Yolanda Greene v. Board of Trustees of the Burch Charter School of Excellence, Essex County and Yolanda Greene v. Board of Trustees of the Burch Charter School of Excellence, Essex County, 2/4/2020, (#48-20)

New Jersey Commissioner of Education
Final Decision
Yolanda Greene,
Petitioner,
v.
Board of Education of the Burch Charter School
of Excellence, Essex County,
Respondent.
Synopsis
Pro se petitioner, formerly employed by the respondent Board as a non-tenured vice principal, appealed
the non-renewal of her employment and sought reinstatement to the position of vice principal. Petitioner
contended that the Board’s handling of a grievance filed against her and her subsequent non-renewal were
improper. The Board asserted that petitioner’s non-renewal was not arbitrary, discriminatory, retaliatory,
or capricious, but was based, inter alia, on a pattern of parental concerns, staff issues, and petitioner’s
failure to perform a required racial sensitivity training.
The ALJ found, inter alia, that: petitioner was employed by the Board as a vice principal from January
2016 to June 30, 2018; the two pivotal issues in this case concern the propriety of the Board’s decisions
to compel petitioner to take a cultural sensitivity class as a result of a grievance filed against her and the
propriety of the Board’s determination not to renew petitioner’s employment for the 2018-2019 school
year; as to the grievance, the Board’s failure to issue a Rice notice to petitioner regarding the meeting in
which petitioner’s appeal of the requirement that she take a sensitivity training class was discussed voids
the Board’s decision to compel her to take the class; 	as to the Board’s non-renewal of petitioner’s
employment, a board of education has broad discretionary authority to decide whether non-tenured staff
are renewed; here, the petitioner failed to demonstrate that the Board’s refusal to renew her contract was
arbitrary, capricious or discriminatory. Accordingly, the ALJ voided the Board’s determination as to the
grievance filed against petitioner, but affirmed the Board’s action in non-renewing petitioner’s
employment for the 2018-2019 school year.
Upon comprehensive review, the Commissioner concurred with the findings and determination of the
ALJ and adopted the Initial Decision of the OAL as the final decision in this matter. 	In so doing, the
Commissioner noted that a board of education has virtually unlimited discretion in renewing non-tenured
staff members absent constitutional constraints or legislatively-conferred rights. 	Where a non-tenured
staff member challenges a district board’s decision to terminate her employment on the grounds that the
reasons provided by the board are not supported by the facts, she is entitled to litigate that question only if
the facts she alleges, if true, would constitute a violation of constitutional or legislatively-conferred rights.
Petitioner herein has not asserted or proven that the Board violated any constitutional or legislatively-
conferred rights. Accordingly, the petition was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
February 4, 2020
48-20

OAL Dkt. Nos. EDU 05122-18 and 10040-18 (consolidated)
Agency Dkt. Nos. 68-3/18 and 146-6/18
New Jersey Commissioner of Education
Final Decision
Yolanda Greene,
Petitioner,
v.
Board of Trustees of the Burch Charter
School of Excellence, Essex County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), and the exceptions filed by the parties pursuant to N.J.A.C. 1:1-18.4 have been reviewed.
Neither party filed a reply to the other party’s exceptions.
These consolidated matters concern allegations by petitioner, a non-tenured vice
principal, that the Board’s handling of a grievance filed against her and her subsequent non-
renewal were improper. 	After multiple days of hearings, the Administrative Law Judge (ALJ)
found that the Board’s decision to require petitioner to attend sensitivity training as a result of the
grievance was void, in part because the Board failed to issue a Rice notice to petitioner for the
meeting during which petitioner’s appeal of the Board’s decision to require sensitivity training
was discussed. The ALJ further found that petitioner failed to demonstrate that the Board’s non-
renewal was arbitrary, capricious, or unreasonable and thus affirmed the non-renewal.
In her exceptions, petitioner argues that the Board should not have considered the
complaints made against her by a parent and by two teachers during their non-renewal exit

2
interviews because she did not have an opportunity to address those complaints before the Board
voted. She contends that because the grievance process was flawed, the Board’s consideration of
her failure to attend sensitivity training as part of the non-renewal decision was also flawed.
Finally, petitioner argues that her non-renewal is contrary to public policy, because the Board
failed to adhere to the grievance policy and did not honor her requests for public discussion of
her employment matters, which she alleges violated the Open Public Meetings Act (OPMA).
The Board’s exceptions largely reiterate its submissions below, arguing that it
complied with the grievance policy. The Board further contends that its determination to require
petitioner to undergo racial sensitivity training was made at the November 14, 2017 meeting, for
which petitioner received a Rice notice. 	According to the Board, it was not obligated to have
another discussion or board meeting to address petitioner’s appeal of the decision.
Upon a comprehensive review of the record, the Commissioner concurs with the
ALJ’s findings and determinations in this matter. 	Regarding the grievance, an employee is
entitled to advance notice when a board of education intends to discuss in closed session a
personnel matter that could adversely affect the employee. 	Rice v. Union County Reg’l High
Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977). Regardless of whether the grievance
policy requires the Board to hold another meeting to address an appeal, here the Board did
discuss the appeal in closed session and then took action on the appeal by affirming the decision,
at a meeting for which they did not issue a Rice notice to petitioner. The requirement to undergo
sensitivity training can be construed as an adverse employment action – indeed, the Board’s
actions in sending Rice notices to petitioner for the prior meetings discussing the matter suggest
that it believed the same – and thus the Board’s failure to issue a Rice notice for a meeting in

3
which that requirement was discussed in closed session and then affirmed renders its action
void.1
With respect to the Board’s non-renewal decision, a board of education has
virtually 	unlimited 	discretion 	in 	hiring 	or 	renewing 	non-tenured 	staff 	members 	absent
constitutional constraints or legislatively-conferred rights. 	Dore v. Bedminster Twp. Bd. of Ed.,
185 N.J. Super. 447, 456 (App. Div. 1982). Here, while petitioner expressed her belief that the
non-renewal was discriminatory because the grievant is Caucasian and petitioner is African
American, she presented no evidence to support that theory. 	The two Board members who
testified regarding the non-renewal denied any discriminatory motive and provided other reasons
for the non-renewal that were not based in any way on petitioner’s race.
Moreover, while the Board’s requirement that petitioner undergo sensitivity
training is void, and thus petitioner’s failure to do so should be removed from the Board’s
consideration regarding non-renewal, the complaints against petitioner by a parent and two
teachers provided the Board with additional reasons for the non-renewal decision, as testified to
by the Board members. Although petitioner disputes the substance of those complaints, when a
non-tenured staff member challenges a board’s decision to terminate her employment on the
grounds that the reasons provided by the board are not supported by the facts, she is entitled to
litigate that question only if the facts she alleges, if true, would constitute a violation of
constitutional or legislatively-conferred rights. 	Guerriero v. Bd. of Ed. of the Borough of Glen
Rock, decided by the State Board of Education February 5, 1986, aff’d Docket #A-3316-85T6
(App. Div. 1986). Petitioner has not asserted or proven that the Board violated any constitutional
or legislatively-conferred right by considering these complaints.
1 Because the failure to send a Rice notice renders the Board’s decision void, the Commissioner need not reach the
other issues regarding the grievance raised by petitioner.

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Furthermore, 	while 	petitioner 	is 	dissatisfied 	with 	the 	nature 	of 	the 	public
discussion during the board meetings in which her non-renewal was at issue, the Board has
fulfilled its OPMA obligations by providing her with the required Rice notices for these meetings
and giving her the opportunity to be heard in public. 	The New Jersey Supreme Court has
recognized that the practice of discussing personnel matters during subcommittee meetings in
advance of taking public action is common practice and that the OPMA does not contain any
requirement about the robustness of the discussion that must take place on a topic. Kean Fed’n
of Teachers v. Morell, 233 N.J. 566, 587-88 (2018). 	For these reasons, petitioner has not
established a violation of a constitutional or legislatively-conferred right and her non-renewal
was therefore within the Board’s discretion.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter. 	The Board’s decision requiring petitioner to undergo sensitivity training is void.
The Board’s decision not to renew petitioner’s contract is affirmed.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	February 4, 2020
Date of Mailing: 	February 4, 2020
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
AMMENDED
INITIAL DECISION
OAL DKT. NO. EDU 05122-18
AGENCY DKT. NO. 68-3/18
YOLANDA GREENE,
Petitioner,
v.
THE 	BURCH 	CHARTER 	SCHOOL 	OF
EXCELLENCE BOARD OF TRUSTEES, ESSEX
COUNTY,
Respondent.
_____________________________________
OAL DKT. NO. EDU 10040-18
AGENCY DKT. NO. 146-6/18
YOLANDA GREENE,
Petitioner,
v.
THE 	BURCH 	CHARTER 	SCHOOL 	OF
EXCELLENCE BOARD OF TRUSTEES, ESSEX
COUNTY,
Respondent.
_____________________________________

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Yolanda Greene, petitioner, pro se
Elizabeth Butler, Esq., for respondent
Record Closed: October 8, 2019 	Decided: November 26, 2019
BEFORE ANDREW M. BARON, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner Yolanda Greene contests the non-renewal of her employment as a
vice-principal by the Burch Charter School at the conclusion of the 2018 school year.
She also contests the manner in which her former employer handled a grievance which
was filed against her by a former teacher at the school.
On or about March 19, 2018, and June 7, 2018, respectively, Yolanda Greene
filed two petitions with the Commissioner of Education.
The first petition alleges that respondent failed to provide her with adequate
procedural due process in a grievance that was filed against her by a former teacher.
The 	second 	petitioner 	alleges 	respondent 	acted 	in 	an 	arbitrary, 	capricious 	and
discriminatory manner against her in making a determination that she should not be
offered a contract for renewal for continued service as a vice principal for the 2018–19
school year.
On or about July 6, 2018, respondent filed Answers to the petitions. 	The
Department of Education transmitted the matter to the Office of Administrative Law for a
determination as a contested case. 	Hearings were conducted on September 18, 2018,
October 29, 2018, November 19, 2018, December 4, 2018, February 22, 2019, March
5, 2019, and oral argument was conducted on October 8, 2019.

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Based upon a review of the documentary and testimonial evidence presented,
and having had the opportunity to observe the demeanor and assess the credibility of
the witnesses who testified, I FIND the following pertinent FACTS and accept as FACT
the testimony set forth below:
Petitioner is an African American woman with a bachelor’s degree in political
science and communications from Rutgers University. She has a master’s degree from
Nova Southeastern University in curriculum, instruction, and technology. 	Her prior
experience in the field of education includes positions as a classroom teacher, math
coach, 	education 	supervisor, 	district 	administrator, 	interim 	director 	of 	professional
development, and vice principal.
Respondent Burch Charter School is an alternative to public school for select
students whose parents want to give them an opportunity to achieve their dreams and
goals. 	The student body, administration, and faculty are diverse, consisting primarily of
African American and Hispanic ethnicity.
Lindsay Fink is a Caucasian physical education teacher who was employed by
the respondent from 2012-2018, until she left for another position in another school
district. 	On May 17, 2018, Fink was teaching a class when she heard one of her
students say something to the effect of “these white teachers.” 	The comments were
directed to Fink after she questioned the student who made the remarks as to why the
student was not wearing a gym uniform, which is required.
Disturbed by what she heard, in an effort to secure advice as to how to handle
the situation, Fink immediately contacted petitioner to determine the appropriate course
of action. 	Petitioner, who was busy at the time handling another matter, told Fink that
she could write the student up if she wanted. 	In the same conversation, petitioner
responded to Fink, “you are white, aren’t you?” and told Fink she did not believe the
student’s comment was racially motivated.

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Taken aback by what she perceived to be a muted response to what she had just
experienced, Ms. Fink testified that she contacted the principal of the school, and the
person to whom Ms. Greene reported to, Theodore Boler. 	One week after the incident
with the student, with no satisfaction that her concerns were being addressed, Ms. Fink
filed a grievance against petitioner.
The 	grievance 	procedure 	is 	memorialized 	in 	the 	Burch 	Charter 	School
Handbook. 	At the time of the incident, the 2014 Employee Handbook was in effect,
which included a five-step procedure to be used to address complaints and grievances.
Step 1 of the process calls for an informal mediation between the aggrieved party
and the accused, overseen by a designated school compliance official, in this case,
Patricia Holness, the school social worker and compliance officer.
After meeting with Ms. Fink and the petitioner, Ms. Holness concluded that the
matter could not be resolved informally. 	She then commenced the next step in the
process, which was to conduct a formal mediation. 	The Handbook calls for the entire
procedure to be completed within sixty days, unless the person who filed the complaint
seeks a written extension. 	Due to the fact that the matter and subsequent grievance
were brought very close to the end of the school year, Ms. Holness concluded the
formal 	mediation 	would 	occur 	in 	September. 	(Ms. 	Fink, 	who 	was 	a 	ten-month
employee, did not want to deal with the matter over the summer when she was not paid
to be in school.)
Petitioner contends her due process rights were violated, since the formal
mediation 	was 	not 	completed 	within 	sixty 	days 	of 	the filing of 	the 	grievance, 	in
accordance with the timelines set forth in the Handbook. 	She did not express this
objection at the time both mediations were being conducted.
After school re-opened in September 2017, the Board, at its September 11
meeting, 	appointed 	attorney 	Rashida 	Hassan 	to 	handle 	the 	formal 	mediation.

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Ms. Hassan was on a pre-approved list for selection as needed. 	Ms. Hassan is an
experienced attorney, with expertise in the area of mediation.
Ms. Hassan testified that she met with the parties separately, but never met with
them together. 	Ms. Fink’s position was that before reaching the formal stage of
mediation, with an apology or a concession from petitioner that her response was
abrupt, Ms. Fink would not have pursued it any further. 	Ms. Hassan’s assessment of
Ms. Green was that she was rigid and unwilling to compromise in order to resolve the
matter.
Petitioner steadfastly maintained that she did nothing wrong and would do what
she did again and saw no harm in her comments to Ms. Fink.
Ms. Hassan then concluded the mediation without a resolution. 	However, within
the report she filed with the Board, she recommended that petitioner consider a cultural-
sensitivity training program and acknowledge to Ms. Fink that her comments were
inappropriate. For reasons unknown, a copy of the report was not provided to petitioner
at the time it was written.
On 	October 	4, 	2017, 	Holness 	informed 	petitioner 	of 	the 	mediator’s
recommendation and told the petitioner it would be discussed at the Board’s next
meeting on October 16, 2017. 	The next day, October 5, Mr. Boler sent petitioner the
required Rice notice to inform petitioner that something related to her employment
would be discussed at the next Board meeting. The discussion of the report was tabled
at the October 16 meeting because petitioner had not been provided with a copy of the
report. She received the report shortly thereafter.
On November 14, 2017, the Board’s personnel services committee reviewed the
mediator’s report and recommended that it be adopted by the Board as a whole. 	Later
that evening, the entire board met, and after giving petitioner an opportunity to speak,
the Board adopted the mediator’s report and recommendation.

6
On November 27, 2017, Mr. Boler informed petitioner in writing that the Board
adopted the mediator’s report and recommendation, and that, within thirty days she
needed to take a racial-sensitivity class and acknowledge that the incident could have
been handled differently. 	That same day, petitioner exercised her right of appeal to the
Board requesting consideration.
At the next board meeting on December 12, 2017, the Board considered the
appeal and affirmed its decision. (P-11.)
Heather Martindale is a founding member of the Burch Charter School who got
involved as a member of the Board because in her own words “she is passionate about
kids.” 	She has been a Board member since the inception of the school over fifteen
years ago, and serves on the personnel committee together with Mr. Boler, her sister
Paulita Martindale, and Carolyn Hee. 	The personnel committee is responsible for
hiring, significant personnel changes, review, renewals, and salaries.
Ms. Martindale’s justification for voting to accept the mediation report and later to
not to renew petitioner’s contract was based on several factors, including her concern
that one parent, who at one time had three children in the school, left the school
completely due to what the parent felt was indifference by Ms. Greene to a matter
involving her child and another student. 	According to Ms. Martindale, this was a “big
deal” 	to 	the 	Board, 	since 	the 	school 	has 	a 	reputation 	for 	listening 	to 	parents.
Ms. Martindale 	also 	considered 	information 	she 	received 	from 	another 	teacher,
Ms. Dickerson, who left the school due to unfavorable interactions with Ms. Greene.
But this information was never shared with Ms. Greene prior to the vote on non-renewal.
A large part of Ms. Martindale’s vote to not renew Ms. Greene’s contract was
based on her disappointment that Ms. Greene never took the recommended sensitivity
class. 	In February 2018, Ms. Martindale asked Mr. Boler if Ms. Greene had completed
the class. And this view of the situation was triggered by Ms. Martindale’s belief that the
way Ms. Greene handled the situation with Ms. Fink showed a lack of understanding of
the feelings of the person she was speaking to. 	She believed Ms. Greene’s behavior

7
was 	intolerant 	in 	relation 	to 	that 	particular 	situation 	with 	Ms. 	Fink; 	that 	it 	was
inappropriate and unprofessional as a person. On March 14, 2018, Mr. Boler reminded
petitioner of her obligation to take the sensitivity class.
Prior to making the decision not to renew, Ms. Martindale communicated with
Mr. Boler seeking a current review of her performance which was supposed to occur
twice a year. 	Upon reviewing the document, Ms. Martindale expressed her opinion to
Mr. Boler that it was incomplete, inappropriate, and unprofessional. The evaluation only
consisted of a few bullet points and it did not reflect parent or staff complaints about Ms.
Greene. Mr. Boler apparently did not document complaints about Ms. Greene, but they
were known to the members of the Board, including petitioner’s response to the incident
with Ms. Fink.
Another Board member, Beverly Canady is a site director and mental health
therapist at a school in a community nearby Burch. She is also the co-director of a grief
center. 	Ms. Canady is a licensed professional counselor and has a Bachelor’s Degree
in sociology from Rutgers and a master’s in counseling from Wichita State University,
and a post-master’s degree from Caldwell College. She is the Board secretary at Burch
and serves on the curriculum committee.
Ms. 	Canady 	corroborated 	the 	Board’s 	thought 	process 	discussed 	by
Ms. Martindale about parent voices not being heard, and the manner in which petitioner
spoke to people. She expressed concern about petitioner’s response to Ms. Fink as not
being consistent with the climate the board believes is important for the school to follow.
The culture at Burch, according to Canady, is supposed to be one of teachers and
administrators working together. 	She believes petitioner’s comments to Ms. Fink were
intolerant, and not consistent with the culture and climate expected of staff at Burch.
Ms. Canady was disappointed that a family with three children in the school left due in
part to their interactions with Ms. Greene.

8
Ms. Canady also confirmed as Board secretary that when it came time for Ms.
Greene to speak at the public meeting on May 14 concerning her employment status,
the minutes reflect she remained silent and waived her right to speak.
The final witness was petitioner Yolanda Greene. 	She too was a credible
witness, but she had a different perspective on the events leading to her non-renewal
starting with the incident with Ms. Fink. 	From her perspective, she called the incident a
“teachable moment.” Busy with another matter at the time of Ms. Fink’s call, she did not
deem the matter serious enough to stop what she was doing to meet with Ms. Fink.
She defended herself by explaining her analytical approach to the situation, that it was
an opportunity in a school setting to learn more from the student about why they said
what they said to Ms. Fink.
A significant portion of Ms. Greene’s testimony focused on her concerns and
objections to the manner in which the grievance investigation and mediation was
handled. 	But when it came time to address her concerns about the non-renewal
process, she indicated that she decided to remain silent at the May 14 meeting where
her employment was being discussed, because of the way the Board handled the
mediation process. 	Essentially, she admitted she remained silent and waived her right
to speak in public and waived her right to a Donaldson hearing after she was notified
that she would not be renewed. 	When asked why she never took a cultural-sensitivity
class, she first offered that she felt that Ms. Fink should also have been told to take a
class. 	She then indicated that even after Mr. Boler reminded her the Board expected
her to take a class by the end of March 2018, she had a hard time finding a class on this
subject. While most of Ms. Greene’s testimony was credible, her excuse for not locating
a class on cultural sensitivity over a period of five months does not seem credible. It will
never be known if she had done so if a new contract would have been offered.
LEGAL ANALYSIS AND CONCLUSION
In this matter, petitioner was employed by the Burch Charter School from January
2016 to June 30, 2018. The pivotal issues concern the propriety of the Board’s decisions

9
to compel petitioner to take a cultural-sensitivity class based on the recommendation of a
mediator 	and 	the 	propriety 	of 	the 	board’s 	determination 	not 	to 	renew 	petitioner’s
employment for the 2018–19 school year.
Pursuant to N.J.S.A. 18A:6-9, the Commissioner of the Department of Education
has jurisdiction to hear and determine, without cost to the parties, all controversies and
disputes arising under the school laws. 	N.J.A.C. 6A:3-1.1 to 1.17. 	sets forth the rules of
procedure for the filing of petitions with the Commissioner of Education to hear and decide
controversies and disputes arising under school laws in accordance with N.J.S.A. 18A:6-9.
N.J.A.C. 6A:3-1.1(a).
The Petition requests that the undersigned set aside the Board’s adoption of a
mediation recommendation to take a cultural-sensitivity class, and to determine that the
Board acted in an arbitrary capricious and discriminatory manner in not renewing her
contract to serve as a vice principal at the school for the next calendar school year.
“School Law vests the management of the public schools in each district in the
local boards of education, and unless they violate the law or act in bad faith, the
exercise of their discretion in the performance of the duties imposed upon them is not
subject to interference or reversal.”
From 	a 	procedural 	standpoint, 	the 	Board 	complied 	with 	all 	the 	statutory
requirements governing the non-renewal of a teacher. 	Petitioner contends that the
mediation process to which she was a party was faulty in that it was not completed
within sixty days, and the mediator took sides when she made a recommendation in the
conclusion of her report that petitioner should undergo cultural-sensitivity training.
After the informal mediation failed to produce a resolution towards the end of the
2017–18 school year, school officials determined that the formal mediation cold not be
completed prior to the conclusion of the school year. 	The Personnel Handbook upon
which petitioner relies says the procedure must be completed in sixty days, unless the
complainant agrees in writing to extend the time. 	While it was not done in writing, the

10
Board substantially complied with this provision in that when Ms. Fink was consulted,
she did not want to be called in over the summer, as she was only a ten-month
employee.
As to petitioner’s complaint about process, the Board properly sent a Rice notice
to petitioner on October 3, 2017, that something related to her employment was going to
be discussed at the next Board meeting. 	Rice notices do not have to specify what will
be discussed, just the fact that something related to an individual’s employment will be
discussed. 	Petitioner requested that the mater be discussed in public. 	When it was
learned 	that 	petitioner 	had 	not 	received 	a 	copy 	of 	the 	mediator’s 	report, 	the
conversation was tabled until the next month’s meeting. 	Petitioner admits in her own
summation that she knew the matter was tabled; that two weeks later she received a
copy of the report; and together with another Rice notice that something related to her
employment may discussed at the Board’s next meeting.
At the November 14 meeting, the Board did in fact discuss and adopt the
mediator’s report. There was some discussion during the hearing as to whether or not it
was appropriate for the mediator to make a recommendation, a fact to which petitioner
strongly objected. Petitioner requested and was given an opportunity to speak.
But the fact that it was a recommendation, and not a mandate, does not mean
that the mediator exceeded the scope of her authority. Her report to the Board was just
that, a recommendation after she determined that Ms. Fink was somewhat flexible in
her position, and petitioner was not, and saw nothing wrong with the undisputed
remarks that were made to Ms. Fink. Instead of entering into a dialogue with the Board
and her immediate supervisor Mr. Boler about the recommendation, petitioner filed an
appeal for the Board to reconsider.
At its December 12, 2017, meeting, the Board affirmed its adoption of the
mediator’s recommendation and report. 	Petitioner takes issue with this action as she
did not receive another Rice notice concerning discussion of the appeal. 	She indicated
that she was present for the first part of the meeting but had no idea her appeal was on

11
the agenda or she would have stayed for the entire meeting and possibly spoken in
public again. By the Board’s failure to list the appeal as an agenda item, failure to send
her a third Rice notice, and voting to affirm its earlier decision without a public
discussion, 	petitioner 	contends 	that 	by 	affirming 	its 	prior 	decision 	and 	rejecting
petitioner’s appeal, the board was in violation of the open Public Meetings Act, N.J.S.A.
10:4-6 to -21. 	See also Kean Fed’n of Teachers v. Morrell, 233 N.J. 566 (2018);
Caldwell v. Lambrou, 161 N.J. Super. 284 (App. Div. 1978).
During the October 8 argument, school counsel was asked whether the mediator
exceeded 	her 	authority 	by 	including 	a 	recommendation 	in 	her 	report 	which 	was
ultimately adopted by the board. 	Counsel indicated that this was acceptable under the
revised manual which was put in place in October 2018. 	But as petitioner correctly
pointed out, the manual under which the grievance process was commenced was in
place 	effective 	2014. 	She 	objects 	to 	the 	combination 	of 	an 	adopted 	mediation
recommendation, as well as the fact that the board met a third time to discuss
something related to her employment status, without another Rice notice and without it
being included on the agenda for the meeting.
As to petitioner’s complaint that she did not receive procedural due process in
connection with the grievance mediation process, I agree in part as to the contention
that though not intentionally, to some extent the mediator exceeded her authority by
making a recommendation as to only one of the parties, and the resulting adoption of
the recommendation as to only one of the parties, and rejection of the appeal without a
Rice notice and agenda item was flawed. This is further evident by virtue of the fact that
the grievance procedure also required the compliance officer to submit a report to the
board if the formal mediation failed to achieve a resolution, which was not submitted.
Therefore, I CONCLUDE that while the informal mediation process and part of
the formal mediation process followed the necessary protocol, the incorporation of a
recommendation by the mediator as to only one of the one of the parties (in this case
the petitioner), the resulting adoption, and the discussion of petitioner’s appeal at the
December 2017 meeting without a new Rice notice and the Board’s failure to include

12
the appeal as an agenda item were flawed. 	To the extent that a Board directive was
issued to petitioner arising from the mediation, as well as the fact that Step 5 in the
grievance process was not followed by failing to issue a final report from the compliance
officer, this aspect of the relief sought by petitioner is GRANTED, and I CONCLUDE the
action of the Board in adopting and implementing the mediator’s recommendation which
essentially determined petitioner was at fault is deemed VOID.
Turning to the issue of non-renewal, petitioner contends in this matter that when
respondent determined in May 2018 that her employment would not be extended, the
Board’s actions were arbitrary, capricious, unreasonable and discriminatory. 	The
caselaw in this area is well settled.
Boards have broad discretionary authority to decide whether a teacher, or in this
case a vice principal should or should not be re-engaged. 	Donaldson v. N. Wildwood
Bd. of Educ., 65 N.J. 236 (1974). 	No obligation exists on the part of board to renew
non-tenured teachers. 	Wyckoff Twp. Bd. of Educ. v. Wyckoff Educ. Ass’n, 168 N.J.
Super. 497 (App. Div. 1979).
There are some limits and procedural safeguards afforded to school employees
when their employment status is due to be considered. A board of education is required
to send a “Rice notice” any time it has placed on its agenda any matters involving the
employment, evaluation appointment, evaluation of performance or discipline. 	N.J.S.A.
10:4-12(b)(8). 	This provides the affected employee with an opportunity to decide
whether they desire a public discussion and prepare and present an appropriate request
in writing. 	See Rice v. Union Cty. Reg’ High Sch. Bd. of Educ., 155 N.J. Super. 64
(App. Div. 1977).
On May 8, 2018, the Board issued another Rice notice to petitioner indicating
that her employment status would be discussed at its meeting on May 14, 2018.
Ms. Martindale indicated in her testimony that may was traditionally the time when the
Board would discuss the contract status of several employees whose contracts were

13
under consideration for renewal or non-renewal. 	As it turned out, petitioner was one of
several employees whose status was being discussed that night.
As part of his duties as petitioner’s supervisor and as a member of the personnel
committee, Mr. Boler supported the continued employment of petitioner, and to that end,
although some of his reviews were incomplete, he had written favorable comments
about her performance. 	While petitioner contends, she should have been evaluated
twice a year, a board’s failure to comply with statutory evaluation procedures is not fatal
to a decision to terminate or not renew a contract. 	See El-Hewie v. Bd. of Educ. of the
Bergen Cty. Vocational Sch. Dist., No. A-6310-07T3 (App. Div. Dec. 24, 2009). 	Both
Ms. 	Martindale 	and 	Ms. 	Canady 	indicated 	that 	while 	Mr. 	Boler’s 	position 	was
considered, 	it 	was 	but 	one factor 	in 	the Board’s 	ultimate 	decision 	not to 	renew
petitioner’s contract.
Board members were concerned about petitioner’s interactions with parents and
co-workers, in addition to the situation that occurred between Ms. Greene and Ms. Fink.
Staff members on exit interviews expressed their dissatisfaction with Ms. Greene. 	It
was stated by at least one other staff member that “petitioner did not know how to talk to
people and did not support teachers.” 	And the interaction between petitioner and
Ms. Fink that led to the grievance which petitioner did not seem to see the offensive
nature of her comments was also considered by the Board in deciding not to renew her
contract.
Although 	petitioner 	acknowledged 	receipt 	of 	the 	May 	8 	Rice 	Notice, 	she
remained silent at the meeting during the public portion, thus waiving her right to
challenge the Board’s decision not to renew.
Following the meeting, the next day, May 15, 2018, Mr. Boler notified petitioner in
writing that the Board did not renew her contract for the next school year. 	As was her
right, petitioner asked for and received a statement of reasons behind the decision not
to renew. 	But for reasons unknown, despite her emphasis in this appeal on procedure,
petitioner did not follow up with a request for a Donaldson hearing which would have

14
afforded her the opportunity to have a formal dialogue with the Board and perhaps
convince the Board that it should reconsider its decision.
There is simply no evidence that the Board acted in a discriminatory or arbitrary
and capricious manner in deciding not to renew petitioner for the next school year.
Petitioner is an African American female with an impressive educational background.
The 	Board 	for 	the 	most 	part, 	consists 	of 	African 	American 	members, 	and 	both
Martindale and Canady are African American. 	Mr. Boler is African American. 	And the
student body for the most part and their respective families are African American or
other minority groups. 	So it is hard to understand petitioner’s argument that she was
the victim of discrimination when all of the decision makers were of the same ethnicity
as petitioner.
Petitioner also complained that the board failed to give proper consideration to
the favorable reviews she received from Mr. Boler. 	“In determining whether to renew a
teacher’s contract, a local board has the right to base its decision not to re-employ on
matters outside of a teacher’s evaluations.” Dore v. Bedminster Twp. Bd. of Educ., 185
N.J. Super. 447 (App. Div. 1982). 	A board of education’s decision to non-renew the
contract of a non-tenured employee should not be disturbed unless it is arbitrary or
capricious. See N.J.S.A. 18A:27-4.1.
In this case, petitioner received a Rice notice in advance of the May discussion
concerning her employment status. She remained silent during the public portion of the
meeting. 	And after asking for and receiving a written statement of reasons why her
contract was not renewed, she waived her right to request a Donaldson hearing.
While the evidence supports petitioner’s contention that the Board did not follow
proper protocol in part by adopting a recommendation from the mediator that exceeded
the scope of the mediator’s authority, there is no evidence that the Board of Education
violated any law as to the more critical contract renewal process and I therefore
CONCLUDE that petitioner has failed to demonstrate that the Board’s refusal to renew
her contract was arbitrary, capricious or discriminatory.

15
ORDER
It is ORDERED that the Burch Charter School Board’s determination as to the
grievance filed against petitioner is deemed void, and it is further ORDERED that the
decision by the Burch Charter School Board of Education, the result of which was to not
renew petitioner’s contract for the 2018–2019 school year, is AFFIRMED.
I 	hereby 	FILE 	this 	Initial 	Decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This order on application for emergency relief may be adopted, modified or
rejected 	by 	the 	COMMISSIONER 	OF 	THE 	DEPARTMENT 	OF 	EDUCATION,
who/which by law is authorized to make a final decision in this matter. 	The final
decision shall be issued without undue delay, but no later than forty-five days following
the entry of this order. 	If (title of agency head) does not adopt, modify or reject this
order within forty-five days, this recommended order shall become a final decision on
the issue of emergent relief in accordance with N.J.S.A. 52:14B-10.

16
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, P.O. Box 500, Trenton, New
Jersey 08625-0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must
be sent to the judge and to the other parties.
November 20, 2019
DATE 	ANDREW M. BARON, ALJ
Date Received at Agency: 	November 20, 2019
Date Mailed to Parties:
mm

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APPENDIX
Witnesses
For Petitioner:
Yolanda Greene
For Respondent:
Heather Martindale
Patricia Holness
Theodore Boler
Beverley Canady
Rashida Hassan
Exhibits
For Petitioner:
P-1 	Grievance Policy Timeline
P-2 	Burch Charter School Employee Handbook, dated September 9, 2014. The
revised handbook dated October 5, 2017 was not marked but is included.
P-3 	Rice Notice, dated May 8, 2018
P-4 	Rice Notice, dated May 15, 2018
P-5 	Mediator Report
P-6 	Evaluation, dated 2015/2016
P-7 	Evaluation, dated 2016/2017
P-8 	Evaluation, dated2017/2018
P-9 	Meeting Minutes, dated August 14, 2017
P-10 	Meeting Minutes, dated May 14, 2018
P-11 	Meeting Minutes, dated December 12, 2017
P-12 	Email
P-13 	Rice Notice/Mediation Report, dated October 3, 2018
P-14 	Request for Public Meeting, dated October 13, 2018
P-15 	Board Agenda, dated October 10/16/18

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As reflected in the transcripts, some items testified to by petitioner were given
consideration but nor formally marked into evidence and/or introduced by both sides.
Certain exhibits were either marked out of order, nor marked. See email exchange of
April 12, 2019.
For Respondent:
R-1 	Meeting minutes, dated May 7, 2018
R-2 	Rice Notice, dated May 8. 2018
R-3 	Omit
R-4 	Omit
R-5 	Letter, dated October 3, 2017
R-6 	Letter, dated October 19, 2017
R-7 	Letter, dated December 27, 2017
R-8 	Mediator’s Report, dated October 4, 2017
R-9 	Email, dated September 25, 2017
R-10 	Holness/Greene letter, Dated December 19, 2017
R-11 	Greene to Cole, dated May 5, 2017
R-12 	Rutgers Principal Evaluations
R-13 	Meeting Minutes, dated October 16, 2017
R-14 	Meeting Minutes, dated November 14, 2017
R-15 	Meeting Minutes, dated March 13, 2018
R-16 	Grievance
Court: Court 1-Contract
Respondent’s exhibits were marked at D-1 to D-16 but should have been marked
as R-1 to R-16. Certain exhibits were marked by both sides and some were
marked out of order. See email exchange of April 12, 2019.