2019 NJASBO Academy Program

1. 2019 NJASBO Academy Program Legislative and Case Law Update NJASBO Headquarters Robbinsville, New Jersey March 27, 2019 Michael F. Kaelber, Esq. NJASBO Education Law Consultant kaelbs1122@aol.com

2. NEW JERSEY LEGISLATIVE UPDATE January 1, 2018 – March 23, 2019 www.njleg.state.nj.us

3. Teacher Evaluation Rubric Weights 2018-2019 (8/31/18) mSGP Teacher • Teacher Practice: 70% (55%) • SGO: 25% (15%) • mSGP: 5% (30%) Non – mSGP Teacher • Teacher Practice 85% • SGO: 15% N.J.A.C. 6A:10-4.1 (d), 5.1 (d) - Issued 8/31/18

4. Teacher Evaluation Rubric Weights 2018-2019 mSGP Principal AP VP • Principal Practice: 70% (50%) • Administrator Goals: 10% • SGO Average: 10% • mSGP Average: 10% (30%) Non – mSGP Principal AP VP • Principal Practice 80% (50%) • Administrator Goals 10% (40%) • SGO Average: 10%

5. Legislative Update • P.L. 2017, c. 274 (1/8/18) – Provides certain immunity to board of director members and employees of private schools for students with disabilities for HIB incident reporting. • P.L. 2017, c. 291 (1/16/18) – Establishes certain requirements, including staff training and reporting to parents/guardians of students with disabilities who are restrained or secluded in school districts, ESCs and approved PSSDs.

6. Legislative Update Physical Restraint/Seclusion • Limits use of physical restraint for students with disabilities – only in an emergency in which the student is exhibiting behavior that places the student or others in imminent physical danger • Only restrain in prone position with prior written authorization of primary care doctor • Staff members using restraint annually trained • Immediate parental notice with written notice within 48 hours • DOE Guidance 7/10/18

7. Legislative UpdatePhysical Restraint/Seclusion • Law defines restraint and seclusion • Physical restraint-means the use of a personal restriction that immobilizes or reduces the ability of a student to move all or a portion of his or her body. • Seclusion technique – the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving, but does not include a timeout • Timeout – means a behavior management technique that involves the monitored separation of a student in a non-locked setting, and is implemented for the purpose of calming.

8. Legislative Update Physical Restraint/Seclusion • N.J.S.A. 18A:6-1 Corporal Punishment statute • Regular education students • Training of staff – very important! • Careful and continuous monitoring of each incident where restraint used; second person • Documented in writing in enough detail to use to develop or improve a BIP at next IEP mtg • Attempt to minimize use of physical restraint through use of positive behavior supports

9. Legislative Update“Pass the Trash” • P.L. 2018, c.5 – Requires school districts, charter schools, nonpublic schools and contracted services providers working with school districts to determine if prospective employees have pending or substantiated allegations of child abuse or sexual misconduct over the past 20 years. • Signed April 11, 2018, effective June 1, 2018

10. Key Definitions • “Child abuse” means any conduct that falls under the purview and reporting requirements of P.L. 1971, c.437 (N.J.S.A. 9:6-8.8 et. seq.) and is directed toward or against a child or student, regardless of the age of the child or student • THESE are the allegations that must be reporting to the Division of Child Protection and Permanency (DCP&P, formerly DYFS)

11. Key Definitions • “Sexual misconduct” means any verbal, nonverbal, written or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student. • NOTE that this definition potentially includes actions that may not have been reported to DCP&P but may have only been investigated by the school district

12. “Pass the Trash”Requirements for Prospective Employee • Provide a list of current employer and all former employers within the last 20 years that were schools or where the applicant was employed in a position that had involved direct contact with children • Sign a written authorization that allows for prior employers to release relevant information and releases those employers from any liability • Sign a written statement attesting to whether there are any substantiated or pending allegations of child abuse or sexual misconduct

13. “Pass the Trash”Prospective Employee Statement • Must disclose if: • Subject of any child abuse or sexual misconduct investigation in the last 20 years unless the investigation resulted in a finding that the allegations were false or not substantiated • Has ever been disciplined, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct • Has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct

14. “Pass the Trash”Requirements for Prospective Employer • Conduct a review of employment history by contacting applicable former employers to determine if • such an investigation is pending or if the allegations have been substantiated; • the employee was discharged, discharged, non-renewed, asked to resign from or otherwise separated from employment while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct; or • the employee has ever had a license suspended, surrendered or revoked while allegations were pending or under investigation, or as a result of a finding of child abuse or sexual misconduct • NOTE that different standards involved for contacting former out-of-state employers

15. “Pass the Trash”Prior Employers (In-State) • Must disclose requested information no later than 20 days after receiving a request if person in question employed within last 20 years • Failure of prior employer to respond within 20 days may be grounds for automatic disqualification of applicant for employment • NOTE this could result in applicant being penalized because of nonresponsive prior employer

16. “Pass the Trash”Prior Employers (Out-of-State) • Out-of-State prior employers cannot be compelled to cooperate. However, school district must document with specificity diligent efforts to gather the information in question • Best practice to send written request to out-of-state prior employers and follow-up if no response within short time period

17. Immediate Termination or Rescission of Offer • Right to terminate immediately or rescind offer if applicant is offered or begins employment, and then relevant information is subsequently discovered • Termination is not subject to any grievance or appeal process or tenure proceedings • OPEN QUESTION – What happens if a tenured employee is terminated based on inaccurate information from a prior employer without first going through tenure hearing process?

18. “Pass the Trash”Hiring on a Provisional Basis • May employ an applicant on a provisional basis for up to 90 days if: • The applicant has submitted the required documentation regarding prior employment • The school district or related entity has no knowledge or information pertaining to prior allegations of child abuse or sexual misconduct • The school district or related entity determines that “special or emergent circumstances exist”

19. Bars Suppression of Information • The statute bars settlement agreements, contracts, or collective bargaining agreements from including language that has the effect of • Suppressing or destroying relevant information related to an investigation; • Limiting the right of an employer to report suspected incidents; or • Expunging relevant information from employment records • OPEN QUESTION – The impact on nondisclosure agreements entered into prior to the effective date of the legislation

20. Legislative Update • P.L. 2018, c. 9 (4/24/18) – Diane Allen Equal Pay Act – Equal Pay and Employment Discrimination • P.L. 2018, c. 10 (5/2/18) – Earned sick leave for employees • P.L. 2018, c. 15 (5/18/18) – Workplace Democracy Enhancement Act • P.L. 2018, c. 68 (7/24/18) – Allows for municipality with population over 200,000 to impose an employer payroll tax; revenues to be paid over to school districts in certain circumstances

21. Legislative Update • P.L. 2018, c. 81 (8/10/18) – Directs State Board of Education to authorize computer science education endorsement to instructional certificate • P.L. 2018, c. 83 (8/10/18) – Unemployment compensation and labor disputes • P.L. 2018, c. 100 (8/17/18) – Permits school district superintendent to designate school employee with certain expertise as school safety specialist • P.L. 2018, c. 106 (8/24/18) – Requires certain schools to maintain supply of opioid antidotes and permits emergency administration of antidote by school nurse or trained employee. • P.L. 2018, c. 156 (12/17/18) – Authorizes local units of government subject to “Local Public Contracts Law” and “Public School Contracts Law” to use electronic procurement technologies.

22. Legislative Update • P.L. 2019, c. 32 (2/4/19) – Raises, over time, hourly minimum wage to $ 15.00 • P.L. 2019, c. 33 (2/4/19) – Alyssa’s Law – requires pubic school buildings to be equipped with panic alarm linked to local law enforcement. • P.L. 2019, c. 37 (2/19/19) – Revises law concerning family leave, temporary disability and family temporary disability leave or sexual violence safety leave

23. Legislative Update – School Security School Safety Specialist • P.L. 2017, c.162 – Establishes NJ School Safety Specialist Academy and requires every school district to appoint a school administrator as School Safety Specialist • Responsibilities include supervising and overseeing all school safety and security personnel; ensuring safety and security policies are in compliance; providing necessary training and resources to staff • P.L. 2018, c. 100 – Allows for designated school employee with expertise

24. Transgender Students/Staff • Four legislative enactments • P.L. 2017, c. 137; DOE Guidelines 9/27/18 • P.L. 2018, c. 58; Amended birth certificate – female, male, undesignated non-binary gender • P.L. 2018, c. 59; Death certificates, gender identification • P.L. 2018, c. 60; Transgender Equality Task Force • NJSIAA Transgender Student Policy – Participation, Drug Testing

25. DOE Transgender Student Guidance • Definitions • Student Gender Identity – Parent consent, court order name change not required; parent notification • Name and pronoun use, student ID, student dress • Safe and Supportive Environment – staff training, equal access, HIB, social and emotional learning • Confidentiality and Privacy • Student Records – gender identity v. birth name • Student Activities • Restrooms and locker rooms

26. Joel Doe v. Boyertown Area SD3rd Cir. Ct. of Appeals – June 19, 2018 Issue • Parents upset that SD’s policy assigned facility use by gender identity rather than the student’s sex at birth • Claimed a violation of the right to privacy • Legal Arguments: • Constitutional right to bodily privacy • The SD violated Title IX’s protections against sex discrimination in schools • The policy went against state (PA) tort law Holding • SD may continue using bathrooms and locker rooms that match the students’ gender identities Rationale • “An individual’s right to privacy is not absolute and has to be weighed against competing governmental interests.” • State interest in this case is “protecting transgender students from discrimination and minimizing risk to their well-being.” • “… the presence of transgender students in the locker and restrooms is no more offensive to … privacy interests than the presence of other students who are not transgender…” • “Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes severe psychological distress often leading to attempted suicide.”

27. School Bus Safety Legislation Prompted by May 17, 2018 Bus crash in which a 10 year old student and a teacher were killed when a 77 year old bus driver attempted to illegally cross 3 lanes of traffic on 1-80. Package of legislation signed by Governor Murphy on December 17, 2018: • P.L. 2018, c.151 requires holders of a bus driver license to submit a medical report by a certified medical examiner. It also requires bus drivers over age 70 to submit proof of physical fitness every year, and those over age 75 to submit this proof every six months. • P.L. 2018, c.152 requires that when the Department of Education notifies a board of education or a school bus contractor that a school bus driver has had their bus driver license suspended or revoked, the board of education or school bus contractor must verify to DOE that the driver in question no longer operates a bus for them. • P.L. 2018, c.159 requires school bus operations in the State to comply with federal regulations concerning safety, noise emissions, insurance, and drug testing, among other areas. • P.L. 2018, c.160 requires all permanent and substitute school bus drivers and aides to undergo safety education programs twice every year. • If 1st training not done already in 2019, should have first training completed as soon as possible.

28. School Bus Safety Legislation Additional Bus Safety Legislation • P.L. 2018, c. 118 Requires certain school buses to be equipped with lap and shoulder seat belts. • P.L. 2019, c. 9 Requires suspension of school bus endorsement on driver license for a certain number of motor vehicle moving violations in certain time period. • P.L. 2019, c. 17 Requires certain school district transportation supervisors to complete educational program. • P.L. 2019, c. 24 Requires study of safety of school bus passengers in certain emergency situations, including school bus accidents; appropriates $ 250,000. • P.L. 2019, c.43Requires display of identifying information on rear of bus so public may report bus driver misconduct.

29. Bus Driver Safety Education Training Two times per year, an employer shall administer a safety education program for all permanent and substitute school bus drivers and school bus aides that it employs. At a minimum, the training shall include: • Student management and discipline; • School bus accident and emergency procedures; • Conducting school bus emergency exit drills; • Loading and unloading procedures; • School bus stop loading zone safety; • Inspecting the school vehicle for students left on board at the end of a route; and • The use of a student's education records, including the employee's responsibility to ensure the privacy of the student and the student’s records, if applicable.

30. Bus Driver Safety Education Training Additional Issues to Consider: • Use of School Bus Cameras • Identify Existing Problems on the Bus • Assist in Improving Training • Outsourced Bus Companies • Obtain Written Documentation re: Proof of Training • Indemnification Clauses with Service Contract • Transient / “Come and Go” Employees Training • Getting “Buy In” • Establishes Evaluation / Driver Discipline Baselines

31. Legislation Enacted 3/18/2019 • P.L. 2019, c.40 Upgrades penalty for failing to report act of sexual abuse against child • P.L. 2019, c.43Requires display of identifying information on rear of bus so public may report bus driver misconduct. • P.L.2019, c.45Mandates certain training for DOE arbitrators; conduct unbecoming, allegations of sexual assault and child abuse • P.L. 2019, c.46Requires school districts to notify State Board of Examiners when teaching staff member fails to report child abuse for determination of revocation or suspension of certificate • P.L. 2019, c.47Requires Attorney General to develop protocol for retaining footage from school surveillance system • P.L. 2019, c.51 Revises law concerning Class III Special Law Enforcement Officer

32. Uniform State Memorandum of Agreement Between Law Enforcement and the Schools 2019 Revisions – January 8, 2019

33. Case Law Update

34. United States Supreme Court Janus v. AFSCME Council 31 • Argued February 26, 2018 • Decided June 28, 2018 • Holding - Agency Shop fees are unconstitutional and a violation of first amendment right to free speech • Abood v. Detroit BOE (1977) upheld agency shop fees. • Friedrichs v. California Teachers Ass’n. (2016) 4-4 vote, upheld 9th Circuit decision in favor of CTA.

35. United States Supreme Court Janus v. AFSCME Council 31 • Unit employees cannot be compelled to join or pay fees to the union. • Non-union unit employees still covered by terms and conditions of CBA, represented in contractual grievances. • Consent of deduction of union dues must be “clearly and affirmatively” given; opt-in not opt-out

36. United States Supreme Court Janus v. AFSCME Council 31 New Jersey • P.L. 1979, c. 477 – Agency Shop – May negotiate a representation fee in lieu of dues; may not exceed 85%. N.J.S.A.34:13A-5.5 • P.L. 2002 c. 46 - If not agreed to in contract, union may petition PERC to order agency shop. N.J.S.A. 34:13A-5.5, 5.6

37. Janus-Related Legislation • P.L. 2018, c.15 – Workplace Democracy Enhancement Act • Signed May 18, 2018 by Governor Murphy • School districts and other public employers must provide union representatives access to members of their negotiation units

38. Workplace Democracy Enhancement Act • Exclusive representative unions have the right to: • Meet with individual employees on premises during the work day to investigate and discuss grievances, workplace-related complaints, and other workplace issues; • Conduct meetings on premises during breaks and before/after the workdayto discuss workplace issues, collective negotiations, administration of agreements, other matters related to union duties, and internal union matters; and • Meet with new employees without charge to the pay or leave time of the employee, within 30 days of hire; 30 – 120 minutes.

39. Workplace Democracy Enhancement Act • Exclusive representative unions have the right to: • Receive from the employer, employees’ home and work contact information within 10 days of hire; updated every 120 days; not deemed government records. January 1 • Use school district email systems to communicate with members regarding collective negotiations matters, grievances and internal union matters. • Use school district buildings and facilities to conduct meetings with unit members; no partisan election matters.

40. Workplace Democracy Enhancement Act • School districts are prohibited from encouraging employees to resign or relinquish membership in a union or to revoke authorization to deduct union fees; unfair labor practice. • WDEA classifies all employees, including part-time employees, who perform negotiations unit work, as part of the negotiations unitunless they are confidential employees or managerial employees • Employees who no longer wish to be in the union may revoke their authorization of payroll deduction of union fees by written notice during the 10 days following the employee’s anniversary date of employment.

41. Janus/WDEA – The Aftermath • Janus and the WDEA – the decision, the legislation; thoughts of the group • Dept. of Labor Joint Guidance https://nj.gov/labor/lwdhome/press/2018/20180822janus.html • Opt out, Opt in – Seven months in – what have we seen • Early litigation – The PERC Decisions Reregistering of union members • Delanco, Chatsworth - PERC TROs, Interim Relief

42. Janus/WDEA – The Aftermath • Board of Education /Union Relationships • Affirmative Action Complaints – Member v Non-Member • Grievances and litigation • Collective Negotiations • Union membership Issues • Opt Out, Opt In • Rejoining the union • Representation issues, fees for services other than negotiations and grievances

43. Janus/WDEA – The Aftermath • Access to school email systems – limited open public forum • Current litigation re: WDEA • Smith v. NJEA et. al. (Clearview Regional) • NJEA letter re: escrow of dues payments • Fischer and Speck v. Murphy, NJEA, Ocean Twp. Ed. Assn. • Thulen v. AFSCME. • Recently Negotiated Settlements • Long term effects for unions and boards of education; Where will we be five years from now?

44. United States Supreme Court South Dakota v Wayfair, Inc. • Supreme Court overturned Quill v. North Dakota (1992) – States may compel the collection of internet or mail order sales tax by retailers even if they do not have a physical presence in the state. • GAO estimates loss of $23 billion annually • Argued 4/17/18, Decided June 21, 2018

45. United States Supreme Court South Dakota v Wayfair, Inc. New Jersey • New Jersey’s Amazon Law – 2014 • Out-of-state seller’s gross receipts from sales to New Jersey customers exceeds $10,000 during the preceding four calendar quarters; sales tax collected • New Jersey estimated loss of $350 million in sales tax annually. • Gov. Murphy signs new law P.L. 2018, c. 132 10/4/18

46. New Jersey Standards and Assessment In Re N.J.A.C. 6A:8 Standards and Assessment, App. Div. 12/31/18 • Holding – N.J.A.C. 6A:8-5.1(a)(6), -5.1(f) and -5.1(g) are contrary to the express provisions of the Proficiency Standards and Assessment Act because they require administration of more than one graduate proficiency test to students other than those in the eleventh grade, and because the regulations on their face do not permit retesting with the same standardized test to students through the 2020 graduating class. As a result, the regulations as enacted are stricken. • ELA10, Algebra I, end of course assessments; more than just 11th grade assessment

47. Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell 448 N.J. Super. 520 (App. Div. Feb. 8, 2017) • Holding – Board is required to send out Rice notice any time any matter is on the agenda involving the employment, appointment, termination, evaluation, promotion, or disciplining of an employee. • Court further held that, absent extraordinary circumstances, minutes need to be made available w/in 45 days. • Result - Vote to not reappoint is null and void. Required 45 day time limit for minutes release, absent extraordinary circumstances.

48. Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell New Jersey Supreme Court, Dkt. No. A-84-16 Decided June 21, 2018 • Holding– Appellate Division reversed – Rice notices need not be given to all potentially affected employees whenever a personnel matter appears on the public meeting agenda. • Procedural notice required in Rice should not be extended beyond its factual setting; would add to the OPMA requirements not imposed by the Legislature. • Minutes should be approved regularly and released in a timely manner.

49. Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Persi v. Woska - App. Div. 3/10/17 • Appellate Division determined that board member lacked the authority to unilaterally issue a RICE notice to the CSA. • Only board president and a majority of the board may call a meeting or RICE the CSA • See N.J.A.C. 6A:32-3.1

50. Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Cheng v. Rodas- 1/10/17 • Commissioner determined that board president lacked the authority to unilaterally issue a RICE notice to the school business administrator. • Reliance on erroneous legal opinion did not protect the board member from sanction.