MARCELLA SIMADIRIS VS. PATERSON PUBLIC SCHOOL DISTRICT (L-1674-19, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0197-19T3
MARCELLA SIMADIRIS,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 21, 2021
v. APPELLATE DIVISION
PATERSON PUBLIC SCHOOL
DISTRICT,
Defendant-Appellant.
___________________________
Argued October 14, 2020 – Decided January 21, 2021
Before Judges Fisher, Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-1674-19.
Karen A. Murray argued the cause for appellant (The
Murray Law Firm, LLC, attorneys; Karen A. Murray,
of counsel and on the briefs).
Alfred F. Maurice argued the cause for respondent
(Springstead & Maurice, Esqs., attorneys; Alfred F.
Maurice and Lauren E. McGovern, of counsel and on
the brief).
Cynthia J. Jahn argued the cause for amicus curiae New
Jersey School Boards Association (Cynthia J. Jahn, on
the brief).
Zazzali, Fagella, Nowak, Kleinbaum & Friedman for
amicus curiae New Jersey Education Association
(Richard A. Friedman of counsel and on the brief; Craig
A. Long, on the brief). 1
The opinion of the court was delivered by
FISHER, P.J.A.D.
Defendant Paterson Public School District appeals a trial judge's summary
determination that its decision to certify tenure charges against plaintiff
Marcella Simadiris in private violated her alleged right to demand its
consideration in public. The appeal pits that part of the Tenured Employees
Hearing Law, N.J.S.A. 18A:6-10 to -25, which declares that a charge against a
tenured employee "shall not" be discussed "at a public meeting," N.J.S.A.
18A:6-11, with that part of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -
21, which permits a public body to exclude the public from personnel
discussions "unless all [affected employees] request in writing that the matter.
be discussed at a public meeting," N.J.S.A. 10:4-12(b)(8). The district relies on
a published trial court decision, Cirangle v. Maywood Board of Education, 164
N.J. Super. 595, 601-02 (Law Div. 1979), as support for its position that the
1
The court invited the participation of the New Jersey Education Association after the
case was orally argued. The court is appreciative of the excellent submissions of both
amici, as well as the litigants.
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express language of N.J.S.A. 18A:6-11 controls. Plaintiff believes Cirangle's
interpretation should be rejected and, in relying on the Supreme Court's recent
decision in Kean Federation of Teachers v. Morell, 233 N.J. 566 (2018), argues
that these statutes should be understood as prohibiting a discussion of charges
against a board of education's tenured employee in public except when the
affected employee so demands. We reject plaintiff's argument and conclude that
N.J.S.A. 18A:6-11 unambiguously barred the board of education from
entertaining a public discussion of the tenure charges.
The relevant facts and events are uncomplicated and undisputed. Tenure
charges were brought against plaintiff, and her attorney was given informal
notice by email on May 20, 2019, that, at a meeting two days later, the board of
education would consider whether there was probable cause for the charges in
private. Counsel objected due to the lack of proper notice, but the board's
counsel responded that it didn't matter because N.J.S.A. 18:6-11 mandated a
closed session.
Two days after the closed session, at which the board certified the
charges,2 plaintiff filed this action, seeking a judgment declaring the board's
2
In certifying the charges, the board suspended plaintiff without pay, and referred the
matter to the Commissioner of Education, who later found the charges were sufficient to
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resolution void because plaintiff had not been given sufficient notice. In ruling
on the parties' applications for summary relief, the judge concluded in a written
opinion that the resolution was invalid; he determined that plaintiff had not
received proper notice and was, therefore, deprived of the opportunity to demand
that consideration of the tenure charges take place in public.
Before us is only a question of law: does N.J.S.A. 18A:6-11, which
prohibits the discussion of personnel matters involving tenured employees in
public, take precedence over N.J.S.A. 10:4-12(b)(8), which grants in general
affected public employees the right to demand a public hearing? In considering
the parties' arguments about the interplay of these statutes, it is helpful to start
with Rice v. Union County Regional High School Board of Education, 155 N.J.
Super. 64 (App. Div. 1977).
In Rice, after a public session concerning budget issues, seventeen
employees3 were designated for termination at a private hearing. In considering
the validity of the results of the private session, we concluded that N.J.S.A. 10:4 -
warrant dismissal or a reduction in salary. The Commissioner then referred the matter
for a tenure hearing before an arbitrator pursuant to N.J.S.A. 18A:6-16.
3
The Rice opinion specifically mentions that this group of employees included seven
untenured teachers. Id. at 69. We assume from the opinion's entirety, despite its lack of
further specificity, that the other employees were also untenured.
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12(b)(8) guaranteed "all employees whose rights could be adversely affected"
the right to request a public hearing and, to ensure this right, we concluded that
N.J.S.A. 10:4-12(b)(8) entitled affected employees to "reasonable advanced
notice." Rice, 155 N.J. Super. at 73. That required notice became known in this
arena as a "Rice notice," what plaintiff claims – and the district does not dispute
– was lacking here.
The district claims it had no obligation to provide a Rice notice because
N.J.S.A. 18A:6-11 precludes a board of education's public discussion of
personnel issues involving tenured employees like plaintiff. The district invites
us to follow Cirangle, a trial court decision that supports the district's argument.
In similar circumstances to those presented here, the trial judge in Cirangle
identified a conflict between N.J.S.A. 10:4-12(b)(8) and N.J.S.A. 18A:6-11.
Because the Open Public Meetings Act imposed broad requirements for the
meetings of governmental bodies, while N.J.S.A. 18A:6-11 was "specific and
limited [in] scope," the Cirangle judge concluded that the latter should control
when applicable. Id. at 601.
Plaintiff's entitlement to a Rice notice logically depends on whether a
tenured board-of-education employee is entitled to demand a public discussion
of a board's probable-cause proceedings or whether the Rice notice requirement
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is irrelevant because there can never be a public discussion of such a matter. In
turning to our history with these statutes and Rice, it is noteworthy, and
somewhat surprising, that Cirangle has been cited only once, see Williams v.
Board of Educ., Atlantic City Public Schools, 329 N.J. Super. 308, 316 (App.
Div. 2000), in its forty-two years on the books and then only for a largely
irrelevant reason.4 On the other hand, Rice has been cited numerous times by
this court in published 5 and unpublished decisions, 6 and twice with approval by
the Supreme Court, see Kean Fed. of Teachers, 233 N.J. at 586; S. Jersey Publ'g.
Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991). Yet, in none of those
decisions citing Rice was it held that a tenured employee is entitled to a Rice
notice when a board meets to consider whether to allow tenure charges to
proceed. And Kean Federation, on which plaintiff so greatly relies, upheld the
4
Williams cited Cirangle with approval but the context of that decision – whether a news
organization had a right to tenure-charge documents regarding a superintendent of
schools – is inapposite to the situation presented in this appeal.
5
See McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010); Burnett
v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 232 (App. Div.
2009); Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 500 (App.
Div. 2008); Dunn v. Mayor & Council of Laurel Springs, 163 N.J. Super. 32, 35 (App.
Div. 1978); Oliveri v. Carlstadt-East Rutherford Reg'l Bd. of Educ., 160 N.J. Super. 131,
133 (App. Div. 1978).
6
Because of Rule 1:36-3, we do not here cite the many unpublished decisions in which
we have cited and relied on Rice.
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notice requirement "created in Rice" but added that it "should not be stretched
beyond its factual setting." 233 N.J. at 586.
Finding little guidance from these past examinations of Rice and Cirangle,
finding no clarity in the arguments of the parties or the amici curiae as to the
current practice in this State, and finding no legislative history to illuminate the
Legislature's intent about the relationship between the Open Public Meetings
Act and the current version of N.J.S.A. 18A:6-11, we ultimately conclude – with
the assistance of familiar canons of statutory interpretation – that the district is
correct and that a tenured employee in this specific circumstance does not have
a right to a public discussion of matters falling within the scope of N.J.S.A.
18A:6-11.
In pursuing the "paramount goal" of ascertaining the legislative intent, we
start with the words the Legislature used. DiProspero v. Penn, 183 N.J. 477,
492 (2005); Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009).
N.J.S.A. 18A:6-11 specifically addresses the same subject matter involved here
– the practice and procedure for ascertaining whether there is probable cause for
charges made against a tenured board-of-education employee – and
unambiguously declares that a board of education must discuss charges against
a tenured employee in private. The Open Public Meetings Act, which generally
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applies to all public bodies, provides only broad strokes and recognizes that
other legislation provides exceptions to its sweeping declaration that "all
meetings of public bodies shall be open to the public at all times." N.J.S.A.
10:4-12(a). In N.J.S.A. 10:4-12(b), the Legislature clearly and expressly
declared that a public body "may exclude the public," N.J.S.A. 10:4-12(b), from
that portion of a meeting "at which the public body discusses any . . . matter
which, by express provision of federal law, State statute, or rule of court shall
be rendered confidential," N.J.S.A. 10:4-12(b)(1). In short, the Open Public
Meetings Act provides the general rule favoring open public meetings but not
when other legislation creates an exception. One of those exceptions is N.J.S.A.
18A:6-11 and its declaration that a board of education's discussion of charges
brought against a tenured employee must be held in private.
Plaintiff relies on another provision of the Open Public Meetings Act that
allows a public body to exclude the public when discussing employment matters
"unless all the individual employees or appointees whose rights could be
adversely affected request in writing that the matter . . . be discussed at a public
meeting." N.J.S.A. 10:4-12(b)(8). We find no conflict between N.J.S.A. 18A:6-
11 and N.J.S.A. 10:4-12(b)(8), nor any ambiguity in their application.
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To be sure, the tenure charges in question deal with "termination of
employment" or "disciplining" of a public employee, N.J.S.A. 10:4-12(b)(8), so
the matter falls within the general ambit of N.J.S.A. 10:4-12(b)(8). And, in that
broad sense, it might appear that plaintiff is permitted the right – as stated in
N.J.S.A. 10:4-12(b)(8) – to demand that the discussion occur in public. But
N.J.S.A. 10:4-12(b)(8) provides only broad strokes as to the rights of public
employees. The Legislature could determine that some specific groups of public
employees would be excepted from what N.J.S.A. 10:4-12(b)(8) allows. Again,
that possibility was acknowledged in N.J.S.A. 10:4-12(b)(1).
And, so, there is nothing inconsistent about the structure of the Open
Public Meetings Act when compared with the Legislature's later creation of a
different approach for tenured board-of-education employees. In dealing with
this smaller subset of public employees, the Legislature declared – without
equivocation or exception – that "[t]he consideration and actions of the board as
to any charge shall not take place at a public meeting," N.J.S.A. 18A:6-11
(emphasis added). Despite declaring in the Open Public Meetings Act that
employment matters involving public employees be discussed in private unless
otherwise demanded by the employee, this provision in the Tenured Employees
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Hearing Law offered no exception to its command that the "consideration and
actions" of a board "shall not" take place in public. N.J.S.A. 18A:6-11.
Was it an accident that N.J.S.A. 18A:6-11 failed to allow tenured board-
of-education employees the right to demand a public hearing when discussing
whether there is probable cause for the charge? Or did the Legislature – after
enacting the Open Public Meetings Act – enact N.J.S.A. 18A:6-11, believing its
reach was limited by the terms of N.J.S.A. 10:4-12(b)(8)? We think not. If that
was the Legislature's intention in enacting this statute – nineteen days after
enactment of the Open Public Meetings Act 7 – it likely would have said so. And,
while the Legislature did not provide extrinsic evidence of its intentions in
enacting N.J.S.A. 18A:6-11, or how it would interact with the Open Public
Meetings Act, the very language of all these provisions – none of them
ambiguous – demonstrates that the Open Public Meetings Act provided only
broad strokes and recognized that exceptions may be provided for elsewhere.
Guided by the plain and unambiguous language of N.J.S.A. 18A:6-11, which
makes no provision for a tenured employee's right to demand a public hearing,
7
The timing is particularly illuminating. While we presume the Legislature acts with
knowledge of existing law, DiProspero, 183 N.J. at 494; State v. Federanko, 26 N.J. 119,
129 (1958), the Open Public Meetings Act was undoubtedly fresh in its mind when it
crafted and enacted N.J.S.A. 18A:6-11.
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we must assume the Legislature meant what it said when it declared that all such
discussions "shall not" occur at a public meeting.
And there is nothing peculiar about the choice the Legislature made in
declining to provide tenured employees with the opportunity to have a public
meeting when enacting N.J.S.A. 18A:6-11. A board of education's authority to
dismiss or take other disciplinary action with non-tenured employees is
extensive, so the fact that non-tenured board-of-education employees may
exercise the right to demand a public hearing as permitted by N.J.S.A. 10:4-
12(b)(8) sensibly allows the non-tenured employee some semblance of an
opportunity to persuade the employer – by compelling the discussion to occur
in the open – to act in the non-tenured employee's favor; that's the only process
due a non-tenured employee. But tenured board-of-education employees are
situated differently; they have far greater rights in any conflict with their
employers.
With tenured employees, a board of education is limited to determining
"whether there is probable cause to credit the evidence in support of the charge"
– which is provided by way of written statements of "position" and "evidence
under oath" – and "whether such charge, if credited, is sufficient to warrant a
dismissal or reduction of salary." N.J.S.A. 18A:6-11. The board must then
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notify the tenured employee of its determination and, when finding probable
cause, "forward such written charge to the [C]ommissioner [of Education] for a
hearing" pursuant to N.J.S.A. 18A:6-16. Once forwarded, the tenured employee
has the benefit of additional procedural rights and the opportunity to further
present a defense. The commissioner or a designee then "shall examine the
charges and certification," and the employee is permitted fifteen days, which
may be extended, "to submit a written response to the charges." Ibid. The
commissioner must then "render a determination on the sufficiency of charges"
within ten days after submission of the employee's written response. Ibid. If it
is determined that the charges "are not sufficient to warrant dismissal or
reduction in salary," the commissioner "shall dismiss the same." Ibid. If
determining otherwise, the commissioner must refer the case to an arbitrator,
ibid., and the proceeding that occurs before the arbitrator provides the tenured
employee with additional rights before a final determination is reached.
Considering a tenured board-of-education employee's extensive
procedural rights and opportunities to defend against a charge, it seems clear the
Legislature saw no reason to provide an additional right – that which was
generally granted all other public employees in N.J.S.A. 10:4-12(b)(8) – to a
public discussion at the probable-cause stage described in N.J.S.A. 18A:6-11.
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To adopt plaintiff's understanding of these statutes would require our
insertion into the end of N.J.S.A. 18A:6-11 a phrase like: "except if the
employee requests in writing that the discussion occur in public." To engraft an
exception to a statute, which unambiguously allows for no exception, far
exceeds the judiciary's role in such matters. Plastic Surgery Ctr., P.A. v. Malouf
Chevrolet-Cadillac, Inc., 457 N.J. Super. 565, 574-75 (App. Div. 2019), aff'd
o.b., 241 N.J. 112 (2020). That would be legislating, not interpreting. In the
final analysis, we cannot presume the Legislature "intended a result different
from what is indicated by the plain language or add a qualification to a statute
that the Legislature chose to omit." Tumpson v. Farina, 218 N.J. 450, 467-68
(2014). Finding no ambiguities in either the Open Public Meetings Act or in
N.J.S.A. 18A:6-11, we must simply "apply the law as written." State v. Hudson,
209 N.J. 513, 529 (2012).
We conclude N.J.S.A. 18A:6-11 constitutes one of the exceptions to the
Open Public Meetings Act, made possible by N.J.S.A. 10:4-12(b)(1), and
requires that when boards of education engage in the processes described in
N.J.S.A. 18A:6-11 that its "consideration and actions . . . shall not take place at
a public meeting." And, because such "consideration and actions" cannot occur
in public, plaintiff was not entitled to a Rice notice.
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Reversed and remanded for the entry of an order dismissing the complaint.
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