JESSE DENKINS VS. STATE OPERATED SCHOOL DISTRICT OF THE CITY OF CAMDEN (L-0221-17, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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 Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-0221-
17.

Andrew L. Schwartz argued the cause for appellants
(Schwartz Law Group, LLC, attorneys; Andrew L.
Schwartz and Robert M. Schwartz, on the briefs).

Richard L. Goldstein argued the cause for respondent
(Marshall Dennehey Warner Coleman & Goggin,
 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 June 29, 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).

The genesis of this case can be found in the June 2013 State takeover of

the Camden public school system, which resulted in the District's creation and

substitution for the 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 hired by the 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) regulation in force during the 2013-2014

academic year, evaluated 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 resigned. Before they filed suit, however, the regulation at

issue was repealed.

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 In granting the District's motion to dismiss, the motion judge applied the

general rule that repealed laws typically are treated as if they never existed.

The judge concluded that since the regulation prohibiting the evaluator from

working was repealed, plaintiffs failed to state a claim 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. Printing 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. Super. 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 Leader Trainers and Evaluators (evaluators) to evaluate the

A-4952-17T4
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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 Gilbert applied for a position as an evaluator 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 Jersey certificate."

The District offered Gilbert employment as an evaluator on September 25,

2013. The offer was "contingent" upon the approval of the District's

Superintendent "and a successful completion of background clearance,

including that she possess appropriate New Jersey certificates 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 may

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 issue to candidates who meet degree, academic and
applicable test requirements.

....

(c) The CE . . . authorizes the holder to seek
employment. A holder of a CE . . . shall not assume
responsibility 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 has never been issued a provisional

certificate. Nevertheless, between December 2013 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 three 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 certificates 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 her

evaluation from Gilbert. Shelton, Denkins, and Waring all received average

A-4952-17T4
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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 Shelton

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

repealed, and the prohibition itself was re-codified at N.J.A.C. 6A:9B-6.4(c)

effective August 4, 2014. See 46 N.J.R. 1743(a) (Aug. 4, 2014); N.J.A.C.

6A:9B-6.4(c) (2014). Six months later, Gilbert was deposed in a contested

tenure case where she "falsely testified" 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 certificate 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."

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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. 18A: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 Superintendent 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 respect 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 misconduct." 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.

A-4952-17T4
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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 voluntarily and, as such, were not

unconstitutionally deprived of any property right.

Plaintiffs appealed 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 statute, 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 the 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).

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District having obtained their involuntary resignations" through deception or

misrepresentations of material fact, but declined to rule on that issue. Instead,

the court exercised its discretion to begin the analysis with prong two, and

concluded 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 might amount 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

advantage (count nine). 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 certificate, 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 granted

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9
defendant'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,

plaintiffs' motion to amend was not affected by that order.

In a May 11, 2018 order, the motion judge 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, plaintiffs argue that the motion judge mistakenly applied the

law of the case doctrine by overlooking exceptions to 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 general 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 transactions passed and closed. DiAngelo v.

A-4952-17T4
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 Keenen, [112 N.J.L. 19, 20–21 (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 the
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 in effect during the 2013-14 school term 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

regulations.

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 evaluations

A-4952-17T4
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performed by specific 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 the 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. Div.

1993)), and it "should not be used to justify an incorrect substantive result."

Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998).

As a threshold matter, the federal district court's decision was not

binding on the motion judge under 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 judicata determine whether a prior

A-4952-17T4
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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 federal district court did with respect to Gilbert, it was error

to apply the "law of the case" doctrine to the federal district 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 plaintiffs 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," see N.J.A.C. 6A:9-6.4(c) (2013), because

the judge determined that prohibition never existed. Plaintiffs conceded in the

3
Other than the law of the case doctrine, 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.

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proceedings below that they "wouldn't have a case" if Gilbert had a provisional

certificate, and they do not retreat from 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 to the tenure charges. 4 Thus, the question

before us is whether the motion judge, by treating the regulation as if it never

existed, improperly precluded plaintiffs from claiming that Gilbert lacked the

credentials necessary to work during the 2013-2014 academic year.

As noted, the 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 which the judge did not address in rendering his decision.

Defendant contends that Kemp supports its position that the present

controversy does not involve a matter or transaction "passed and closed."

In Kemp, a health official working for the defendant municipality

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 been met."

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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 case could not "be regarded as a transaction

'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." DiAngelo, 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 the

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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. State, 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 retroactive

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 for repealing N.J.A.C.

6A:9-6.4 (2013) was the intent to re-locate the same provisions at a different

section of the administrative code during an "administrative recodification"

process. 46 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 "proposed 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 provisional

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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 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. 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 that the implicit

change in when certain CE holders may begin job performance was intended to

affect CE holders like Gilbert who never obtain a provisional certificate.

Moreover, plaintiffs maintain that their "vested rights of tenure protected

[their] employment from termination absent tenure charges 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.

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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 protecting 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 to protection from

state action, and plaintiffs' tenure rights 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 believed the risk to their pension

benefits and educational certificates attendant to losing a contested tenure case

outweighed any 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 at least

a plausible defense to tenure charges,6 and plaintiffs alleged the District made

factual representations that led them to believe that defense was unavailable.

Plaintiffs also alleged that they relied on the District's representations to

their detriment, and it is reasonable to infer that the alleged representation

5
See N.J.S.A. 18A:6-10 (entitling tenured faculty to a hearing on charges of
inefficiency prior to dismissal).
6
See supra p.14 n.4.

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materially affected plaintiffs' decisions as to whether to enforce 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 representations 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

representation 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 judge did, that

plaintiffs may not demonstrate the falsity of the District's factual

representations 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 intent 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 determination, since that
rule is inapplicable when "vested rights are involved . . . ." See Parsippany,
194 N.J. Super. at 42-43.

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disqualified by law from working without certain 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 working 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 the 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 sufficiently alleged detrimental reliance on the prohibition

against working without a provisional certificate. We are convinced it would

work a manifest injustice to apply the changes in the administrative code

retroactively, as doing so would denigrate the value of tenure rights and permit

allegations of fraud to be unaddressed.

8
See also In re Gadbois, 786 A.2d 393, 397 (Vt. 2001) (stressing "this case
deals with standards of professional regulation that are no 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").

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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 administrative 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 the remedies purportedly available

through the Worker's Compensation Act, an argument the motion judge

rejected and which defendant does not reassert 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 precludes the District from arguing in ensuing proceedings that

plaintiffs failed to exhaust their administrative remedies prior to filing suit, or

from raising any other argument.

A-4952-17T4
21
 Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

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