P.E.R.C. No. 2001-41, W New York B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WEST NEW YORK BOARD OF EDUCATION, Respondent, -and- Docket No. TI-H-99-2 JOSEPH AMARA, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, Scarinci & Hollenbeck, attorneys ¶

(Esther Suarez, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Gail Oxfeld-Kanef, of counsel) ¶

DECISION ¶

On February 16, 1999, Joseph Amara filed a petition for a contested transfer determination. The petition alleges that the West New York Board of Education violated N.J.S.A . 34:13A-25 by transferring him for disciplinary reasons from the position of supervisor of technology to the position of supervisor of special education. ¶

On March 24, 1999, the Board filed an answer denying that the transfer was disciplinary. It asserts that under a reorganization, Amara's previous position was abolished and replaced by a network administrator. ¶

On October 7, 1999, a Notice of Hearing issued. On March 7, 2000, Hearing Examiner Jonathon Roth conducted a hearing. The parties examined witnesses and introduced exhibits. On May 26, the Hearing Examiner denied the Board's motion to reopen the hearing to admit new evidence. The parties then filed post-hearing briefs. The Hearing Examiner did not consider documents attached to the Board's brief that were not part of the record. ¶

On August 25, 2000, the Hearing Examiner issued his report and recommended decision. H.E. No. 2001-8, 26 NJPER 421 (¶31163 2000). He found that the transfer was intended to punish Amara for actions that took place while he oversaw the district's computer technology program. The Hearing Examiner recommended a finding that Amara had been transferred between work sites for disciplinary reasons and an order transferring him back to the high school as district supervisor of special education. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 2-15). ¶

We summarize his factual findings. ¶

Amara is certified to teach mathematics and science, is certified as a supervisor, and has a doctorate in computer education. He was the district supervisor of the technology department. ¶

In November 1997, Amara asked to be relieved of the duty of overseeing technician repairs because the department was growing and it was too large a job for him. At about that time, Amara started complaining to Superintendent Pablo Clausell and the Board about computer disrepairs and the Board's failure to implement a technology plan, including the hiring of a network administrator. ¶

In July 1998, the Board nearly doubled the number of special education teachers and resolved to return about 75 students to the district. It did not then consider creating a special education supervisor position. ¶

By September 1998, Amara had been relieved of his repair oversight duties and the Board had hired a network administrator. Amara learned that $40,000 of his department's budget had been reallocated to purchase library software. Upset by the diversion, Amara questioned Clausell who told him that it was an administrative decision. ¶

Computer disrepairs increased and the Board hired an outside company to assist in making repairs. Sometime in September 1998, the Board's director of curriculum and instruction ordered Amara to surrender all software site licenses to the network administrator. Amara asked the director why the licenses had to be returned but received no response. Anthony Yankovich, then assistant superintendent of personnel, testified that he wanted the licenses kept in the central office under the control of a confidential employee, as distinguished from a negotiations unit employee like Amara. ¶

In October and November 1998, Amara wrote a series of memoranda complaining that teachers were frustrated by the non-functioning computers and about the fact that repairs were not getting done by the outside company. On November 6, he suggested to the superintendent that going to the media (Jersey Journal, Bergen Record, Channel 12, I-Team, etc.) might help get the computer labs up and running. He offered to prepare a memorandum to send the media unless the superintendent believed sending it would be an unwise move. ¶

On November 9, 1998, Amara reported that his computer password no longer functioned. Clausell responded that there was some kind of system glitch. Yankovich testified that Amara's password had been taken away because he had access to all areas of the district's computers and the district wanted such access to be limited to confidential employees. The Hearing Examiner rejected that explanation, noting that it was not identified at the time. ¶

On November 10, 1998, Amara wrote another memorandum to Clausell questioning the competency of the repair company, and asking that Clausell not discuss Amara's work "with my subordinates as this is quite unprofessional." That same day, Yankovich sent a confidential memorandum to Clausell recommending, among other things, that Amara's supervisor of computer technology position be abolished and that a position of special education district supervisor be established. Yankovich also recommended that Amara be offered the special education position. ¶

On November 12, 1998, the Board's Director of Special Services sent a letter to Yankovich requesting that he consider the need for a special education supervisor. On November 19, Yankovich circulated a job posting for the position. One of the qualifications was a valid certification in the subject area. Amara is not certified to teach special education. However, the job description, developed the previous day, specifically excludes the need for subject area certification. Yankovich testified that the posting was an error. ¶

Also on November 19, 1998, Amara faxed a letter to the Commissioner of Education alleging "malfeasance, misappropriation of state/federal funds and violations of state regulations." Amara did not provide a copy of the letter to anyone in the district until December 1998. ¶

On November 20, 1998, Clausell informed Amara that he was transferring him immediately to special education for the betterment of the school district. Clausell denied Amara's accusation that the transfer was in retaliation for the letter to the Commissioner. Amara asked if the Board had been informed of the transfer. Clausell said it had not and that the decision was within his authority. Amara demanded that the directive be put in writing since there were no witnesses. Clausell summoned Yankovich and repeated the directive to Amara. Clausell asked Yankovich if he knew of Amara's letter to the Commissioner and Yankovich said no. ¶

Clausell directed Amara to accompany the business administrator to Amara's office at the high school. The lock on his door had been changed. Amara removed his personal effects and was relocated to an office building that houses the majority of district supervisors. ¶

On December 9, 1998, the Board approved Amara's transfer and abolished his former position. Before the vote, Amara argued that the transfer was in retaliation for the letter he faxed to the Commissioner. Clausell spoke at the meeting and stated that he was unaware of the substance of Amara's letter. ¶

The Board employs ten district supervisors. Although supervisors are not required to be certified to teach the subject areas they supervise, Amara is the only one not certified to teach even one class over which he has subject-area supervision. ¶

The Hearing Examiner concluded that the decision to transfer Amara was motivated by a resolve to remove him from his oversight of the computer technology department so as to end his complaints about disrepairs and to preempt any documentary revelation of the problem outside the district. He characterized the motive as akin to an intent to punish and one that is predominately disciplinary within the meaning of N.J.S.A . 34:13A-27. By way of remedy, the Hearing Examiner recommended that Amara be transferred back to the high school as district supervisor of special education. ¶

On September 8, 2000, the Board filed exceptions. The Board argues that the Hearing Examiner erred: in finding that the Board exhibited disciplinary animus by removing its software site licenses from Amara and turning them over to the network administrator; in finding that the Board transferred him as discipline for his inquiry regarding the transfer of $40,000 out of his department's budget; and in not acknowledging that new regulations of the State Department of Education mandated that the district receive 300-400 special education students that had previously been educated outside the district. In addition, the Board presents its view of the facts but does not specify any other questions of fact to which exception is taken as required by N.J.A.C. 19:14-7.3(b) and N.J.A.C . 19:18-3.11. The Board argues that the Hearing Examiner failed to address its needs and constraints at the time of the transfer. It further argues that its decision was based on reasonable education-related factors, and not disciplinary animus. ¶

Amara did not file exceptions or a response to the Board's exceptions. ¶

We first address the Board's exceptions. ¶

One can construct legitimate reasons for asking Amara to turn over software licenses to the new network administrator. Nevertheless, the Hearing Examiner reasonably inferred animus from the fact that Amara was ordered to turn over the licences and received no answer when he asked why. ¶

The Hearing Examiner did not specifically conclude that Amara's inquiring about the transfer of $40,000 out of his department's budget motivated the transfer. The Hearing Examiner simply reported the fact that Amara had asked the superintendent to explain the diversion in writing. ¶

The Hearing Examiner did report that the district was experiencing rapid growth in special services as a result of special education students returning to the district. But he questioned the timing of the decision to create a supervisor of special education position, just days after Amara suggested that the district's computer problems be brought to the attention of the media and just days after his computer password was changed, without a truthful explanation. The Hearing Examiner was also suspicious of the fact that Amara became the only district supervisor not certified to teach even one class over which he was given subject area supervision. ¶

We next address the legal framework for this decision. ¶

N.J.S.A . 34:13A-25 prohibits transfers of school employees between work sites for disciplinary reasons. The petitioner has the burden of proving its allegations by a preponderance of the evidence. Irvington Bd. of Ed., P.E.R.C. No. 98-94, 24 NJPER 113 (¶29056 1998). ¶

Before 1990, decisions to transfer and reassign were generally not mandatorily negotiable or legally arbitrable, but disciplinary transfers could be submitted to binding arbitration if the parties had so agreed. Thus, we have often assessed whether or not a transfer is disciplinary, although not in the context of exercising our jurisdiction under N.J.S.A. 34:13A-27. ¶

Our case law does not establish a bright line test for assessing whether a transfer is disciplinary and, therefore, legally arbitrable. But read together, our decisions indicate that we have found transfers to be disciplinary where they were triggered by an incident for which the employee was also reprimanded or otherwise disciplined or were closely related in time to an alleged incident of misconduct. In all of these cases, we noted that the employer did not explain how the transfer furthered its educational or operational needs. See, e.g., Ocean Tp., P.E.R.C. No. 93-13, 18 NJPER 442 (¶23198 1992)(reassignment was disciplinary where it was made shortly after officer mishandled an investigation and received a reprimand for the incident on same day supervisor recommended reassignment); Mt. Arlington Bd. of Ed., P.E.R.C. No. 98-4, 23 NJPER 450 (¶28211 1997)(teacher's reassignment was disciplinary where it related to incident involving misuse of testing materials for which teacher had been reprimanded and had her increment withheld); see also West New York Bd. of Ed., P.E.R.C. No. 91-94, 17 NJPER 248 (¶22113 1991)(teacher transfer was disciplinary where it was effected shortly after he posted signs protesting layoffs); Hudson Cty., P.E.R.C. No. 87-20, 12 NJPER 742 (¶17278 1986)(temporary transfers of supervisors to different shifts were disciplinary where they were made shortly after employees were reprimanded). ¶

By contrast, we have found transfers not to be disciplinary where they were effected predominantly to further an employer's educational, operational, or staffing objectives. See, e.g., Sea Girt Bd. of Ed., P.E.R.C. No. 91-75, 17 NJPER 158 (¶22065 1991)(teacher transfer intended to accomplish the board's goal of maintaining kindergarten enrollment; board had investigated complaints, concluded that no disciplinary action was warranted, and did not place complaints in personnel file); see also Long Branch Bd. of Ed., P.E.R.C. No. 92-90, 18 NJPER 132 (¶23062 1992)(transfer not disciplinary where facts did not establish that transfer was a response to teacher's critical comments at Board meeting). ¶

Other of our cases have found that transfers effected because of concern about an employee's poor performance of core job duties -- as opposed to concerns about absenteeism or violation of administrative procedures -- were not disciplinary but instead implicated the employer's right to assign and transfer employees based on their qualifications and abilities. See, e.g., Ridgefield Park Bd. of Ed ., P.E.R.C. No. 92-67, 18 NJPER 55 (¶23023 1991)(reassignment based on belief teacher would be more effective in another grade; performance review included negative comments on absences, tardiness, use of grades, and poor student performance); see also Cape May Bridge Comm'n, P.E.R.C. No. 84-133, 10 NJPER 344 (¶15158 1984), aff'd NJPER Supp .2d 152 (¶135 ¶

App. Div. 1985)(transfer motivated by desire to replace employee with a better qualified employee who would not be involved in as many accidents). ¶

This case law provides a framework for assessing whether a transfer is disciplinary under N.J.S.A . 34:13A-25, and is consistent with what appears to have been the Legislature's understanding that a transfer is predominately disciplinary when it is punitive and/or is not made for educational or staffing reasons. Accordingly, in exercising our jurisdiction under N.J.S.A . 34:13A-27, we will consider such factors as whether the transfer was intended to accomplish educational, staffing or operational objectives; whether the Board has explained how the transfer was so linked; and whether the employee was reprimanded for any conduct or incident which prompted the transfer. ¶

Against this backdrop, we adopt the Hearing Examiner's conclusion that Amara was not transferred because he did his computer technology job poorly or was better suited to supervise special education. Amara was transferred to end his complaints about the district's computer network and to preempt any effort he was considering to contact the media to assist repair efforts. ¶

Amara persistently complained about the state of the district's computer network. When he suggested going to the media, he got no response, but three days later his computer password was changed. Clausell falsely told Amara that a glitch was to blame when in fact he had directed that Amara's password by deleted. Unable to access the computer system, Amara could not perform his duties. The Board soon after abolished his position and transferred him to a new position based, in part, on a confidential memorandum. The timing of that memorandum, however, was suspicious; the Board did not explain why the need to abolish the technology position and create a special education position arose in November and the Director of Special Services had not yet recommeded creating the new position. Finally, we agree with the Hearing Examiner that the immediacy of the transfer and the abrupt way Amara was escorted from his office are more analogous to a termination than a lateral transfer. ¶

Under all these circumstances, we conclude that the Board violated N.J.S.A . 34:13A-27(b) when it transferred Amara to another worksite for disciplinary reasons. In the absence of exceptions, we also adopt the Hearing Examiner's proposed remedy. ¶

OrderORDER ¶

The West New York Board of Education is ordered to transfer Joseph Amara back to the high school as district supervisor of special education. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: January 25, 2001 ¶

Trenton, New Jersey ¶

ISSUED: January 26, 2001 ¶