P.E.R.C. No. 2001-9, Camden B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN BOARD OF EDUCATION, Respondent, -and- Docket No. TI-H-99-1 CLARENCE TURNER, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Murray, Murray & Corrigan, attorneys ¶

(Karen A. Murray, of counsel) ¶

For the Charging Party, Wills, O'Neill & Mellk, attorneys ¶

(Arnold M. Mellk, of counsel; Gidian R. Mellk, on the brief) ¶

DECISION ¶

On September 11, 1998, Clarence Turner filed a petition for contested transfer determination. The petition alleges that the Camden Board of Education violated N.J.S.A . 34:13A-25 by transferring him from a high school to a middle school position for disciplinary reasons. ¶

On October 7, 1998, the Board filed an Answer denying that the transfer was for disciplinary reasons. It asserts that the transfer was an administrative decision based on the Board's need to restructure and improve the athletics program; and the middle school's need for a qualified and experienced physical education teacher. ¶

On March 10, 1999, a Notice of Hearing issued. On July 21, Hearing Examiner Jonathon Roth conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On November 10, 1999, the Hearing Examiner issued a report and recommendations. H.E. No. 2000-3, 26 NJPER 145 (¶31056 1999). He found that the Board's former superintendent, Roy Dawson, who recommended the transfer to the Board, essentially admitted that the transfer was intended to placate the New Jersey Interscholastic Athletic Association (NJSIAA), which had suspended the boys varsity basketball team from post-season play for two years but held out the possibility of a waiver if the Board took "administrative action" against the coach, who was Clarence Turner. The Hearing Examiner recommended promptly transferring Turner back to Camden High School as a physical education teacher. The Board also removed Turner from his coaching position, but the Hearing Examiner noted that whether the Board had just cause to remove Turner as varsity coach or whether he had coaching job security were issues outside the purview of our contested transfer jurisdiction. See N.J.S.A. 34:13A-25. ¶

On March 2, 2000, after an extension of time during which the parties engaged in settlement discussions, the Board filed exceptions. The Board argues that it evaluated Turner's qualifications and determined that he was the most qualified to improve the physical education and athletic programs at the middle school. It notes that during Turner's nearly four decades of service, the Board has never filed tenure charges, withheld an increment, reprimanded Turner or otherwise disciplined him in any manner. Thus, it argues, the transfer reflected an evaluation of Turner's performance as a well-qualified, experienced educator. It further argues that the Board's Corrective Action Plan for Interscholastic Athletics does not constitute a disciplinary measure. ¶

On March 7, 2000, Turner filed a response. He asserts that he brought acclaim to Camden High School during his tenure and that it is incredible that the Board would have transferred him for other than disciplinary reasons. It urges adoption of the Hearing Examiner's recommendations. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 2-8). ¶

On May 22, 1998, the NJSIAA Controversies Committee issued two decisions regarding two Camden High School basketball games. One decision described Coach Turner's "unsportsmanlike manner" at a varsity game and concluded that the high school basketball program and Turner would be placed on probation and banned from post-season play for two years. Turner was also fined $300. Another recommendation was that: ¶

the NJSIAA may waive some or all of this penalty if it deems sufficient administrative action by the Camden Board of Education has been taken against the Camden coach. [C-1] ¶

The second decision concerned an altercation between players and fans at a tournament game. The report concluded that ¶

Camden High School, including Turner, was responsible. The Committee again recommended a two year probation as a penalty. The Board was fined $1000; Turner was fined $300 and suspended from coaching for the 1998-99 school year. The Committee also recommended that the Board submit an "administrative corrective action plan" and allowed it to "make application to waive the second year of ineligibility." The NJSIAA Executive Director sustained the recommendations. ¶

In June 1998, Camden Board Superintendent Roy Dawson met with Turner to discuss his status in the district. Dawson mentioned to Turner that physical education teaching positions may be available at other middle schools, but Turner did not volunteer to be transferred. The Hearing Examiner also found that their discussions focussed on "saving the kids," meaning they wanted the varsity team to be allowed to participate as soon as possible in NJSIAA sanctioned post-season tournament play. ¶

In July 1998, Dawson recommended to the Board that Turner be transferred from the high school to Hatch Middle School. The Hearing Examiner found that Dawson essentially admitted that he recommended transferring Turner to placate the NJSIAA, which had held out the possibility of a penalty waiver if the Board took sufficient administrative action against the Camden coach. Thus, the Hearing Examiner concluded that the Board transferred Turner because of activity associated with his coaching. Nothing in this record suggests that the transfer would have occurred but for the NJSIAA controversy. ¶

The Board argues that there is no testimony or evidence to support the Hearing Examiner's finding that the transfer was for disciplinary reasons. It contends that, given Dawson's status as superintendent, his concern for the "kids" and "our children" had to refer to all of the district's children. It asserts that Turner's transfer involved observations, evaluations, impressions and judgments intended to improve the delivery of physical education and athletic instruction at the middle school. It contends that the Board transferred Turner for predominantly educational reasons in the best interest of the Camden High School basketball players, the students attending the Hatch Middle School, and the numerous other students attending schools in the district. ¶

N.J.S.A . 34:13A-25 prohibits transfers of school district employees between work sites for disciplinary reasons. The statute defines discipline to include "all forms of discipline, except tenure charges ... or the withholding of increments pursuant to N.J.S. 18A:29-14." N.J.S.A. 34:13A-22. ¶

The record fully supports the Hearing Examiner's conclusion that Turner was transferred as a sanction intended to placate the NJSIAA. There is nothing to suggest that the transfer had anything to do with any judgments about Turner's teaching performance. The transfer was directly linked to Turner's extracurricular activity as varsity basketball coach. We appreciate that his transfer will affect the students in the Hatch ¶

Middle School. Any transfer of a teaching staff member will have an impact on students at both ends of the transfer. Nevertheless, we must ask what motivated the transfer; and the answer is the desire to effectuate some "administrative action" against Turner to satisfy the NJSIAA. N.J.S.A . 34:13A-25 does not ask whether a transfer was for cause or otherwise justified. It asks only whether a transfer was for disciplinary reasons. If it was, the transfer is prohibited and we are required to take reasonable action to effectuate the purposes of the Act. N.J.S.A. 34:13A-27b. See Boonton Tp. Bd. of Ed ., P.E.R.C. No. 99-101, 25 NJPER 288 (¶30121 1999)(increment withholding based on incident during extracurricular activity found to be disciplinary and not based on evaluation of teaching performance). ¶

We conclude that this transfer was intended to punish Turner as a teacher for actions that took place while he was a coach and was an attempt to satisfy an NJSIAA condition that administrative action be taken against the former coach. Under these circumstances, we adopt the Hearing Examiner's recommendation to order the Board to promptly transfer Turner back to Camden High School as a physical education teacher. We take no position on Turner's removal from the coaching position as our jurisdiction in a contested transfer case is limited only to the transfer between work sites, not to a removal from an extracurricular position. ¶

OrderORDER ¶

The Camden Board of Education is ordered to promptly return Clarence Turner to a physical education teaching position at Camden High School. ¶

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: July 20, 2000 ¶

Trenton, New Jersey ¶

ISSUED: July 21, 2000 ¶