARDS HAVE A DUTY TO NOTIFY TENURED FULL TIME TEACHERS
ABOUT THE TENURE CONSEQUENCES OF THEIR TAKING PART TIME POSITIONS SCHOOL BOARDS WON'T
NOTIFY TENURED FULL TIME TEACHERS ABOUT THE TENURED CONSEQUENCES OF TAKING PART TIME
POSITIONS REGARDLESS OF HOW FEW TEACHERS THEY DO OR DON'T EMPLOY AND EVEN WHEN FACED WITH
CLEAR EVIDENCE THAT THOSE TEACHERS DOEPT UNDERSTAND THE CONSEQUENCES OR AS IN THIS
CASE DOEPT EVEN KNOW THAT TENURE IS AN ISSUE. IT WOULDN'T EVEN OCCUR TO THEM TO TALK TO
THEIR UNION OR TO REQUEST WITH AN ATTORNEY BECAUSE THEY DON'T KNOW THAT IT IS AN ISSUE
TO BEGIN WITH. WITH THE DUTY TO NOTIFY THE TEACHER BEFORE SHE TAKES THE
POSITION, THERE IS NO CONFUSION. SHE WILL EITHER TAKE THE POSITION OR NOT TAKE THE POSITION
AS MS. PARSELLS SAID SHE WOULDN'T HAVE TAKEN THE POSITION IN THIS CASE HAD SHE KNOWN,
BUT EITHER WAY, SHE WILL KNOW THE RISKS OR SHE WILL SEEK OUT AND GET MORE INFORMATION
ABOUT THOSE RISKS. WITHOUT ANY DUTY TO NOTIFY, WE WILL END UP RIGHT BACK HERE
FACING THE SAME ISSUE THAT THE COMMISSIONER AND THE COURTS HAVE FACED FOR MORE THAN 40
YEARS WHETHER A TENURED TEACHER VOLUNTARILY AN INTENTIONALLY WAIVED HER TENURE RIGHTS
THROUGH A QUEER UNEQUIVOCAL AN DECISIVE ACT. I WOULD ALSO LIKE TO ADDRESS
CHIEF JUSTICE RABNER'S QUESTIONS ABOUT WHAT IS SO HARD ABOUT THE DUTY TO NOTIFY. I
CAN TELL YOU SAL HOW SIMPLE IT CAN BE IN APPLICATION. I AM AWARE OF ONE SCHOOL BOARD
THAT BEGAN USING A SO-CALLED PARCELS NOTICE WITHIN WEEKS OF THE APPELLATE DIVISION'S ISSUANCE
OF ITS DECISION LAST JUNE, THE PARCELS NOTICE IN THAT CASE WAS AN E-MAIL FROM THE HUMAN
RESOURCE TREKT TORE NOTIFYING A TEACHER WHO HAD ASKED TO REDUCE HIS COURSE LOAD FROM FULL
TIME TO PART TIME FOR THE UP COMING SCHOOL YEAR THAT IF HE DID SO HE WOULD REMAIN TENURED
IN THE PART TIME POSITION BUT LOSE TENURE RIGHT TO HIS FULL TIME DECISION AND THAT E-MAIL
DIRECTLY CITED THE PARCELS DECISION. THAT SCHOOL BOARD WANTED CONFIRMATION OF THE TEACHER'S
IN TEPT IN WRITING BEFORE HE TOOK THE PART TIME POSITION IN ORDER TO AVOID THE POSITION
OF KAIT TEE PARSELLS SELLS. THAT SCHOOL BOARD LIKE ANY SCHOOL BOARD IF NOT
EVERY SCHOOL BOARD WANTED CERTAINTY. SO WHETHER OR NOT YOU DECIDE THAT SCHOOL
BOARDS HAVE A COMPULSORY DUTY TO NOTIFY FULL TIME TENURED TEACHERS WHO MOVE TO PART TIME
POSITIONS IN ENCASE, UPD THE FACTS AN CIRCUMSTANCES OF THIS CASE, MS. PARSELLS
WINCE. HER INTENT IN TAKING THE PART TIME POSITION WAS TECH RARE REAN SHE NEVER
KNOWINGLY OR VOLUNTARILY WAIVED HER FULL TIME TEN EVEN YOUR RIGHTS BUT IF YOU AFFIRM THE
PUBLISHED DECISION BELOW EVERYONE WINCE INCLUDING SCHOOL BOARDS BECAUSE THEY WON'T END
UP BACK HERE BEFORE YOU FORCING YOU TO DECIDE THE SAME ISSUE YOU'VE BEEN DECIDING FOR
THE PAST 40 YEARS SO I RESPECTFULLY ASK THAT THIS COURT AFFIRM THE DECISION BELOW.
THE COURT: SO I UNDERSTAND YOU'RE HERE REPRESENTING MS. PARSELLS. MAYBE YOU WANT TO
DEFER TO THE ATTORNEY GENERAL ON THIS QUESTION, BUT WHAT IS THE LEGAL BASIS THAT UNDERLIES
THE IMPOSITION OF THE DUTY TO NOTIFY. HOP T. WECHSLER: IN THIS PARTICULAR
CASE, I WOULD ALSO LIKE TO, FIRST OF ALL, I THINK THE APPELLATE DIVISION GOT IT RIGHT
THAT IT DOES ARISE OUT OF THE TENURE ACT, BUT I THINK SPECIFICALLY HERE, UNDER THE FACTS
OF THIS CASE, WE'RE REALLY LOOKING AT THE COMMON LAW OF WAIVER BECAUSE WE DON'T EVEN REACH
THE SPECIFICITIES. WE DON'T EVEN GET TO BRIDGEWATER IF WE DON'T GET TO -- IF WE CAN'T
GET PAST WAS THERE A KNOWING AN VOLUNTARY WAIVER, DID SHE KNOW OR DIDN'T SHE KNOW, DID
IT OCCUR TO HER OR DIDN'T IT. AND WE CAN SEE THIS. THERE ARE, I KNOW, MR.
LEONARDO FOR AMICUS N J E A MENTIONED R I C E NOTICES IN HIS BRIEF. THERE IS ALSO WOOIN
GART OR THE STATE VERSION OF WOOIN GART IN UMDNJ. THERE ARE LOTS OF CASES WHERE THE COURTS
WILL IMPOSE A NOTICE DUTY TO MAKE -- LET ME BACK UP. I MENTIONED IN MY BRIEF,
I USED THE PHRASE WHAT COURTS DO AND SPECIFICALLY I WAS REFERRING TO USING THE COMMON
LAW, IN THIS CASE THE COMMON LAW OF WAIVER TO FILL IN GAPS IN THE STATUTORY FRAMEWORK,
SPECIFICALLY FOR THE PURPOSE OF MAKING STATUTORY PROTECTIONS REAL AN NOT ILLUSORY. FAISH
FAISH I DON'T WANT TO INTERRUPT YOUR ANSWER TO THE CHIEF BUT. CHIEF JUSTICE
RABNER: GO AHEAD. JUSTICE FASCIALE: FOR GET ABOUT FILLING IN GAPS; OKAY?
HOP T. WECHSLER: OKAY. JUSTICE FASCIALE: THE CHIEF ASKED,
WHAT IS THE LEGAL BASIS TO IMPOSE A DUTY ON THE BOARD AND YOU SAID, WELL, IT ARISES OUT
OF THE TEP YOUR ACT, BUT IF NOT, IT'S A COMMON LAW OF WAIVER. WHAT ABOUT THE
COMMON LAW OF DUTY ITSELF? THE CHIEF ASKED YOU A QUESTION ABOUT THE LEGAL
BASIS FOR THE IMPOSITION OF A DUTY. HOP T. WECHSLER: UH-HUH.
JUSTICE FASCIALE: IF IT IS NOT THE TENURE ACT, IS IT THE COMMON LAW AND IS IT THEN REALLY
COMING DOWN TO NEGOTIATIONS OF FAIRNESS AND COMMON SENSE? HOP T. WECHSLER:
I WOULD ONE HUNDRED PERCENT AGREE WITH THAT. JUSTICE FASCIALE: THAT IS WHAT
THE COURT HAS DONE ALL ALONG IN TORT LAW WITH THE HOP KINS FACTOR. OF COURSE IT'S A DIFFERENT
SCENARIO, A NEGLIGENCE SITUATION. THIS IS NOT THAT. IF IT COMES DOWN TO A QUESTION OF
COMMON SENSE AN NEGOTIATION OF FAIRNESS, THEY SAY IT WOULD MAKE MORE SENSE FOR THE TEACHER
TO GO TO THE UNION, NOT TO THEM, TO BE WELL INFORMED ABOUT WHETHER VOLUNTARILY SWITCHING
FROM FULL TIME TO PART TIME MEANS THEY MAY NOT BE ABLE TO GO BACK. WHAT DO YOU HAVE
TO SAY ABOUT THAT? HOP T. WECHSLER: I WOULD SAY AS TO THE FACTS OF THIS
CASE, THEY ARE A PERFECT EXAMPLE OF HOW IT HAS TO OCCUR TO THE EMPLOYEE THAT IT IS A TENURE
ISSUE; THAT IT ISN'T SOMETHING ROUTINE THAT SHE DISCUSSES WITH ADMINISTRATORS AN HAS APPROVED
BY THE SCHOOL BOARD ON A ROUTINE BASIS; THAT IT HAS TO BE SOMETHING THAT RISES TO THE
LEVEL OF DESPITE WHAT POPULAR MANAGEMENT MYTH MAY BE, THE AVERAGE EMPLOYEE DOESN'T HAVE
THE UNION ON SPEED DIAL FOR EVERY SINGLE ISSUE THAT ARISES. THEY WOULD HAVE TO REALIZE
IT IS AN ISSUE TO BEGIN WITH BEFORE EVEN MAKING THAT PHONE CALL AND AS YOU SAID EARLIER,
YOUR HONOR, THE SCHOOL BOARD OR THE ADMINISTRATORS IN THIS CASE OUR IN THE BEST
POSITION BECAUSE THOSE ARE THE PARTIES WITH WHOM SHE HAS THOSE DAILY CONVERSATIONS ABOUT
THESE TYPES OF ISSUES. JUSTICE FASCIALE: SO IT'S NOT FILLING IN A GAP IN
THE STATUTE. IT IS IMPOSING A DUTY UNDER THE COMMON LAW ITSELF, WHICH WE'VE BEEN DOING
ALL ALONG BECAUSE THE IMPOSITION OF A DUTY IS A LEGAL QUESTION FOR THE COURT AND EVEN
WITHOUT REGARD TO WHAT THE TENURE ACT SAYS, THE IMPOSITION OF A DUTY HERE WOULD FOSTER
NEGOTIATIONS OF FAIRNESS AND COMMON SENSE IF THE BOARD, THE BOARD ENTRUSTED WITH MAKING
THE ULTIMATE DECISION ABOUT WHETHER THIS INDIVIDUAL CAN RETURN TO A FULL-TIME TENURE
POSITION GETS THAT RIGHT. IT WOULD MAKE MORE SENSE FOR THEM, ESPECIALLY WHEN BALANCING
THE BURDENS THAT MAY OR MAY NOT REST ON THE BOARD, TO HAVE THAT OBLIGATION, RIGHT?
HOP T. WECHSLER: I COULDN'T HAVE SAID IT BETTER MYSELF. JUDGE SABATINO:
MR. WECHSLER, WHAT IF THE COURT DID NOT IMPOSE ANY DUTY AT ALL. WHAT IF IT DID NOT IMPOSE
A DUTY UN THE STATUTE, DID NOT IMPOSE A DUTY UN THE COMMON LAW, BUT HELD THIS, THAT IN
ORDER FOR THE TENURED TEACHER TO WAIVE HER RIGHTS, THE BOARD MUST SHOW ACTUAL KNOWLEDGE;
AND, IF WE SAID THAT THE WAY TO EVIDENCE ACTUAL KNOWLEDGE IS THAT THE BOARD SUPPLY IN
WRITING SOMETHING THAT SPELLS IT ALL OUT. YOU WOULD BE IN THE SAME POSITION,
WOULDN'T YOU, WITHOUT THE CONCERN ABOUT EITHER THE COMMISSIONER OR THE COURT OVERRIDING
LEGISLATIVE PREROGATIVES, BUT IF WE SET IT OUT THAT WAY, WOULD THAT BE UNSATISFACTORY?
HOP T. WECHSLER: JUDGE SABATINO: ACTUAL KNOWLEDGE IS NEEDED.
HOW DO THEY SHOW IT, IF THEY PRESENT A LETTER AND THEY LAY IT OUT, WILL THAT SUFFICE?
HOP T. WECHSLER: THE RESULT WOULD BE THE SAME AND I THINK THAT'S WHERE
I ENDED, TOO, THAT THE RESULT WOULD BE THE SAME, BUT IT WOULD BE A LOT MORE LEG WORK ACTUALLY
ON YOUR END, IT WOULD BE A LOT MORE LEG WORK ON THE COURTS THAT IS EFFECTIVELY THE STATUS
QUOTE AUNT AT THE IN WHAT YOU HAVE COMPARED WITH THE PUBLISHED DECISION AND YOU GET THE
SAME RESULTS WHERE THERE WAS NO KNOWING AND UNEQUIVOCAL WAIVER AS IN THIS CASE, YOU JUST
HAVE TO DO ALL THE LEG WORK TO GET THERE CLOP A N T E CLOP. JUSTICE PATTERSON:
LEG WORK ON THE PART OF THE COURTS? HOP T. WECHSLER: IN TERMS OF AN EVIDENTIARY
RECORD. IN TERMS OF A HEARING, TO BEGIN WITH, IN TERMS OF AS IN THIS CASE, IT WOULD BEGIN
WITH A PETITION OF APPEAL. JUSTICE PATTERSON: IT DOESN'T NECESSARILY MEAN
AN EVIDENTIARY ISSUE. IF THERE IS A DISPUTE LIKE THIS AND THERE IS A LETTER IN THE FILE
THAT WAS SENT TO THE TEACHER, AN E-MAIL OR WHATEVER IT MIGHT BE, THAT MAY BE A SUMMARY
JUDGMENT ISSUE ON THE ISSUE ISSUE OF NOTICE. HOP T. WECHSLER: IF THERE IS
AN UNEQUIVOCAL WAIVER, YOU'RE ABSOLUTELY CORRECT. IT WOULD DEPEND ON THE FACTS OF EACH
CASE. JUSTICE PATTERSON: YOU MENTION THE TENURE ACT AND THE APPELLATE
TWIGS MENTIONS THE TENURE ACT. TYPICALLY WHEN WE SEE RELIANCE ON A STATUTE,
WE SEE A SPECIFIC CITATION OF A PROVISION OF THAT STATUTE. WHAT PORTIONS OF THE
TENURE ACT ARE YOU RELYING ON? I KNOW YOU CAN'T SPEAK FOR THE APPELLATE
DIVISION. WHAT SPECIFIC PROVISIONS? HOP T. WECHSLER: I WILL
SPEAK FOR THE APPELLATE DIVISION TO THE EXTENT THAT I AGREE TO THE EXTENT THAT THEIR OPINION
SEEMS TO BE AIMED AT THE LIBERAL CONSTRUCTION AND THE IMPORTANCE OF TENURE AND HOW THE
COMMON LAW -- JUSTICE PATTERSON: I AM NOT ASKING YOU TO SPEAK FOR THE APPELLATE
DIVISION. YOU ARE SAYING BECAUSE YOU WERE ASKED AND YOU SAID THE TENURE ACT.
SO WHAT PROVISIONS OF THE TENURE ACT GUIDE US TO WHERE IN THE TENURE ACT WE
SHOULD BE LOOKING TO FIND THE SUPPORT FOR YOUR CONTENTION? HOP T. WECHSLER:
I THINK WE'VE -- RESPECTFULLY, I THINK WE'VE HEARD SOME PRETTY GOOD SUGGESTIONS HERE FROM
THIS PANEL TODAY BEGINNING WITH -- JUSTICE FASCIALE: MAY I.
JUSTICE PATTERSON: PLEASE. JUSTICE FASCIALE: IT'S PRETTY CLEAR THERE IS
NO EXPLICIT PROFESSION WITHIN THE TENURE ACT THAT REQUIRES THE BOARD TO NOTIFY THE FULL
TIME TENURED TEACHER BEFORE THAT TEACHER GOES PART TIME THAT THEY MAY NOT BE ABLE TO
RETURN. IT'S PRETTY OBVIOUS TO ME THAT THERE IS NOTHING IN THE TENURE ACT ITSELF THAT
EXPLICITLY SAYS THAT. ISN'T YOUR ANSWER THEN WHAT THE COURT ITSELF SAID IN
BRIJ, THAT WE HAVE PREVIOUSLY NOTED THAT KEEPING TEACHERS IN THE DARK AS TO THEIR EMPLOYMENT
STATUS EFFECTIVELY THE CASE THAT THE LEGISLATURE HAS ENDEAVORED TO ADDRESS BY THE TENURED
STATUTE ITSELF. THAT MAY INFORM THE POSITION OF A COMMON LIEU DUTY ITSELF BUT THERE IS
NO SPECIFIC PROVISION WITHIN THE ACT THAT ANYONE CAN POINT TO THAT EXPLICITLY SAYS THEY HAVE
TO TELL PARCELS SHE MAY NOT BE ABLE TO GO BACK. HOP T. WECHSLER: THAT'S
EXACTLY RIGHT. IT'S THE INTERPLAY OF THE COMMON LAW, THE COMMON LAW OF WAIVER AND ANYWHERE
ELSE YOU CAN GO WITH THAT THAT IS SPECIFICALLY WAIVER IN THIS CASE WITH THE TENURE ACT
TO MAKE THE PROMISES AND THE PROTECTIONS OF THE TENURE ACT REAL AN NOT I WILL LUS SORRY.
JUSTICE FASCIALE: IF I COULD JUST FINISH THE LINE OF QUESTIONING.
SO YOU'RE URGING US TO THEN SAY IT IS FAIRER TO HAVE THEM HAVE THE OBLIGATION TO NOTIFY
YOUR CLIENT, RATHER THAN THE UNION? HOP T. WECHSLER: I AM. JUSTICE
FASCIALE: THOSE ARE THE ONLY TWO PLACES SHE COULD GO. THERE IS NO RULE. THERE IS NO
STATUTE. THERE IS NOTHING THAT SAYS EZ -- NO REGULATION. NO LAW WHATSOEVER THAT WILL
TELL HER THAT SHE COULD GO LOOK UP ON HER OWN THAT WILL TELL HER YOU MAY NOT HAVE A RIGHT
TO RETURN TO YOUR FULL TIME POSITION. THE ONLY TWO PLACES SHE CAN GO ARE EITHER
TO HER EMPLOYER, WHO ULTIMATELY WILL CALL THE SHOTS, OR THE UNION AND THAT IS THE BASIS
FOR WHETHER SHE IS MAKING A KNOWING WAIVER OR NOT. HOP T. WECHSLER: CORRECT
AND THAT IS FAIRER TO GO TO THE EMPLOYER BECAUSE THEY ARE ALREADY PART OF THAT CONVERSATION.
IT WOULD HAVE TO OCCUR TO HER THAT THERE IS ANOTHER ISSUE FOR HER TO ADD THE UNION AS
A THIRD PARTY TO THAT CONVERSATION SFLFRMTHS OTHER QUESTIONS? IN. JUSTICE
SOLOMON: I ACTUALLY HAVE ONE MENT. DO YOU AGREE WITH YOUR ADVERSARY THAT
THE TENURE RIGHTS OF PART TIME TEACHERS ARE THE SAME AS THE TENURE RIGHTS OF FULL TIME
TEACHERS. HOP T. WECHSLER: NOT AT ALL. JUSTICE SOLOMON: WHAT
TENURE RIGHTS DOES A FULL TIME TEACHER HAVE THAT A PART-TIME TEACHER DOES NOT? THE.
HOP T. WECHSLER: THAT A PART-TIME HAS THAT A FULL TIME DOESN'T.
JUSTICE SOLOMON: THE OTHER WAY, THAT A FULL TIME HAS THAT A PART-TIME DOES NOT.
HOP T. WECHSLER: THE MAIN ISSUES THAT ARE RELEVANT TO THIS CASE ARE THE FIRST TWO
PLACES I WOULD BEGIN WHICH ARE COMPENSATION AN BENEFITS WHICH ARE KIND OF 1 A AND 1 B.
JUSTICE SOLOMON: BUT THOSE AREN'T TENURE ISSUES. HOP T. WECHSLER:
THE EXACT LEVEL OF -- IF WE ARE TALKING ABOUT COMPARABLE POSITIONS OR POSITIONS WITHIN
THE SCOPE OF SOMEONE'S CERTIFICATE SO WE'RE COMPARING APPLES TO APPLES, THEN THEY WOULD
BE -- THEY WOULD LIKELY FLOW FROM THE STATUTE AN NOT FROM THE CONTRACT OR THE SPECIFIC
DOLLARS AN CENTS WOULD BE PART OF THE CONTRACT. JUSTICE SOLOMON: I WANT
TO WAIT AN SEE WHAT THE A G HAS TO SAY ABOUT THAT. JUSTICE FASCIALE: IF
I COULD FOLLOW UP ON THAT QUICKLY. ON COMPENSATION, OBVIOUSLY THE BOARD CAN'T
REDUCE THE COMPENSATION OF A PART-TIME TENURED TEACHER JUST LIKE IT CANNOT REDUCE THE
COMPENSATION OF A FULL-TIME TENURED TEACHER. THEY DISTINGUISH THE DIFFERENCE BETWEEN
A TEACHER THAT HAS BEEN RESIST AND THIS TEACHER WHO VOLUNTARILY WENT FROM FULL TIME TO
PART TIME TO REMOVE THE ARGUMENT THAT THERE HAS BEEN AN R I F CLOP REDUCTION IN COMPENSATION
BECAUSE SHE CAN'T GO BACK TO A FULL-TIME JOB. HOP T. WECHSLER: CORRECT AN
THAT WAS THE POINT MR. ZITOMER WAS MAKING IN TERMS OF COMPENSATION CAN BE REDUCED IF
SOMEONE IS VOLUNTARILY GOING DOWN A LEVEL. THE ISSUE THIS IN THIS CASE IS WHETHER IT WAS
VOLUNTARY, WHICH IT WAS NOT. JUSTICE FASCIALE: RIGHT. JUSTICE
PATTERSON: GOING BACK TO THE ORIGINAL QUESTION THAT YOU WERE ASKED BY JUSTICE SOLOMON,
IF YOU HAVE COMPENSATION AN BENEFITS THAT ARE BETTER FOR FULL TIME AN FOR PART TIME, BUT
IN TERMS OF THE TENURE RIGHTS TO THOSE CONTRACTUAL RIGHTS, THE TENURE RIGHTS ARE
PARALLEL, AM I CORRECT. HOP T. WECHSLER: EXACTLY. JUSTICE
PATTERSON: THANK YOU. THE COURT: THANK YOU, COUNSEL. HOP T.
WECHSLER: THANK YOU. THE COURT: MR. WEBER. CHRISTOPHER WEBER:
GOOD AFTERNOON. MAY IT PLEASE THE COURT. I WOULD LIKE TO RESPOND
TO THE COURT'S VARIOUS QUESTIONS THIS MORNING. I WILL AGAIN BY SAYING OR SUGGESTING,
RATHER, THAT THE COURT SHOULD AFFIRM THE APPELLATE DIVISION'S DECISION IN LIGHT OF THE
REMEDIAL AND EXACTLY U TORE RENATURE OF THE TENURE ACT. WE AGREE WITH THE
APPELLATE TWIGS THAT ITS LIMITED RULING IN BRIJ WATER -- EXCUSE ME, I MISSPOKE, WE AGREE
WITH THE APPELLATE DIVISION'S LIMB ETD RULING THAT BRIJ APPLIES HERE IN LIGHT OF THAT
REMEDIAL NATURE OF THE TENURE ACT, BUT TO RESPOND TO THE CHIEF JUSTICE'S QUESTION AND
TO RESPOND TO SOME KWIRGS FROM JUSTICE WAYNE APT, WE DO BELIEVE THAT THERE ARE SOME STATUTES
THAT SHED SOME LIGHT ON THE ISSUE HERE TODAY. THE FIRST AN FOREMOST WAS REFERENCED
BY THE COMMISSIONER, THAT BEING 18 A:6-10. AS THE MISH IN HER COMMISSIONER
NOTED IN HER DECISION, A TEACHER CANNOT BE REDUCED IN COMPENSATION OR BE DISMISSED
WITHOUT WRITTEN CHARGES AN AN OPPORTUNITY TO BE HEARD SO IN OTHER WORDS, A TEACHER IS
ENTITLED TO NOTICE IN THAT CONTEXT AND THE COMMISSIONER DREW THAT PARALLEL HERE. SHE
NOTED THAT MS. PARSELLS WAS BEING REDUCED IN COMPENSATION THROUGH THE REDUCTION OF HER
HEALTH BENEFITS. SECOND, 18 A:28-8 IS INFORMATIVE, AS WELL BECAUSE IT AT LEAST
OFFERS SOME HAD ADDITIONAL GUIDANCE BY CODIFYING THE NEED TO VOLUNTARILY RELINQUISH YOUR
POSITION IN WRITING. SO THE FIRST STATUTE SPEAKS TO AN TITLE MENT TO NOTICE AN THE SECOND
STATUTE SPEAKS TO AN OBLIGATION TO VOLUNTARILY RELINQUISH YOUR POSITION. I THINK THAT
SETS UP THE ANALOGY WITH BRIJ VERY WELL HERE BECAUSE THE WORD NOTICE DOES NOT SHOW UP
IN THE REPLACEMENT STATUTE. THE WORD NOTICE DOES NOT TECHNICALLY SHOW UP IN 18 A:6-10
OR 28-8, BUT WHAT BRIJ TEACHES US IS THAT JUST BECAUSE THE NOTICE DOES NOT TECHNICALLY
SHOW UP, THAT DOESN'T MEAN THAT A TENURED TEACHER ISN'T ENTITLED TO NOTICE. AS
THE APPELLATE DIVISION POINTED OUT, AS WELL, IF A NON-TENURED TEACHER WOULD BE ENTITLED
TO THAT TYPE OF NOTICE AS THEY WERE IN BRIJ, THEN IT MAKES SENSE THAT A TENURED TEACHER
WOULD BE ENTITLED TO THAT TYPE OF NOTICE HERE AND, I SIGNIFICANT, PARTICULARLY, IN LIGHT
OF THOSE STATUTES ONE OF WHICH THE COMMISSIONER DID KROOIT. CLOP I SUGGEST CLOP.
I WOULD ALSO JUST POINT OUT TO THE COURT THAT THERE WAS SOME COLLOQUY EARLIER ABOUT THE
SUGGESTION THAT THIS WOULD BE A PARADE OF HORRIBLES AND IT WOULD BE A VERY DIFFICULT
FOR BOARDS TO IMPLEMENT THIS TYPE OF NOTICE. I WOULD JUST POINT OUT, AGAIN, THAT THE
APPELLATE DIVISION DECISION IS VERY NARROW. IT'S LIMITED TO WHEN FULL-TIME TEACHERS TAKE
A PART-TIME POSITION. IT SIMPLY REQUIRES NOTICE IN THAT CONTEXT. I WOULD
ALSO POINT OUT TO THE COURT TASH DASH. JUSTICE PATTERSON: IT ALSO REQUIRES
A SPECIFIC KIND OF NOTICE, RIGHT, WHICH IS THAT YOU MAY NOT GET YOUR FULL-TIME JOB BACK.
CHRISTOPHER WEBER: CORRECT. JUSTICE PATTERSON: I ASSUME THAT
THE COMMISSIONER IS NOT TAKING THE POSITION THEN THAT THE SCHOOL BOARD THEN HAS TO THINK
ABOUT AND PROVIDE NOTICE OF THE ULTIMATE RAMIFICATIONS OF THAT? IN OTHER
WORDS, THAT IF YOU DON'T GET YOUR FULL-TIME JOB BACK, THAT MEAN THAT YOU HAVE GOT TO GO
BACK THROUGH A TENURE PROCESS, YOUR COMPENSATION IS FWOEG TO BE REDUCED, YOUR POTENTIAL
RETIREMENT BENEFITS -- THESE BOARDS DO NOT HAVE TO ENGAGE IN SOME SORT OF LONG TERM ANALYSIS
FOR A TEACHER AS TO WHAT THE LONG-TERM RAMIFICATIONS OF THE DECISION IS.
CHRISTOPHER WEBER: CERTAINLY NOT BASED ON THE RECORD IN THIS CASE. THAT WASN'T THE
COMMISSIONER'S HOLDING IN THIS CASE AN I DON'T INTERPRET THE APPELLATE DIVISION'S DECISION
IN THAT SENSE EITHER. I THINK IT WAS A VERY LIMITED RULING. JUDGE SABATINO:
SHOULD THE COMMISSIONER HAVE GONE TO RULE MAKING WITH NOTICE TO THE REGULATED COMMUNITY
AND AN OPPORTUNITY TO BE HEARD CONCERNING THE IMPOSITION OF THIS NOTICE OBLIGATION? '
CHRISTOPHER WEBER: I DON'T BELIEVE THAT WAS NECESSARY YOUR HONOR.
JUDGE SABATINO: WHY NOT? SAAB. CHRISTOPHER WEBER: AS I SAID THE TENURE
ACT ITSELF IS OBVIOUSLY REMEDIAL LEGISLATION AND THERE IS A BEVY OF CASE LAW FROM THIS
COURT SUGGESTING THAT TRANSPARENCY AND NOTICE IN VARIOUS CONTEXTS IS CRITICAL.
JUSTICE PATTERSON: HERE IS A CONCERN I WOULD RESPECTFULLY ASK YOU ABOUT AND THAT IS:
TRANSPARENCY IS A FANTASTIC CONCEPT. BUT WHEN YOU'RE TALKING ABOUT SOMEONE'S FUTURE CAREER,
THERE ARE SO MANY DIFFERENT THINGS THAT COULD HAPPEN TO THAT INDIVIDUAL DEPENDING ON WHAT
HAPPENS -- WHETHER A JOB CAN BECOMES AVAILABLE, WHETHER THE PERSON WANTS THE JOB, ETC.,
SO THE CONCERN I HAVE, FRANKLY IS THAT NOTIONS OF TRANSPARENCY COULD POTENTIALLY LEAD
TO A NOTICE REQUIREMENT THAT IS IMPOSSIBLE TO ACHIEVE. CHRISTOPHER WEBER:
I UNDERSTAND THAT CONCERN. I UNDERSTAND THE CONCERN THAT MY COLLEAGUE IS RAISING. WHAT
I AM SUGGESTING IS THAT THE COMMISSIONER'S DECISION AND THE APPELLATE DIVISION'S
DECISION WERE VERY NARROW. THEY SIMPLY SAID WHEN A FULL TIME TEACHER IS GOING TO A PART-TIME
POSITION, SHE IS ENTITLED TO NOTICE IN THIS SPECIFIC CONTEXT. TO ADD TO MY
RESPONSE TO JUSTICE SAAB, THERE ARE SOME STATUTES AT PLAY HERE. I DON'T THINK RULE MAKING
WAS NECESSARY. JUSTICE PATTERSON: SO WOULD YOU BE -- IF YOU WERE ASKED TO
STATE THE PRINCIPLE THAT THIS COURT SHOULD STATE IN A TASH DASH IN AN OPINION, REPRESENTING
THE COMMISSIONER, WOULD THAT INCLUDE A STATEMENT THAT THE NOTICE REQUIREMENT, IF THE COURT
WERE TO ADOPT THE APPELLATE DIVISION'S NOTICE REQUIREMENT, IS LIMITED TO THAT SPECIFIC
NOTICE AND DOES NOT EXTEND TO OTHER SETTINGS OR OTHER ASPECTS OF NOTICE EVEN IN THIS
SETTING? CHRISTOPHER WEBER: I WOULD AGREE WITH THAT BECAUSE THAT'S WHAT
THE COMMISSIONER'S LIMITED VIEW OF THE CASE WAS. SHE WAS NOT -- SHE DIDN'T EXPAND HER
RULING BEYOND THE CIRCUMSTANCES IN THIS PARTICULAR CASE AND THE FACTS THAT WERE IN
THE RECORD. JUSTICE PIERRE-LOUIS: AND AS MR. WECHSLER NOTED IN HIS
PRESENTATION, JUST GIVING THE TEACHERS RS NOTICE TO REALIZE THAT THERE IS AN ISSUE THERE
AT ALL IS SUFFICIENT. SHE WOULD NOT HAVE GONE TO THE N J E A, GONE TO THE UNION AN GONE
TO TALK TO ANYONE ELSE IF SHE DIDN'T KNOW THERE WAS AN ISSUE WITH POSSIBLY MOVING FROM
PART TIME TO FULL TIME AT ALL, SO THIS LIMITED NOTICE WOULD BE SUFFICIENT.
CHRISTOPHER WEBER: IT WOULD BE LIMITED. I THINK JUST TAKING A STEP BACK, THE IDEA IS
THAT WHEN YOU ARE MAKING A DECISION THAT AFFECTS THE BUNDLE OF SUBSTANTIVE RIGHTS THAT ARE
ATTACHED TO YOUR TENURE STATUS AND THOSE RIGHTS ARE BEING AFFECTED, YOU'RE ENTITLED TO
KNOW AND HAVE NOTICE OF WHAT THE I'M MRIK KASZ ARE. GOING BACK TO FIRST
PRINCIPLES, THE IDEA THAT -- TENURE IS INTENDED TO ENSURE THAT TEACHERS HAVE PROTECTIONS
AND HAVE TRANSPARENCY. JUSTICE FASCIALE: YOU MENTIONED 18 A-28-8.
CHRISTOPHER WEBER: CORRECT. JUSTICE FASCIALE: IT DEALS WITH
RELINQUISHMENT OF A POSITION AND CLEARLY SHE DIDN'T RELINQUISH HER POSITION AS A FULL TIME
TENURE TEACHER SO 28-8 DOES NOT APPLY. CHRISTOPHER WEBER: I THINK IT IS
INFORMATIVE. I DON'T THINK IT'S DISPOSITIVE OF THE ISSUE. JUSTICE FASCIALE:
IT'S A TOTALLY DIFFERENT SITUATION. IT DEALS WITH RELINQUISHING A POSITION HERE. THIS
HAS NOTHING TO DO WITH RELINQUISHING A JOB. JUSTICE WAINER APTER: COULDN'T
YOU INTERPRET THIS AS -- THE DECISION FROM GOING FROM FULL TIME TO PART TIME I THINK THE
BOARD WAS ARGUING WAS RELINQUISHING HER FULL TIME POSITION SUCH THAT SHE HAS NO RIGHT
TO GO BACK TO IT. CHRISTOPHER WEBER: I UNDERSTAND THAT THE COURT HAS HAD
SOME SH QUESTIONS TODAY ABOUT WHETHER A TEACHER'S RIGHTS DIFFER AS TO WHEN THEY ARE FULL
TIME OR WHEN THEY ARE PART TIME AND I WANT TO BE CAREFUL ABOUT WHAT I REPRESENT ON BEHALF
OF THE COMMISSIONER IN THAT SCENARIO. I THINK ASH DASH I AM NOT SURE THAT
THAT MATTERS HERE TODAY GIVEN THE LIMITED RULING BY THE APPELLATE DIVISION. AGAIN, AS I SAID,
I THINK TENURE IS BEST UNDERSTOOD AS A BUNDLE OF RIGHTS THAT ARE ATTACHED TO A TEACHER'S
TENURE STATUS WHEN SHE OBTAINS TENURE. THERE IS NO DISPUTE HERE THAT SHE WAS
A TENURED TEACHER: I DON'T THINK THE PLAIN LANGUAGE OF 28-5 FOR INSTANCE MAKES THE
DISTINCTION BETWEEN PART-TIME AND FULL-TIME AND I WOULD JUST REMIND THE COURT THAT THE
COMMISSIONER IN ISSUING HER DECISION VIEWED MS. PARSELLS' TENURE RIGHTS THROUGH THE LENS
OF THE COMPENSATION THAT WAS ATTACHED TO HER POSITION SO I AM NOT SURE THAT THE DICHOTOMY
OR THE DISTINCTION BETWEEN FULL-TIME AND PART-TIME ARE TERRIBLY RELEVANT HERE.
ULTIMATELY, THE COMMISSIONER NOTED 18 A:6-10 AND THE FACT THAT SHE WAS REDUCED -- ULTIMATE
LY REDUCED IN HEALTH BENEFITS AN THEREFORE REDUCED IN COMPENSATION AN THEREFORE, SHE WAS
ENTITLED TO NOTICE IN THIS PARTICULAR INSTANCE. JUSTICE FASCIALE: I JUST
WANT TO GO BACK TO 28-8 FOR A SECOND. I DON'T MEAN TO BELABOR THIS, BUT THE RECORD IS
PRETTY CLEAR THAT SHE NEVER WANTED TO REMAIN IN THE PART-TIME TENURED POSITION. IT WAS
A TEMPORARY SITUATION. THE RECORD IS DOES NOT SUPPORT ANY FINDING THAT HER DECISION TO
TEMPORARILY GO TO PART TIME STATUS MEANS THAT SHE REL LINK RELINQUISHED HER FULL TIME
TENURED JOB. AM I RIGHT ABOUT THAT? CHRISTOPHER WEBER: YES,
I AGREE SO FAR FAB FASH YES. NOW, WHAT ABOUT 6-1058 A: 6-10 REDUCTION IN
COMPENSATION. DON'T YOU ALSO HAVE TO CONSIDER THAT THIS IS NOT A SITUATION WHERE THEY
REDUCED HER COMPENSATION. SHE VOLUNTARILY DECIDED TO TEMPORARILY MOVE TO A POSITION
THAT WOULD MEAN SHE WOULD MAKE LESS SO 6-10 DOESN'T APPLY EITHER.
CHRISTOPHER WEBER: I THINK IT DOES APPLY. JUSTICE FASCIALE: HOW DOES IT
APPLY. CHRISTOPHER WEBER: BECAUSE SHE WAS ULTIMATELY REDUCED IN COMPENSATION.
JUSTICE FASCIALE: WHY WAS THAT? CHRISTOPHER WEBER: SHE NO
LONGER RECEIVED HEALTH BENEFITS. JUSTICE FASCIALE: IS THAT WHAT COMPENSATION
UNDER THE TENURE ACT MEANS IS HEALTH BENEFITS? I THOUGHT IN SIM WE ENTITLED
THAT IT WAS ANNUAL INCOME, ANNUAL SALARY. HEALTH BENEFITS IS A CONTRACTUAL RIGHT NOT
A TENURE RIGHT, RIGHT? I THINK THAT'S WHAT WE ESTABLISHED.
CHRISTOPHER WEBER: SIM MAN DEALT WITH HOURS OF PAY VERSUS HOURS OF PAY. JUSTICE
FASCIALE: AND THE COURT CONCLUDED, KROOITING THE APPELLATE DIVISION DECISION THAT COMPENSATION
FOR PART TIME EMPLOYEES WAS TO BE CALCULATED BASED ON ANNUAL INCOME NOT HOURLY RATE, NOT
BENEFITS. CHRISTOPHER WEBER: WELL THE COURT -- BUT THE COURT WAS THAN REQUIRED
TO WAY IN ON THE IDEA OF BENEFITS. ALL I AM SUGGESTING TODAY IS THAT 18 A:6-10 AND TO
AN EXTENT 28-8 ARE HIGHLY INFORMATIVE TO THE COURT AN ESPECIALLY 18 A:6-10 IS DISPOSITIVE
AS TO WHETHER YOU'RE ENTITLED TO NOTICE WHEN YOUR COMPENSATION IS BEING REDUCED AND I
THINK THE RECORD HELPS BEAR THAT OUT HERE. JUSTICE PATTERSON: IF THE BOARD
ENTERS INTO AN AGREEMENT WITH THE UNION FOR THE NEXT THREE YEARS, FOR EXAMPLE, I DON'T KNOW
WHAT THE SPECIFICS ARE IN THIS DISTRICT, THAT WILL END UP REDUCING THE COMPENSATION OF
A GROUP OF TEACHERS, DOES THE BOARD HAVE TO GIVE NOTICE TO THOSE TEACHERS THAT THEY HAVE
AGREED TO THAT PROVISION? APART FROM, YOU KNOW, THEY ARE PROVIDED ACCESS TO THE CONTRACT.
CHRISTOPHER WEBER: I THINK THE IDEA OF NOTICE AND A WAIVER OF THEIR RIGHT
TO COMPENSATION, FOR INSTANCE, WOULD BE IMPLICIT IN THE AGREEMENT. JUSTICE
PATTERSON: THE AGREEMENT IS NEGOTIATED ON THEIR BEHALF SO THE NOTICE REQUIREMENT WOULD
NEVER APPLY TO A CHANGE FROM ONE C BA TO THE OTHER? I AM TRYING TO GET THE
-- IF THERE IS A NOTICE REQUIREMENT THAT YOUR DECISION TO GO PART TIME IS GOING TO REDUCE
YOUR COMPENSATION, I AM TRYING TO GET THE PARAMETERS OF THAT. IT WOULD NOT APPLY TO A
LOSS OF COMPENSATION BY VIRTUE OF A NEGOTIATED AGREEMENT, WOULD IT?
CHRISTOPHER WEBER: I WOULD FIRST SAY THAT THAT IS SOMEWHAT OUT OF THE SCOPE OF WHAT THE
COMMISSIONER WAS OPINING ON. JUSTICE PATTERSON: I AM NOT SUGGESTING --
THAT'S NOT IN THIS CASE. CHRISTOPHER WEBER: I UNDERSTAND. JUSTICE
PATTERSON: I THINK WHAT WE'RE HEARING FROM THE BOARD IS THAT IF AN IT'S AN AM MORE FOUS
REQUIREMENT. IT COULD HAVE RAMIFICATIONS BEYOND THE SPECIFICS OF THIS CASE. TO SAY THAT
SOMEONE HAS TO HAVE NOTICE BECAUSE THEY ARE GOING TO LOSE COMPENSATION IS A PRETTY BIG
REQUIREMENT. CHRISTOPHER WEBER: I SUPPOSE I WOULD DISAGREE WITH MY COLLEAGUE
ON THAT AND I CAN ACTUALLY POINT THE COURT TO TWO DECISIONS THAT ARE SOMEWHAT INFORMATIVE
ON THIS. IN DONALD SON, 65 N J 236, THE COURT HELD THAT TEACHERS WERE ENTITLED
TO A STATEMENT OF REASONS WHEN THEIR CONTRACTS WERE NOT RENEWED AND THERE WAS SOME ARGUMENT
THAT THAT WOULD BE A BURDEN TO DISTRICTS AND THE COURT FOR A FEW PAGES WENT ON TO EXPLAIN
THAT THAT IS NOT A TENABLE POSITION. SO I KNOW THAT THAT IS NOT A ONE FOR ONE COMPARISON,
BUT WHAT I AM SAYING IS THAT IN ADDITION TO RISE NOTICES AN WOOIN GART TEN NOTICES, THERE ARE
OTHER AREAS WHERE A DISTRICT IS REQUIRED TO PROVIDE NOTICE SO I THINK DONALD SON IS
SOMEWHAT INFORMATIVE ON THAT. OLD BRIDGE 98 N J AT 523, THAT CASE DEALT MOSTLY
WITH THE IDEA OF MANAGERIAL PRERECOGNIZE GAT TIFS AN THE KOFRT ACKNOWLEDGED THAT DISTRICTS
HAVE A MANAGERIAL PREROGATIVE TO EXECUTE EXECUTE AN R I F BUT WHAT THE COURT HELD IS YOU'RE
ENTITLED TO NOTICE WHEN MRS. 'IS AN R I F AND THAT DECISION SOMEWHAT REJECTS THE IDEA
THAT A NOTICE WOULD BE BURDENSOME TO DISTRICTS. JUDGE SABATINO: REAL QUICK,
JUST TO CLARIFY SO I UNDERSTAND IT, THE 6 POSITIONS, THE 6 FULL-TIME POSITIONS THAT SHE
INTERVIEWED FOR, IS IT THE COMMISSIONER'S VIEW THAT BECAUSE THERE WAS NO PROPER NOTICE
AND THERE WAS NO VOLUNTARY WAIVER THAT SHE WAS ENTITLED TO ONE OF THOSE SIX JOBS AHEAD
OF ALL NONE TENURED APPLICANTS. IS THAT TRUE? ? CHRISTOPHER WEBER:
I DON'T THINK THE COMMISSIONER SAID IN HER DECISION THAT SHE WAS ENTITLED TO ONE OF
THOSE SPEK SIX JOBS SPECIFIC SIX JOBS. L I SUPPOSE THAT IS I'M MRILS SIT IN THE
COMMISSIONER'S DECISION BUT SHE DID HOLD AT THE ENDS OF THE STIGS THAT SHE WAS ENTITLED
TO A FULL-TIME POSITION. JUDGE SABATINO: CONVERSELY IF SHE HAD EFFECTIVELY
WAIVED OR THEY HAD GIVEN HER THE NOTICE AND SHE DIDN'T DO ANYTHING, THE OPPOSITE WOULD HAVE
BEEN TRUE THAT SHE WOULD NOT HAVE HAD PREFERENCE OR PRIORITY OVER NONTENURED APPLICANTS,
TRUE? CHRISTOPHER WEBER: I BELIEVE THE ANSWER TO THAT IS YES, YOUR HONOR.
BUT NO ONE IS SAYING THAT THE DISTRICT IS NOT ABLE TO CREATE A PART-TIME POSITION THAT
DOESN'T PROVIDE HEALTH BENEFITS. WE'RE JUST SAYING THAT IN THIS SPECIFIC INSTANCE THERE
WASN'T NOTICE AN THERE WASN'T A VOLUNTARY WAIVER OF HER TENURE RIGHTS. JUSTICE
WAINER APTER: IN TERMS OF VOLUNTARY WAIVER, WHERE DO WE FIND THAT DISCUSSION? HAD.
IS IT ONLY IN THE CASE LAW? IS IT ALSO IN 28-8? IS
THERE ANYWHERE ELSE IN THE STATUTE THAT WE CAN LEARN WHAT IT MEANS TO RELINQUISH OR WAIVER
TENURE RIGHTS. CHRISTOPHER WEBER: I CONCEDE THAT JUST STIS FASH IS RIGHT
THAT 28-8 DOES SPECIFICALLY DEAL WITH A VOLUNTARY RELINQUISHMENT OF A POSITION. I DO
MAINTAIN THAT IT IS INFORMATIVE. AS TO WAIVER, THE O'TOOLE POSITION, WHICH
ALSO BY THE WAY KROOITS THAT STATUTE IS REALLY THE BEST SOURCE. JUSTICE WAINER
APTER: O'TOOLE IS TALKING ABOUT RELINQUISHMENT UNDER 28-8, RIGHT? CHRISTOPHER
WEBER: RIGHT. IN TERMS OF WAIVER, THE COMMISSIONER HAS ISSUED ADMINISTRATIVE
DECISIONS. I CAN PROVIDE THOSE TO THE COURT IN A LETTER IF YOU WOULD LIKE. THE
COURT: QUESTIONS JAEN ONE? IS THERE ANYTHING YOU WOULD LIKE TO ADD, COUNSEL.
CHRISTOPHER WEBER: NO, THANK YOU, URNGS. CHIEF JUSTICE RABNER:
THANK YOU, YOUR HONOR CHIEF JUSTICE RABNER: MR. LEONARDO. ALBERT
J. LEONARDO: MAY IT PLEASE THE COURT, I'D LIKE TO START WITH THE ISSUE VT DISTIVENGS
BETWEEN PART TIEMENT AND FULL TIME TENURE RMENT SO IN THIS CASE, PARSELLS WAS A FULL-TIME
TENURED TEACHER WHO VOLUNTARILY TRANSFERRED TO A PART-TIME POSITION. SHE WAS NOT THE
SUBJECT OF A RIFF. THE POSITION THAT THE BOARD TOOK WAS THAT THAT ESSENTIALLY WAS A WAIVER
OF HER RIGHT TO A FULL-TIME POSITION. BUT, SEE, IF YOU LOOK AT TENURE IN A VACUUM, IF
ALL YOU ARE A PART-TIME TENURE TEACHER LIKE PARSELLS IN THAT SITUATION, YOU HAVE NO
GENERAL RIGHT TO A FULL-TIME POSITION. AND TSDZ BORE TOOK THE POSITION THAT SHE HAD WAIVED
HER RIGHT TO A FULL-TIME POSITION. THAT'S WHEN SHE HAD APPLIED 6 TIME FOR A FULL-TIME
POSITION SHE DIDN'T GET ANY. AND, YOU KNOW, WHAT THE NOTICE REQUIREMENT
DOES IN THIS CASE IS EFFECTIVELY IMPLEMENT LAUT OF WAIVER. BECAUSE PARSELLS SHE HAD JUST
HAD A BABY, SHE WAS LOOKING TO TRANSFER TEMPORARILY TO A PART-TIME POSITION, SHE
DIDN'T KNOW THAT HER TENURE RIGHTS WHERE IMPLICATE, MUCH LESS KNOW THE NATURE EXTENTS
OF THEM. AND IF YOU'RE GOING TO BE GUIDED BY COMMON SENSE AND FAIRNESS, IN A SCENARIO
LIKE THAT, IT MAKES MORE SENSE TO IMPOSE THE DUTY ON THE EMPLOYER AND NOT ON THE EMPLOYEE
TO HAVE TO DPOE BACK TO EITHER THE BORT OR TO THE UNION WHEN SHE DOESN'T EVEN KNOW THAT
HER TENURE RIGHTS ARE BEING IMPLICATED, BECAUSE AS FAR AS SHE CAN SELL SHE'S TRANSFERRING
TEMPORARILY TO A PETITION WITHOUT WIEFSHING ANY TENURE RIGHTS. JUSTICE
PATTERSON: I THINK WE HAVE TWO COMMON LAW CONCEPTS BEING TALKED ABOUT HERE AND I'D LIKE
TO ASK YOU TO ADDRESS THAT. ONE IS THE COMMON LAW OF WAIVER AND THAT INVOLVES EXTENT
OF THE KNOWLEDGE, ETCETERA. ET SECOND IS THE IMPOSITION OF A DUTY AS A MATTER OF COMMON
LAW. WHICH IS IT THAT YOU ARE URGING THE COURT TO ADOPT AND WHICH IS MOST
CONSISTENT WITH THE STATUTORY SCHEME THAT GOVERNS, AND THE CONTRACTUAL OBL GIEGSS THAT
GOVERN THESE TWO RELATIONSHIPS? ALBERT J. LEONARDO: I BELIEVE THE COURT
SHOULD AFFIRM THE APPELLATE DIVISION DECISION GS BELOW BOTH AS TO THE NOTICE REQUIREMENT,
IMPOSING A NOTICE DUTY AND OTHER EMPLOYER BUT ALSO, I MEAN THERE JUST WAS NO WAIVER IN THIS
CASE. JUSTICE PATTERSON: NO, I UNDERSTAND THAT. I'M JUST SAYING HOW DO
WE GET TO, YOU'RE SAYING THERE SHOULD BE A DUTY OF NOTICE. ALBERT J. LEONARDO:
YES. JUSTICE PATTERSON: ARE YOU FOCUSED ON THE LAW OF WAIVER AS A SORTS
OF THAT DUTY OR DO YOU THINK THERE SHOULD BE A GOLDBERG, HOPKINS TYPE ANALYSIS HERE?
WHICH I FRANKLY I HAVEN'T SEEN IN THIS TYPE OF CONTEXT BUT I COULD HAVE MISSED IT.
ALBERT J. LEONARDO: WELL, I THINK, THERE'S CERTAINLY NOTHING IN THE EDUCATION LAW
THAT EXPRESSLY SAYS THAT THERE HAS TO BE A NOTICE PROVIDED BY AN EMPLOYER IN A SITUATION
LIKE THIS. BUT, YOU KNOW, IEVENL THE APPELLATE DIVISION SIMILARLY TO THIS COURT IN
BRIDGEWATER-RARITAN WAS CONCERNED ABOUT THE LACK OF TRANSPARENCY AND THE INEQUITIES AND
INFORMATION ON BOTH SIDES. SO I THINK, YOU KNOW, THE NOTICE REQUIREMENT
COMES FROM SORT OF A COMMON LAW OF WAIVER, BUT IT ALSO SERVES THE PRACTICAL PURPOSE OF,
YOU KNOW, IF THERE'S A NOTICE REQUIREMENT AND A TEACHER IS GIVEN THE NOTICE BEFORE THEY
MAKE A DECISION, THEVENTS' PRETTY CLEAR THAT THERE'S BEEN A VOLUNTARY, VOLUNTARY
RELINQUISHMENT OF THEIR TENURE RIGHTS. SO I MEAN AS A PRACTICAL MATTER, IT
WOULD AVOID LITIGATION, POTENTIALLY AVOID DITS SPUTS LIKE THIS, WHETHER OR NOT A TEACH CLER
WAIVES TENURE RIGHTS K AND I THINK THE CASE LAW RECOGNIZES THIS, THE HE A NORMALLY A VERY
HIGHLY FACTUAL ISSUE. AND IT REQUIRES O A L HEARINGS AND DETERMINATIONS BY THE
COMMISSIONER, MUCH LIKE WHAT HAPPENED HERE. CHIEF JUSTICE RABNER: THE PRACTICAL
MATTER STANDING AL LOEP WOULD NO PROVIDE A NOTICE FOR A DUTY, AS YOUR COLLEAGUE ARGUED
THAT'S FOR THE LEGISLATURE HERE. QUESTION IS HERE IS THE LEGAL DUT TOE FOR A COURT TO
IMPOSE? ALBERT J. LEONARDO: WELL, I MEAN THERE ARE STATUTES THAT SAY THAT
TEACHERS ACQUIRE TENURE IF THEY NEED CERTAIN CRITERIA. SO I MEAN YOU CAN EXTRAPOLATE
FROM THOSE STATUTES THAT TO WAIVE THOSE TENURE RIGHTS, THERE WOULD HAVE TO BE A DUFT TEE
BY AN EMPLOYER TO THE POINT WHERE THE EMPLOYEE KNOWS WHAT THEY'RE DOING, IF THEY MAKE
A DECISION LIKE THAT. CHIEF JUSTICE RABNER: YOU'RE FOCUSED PRIMARILY ON
COMMON LAW WAIVER. LEAF LEE COMMON LAW WAIVER, YES. I'D ALSO LIKE TO TOUCH
ON THE AL LEARNED BURR DIP AND THE BOARDS OF HE HAD IF THEY HAVE TO SUPPLY NOTICE TO
EMPLOYEE. THE RICE DECISION WHICH WE CITE IN OUR BRIEF, IT REQUIRES BOARD OF EDUCATIONS
TO PROVIDE NOTICE TO EMPLOYEE 2 DAYS BEFORE A BOARD MEETING WHERE THEY'RE GOING TO CONSIDER
AN ACTION THAT WOULD ADD VERL SFK THE EMPLOYEE, THASHS NO STATUTE THAT SAYS THE NOTICE
HAS TO BE PRO VOID SHG IT'S SOMETHING THE APPELLATE DIVISION RECOGNIZED I AM TO, THE
OPEN PUBLIC MEETING ACT, IN ORDER TO SOMEONE TO EXERCISE THEIR RIGHT TO HAVE SOMETHING
DISCUSSED PUBLICLY INSTEAD OF A CLOVE SESSION, FIRST OF ALL THEY HAVE TO KNOW THE BOARD
IS GOING TO DISCUSS IT AND NUMBER TWO SHTHS THEY NEED TIEMENT TO SENATE THE GHEFT BRIGHTING
TO THE BOARD SO THAT THEY CAN HAVE IT DISCUSSED OPENLY. AND RICE NOTICES,
THEY HAPPEN ALL THE TIME. BOARDS OF ED DO IT ROUTINELY I TIME THEY CONSIDER ANYTHING
THAT COULD POTENTIALLY AFFECT AN EMPLOYEE RS AND TRANSFER BETWEEN PART TIME AND FULL TIME
IS SOMETHING THAT DOESN'T HAPPEN ALL THAT OFTEN. IN TERMS OF A BURR DEP, I DON'T ROLLY
SEE A BURR DEP ON THE BORE OF ED TO PROVIDE A NOTES T A TEACHER CONSIDERING SWITCHING
FROM ARE PART FOIM TO FULL TIME. PART PART PART TOM TO MY, YOU DIDN'T MISSPEAK BUT I
SAYING IT'S NOT JUST A TRANSFER BETWEEN THOETS TWO RPT STATUSES, IT'S FULL TIME TO PART
TIME. ALBERT J. LEONARDO: FULL TIME TO PART TIECHL, THE APPELLATE DIVISION
IS VERY CLEAR THIT WOULD ONLY HAVE THO HAPPEN IF A TENURED PERP IS CONSIDERING A SWITCH
BETWEEN FULL TIME P PART TO MY. YES. OF. JUSTICE PATTERSON: WHAT IS THE
TRIGGERING, HOW DOES THE BOARD LEARN THAT THE TEACHER IS CONSIDERING, BECAUSE CONSIDERING
IS A BIT OF A VAGUE TERM, A PERSON MAY BE HOME THINKING ABOUT IT. WHAT'S THE TRIGGERING
EVENT? WHAT KIND OF, THE WORD NOTICE, WHAT KIND OF NOTICE DOES THE BOARD GHET WOULD TRIGGER
THE REQUIREMENT TO GIVE THIS NOTICE? ALBERT J. LEONARDO: WELL, NORMALLY
A TEACHER WOULD MAKE A SGOEFT A SOUP VIFR, ADMINISTRATOR, BOARD MEMBER, WHAT HAVE YOU,
TO POTENTIALLY SWITCH BETWEEN FULL TIME VEN PART TIME SHTHS NORMALLY BECAUSE NARS HAD A
CHAFRM IN FAMILY SISHSS HOR IT COULD BE AN EMPLOYEE'S MEDICAL CONDITION AND THEY'LL
SPEAK TO SOMEONE ABOUT POTENTIALLY MAKE THE SWITCH AND AT THAT POINT THE EMPLOYER IS ON
NOTICE THAT THEY'RE CONSIDERING IT, AT THAT POINT I WOULD SAY THAT THAT WOULD BE THE
TRIGGERING EVENT. OF. CHIEF JUSTICE RABNER: QUESTIONS? THANK YOU COUNSEL.
THANK YOU. ALBERT J. LEONARDO: THAUBLG, YOUR HONOR. CHIEF
JUSTICE RABNER: MR. SIT MER, REBUTTAL? MARC H. ZITOMER: I'LL BE BRIEF.
OF I AM CONCERNED, I THINK THE COURT NEEDS TO BE COULD GO SI SANT THAT WHAT ON ITS FACE
APPEARS TO BE A VERY LIMITED AND NARROW HOLDING IS GOING TO BE CONSTRUED BY COURTS THROUGHOUT
THIS STATE TO NOW IMPOSE SOME SORT OF NOTICE OBLIGATIONS ON SCHOOL BOARDS BASED UPON THE
TEP YUR ACT, A VERY LAMP STATUTORY SCHEME BASED ON THE HOLING OF THE APPELLATE DIVISION
AND BASED ON WHAT THIS COURT DOES, WE HAVE TO BE COGNIZANT WHAT P A PIERCE TO BE VERY
NAR YO NO DOUBT IN NI MIND, SOMEBODY REPRESENTS AS MANY SCHOOL DISTRIBUTE, HAS A VERY
LAMP, VERY OEVEN IN OTHER WORDS RUSS REQUIREMENT, SIGNIFICANT REQUIREMENT, FAR REACHING
REQUIREMENT ON THAT SCHOOL BOARDS TO NOTIFY EMPLOYEES AND IN ALLY EXAMPLES I GAVE BEFORE
BECAUSE OBVIOUSLY WE HAVE THE UPPER HAND IN THESE TYPES OF SDULGSS, I UNDERSTAND THAT
AND THAT SORT OF THING, BUT THE POINT IS WE NEED TO RELY ON THE STATUTE. AT THAT I GO
BACK TO THE LA MARS CASE THAT WAS CITED, THIS COURT CASE LA MARS THAT SAYS YOU STEL HAVE
TO DPOE BAG TO SOME EXPRESS LANGUAGE IN THE STATUTE AND THERE'S LOTS OF THEM IN 18 A.OR
SOME SORT OF PLAIN LANGUAGE WHICH IS WHAT THIS COURT DID IN BRIDGEWATER. JUDGE
SABATINO: IS MR. WECHSLER CORRECT, TO YOUR KNOWLEDGE, THAT OF SOME SCHOOL DISTRICTS ARE
ALREADY SENDING OUT WHAT'S NOPE AS PARSELLS NOTICES RGS IS THAT TRUE. MARC
H. ZITOMER: YES, I WAS KEFRNED WHEN I HEARD THIS BECAUSE JUST LIKE WITH A RICE NOTICE
THERE ARE RAMIFICATIONS OF NOT DOING THAT, THERE'S GOELG TO BE RAM FI KATHS OF MROURS
NOT SENT SENDING OUT THIS PAR SETTLE NOTICE. AGAIN IN THE LEGISLATURE WANT TO IMPOSE
A PARSELLS NOTICE, THAT'S TERRIFIC. WE TALKED ABOUT RICE NOTESES BEFORE. RICE UNION
COUNTY REGIONAL CASE WHERE THEY CONSTRUED A PARTICULAR STATUTE WITHIN THE OPEN PUBLIC
MEETING TOOKT REQUIRE THIS TYPE OF NOTICE HOBBLE DPAGS. THEY DIDN'T JUST RELY ON AN ENTIRE
STATUTORY SCHEME. CHIEF JUSTICE RABNER: THE DISTRICTS YOU'RE NOOM WITH,
WHO DECIDES A REQUEST TO GO FROM PART TIME TO, FULL TIME TO PART TIME, CENTRALIZED IN
A PERSON IN, AN OFFERS. MARC H. ZITOMER: IT START WITH PERHAPS THE SCHOOL
PRINCIPAL, IT WORKS UP TO THE SUPERINTENDENT OF SCHOOL WHO BY STATUTE IS THE ONE WHO STATUT
ORILY CHARGE WITH MAKING EMPLOYMENT RECOMMENDATION IN THE SCHOOL DISTRICT AND THEN ULTIMATELY
IT HATS TO BE ACH PROVED BY A MAJORITY OF THE FULL MEMBERSHIP OF THE BORE OF HE HAD KANGS.
ROOB RAB IT WORK ITS WAY TO THE SUPERINTENDENT, IT WOULDN'T AMORPHOUS? MARC H.
ZITOMER: THANK YOU. CHIEF JUSTICE RABNER: I HAVE NOTHING IF YOU REMEMBER IN
OTHER WORDS, R. CHIEF JUSTICE RABNER: SCHOOL IS IN RECESS, WE'LL TAKE THE
MATTER UNDER ADVISEMENT.