Legally Speaking: Navigating Nonrenewals and Reductions in Force

One of the most important responsibilities of a board of education is to attract, employ and retain highly qualified personnel who can provide the school district’s students with a meaningful, impactful and thorough education. As the 2023-2024 school year comes to a close, all boards will consider whether to continue the employment of its nontenured teaching staff members and paraprofessionals. In addition, some boards will need to consider whether, due to unanticipated financial distress or otherwise, a reduction in force is necessary. This article highlights important information regarding nonrenewals and RIFs, but it is not intended to serve as a substitute for formal legal advice from board counsel. The laws and regulations mentioned in parentheses are those that apply to the specific issues discussed. 

Nonrenewal of Nontenured Teaching Staff Members and Paraprofessionals To renew or not to renew … that is the question. In deciding whether to offer continued employment to nontenured teaching staff members and paraprofessionals, boards and chief school administrators must be cognizant of, and adhere to, clearly defined statutory and regulatory requirements. Failure to ensure strict compliance with these deadlines could have long-term unintended consequences. 

On or before May 15, 2024, nontenured teaching staff members and paraprofessionals continuously employed since Sept. 30, 2023, must receive (1) a written offer of a contract for employment from the board for the 2024-2025 school year, or (2) a written notice from the chief school administrator that continued employment will not be offered. (N.J.S.A. 18A:27-10 and N.J.S.A. 18A:27-10.2). 

In other words, by no later than May 15, 2024, nontenured teaching staff members and paraprofessionals must receive written notification as to whether their employment will be renewed for the 2024-2025 school year. 

If a nontenured teaching staff member does not receive written notification of nonrenewal by May 15, 2024, the board shall be deemed to have renewed their employment. (N.J.S.A. 18A:27-11) Stated differently, failure to ensure receipt of nonrenewal by May 15, 2024, will mean, regardless of the chief school administrator’s and/or the board’s intent to the contrary, that the employment of the nontenured teaching staff member will be automatically renewed. 

To comply with the May 15, 2024, notification deadline, the work of the chief school administrator and the board must begin before that date. Nontenured teaching staff members and paraprofessionals cannot be advised of nonrenewal until the chief school administrator first notifies the board about the recommendation not to renew and provides the reasons for nonrenewal. (N.J.S.A. 18A:27-4.1(b)). 

Based on the chief school administrator’s recommendations, the board will vote to renew the employment contracts of its nontenured teaching staff members and paraprofessionals. (N.J.S.A. 18A:27-4.1(b)). If the board does not vote to renew the employment contract of a nontenured teaching staff member(s) or paraprofessional(s), they are deemed to be nonrenewed. 

In order to be approved for renewal, a nontenured teaching staff member and paraprofessional must receive a majority vote of the full membership of the board. By way of example, if a board has nine members, five affirmative votes are needed, regardless of the number of board members who are present and voting. Importantly, the board shall not withhold its approval for arbitrary and capricious reasons. (N.J.S.A. 18A:27-4.1(b)). Once this action has taken place, notification of renewal or nonrenewal can be provided to all nontenured teaching staff members and paraprofessionals by no later than May 15, 2024. 

If a nontenured teaching staff member receives written notification of renewal, they must accept the offer of employment, in writing, by no later than June 1, 2024. (N.J.S.A. 18A:27-12.) If a nontenured teaching staff member receives written notification of non-renewal, there are a number of due process requirements that must be complied with if initiated by the employee.

First, the nontenured teaching staff member may, within 15 days after receiving written notification of nonrenewal, request that the board provide a written statement of reasons for their nonrenewal. If a written statement of reasons is requested, the board must provide it to the nonrenewed teaching staff member within 30 days after receipt of the request. (N.J.S.A. 18A:27-3.2.)

Within 10 calendar days of the nonrenewed teaching staff member’s receipt of the written statement of reasons of nonrenewal, they may request, in writing, an informal appearance before the board, commonly referred to as a Donaldson hearing. (N.J.S.A. 18A:27-4.1; N.J.A.C.6A:10-9.1(a); Donaldson v. North Wildwood Board of Education, 65 N.J. 236 (1974)). 

The purpose of the Donaldsonhearing is to provide the nonrenewed teaching staff member with an opportunity to convince the board to reject the chief school administrator’s recommendation, and to offer reemployment for the 2024-2025 school year. (N.J.S.A. 18A:27-4.1; N.J.A.C. 6A:10-9.1(a)). The board must schedule the Donaldson hearing within 30 calendar days from the nonrenewed teaching staff member’s receipt of the written statement of reasons of nonrenewal. (N.J.A.C. 6A:10-9.1(b)). In practice, if the nonrenewed teaching staff member, following receipt of the written statement of reasons of nonrenewal, waits 10 days to request a Donaldson hearing, the board must then schedule the hearing within 20 days of the request for the hearing. 

The board has the discretion to determine a reasonable length for the Donaldson hearing and must provide the nonrenewed teaching staff member with adequate written notice regarding the date and time for the hearing. The nonrenewed teaching staffing member may bring an attorney to the hearing and may present witnesses who are not required to testify under oath, or to be cross-examined by the board. (N.J.A.C. 6A:10-9.1(d)-(h))

If a majority of the full membership of the board is persuaded by the nonrenewed teaching staff member’s arguments for renewal, it can vote to overturn the recommendation of the chief school administrator. If it is not convinced that overturning the chief school administrator’s recommendation is warranted, additional board action is not required. Nonetheless, and regardless of whether it overturns or accepts the chief school administrator’s recommendation, the board shall provide written notification to the nonrenewed teaching staff member of its final determination and must do so within three working days following the Donaldson hearing. N.J.A.C. 6A:10-9.1(i).

Critical Deadlines

In conclusion, if a board, based on the recommendation of its chief school administrator, does not want to renew the employment of its nontenured teaching staff members and paraprofessionals, it must ensure that timely written notification is received. If written notification is not received by May 15, 2024, individuals not anticipated by the budget, or deemed by the administration to be ill-suited for continued employment in the district, will be automatically renewed for at least another school year (and possibly longer if they acquire tenure). 

Bear in mind that there may be nontenured teaching staff members who can acquire tenure prior to May 15, 2024; therefore, boards and administrators must closely monitor and track the anniversary dates, and tenure acquisition dates, of all nontenured teaching staff members. Furthermore, boards must review their collective negotiations agreement to see if the parties mutually agreed that notice of renewal (or nonrenewal) would be provided by a date prior to May 15, 2024. Although the date of notification can, by mutual agreement, be prior to May 15, 2024, it cannot be later. Simply stated, the stakes are high when renewing or nonrenewing nontenured teaching staff members and paraprofessionals, and failure to do what is required, when it is required, is not a prudent or fiscally-sound option. 

Reductions in Force For some school districts, a RIF may be an unfortunate but unavoidable reality. A RIF reduces the number of employee positions in a school district and can impact, for example, custodians, child study teams and teaching staff members. Although any position can be subject to a RIF, the process to be followed may vary based on the positions implicated, and by the terms of the collective negotiations agreements with the school district’s different bargaining units. There is also no statute or regulation delineating the amount of notice that must be provided before a RIF can be initiated but, again, this may be set forth in collective negotiations agreements, or possibly in school district policies or regulations.

A RIF may be initiated by the board for its teaching staff members when, in the board’s judgment, “it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause.” In the event of a RIF, the board must determine the seniority of all tenured teaching staff members and must notify them of their seniority status. N.J.S.A. (18A:28-9.) If a board initiates a RIF of teaching staff member positions, nontenured teaching staff members in the position must be eliminated before tenured teaching staff members. Once all nontenured teaching staff members in the position have been eliminated, tenured teaching staff members are then RIF’d based on their seniority, and those with the least amount of seniority will be eliminated first.

Just because a tenured teaching staff member is initially identified as being subject to dismissal does not mean their employment will be terminated; instead, additional factors must be considered. For example, a tenured teaching staff member who is dismissed from a position due to a RIF may have a “bumping right” to another position held by a nontenured teaching staff member if they are appropriately certificated/have the necessary endorsements and are tenured in that position. Similarly, if a tenured teaching staff member was previously employed in another seniority category, they may have greater seniority rights than another tenured teaching staff member. In other words, what may seem to be simple at first blush is actually a very complicated analysis.

Once a RIF is completed, a board’s responsibility to those adversely affected does not necessarily end. Teaching staff members dismissed from employment “shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs.” (N.J.S.A. 18A:28-12.) Ensuring that eligible lists are accurate and properly maintained after a RIF has been completed is critically important and will help to ensure that the board reemploys the “right” staff when a vacancy becomes available in the future.

Although there is no statutory requirement for a RIF to be initiated only upon a recommendation from the chief school administrator, the commissioner of education has overturned RIFs when the chief school administrator was not consulted. Consequently, boards should, after analyzing all relevant factors, have regular and candid conversations with their chief school administrator about whether a RIF is truly necessary and, if so, the positions which should be implicated, bearing in mind the board’s overall goal – educating the students in the community.

In summary, if the board deems a RIF to be necessary, the need for consultation with board counsel cannot be overstated. The analysis of the issues involved in a RIF is both multifaceted and complex, and unequivocally requires regular input and guidance from board counsel. Boards and their administration cannot afford to navigate these issues in a silo, as the potential operational and fiscal missteps could be crippling to both personnel, and to the budget.

Kathryn A. Whalen is legal counsel/HR at NJSBA.