SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 4952

- 17T4 JESSE DENKINS, CHERYL SHELTON, EMMA WARING, and MAXINE CAMPBELL, Plaintiffs

- Appellants,

v. STATE OPERATED SCHOOL DISTRICT OF THE CITY OF CAMDEN, Defendant

- Respondent.

__________________________ __

Argued May 21, 2019

– Decided August 27, 2019 Before Judges Rothstadt, Gilson and Natali. On appeal from the Super ior Court of New Jersey, Law Division, Camden County, Docket No. L

- 0221

- 17. Andrew L. Schwartz argued the cause for appellants ( Sch wartz Law Group, LLC, attorneys ; Andrew L. Schwartz and Robert M. Schwartz , on the briefs). Richard L. Goldstein argued th e cause for respondent ( Marshall Dennehey Warner Coleman & Goggin,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

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- 17T4 attorneys ; Richard L. Goldstein, of counsel; Walter F. Kawalec, III, on the brief).
PER CURIAM Plaintiffs Jesse Denkins, Cheryl Shelton, Emma Waring, and Maxine Campbell appeal from a Ju ne 2 9 , 2018 Law Division order dismissing their complaint against defendant State Operated School District of the City of Camden ( District) under Rule 4:6

- 2(e).
Th e genesis of this case can be found in t he June 2013 State takeover of the Camden public sc hool system , which resulted in the District's creation and
substitution for t he Camden City School District as the educational authority in Camden (the takeover). See N.J.S.A. 18A:7A

- 34 to

- 53.1

. Plaintiffs were tenured principals or vice principals hire d by th e District's predecessor who
remained in the District 's employ following the takeover. One of the District's employees, who was prohibited from working by a New Jersey State Department of Education (DOE) regulat io n in force during the 2013

- 2014

aca demic year, evaluate d plaintiffs' effectiveness as school leaders and gave them poor ratings , which plaintiffs alleged led to their resignations . Plaintiffs did not learn that the evaluator was prohibited from working in the District until after they resi gned. B efore t hey filed suit, however, the r egulation at issue was repealed.3 A

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In granting the District's motion to dismiss, the motion judge applied the general rule that repeale d laws typically are treated as if they never existed.
The judge concluded t hat since the regulation prohibiting the evaluator from working was repealed , plaintiffs failed to state a c laim upon which relief could be granted

. Because we conclude that disregarding the law in force at the time of the evaluations would impermissibly interfere with plaintiffs' then

- vested tenure rights , and would result in a manifest injustice, we reverse and remand.
I. We review rulings on Rule 4:6

- 2(e) motions de novo, and apply the same standard that governs the motion judge's initial decision. Pri nting Mart

Morristown v. Sharp Elecs. Corp. , 116 N.J. 739, 746 (1989). That standard "requires an assumption that the allegations of the pleading are true and affords the pleader all reasonable factual inferences." Seidenberg v. Summit Bank , 348 N.J. Sup er. 243, 249

- 50 (App. Div. 2002). If a "cause of action can be gleaned even from an obscure statement" in the pleading, the motion should be denied. Id. at 250. Construed in that light, the record before us establishes the following pertinent facts.
In preparation for the 2013

- 2014 academic year, the District sought to
hire School L eader Trainers and Evaluators ( ev aluators ) to ev aluate the4 A

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effectiveness of its administrators , including plaintiffs , on a scale of one to four, with one being "ineffective," two being "partially effective," three being "effective," and four being "highly effective." One of the advertised requirements to work as an evaluator was "a valid school administrator license in the State of New Jersey." The District's lead evaluator was responsible for vetting "quality professionals who could actually do the [evaluation] work," and for reviewing the "credentials and experience" of applicants "prior to their being offered employment contracts" as evaluators. Angela Gilber t applied fo r a position as an e valuator on August 21,
2013. In her application, and in response to the question "whether she maintained a New Jersey certificate," Gilbert stated that a "certificate is anticipated," but that she did "not currently possess a New Jerse y certificate."
The District offered Gilbert employment as an evaluator on September 25, 2013. The offer was "contingent" upon the approva l of the District's Superintendent "and a successful completion of background clearance, including that she possess appropriate New Jersey certific ates and licenses." Gilbert accepted the offer, and her effective hire date was October 23, 2013. Throughout the 2013

- 2014 school year, DOE regulations provided that: (a) A certificate of eligibility (CE) is a certificate with lifetime validity that the Board of Examiners may5 A

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. . . . (c) The CE . . . authorizes the holder to seek employment. A holder of a CE . . . shall not assume responsibil ity for a job assignment until the holder has been issued a provisional certificate

. [N.J.A.C. 6A:9

- 6.4 (2013 ) (emphasis added).] Gilbert had a CE when she was hired, but h as never been issued a provisional certificate. Nevertheless, between December 201 3 and June 2014, Gilbert evaluated Campbell, Denkins, and Waring once, and Shelton twice, and gave
them all "partially effective" ratings

. The District had previously advised plaintiffs that if they received less than an "effective" average score on thre e evaluations, at the end of the school year they would be "subject to tenure charges of inefficiency in which the . . . District would seek to terminate their employment," which presented "risks" of "adverse consequences" to plaintiffs' educational certif icates and pension benefits. Believing that the District "fully intended to pursue tenure charges of inefficiency against her with its attendant risks as to her pension benefits and educational certificates," Campbell resigned shortly after she received h er evaluation from Gilbert. Shelton, Denkins, and Waring all received average6 A

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evaluations scores on their three observations that were "less than effective." The District told Waring that it "would file tenure charges of inefficiency" against her. "As a result of learning that tenure charges of inefficiency were to be filed, with its attendant risks as to her pension benefits and educational certificates," Waring resigned. Defendant filed tenure charges against Sh elton and Denkins, who resigned for the same reasons as Waring and Campbell

. As part of an "administrative recodification" process that divided N.J.A.C. 6A:9 into "four separate categories," the regulatory provision prohibiting employees from working without a provisional certificate was
repea led, and the prohibition itself was re - codified at N.J.A.C. 6A:9B

- 6.4 (c) effective August 4, 2014. See 4 6 N.J.R. 1743(a) (Aug. 4, 2014); N.J.A.C. 6A:9B

- 6.4(c) (2014). Six months later, Gilbert was depose d in a contested tenure case where she "falsely tes tified" that she received a provisional school administrator certificate "probably in the fall of 2013," when, "in fact," she "knew or should have known that had she never received it." Plaintiffs first learned that Gilbert lacked a provisional certificat e around the time of her deposition, and the District later "acknowledged" that Gilbert "had never been qualified to observe and evaluate its principals and vice principals."7 A

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N.J.A.C. 6A:9B

- 6.4 was repealed effective December 7, 2015, at which time N.J.A. C. 6A:9B

- 12.4(d) was adopted to provide that "[t]he effective date of provisional certificate issuance shall be the date on which the CE holder begins employment with the district board of education in a certificated position in accordance with N.J.S.A. 18 A:26

- 2 and 18A:27

- 4a." See 47 N.J.R. 1730(a) (July 20, 2015); 47 N.J.R. 2989(a) (Dec. 7, 2015). Three months later, plaintiffs filed a complaint in the United States District Court for the District of New Jersey against the District, its Superintendent, and Gilbert pursuant to 42 U.S.C. § 1983, alleging deprivations of due process and asserting state and common law tort claims. In granting the defendants' motion to dismiss, the court held in an unpublished opinion that the District and its Superintenden t were entitled to sovereign immunity under the Eleventh Amendment, and that Gilbert was entitled to qualified immunity on the federal claims, 1 then declined to exercise supplemental jurisdiction over the remaining state and common law claims. With respec t to Gilbert, the court concluded that under New Jersey law, a

1 The qualified

- immunity analysis has two prongs: 1) whether the facts "make out a violation of a constitutional right"; and 2) "whether the right at issue was 'clearly established' at the time of defendant's alleged mi sconduct." Pearson v. Callahan , 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz , 533 U.S. 194, 201 (2001)). The district court based its decision on the first prong.8 A

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repealed regulation must be treated as if it never existed, so plaintiffs "cannot plausibly allege that there was a material misrepresentation, or even a misrepresentation at all" with respect to Gilbert's credentials since the regulation requiring a provisional certificate never existed. 2 Accordingly, the court held that plaintiffs resigned voluntari ly and, as such , were not unconstitutionally deprived of a ny property right. Plaintiffs appea led to the United States Court of Appeals for the Third Circuit, which affirmed, but with respect to Gilbert, did so based on the second qualified

- immunity prong, i.e. whether a reasonable person in her position would have understood that her actions were unlawful. In deciding to affirm on different grounds , the Court of Appeals explained that plaintiffs "may well make out a constitutional due process violation in having been deprived of a property interest in continued tenure [

- ] protected public employment . . . by the

2 The district court reached this conclusion by relying on the following portion of a sentence in Kemp by Wright v. State, County of Burlington , 147 N.J. 294 (1997): "In this State it is the general rule that where a statute is repealed and there is no saving[s] clause or a general statute limiting the effect of the repeal, the repealed s tatute, in regard to its operative effect, is considered as though it had never existed . . . ." Id. at 311 (first alteration in original) (quoting Parsippany Hills Assocs. v. Rent Leveling Bd. , 194 N.J. Super. 34, 42 (App. Div. 1984)). The portion of th e sentence that the district court omitted from its analysis is an exception to the general rule, i.e. , "except as to matters and transactions passed and closed." Ibid. (quoting Parsippany , 194 N.J. Super. at 42).9 A

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District having obtained their involuntary resignations" through deception or misrepresent ations of material fact, but declined to rule on that issue. Instead,
the court exercised its discretion to begin the analysis with prong two, and

conc luded that Gilbert was entitled to qualified immunity because there was no precedent factually similar to plaintiffs' allegations sufficient to put her "on notice that evaluating the [p]laintiffs after the District knowingly hired her without a license mig ht amoun t to a due process violation." On January 13, 2017, while the appeal was pending before the Court of Appeals , plaintiffs filed a nine

- count complaint in the Law Division against the District alleging: negligent and reckless hiring (counts one and t wo); negligent, reckless, and fraudulent misrepresentation (counts three, four, and five); negligent, reckless, and fraudulent filing of tenure charges (counts six, seven, and eight); and tortious interference with prospective economic advanta ge (count nin e). After the Court of Appeals rendered its decision, defendant moved to dismiss plaintiffs' complaint under Rule 4:6

- 2(e). Following oral argument, during which plaintiffs' counsel conceded "[w]e wouldn't have a case" if Gilbert had a provisional certif icate, the motion judge reserved decision, and plaintiffs moved to amend their complaint to add a claim for respondeat superior. In an April 12, 2018 order, the judge granted10 A

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de fendant's motion to dismiss counts three through nine of plaintiffs' complaint based primarily on the law of the case doctrine, but denied the motion with respect to plaintiffs' claims for negligent and reckless hiring. Accordingly,
p laintiffs' motion to amend was not affected by that order. In a May 11, 2018 order, t he motion ju dge denied plaintiffs' motion to amend, and the parties filed cross

- motions for reconsideration of the judge 's several decisions. The judge initially denied all of the motions, but following a case management conference on June 25, 2018, the judge held a re - hearing

on the motions for reconsideration and granted the District's motion, denied all of plaintiffs' motions, and dismissed the complaint. Plaintiffs now appeal from the June 29, 2018 order memorializing those decisions.
II. On appeal, p laintiff s ar gue that the motion judge mistakenly applied the law of the case doctrine b y overlooking exceptions t o the general rule that repealed laws typically are treated as though they never existed

. In Parsippany , we explained that:

In this State it is the genera l rule that where a statute is repealed and there is no saving clause or a general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as though it had never existed, except as to matters and tr ansactions passed and closed. DiAngelo v.11 A

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– 21 (Sup. Ct. 1933)], aff'd o.b. [115 N.J.L. 507 (E. & A. 1935)]. Furthermore, it is settled law in this State that, unless vested rights are involved, the law in effect at the time of t he disposition of the cause by an appellate court governs, rather than the law in effect at the time the cause was decided by the trial court. Staudter v. Elter , 64 N.J. Super. 432, 436, 166 A.2d 394 (App. Div. 1960). [ Parsippany , 194 N.J. Super. at 42

- 43.] Plaintiffs maintain the general rule discussed in Parsippany is inapplicable here because their evaluations are matters or transactions "passed and closed," and their "vested rights" of tenure are so "involved" in this controversy that "the rules i n effect during the 2013

- 14 school te rm should govern this dispute." Plaintiffs also argue that it would result in a "fundamental unfairness" to give "retroactive application" to the "changes to laws" that occurred after their evaluations and resignations

. Alternatively, plaintiffs contend that they state a cause of action even under the current

re gulations

. According to defendant, however, the motion judge correctly adopted the federal district court's reasoning because this case is still being litigated , and thus is not a matter or transaction "passed and closed. " In addition, defendant contends that whether plaintiffs had "vested right[s ] of tenure " is "irrelevant" because plaintiffs " had no vested right in having their evaluations12 A

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perf ormed by specifi c evaluators." Finally, defendant argues that plaintiffs are not only precluded from relying on the law in force during the 2013

- 2014 academic year , but that plaintiffs waived any claims they may have under the current regulations.
III. Under the law of t he case doctrine, "decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case." Brown v. Twp. of Old Bridge , 319 N.J. Super. 476, 494 (App. Div. 1999) (quoting Lanzet v. Greenberg , 126 N.J. 168, 192 (1991)). The doctrine is a "discretionary rule of practice and not one of law , " ibid. , it is "restricted to preventing relitigation of the same issue in the same suit," ibid. (quoting Slowinski v. Valley Nat. Bank , 264 N.J. Super. 172, 180

– 81 (App. D iv. 1993)), and it "should not be used to justify an incorrect substantive result." Hart v. City of Jersey City , 308 N.J. Sup er. 487, 498 (App. Div. 1998). As a threshold matter, the federal district court's decision was not binding on the motion judge u nder the law of the case doctrine

. See Lusardi v. Curtis Point Prop. Owners Ass'n , 86 N.J. 217, 226 n.2 (1981) (noting that the law of the case doctrine "applies only to proceedings prior to the entry of a final judgment. After that, rules of res judicat a determine whether a prior13 A

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determination of law or fact is binding." ); see also Ayers v. Jackson Twp. , 106 N.J. 557, 611

- 12 (1987) (holding the trial court's decision to "re

- examine[] [an] issue" decided in "a related case in the federal district for the District of New Jersey" was "not improper"), aff'g in part and rev'g in part on other grounds , 202 N.J. Super. 106 (App. Div. 1985). 3 In addition, because the United States Court of Appeals explicitly decided to affirm on different grounds than the federa l district court did with respect to Gilbert, it was error to apply the "law of the case" doctrine to the federal dis trict court's decision

. Further, whether the motion judge abused his discretion in adopting the
federal district court's reasoning depends on whether that reasoning was adopted "to justify an incorrect substantive result." See Hart , 308 N.J. Super. at 498. The substantive result here is that plaint iffs were precluded from establishing that defendant permitted Gilbert to work in violation of the regulatory prohibition against "assum[ing] responsibility for a job assignment" without a "provisional certificate , " s ee N.J.A.C. 6A:9

- 6.4(c) (2013) , because the judge determined that prohibitio n never existed

. Plaintiffs conceded in the

3 Other than the law of the case doctri ne, the District has not alleged that the federal litigation barred plaintiffs from filing suit in state court by reason of collateral estoppel, res judicata, the entire controversy doctrine, or any other similar legal principle.14 A

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proceedings below that they "wouldn't have a case" if Gilbert had a provisional certificate , and they do not retreat fr om that concession on appeal. Similarly, defendant concedes that a violation of N.J.A.C. 6A:9

- 6.4(c) would have provided plaintiffs with a defense t o the tenure charges. 4 Thus, the question before us is whether the motion judge , by treating the regulation as if it never existed, improperly preclude d plaintiffs from claimi ng that Gilbert lacked the credentials necessary to work d uri ng the 2013

- 2014 ac ademic year. As noted, t he parties dispute whether this case involves a matter or transaction "passed and closed, " see Parsippany , 194 N.J. Super. at 42 (citing DiAngelo , 112 N.J.L. 20

- 21), an issue which plaintiffs raised before the motion judge , but whic h the judge did not address in rendering hi s decision. Defendant contend s that Kemp supports its position that the prese nt controversy does not involve a matter or transaction "passed and closed."
In Kemp , a health official working for the defendant mun icipality injected a rubella vaccine into the plaintiff's mother while she was pregnant with plaintiff. Id. at 297

- 98. At the time of the injection, the health official

4 The defense referred to by defendant is found in N.J.S.A. 18A:6

- 17.2(d), which provides that "[t]he board of education shall have the ultimate burden of demonstrating to the arbitrator that the statutory criteria for tenure charges have bee n met."15 A

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was entitled by statute to good

- faith immunity

. Id. at 297, 304. Plaintiff was born with health problems traceable to the injection, and when he was six months old, the good

- faith immunity statute was repealed. Id. at 298, 304. The Court held that because the plaintiff "was less than six months old when the statute was repealed," the c ase could not "be regarded as a tra nsaction 'passed and closed.'" Id. at 311 (quoting Parsippany , 194 N.J. Super. at 42). Thus, because the infant plaintiff had a putative tort claim when the statute was repealed, the health official who administered the rubella vaccine could not invoke the good

- faith immunity defense granted by the repealed statute

. Applying that rationale here, because plaintiffs had a putative tort claim when N.J.A.C. 6A:9B

- 6.4(c) was repealed, this case would not involve a matter or transaction "passed and closed."
However , the rule that repealed statutes are disregarded except as to matters and transactions passed and closed "is subordinate to the fundamental rule of construction that the court shall ascertain and give effect to the intention or purpose of the Legislature." Di Angelo , 112 N.J.L. at 21; see also Kemp , 147 N.J. at 311

- 12 (determining there was no transaction passed and closed, then proceeding to discuss the Legislature's "most likely" intent). Further, the "acquisition of vested rights" gives rise to "an exception to the16 A

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general rule which permits legislative bodies to

. . . repeal laws." State v. Mayor of Jersey City , 49 N.J.L. 303, 307 (Sup. Ct. 1887); see also State Troopers Fraternal Ass'n of New Jersey, Inc. v. St ate , 149 N.J. 38, 54 (1997) ("In analyzing whether a statute or regulation may apply retroactively, a court must determine, first, whether the Legislature or agency intended that the statute or regulation apply retroactively, and, if so, whether retroactiv e application would work either a manifest injustice or an unconstitutional interference with a vested right."); N.J.S.A. 52:14B

- 2 (defining "[a]dministrative rule" to include the "repeal of any rule"). As noted, the only expression of legislative intent f or repealing N.J.A.C. 6A:9

- 6.4 (2013) was the intent to re - locate the same provision s at a different section of the administrative code during an "administrative recodification"
process. 4 6 N.J.R. 1743(a) (Aug. 4, 2014) ; see N.J.A.C. 6A:9B

- 6.4(c) (2014). When a law is simultaneously repealed and re

- enacted, the law has continuing force. Randolph v. Larned , 27 N.J. Eq. 557 (E. & A. 1876)

. Further, the DOE "propose[d] to repeal N.J.A.C. 6A:9B

- 6 because definitions for the types of certificates " were "p ro posed for inclusion at N.J.A.C. 6A:9

- 2.1 in a separate rulemaking." 47 N.J.R. 1730(a) (July 20, 2015). However, the prohibition against working without a provisional17 A

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certificate was not included in N.J.A.C. 6A:9

- 2.1 . Instead, N.J.A.C. 6A:9B

12.4(d) was adopted to provide that "[t]he effective date of pr ovisional
certificate issuance shall be the date on which the CE holder begins employment with the district board of education in a certificated position in accordance with N.J.S.A. 18A:26

- 2 and 18A:27

- 4 [( a )] ." Ibid. The stated purpose for this new rule was to "align" the "effective date of the provisional certificate issuance" for school administrator CE holders "with the same provisional requirements for teachers at N.J.A.C. 6A:9B

- 8.3." 47 N.J.R. 1730( a) (July 20, 2015). Although the content of this new rule contemplates retroactivity, in the sense that it retroactively fixes the effective date of the issuance of provisional certificates, there is no indication th at the implicit change in when certain CE holder s may begin job pe rformance was intended to
affect CE holders like Gilbert who never obta in a provisional certificate. Moreover, plaintiffs maintain that their "vested rights of tenure protected [their] employment from termination absent tenure c ha rges or indictment," and
claim "vested rights" are sufficiently "involved" here that "the rules in effect during the 2013

- 14 school term should govern this dispute." We agree. The term "'vested right' encompasses a fixed interest entitled to protection from state action." Twiss v. State, Dep't of Treasury, Office of Fin.18 A

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Mgmt. , 124 N.J. 461, 470 (1991). "[T]enure is a statutory right imposed upon a teacher's contractual employment status , " the purpose of which is to give job security to educators by pr otecting them "against removal for unfounded, flimsy, or political reasons." Zimmerman v. Bd. of Ed. of City of Newark , 38 N.J. 65, 71

- 72 (1962). Simply put, tenure rights are entitled t o protection from state action, and p laintiffs' tenure right s vested prior to their evaluations

. Resolving all reasonable inferences from plaintiffs' allegations in their favor, plaintiffs forfeited their vested right to challenge Gilbert's evaluation and any ensuing tenure charges 5 because they believe d the risk to thei r pension
benefits and educational certificates attendant to losing a contested tenure case outweighed a ny defense they might have had to the charges . The District concedes that a violation of N.J.A.C. 6A:9

- 6.4(c) would have furnished a t least

a plausible defense to tenure charge s, 6 and plaintiffs alleged the District made factual representations that led them to believe that d efense was un available. Plaintiffs also allege d that they relied on the District's representations to
their detriment , and it is re asonable to infer that the alleged representation

5 See N.J.S.A. 18A:6

- 10 (ent itling tenured faculty to a hearing on charges of inefficiency prior to dismissal).

6 See supra p.14 n.4.19 A

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materially affected plaintiffs' decision s as to whether to enforc e or forfeit their vested right to challenge the charges

. Thus, the only remaining issue as to whether plaintiffs stated a claim upon which relief can be granted is whether the District made those factual representation s knowing that they were false.
See Jewish Ctr. of Sussex Cty. v. Whale , 86 N.J. 619, 624 (1981) ("A misrepresentation amounting to actual legal fraud consists of a material

re presentation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment."). Under these circumstances, to hold, as the motion jud ge did, that plaintiffs may not demonstrate the falsity of the District's factual representation s would impermissibly subject plaintiffs' then

- vested tenure rights to improper state action

. We decline to do so

. 7 As noted, notwithstanding the retroactive content of the regulation, the regulatory history does not reveal an int ent for the change in law to apply to a person in Gilbert's
circumstances

. In addition, precedent supports the view that if a person who is

7 Accordingly, we reject the District's contention that the time

- of

- decision rule referenced in Parsippany supports the motion judge's determinatio n, since that rule is inapplicable when "vested rights are involved . . . ." See Parsippany , 194 N.J. Super. at 42

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disqualified by law from working without ce rtain credentials nevertheless performs the work, a subsequent repeal of the disqualifying law does not alter
the fact that the person was, in fact, disqualified from worki ng while the law was in force. See Vaughn v. Hankinson's Adm'r , 35 N.J.L. 79, 80

- 82 (Sup. Ct. 1871)

. 8 Further, if a " party relied, to his or her prejudice, on the law that is now to be changed as a result of th e retroactive application of the statute, and

. . . the consequences of this reliance are so deleterious and irrevocable that it would be unfair to apply the statute retroactively, " applying the change in law retroactively would result in a manifest injustice. See Gibbons v. Gibbons , 86 N.J. 515, 523

- 24 (1981). After reviewing the pleadings, we conclude that plaintiffs have suffi ciently alleged detrimental reliance on the prohibition against working without a provisional certificate

. We are convinced it would work a manifest injustice to apply the change s in the administrative code retroactively, as doing so would denigrat e the v alue of tenure rights and permit allegations of fraud to be un addressed

.

8 See also In re Gadbois , 786 A.2d 393, 397 (Vt. 2001) (stressing "this case deals with standards of professional regulation that are n o longer in force"); cf. Teas v. Eisenlord , 253 N.W. 795, 797 (Wis. 1934) (whether a defendant's "conduct measures up to the standard of ordinary care is to be determined by the circumstances present at the time of his [or her] action").21 A

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In light of our decision, we do not reach plaintiffs' alternative claim that a provisional administrative certificate is a prerequisite to performance of job
duties under the current regulations. Further, the District's argument that plaintiffs waived this issue is meritless as that contention is belied by the record. In addition, with respect to defendant's passing statements in its brief that plaintiffs failed to exhaust their adm inistrative remedies, to the extent defendant sought to raise that argument on appeal, the issue is not properly before us for two reasons. First, the District did not raise that argument below, but instead argued that plaintiffs should have exhausted th e remedies purportedly available through the Worker's Compensation Act, an argument the motion judge rejected and which defendant does not re assert on appeal. Second, by making only passing references in its appellate brief to plaintiffs' purported failur e to exhaust administrative remedies, defendant did not properly raise the issue on appeal. See Mid

- Atl. Solar Energy Indus. Ass'n v. Christie , 418 N.J. Super. 499, 508 (App. Div. 2011); R. 2:6

- 2(a)(6); R. 2:6

- 4(a). Nonetheless, nothing in this opinion p recludes the District from arguing in ensuing proceedings that plaintiffs failed to exhaust their administrative remedies prior to filing suit, or
fr om raising any other argument.22 A

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Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.