NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0857-13T2

 A-1012-13T2

FELICIA PUGLIESE,

Plaintiff-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT

OF THE CITY OF NEWARK,

Defendant-Respondent.

__________________________________

EDGARD CHAVEZ,

Plaintiff-Appellant,

v.

STATE-OPERATED SCHOOL DISTRICT

OF THE CITY OF NEWARK,

Defendant-Respondent.

__________________________________

Argued March 17, 2015 – Decided

Before Judges Koblitz, Haas and Higbee.

On appeal from Superior Court of New Jersey, 

Chancery Division, Essex County, Docket Nos. 

C-84-13 and C-98-13.

Richard A. Friedman argued the cause for 

appellant Felicia Pugliese (Zazzali, 

Fagella, Nowak, Kleinbaum & Friedman, 

attorneys; Mr. Friedman, of counsel and on 

APPROVED FOR PUBLICATION

May 19, 2015

APPELLATE DIVISION

May 19, 2015
2 A-0857-13T2

the brief; Marissa A. McAleer, on the 

brief).

Jason E. Sokolowski argued the cause for 

appellant Edgard Chavez (Zazzali, Fagella, 

Nowak, Kleinbaum & Friedman, attorneys; Mr. 

Sokolowski, of counsel and on the brief).

Brenda C. Liss argued the cause for 

respondent (Riker Danzig Scherer Hyland & 

Perretti, attorneys; Ms. Liss, of counsel 

and on the brief; John Atkin, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

In these appeals from termination, which we consolidate for 

the purposes of this opinion, tenured teachers Felicia Pugliese 

and Edgard Chavez assert that their legal defenses were not 

considered by the Commissioner of Education, the arbitrator 

hearing the case, or the trial court. We reverse and remand to 

the Commissioner to explicitly decide those legal defenses that 

the Commissioner does not expressly delegate to the statutorilymandated arbitrator to decide. The Commissioner must also 

inform the arbitrator what legal standards to utilize, after 

which the arbitrators must review the facts anew within this 

legal framework.

We first discuss the factual situation of each teacher. We 

then review the common statutes that apply to both matters, and

the reasons why we are compelled to remand to the agency to 
3 A-0857-13T2

determine in the first instance those issues implicating policy 

considerations and statutory interpretation in the educational 

context.

The Chavez matter

At the time of the arbitrator's decision in February 2013, 

Chavez had been employed by defendant, the State-operated school 

district of the City of Newark,1 or its predecessor the Board of 

Education of Newark, for approximately twenty years, eighteen of 

which were spent successfully teaching math and other subjects

in the adult education/GED2 program. In August 2010, after that 

program was cancelled, Chavez was assigned to teach sixth grade 

math using a math curriculum he had not previously taught. 

Chavez holds an Instruction Certificate with an Elementary 

Teacher (K-8) endorsement and has passed the National Teacher's 

Examination in math.

The school principal anticipated that it would take a few 

months for Chavez to transition to teaching sixth graders. Over 

 

1 As permitted by the then-applicable provisions of the Public 

School Education Act of 1975, L. 1975, c. 212, § 15 as amended 

by L. 1987, c. 398, § 3, in 1995, the State Board of Education 

authorized the removal of the Newark Board of Education and the 

creation of a State-operated school district after a 

determination that Newark's students were not being provided a 

thorough and efficient system of education. Contini v. Bd. of 

Educ. of Newark, 286 N.J. Super. 106, 112-14 (App. Div. 1995), 

certif. denied, 145 N.J. 372 (1996). 

2 "GED" is the abbreviation for General Educational Development.
4 A-0857-13T2

the course of the next two school years, Chavez was provided 

with numerous teaching supports, including ongoing in-class 

assistance from a technology coordinator during the first year 

and a math coach for both years, as well as help from the vice 

principal to assist him in modifying the behavior of disruptive 

children in his class.

In spite of the ongoing support provided, Chavez was unable 

to adjust satisfactorily to the change in teaching assignment. 

He received negative memoranda from school administrators, 

including letters of reprimand and a letter of warning

concerning his lack of classroom management skills, setting 

forth two incidents where he failed to follow proper reporting 

procedures when students were injured in his classroom.

During this two-year time period, teachers were evaluated 

using a scale in which they were rated either "distinguished," 

"proficient," "basic," or "unsatisfactory." For the school 

years 2010-2011 and 2011-2012, despite the ongoing support and 

feedback, Chavez received a rating of "basic" and 

"unsatisfactory," respectively.

In March 2012, Chavez was notified that defendant intended 

to file tenure inefficiency charges, and he was given a ninetyday improvement plan, as required by the then-existing provision 

in N.J.S.A. 18A:6-11. After Chavez failed to demonstrate 
5 A-0857-13T2

improvement, tenure charges were filed in July and certified by 

the Commissioner of Education in September 2012.

At the subsequent arbitration hearing, undertaken pursuant 

to the recently enacted Teacher Effectiveness and Accountability 

for the Children of New Jersey Act (TEACHNJ), the arbitrator 

based his review on whether defendant's findings were true, 

reasoning that 1) matters were referred to arbitration only 

after the Commissioner of Education reviewed the tenure charges 

and deemed them sufficient, if true, to warrant dismissal; and 

2) TEACHNJ arbitration review criteria were inapplicable because 

they were based on a new teacher evaluation rubric that had not 

yet been implemented. By statute, the new evaluation rubric was 

to be adopted by December 31, 2012 and implemented in the 2013-

2014 school year. Looking at the factual merits of the case, 

the arbitrator noted that defense witnesses were credible, 

"extraordinary efforts" had been undertaken to help Chavez

succeed, and no animus was directed toward him by defendant. 

Chavez's discharge was sustained.

At the subsequent appeal to the trial court, Chavez argued 

that the arbitrator "violated the law by not reviewing or even 

considering" his legal defenses. The trial court upheld the 

arbitrator's decision, finding that the arbitrator correctly 

analyzed which provisions of TEACHNJ he was to apply. The trial 
6 A-0857-13T2

court also found "substantial evidence"3 in the record, and that 

it was "reasonably debatable"4 that the arbitrator had fulfilled 

his task to decide whether or not the tenure charges were 

appropriate and true.

The Pugliese matter

Pugliese also seeks reversal of the same trial court's 

September 2013 confirmation of a different arbitrator's decision

in which she was dismissed from her tenured teaching position. 

Pugliese was employed by defendant from 2004-2013. She has an 

undergraduate degree in sociology and a master's degree as a 

reading specialist. She holds an elementary certification and 

is "highly qualified" to teach language arts literacy. 

Beginning in the school year 2010-2011, Pugliese was reassigned 

from teaching reading to small groups of students to teaching

large social studies classes for grades five through eight. 

 

3 See Div. 540, Amalgamated Transit Union v. Mercer Cnty. 

Improvement Auth., 76 N.J. 245, 253-54 (1978) (stating that when 

"the arbitration process is compulsory, . . . judicial review 

should extend to consideration of whether the award is supported 

by substantial credible evidence present in the record.").

4 In Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 

202 N.J. 268, 276-77 (2010), our Supreme Court stated: "In the 

public sector, an arbitrator's award will be confirmed 'so long 

as the award is reasonably debatable.'" (quoting Middletown Twp. 

PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)) 

(citations and internal quotation marks omitted)). Arbitration 

there was required by the parties' collective bargaining 

agreement, id. at 272, and differs from the arbitration here, 

which is statutorily required pursuant to TEACHNJ.
7 A-0857-13T2

As with Chavez, at the time of her reassignment, teachers 

were evaluated using a scale in which they were rated either 

"distinguished," "proficient," "basic," or "unsatisfactory." 

For the school years 2010-2011 and 2011-2012, Pugliese received 

a rating of "basic" and "unsatisfactory," respectively. 

Pugliese received services to help rectify identified problems, 

but did not improve. In addition, numerous memoranda, some predating her reassignment, chronicled ongoing classroom management 

issues.

In March 2012, tenure charges alleging inefficiency were 

filed against her. In her answer, Pugliese asserted that 

defendant could not claim that she was inefficient in a position 

defendant illegally required her to hold. She argued it was 

illegal because she was not "highly qualified" to teach social 

studies.

At the subsequent arbitration hearing, the arbitrator 

concluded that defendant had demonstrated a valid educational

framework for the evaluations and the absence of personal animus 

or improper bias in making them. He further concluded that

teaching social studies fell within the scope of Pugliese's 

licensure. He determined that she satisfied the criteria for 

being highly qualified, as defined by federal statute, and that 

her shortcomings were related to her inability to control a 
8 A-0857-13T2

classroom and create level-appropriate lesson plans, rather than 

a lack of substantive knowledge. Pugliese appealed the 

arbitrator's decision.

The trial court upheld the arbitrator's decision, stating 

that there was substantial evidence to support the arbitrator's 

decision that Pugliese was capable of teaching social studies. 

The court stated that just because she was teaching a subject in 

which she claimed to not be highly qualified did "not render the 

arbitrator's decision illegal or contrary to public policy."

General law

The No Child Left Behind Act (NCLB), 20 U.S.C.A. § 6301 to 

-7941, 

reflects Congress' judgment that the best 

way to raise the level of education 

nationwide is by granting state and local 

officials flexibility to develop and 

implement educational programs that address 

local needs, while holding them accountable 

for the results. NCLB implements this 

approach by requiring States receiving 

federal funds to define performance 

standards and to make regular assessments of 

progress toward the attainment of those 

standards. 

[Horne v. Flores, 557 U.S. 433, 461, 129 S. 

Ct. 2579, 2601, 174 L. Ed. 2d 406, 428 

(2009) (citing 20 U.S.C.A. § 6311(b)(2)).]

"[E]ach State educational agency receiving assistance . . . 

shall develop a plan to ensure that all teachers teaching in 

core academic subjects . . . are highly qualified not later than 
9 A-0857-13T2

the end of the 2005-2006 school year." 20 U.S.C.A. §

6319(a)(2). "The term 'core academic subjects' means English, 

reading or language arts, mathematics, science, foreign 

languages, civics and government, economics, arts, history, and 

geography." 20 U.S.C.A. § 7801(11). A state receiving federal 

funds is required to report annually "the professional 

qualifications of teachers in the State . . . and the 

percentage of classes in the State not taught by highly 

qualified teachers . . . ." 20 U.S.C.A. § 6311(h)(1)(C)(viii). 

If a states fails to meet any of the requirements of the Act, 

"then the Secretary may withhold funds . . . until the 

Secretary determines that the State has fulfilled those 

requirements." 20 U.S.C.A. § 6311(g)(2) (emphasis added).

TEACHNJ was enacted in August 2012. Its goal "is to raise 

student achievement by improving instruction through the 

adoption of evaluations that provide specific feedback to 

educators . . . ." N.J.S.A. 18A:6-118(a). The Legislature 

declared: "Changing the current evaluation system to focus on 

improved student outcomes . . . is critical to improving teacher 

effectiveness, raising student achievement, and meeting the 

objectives of the federal '[NCLB] of 2001'[.]" N.J.S.A. 18A:6-

118(b).
10 A-0857-13T2

A key provision of TEACHNJ, N.J.S.A. 18A:6-123, pertains to 

the creation, review and approval of evaluation rubrics for 

teachers, principals, assistant principals, and vice-principals.

"The State Board of Education shall promulgate regulations 

pursuant to the 'Administrative Procedure Act[]' . . . to set 

standards for the approval of evaluation rubrics. . . ." 

N.J.S.A. 18A:6-123(b). Among the "minimum" standards identified 

was that each educator was to be rated as "ineffective," 

"partially effective," "effective" or "highly effective." 

N.J.S.A. 18A:6-123(b)(1). "A board of education shall adopt a 

rubric approved by the commissioner [of education] by December 

31, 2012." N.J.S.A. 18A:6-123(c). By "January 31, 2013, a 

board of education shall implement a pilot program to test and 

refine the evaluation rubric." N.J.S.A. 18A:6-123(d). 

"Beginning with the 2013-2014 school year, a board of education 

shall ensure implementation of the approved, adopted evaluation 

rubric for all educators in all . . . schools in the district."

N.J.S.A. 18A:6-123(e). "The commissioner shall establish a 

model evaluation rubric that may be utilized by a school 

district to assess the effectiveness of its teaching staff 

members." N.J.S.A. 18A:6-123(f).

The following procedures are contained within the Tenure 

Employees Hearing Law, N.J.S.A. 18A:6-10 to -18.1. A tenured 
11 A-0857-13T2

teacher shall not "be dismissed or reduced in compensation . . . 

except for inefficiency, incapacity, unbecoming conduct, or 

other just cause, and then only after a hearing . . . ."

N.J.S.A. 18A:6-10. Any charge against a tenured employee "shall 

be filed with the secretary of the board [of education] in 

writing, and a written statement of evidence under oath to 

support such a charge shall be presented . . . ." N.J.S.A.

18A:6-11. If "the board finds that such probable cause exists 

and that the charge, if credited, is sufficient to warrant a 

dismissal . . . then it shall forward such written charge to the 

commissioner for a hearing pursuant to N.J.S.[A.] 18A:6-16, 

together with a certificate of such determination." Ibid.

TEACHNJ amended N.J.S.A. 18A:6-11 by eliminating a requirement 

that an employee be given ninety days in which to correct or 

overcome the alleged efficiency, prior to the board "making its 

determination as to certification . . . ." L. 1967, c. 271 as 

amended by L. 1975, c. 304, § 1, as amended by L. 2012, c. 26, § 

5.

Importantly, pursuant to the amendment contained in 

TEACHNJ, if the commissioner determines that the charge is 

sufficient to warrant dismissal, the case is referred to an 

arbitrator. N.J.S.A. 18A:6-16. "The Commissioner of Education 

shall maintain a panel of [twenty-five] permanent arbitrators to 
12 A-0857-13T2

hear matters pursuant to N.J.S.[A.] 18A:6-16." N.J.S.A. 18A:6-

17.1(a). Pursuant to TEACHNJ, if the matter before the 

arbitrator is employee inefficiency, then four factors shall be 

considered by the arbitrator in rendering a decision: 

[W]hether or not:

(1) the employee's evaluation failed to 

adhere substantially to the evaluation 

process, including, but not limited to 

providing a corrective action plan;

(2) there is a mistake of fact in the 

evaluation;

(3) the charges would not have been brought 

but for considerations of political 

affiliation, nepotism, union activity, 

discrimination as prohibited by State or 

federal law, or other conduct prohibited by 

State or federal law; or

(4) the district's actions were arbitrary 

and capricious.

[N.J.S.A. 18A:6-17.2. (emphasis added.)]

Pursuant to TEACHNJ, the arbitrator must therefore determine if 

the evaluation adhered to the evaluation process, and provided

the corrective action plan. To accomplish this task, the 

arbitrator must first identify the proper evaluation process.

"The arbitrator's determination shall be final and binding 

and may not be appealable to the commissioner or the State Board 

of Education. The determination shall be subject to judicial 

review and enforcement as provided pursuant to N.J.S.[A.] 2A:24-
13 A-0857-13T2

7 through N.J.S.[A.] 2A:24-10." N.J.S.A. 18A:6-17.1(e)

(emphasis added). A reviewing court may vacate an arbitration 

award due to corruption, fraud, undue means, partiality or 

misconduct, or if the arbitrators "so imperfectly executed 

their powers that a mutual, final and definite award upon the 

subject matter submitted was not made." N.J.S.A. 2A:24-8.

Prior to its amendment in 2012 pursuant to TEACHNJ, 

N.J.S.A. 18A:6-16 had stated that if the commissioner determined 

that charges, if sufficient, warranted dismissal, the matter was 

referred to an administrative law judge (ALJ). L. 1967, c. 271, 

as amended by L. 1998, c. 42, §2. The ALJ issued a recommended 

decision, which the commissioner could adopt, modify or reject. 

N.J.S.A. 52:14B-10(c). Thus, the agency, using its expertise,

reviewed the ALJ's decision. Thereafter, an agency 

determination could be appealed directly to the Appellate 

Division. N.J.S.A. 18A:6-9.1(a). Pursuant to TEACHNJ, the 

agency review process no longer exists.

Arbitrators apply different standards

The performance evaluations for both Chavez and Pugliese 

took place prior to the enactment of TEACHNJ, using evaluation 

rubrics in place at that time as well as a rating scale that was 

superseded by TEACHNJ. Their tenure charges, however, were 

filed after TEACHNJ's enactment. An arbitrator's determination 
14 A-0857-13T2

as to what evaluation process should apply in such a situation 

is a question of statutory interpretation. The two arbitrators

here interpreted the statutes differently.

The Chavez arbitrator stated that the case presented two 

issues: one procedural and one related to the underlying merits 

of the charges. The Chavez arbitrator framed the procedural 

issue by stating that there needed to be "a determination of the 

appropriate processes and standards to apply . . . given 

that[:](a) the underlying facts occurred prior to the effective 

date of . . . [TEACHNJ][;] and b) the referral of the matter [to 

arbitration] occurred after the effective date of [TEACHNJ]." 

Chavez had argued that his case should be decided under the 

standards and procedures that preexisted TEACHNJ, because 

TEACHNJ specified four factors that an arbitrator shall consider 

when evaluating inefficiency charges, but did so in the context 

of a yet-to-be determined evaluation rubric in which the 

educator was to be rated using newly established designations.

The Chavez arbitrator analyzed TEACHNJ, in which a charge 

of inefficiency may be filed whenever an employee receives an 

annual rating of ineffective or partially effective in one year, 

followed by an annual rating of ineffective the next year.5

 

5 A charge of inefficiency may also be filed if an employee 

receives two consecutive annual ratings of partially effective, 

(continued)
15 A-0857-13T2

N.J.S.A. 18A:6-17.3(a)(1). But "[t]he only evaluations which 

may be used for purposes of this section are those evaluations 

conducted in accordance with a rubric adopted by the board and 

approved by the commissioner pursuant to [TEACHNJ]." N.J.S.A.

18A:6-17.3(d). The arbitrator in the Chavez matter thus 

concluded that since the evaluation rubrics referenced were not 

in place, he was precluded from basing his review on the four 

factors designated in N.J.S.A. 18A:6-17.2.6

The arbitrator in the Pugliese matter, however, did not 

determine he was constrained by the absence of the evaluation 

rubrics to be implemented under TEACHNJ, finding instead that 

he was to "determine whether the tenure charges brought . . . 

demonstrate that [Pugliese] failed to perform in a satisfactory 

manner for two consecutive years, the criterion established by 

 

(continued)

or if an employee receives an annual rating of ineffective 

followed by an annual rating of partially effective. N.J.S.A.

18A:6-17.3(a)(2).

6 The arbitrator cited to N.J.S.A. 18A:6-17.5, which states:

Any tenure charge transmitted to the Office 

of Administrative Law pursuant to N.J.S.[A].

18A:6-16 prior to the effective date of 

[TEACHNJ] shall be determined in accordance 

with the provisions of subarticle B of 

Article 2 of chapter 6 of Title 18A of the 

New Jersey Statutes, N.J.S.[A.] 18A:6-10 et 

seq., as the same read prior to the 

effective date of [TEACHNJ].
16 A-0857-13T2

[TEACHNJ]." Both arbitrators cannot be correct in applying 

different standards to similar procedural matters. Which 

standard is appropriate for teachers whose tenure charges are 

brought after the passage of TEACHNJ, but before the TEACHNJ 

evaluation rubric is implemented, is a determination better 

resolved in the first instance by the agency with particular 

expertise in matters of educational policy. See In re Election 

Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 

262 (2010) ("[A] state agency brings experience and specialized 

knowledge to its task of administering and regulating a 

legislative enactment within its field of expertise.").

"[T]he promulgation of administrative rules and 

regulations lies at the very heart of the administrative process 

. . . ." In re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super. 100, 

115 (App. Div.), certif. denied, 216 N.J. 363 (2013). "'[T]he 

basic purpose of establishing agencies to consider and 

promulgate rules is to delegate the primary authority of 

implementing policy in a specialized area to governmental bodies 

with the staff, resources and expertise to understand and solve 

those specialized problems.'" Ibid. (quoting Bergen Pines Cnty. 

Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)).
17 A-0857-13T2

Other legal defenses raised

Chavez and Pugliese also raised various other legal 

defenses, which were not resolved by the arbitrators or the 

trial court, including: the application of Tenure Employees 

Hearing Law, N.J.S.A. 18A:6-10 to -18.1, specifically N.J.S.A.

18A:6-11 and the ninety-day improvement plan requirement deleted 

by the TEACHNJ amendment; the District's policies with respect 

to tier implementation guidelines; and contentions that, 

pursuant to NCLB, it was illegal to assign them to teach a 

course for which they were not designated "highly qualified."

7

Defendant argues that by sending both of these matters to 

arbitrators, the Commissioner implicitly considered and rejected 

both teachers' legal defenses. We do not accept this argument.

An agency has the obligation to make decisions clearly with 

its reasons spelled out on the record. An implicit, silent 

rejection of legal defenses based on overlapping statutory 

 

7 We note that both teachers cite to two administrative law 

decisions in support of their contentions concerning the 

relevance of a "highly qualified" designation. Neither of these 

decisions is precedential and both concern teacher seniority 

rather than teacher inefficiency, which is at issue here. We 

further note that NCLB provides for a discretionary penalty for 

non-compliance with the "highly qualified" designation or other 

requirements of the Act. 20 U.S.C.A. § 6311(g)(2). In 

addition, while NCLB seeks to ensure that teachers of "core 

academic subjects" are "highly qualified," 20 U.S.C.A. § 

6319(a)(2), social studies is not among the core academic 

subjects identified. 20 U.S.C.A. § 7801(11).
18 A-0857-13T2

regulations does not meet that criteria. As we have said 

previously, "we insist that the agency disclose its reasons for 

any decision, even those based upon expertise, so that a proper, 

searching, and careful review by this court may be undertaken." 

Balagun v. N.J. Dept. of Corrs., 361 N.J. Super. 199, 203 (App. 

Div. 2003).

"Courts . . . have discretion to remand administrative 

action for further agency proceedings in the interest of 

justice." Texter v. Dep't of Human Servs., 88 N.J. 376, 383 

(1982)(citing Wilson v. Mountainside, 42 N.J. 426, 442 (1964)). 

We recognize "'that certain subjects are within the peculiar 

competence of that agency.'" D.I.A.L., Inc. v. N.J. Dep't of 

Cmty. Affairs, 254 N.J. Super. 426, 435 (App. Div. 1992)(quoting 

In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531, 543 

(1990)). "[W]e may not substitute our judgment for the 

expertise of the agency." Ibid. (citing Doughtery v. Dep't of 

Human Servs., 91 N.J. 1, 6 (1982)).

Thus, we remand both matters to the Department of Education 

to determine the validity of those legal defenses raised by each 

teacher deemed appropriate by the agency for resolution by the 

agency, so that a uniform educational policy will be 

promulgated. The agency should determine the appropriate 

standards to be used by arbitrators when adjudicating tenure 
19 A-0857-13T2

hearings, thus determining a consistent procedure for teachers

in positions similar to Chavez and Pugliese, who have received 

tenure charges after the effective date of TEACHNJ, alleging

poor performance that occurred prior to the implementation of

the statute's new standards.

Reversed and remanded to the Department of Education. We 

do not retain jurisdiction.