                  NOT FOR PUBLICATION WITHOUT THE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,           APPROVED FOR PUBLICATION

v.                                            May 19, 2015

                                          APPELLATE DIVISION
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 May 19, 2015

         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
           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 statutorily-

mandated   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




                                     2                                  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.



                                        3                              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 ninety-

day improvement plan, as required by the then-existing provision

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




                                                 4                                  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




                                           5                                  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.



                                         6                                   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 pre-

dating 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




                                          7                               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



                                      8                             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).




                                                     9                                           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




                                               10                                      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




                                               11                                       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-




                                     12                                   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




                                        13                                     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)


                                         14                               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].



                                  15                           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)).




                                          16                                  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).



                                        17                                     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




                                               18                                   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.




                               19                      A-0857-13T2
