A New Jersey law that forbids nearly all public employees from living out of state unless they get a waiver is “unconstitutional” and can not be used to fire a Somerville high school teacher, a judge has ruled in a case that challenged the controversial “New Jersey First Act.”
The Somerville Board of Education hired a private investigator in 2018 to prove that English teacher Rebecca Drake had moved in with her boyfriend in Newtown, Pennsylvania, about 10 miles from the New Jersey border.
Then, the school district went to court to try to get the tenured teacher fired after 12 years on the job, citing the state residency law.
The New Jersey First law signed by Gov. Chris Christie in 2011, says nearly all public employees must live within the state borders unless they are granted an exception for financial, health or other reasons. At the time, Christie and other supporters of the law said workers paid by New Jersey taxpayers should also be living in the state and paying state taxes.
But Superior Court Judge Thomas Miller tossed out the Somerville Board of Education’s case, ruling that the state residency law is unconstitutional and can’t be used to fire a teacher.
However, the judge’s decision only applies to Drake’s case and does not invalidate the law for all public employees. It’s up the state Legislature to decide whether the residency law should be kept as is, rewritten or killed.
“This Court has determined that the N.J. First Act has not passed constitutional muster,” Superior Court Judge Thomas Miller said in a 77-page ruling issued last month.
Miller said the decade-old law is “vague” and it is unclear who should get exemptions for financial or health hardships.
“The Court agrees, however, that the matter should now be left to the Legislature as to whether the Act is amended to be constitutionally compliant, or whether other action is taken by the Legislature,” Miller wrote in his opinion.
There have been several attempts to amend the New Jersey First Act so it only requires high-level state employees to live in state, allowing lower-paid employees, including school teachers, to live anywhere. But none of the legislation has advanced in the state Legislature.
The Somerville school district plans to continue fighting to fire Drake, the board of education’s attorney said Monday.
“We will be appealing the judge’s decision,” said Marc Zitomer, the school district’s attorney.
Drake and her attorney did not immediately respond to a request to comment.
Drake was working at Somerville High School as a $75,401-a-year tenured English teacher in 2018 when she and her children moved in with her boyfriend in Pennsylvania. At the time, Drake was pregnant with her third child, her house in New Jersey had been foreclosed on and she and her ex-husband were in court with a bankruptcy filing, according to court papers.
Drake had applied to the state Employee Residency Review Committee in 2017 for an exemption to the residency law, citing her financial problems. But her application was rejected because she did not provide enough paperwork documenting her financial problems, her attorney said.
She applied again in May 2018 and was granted the exemption by the committee, allowing her to live out of state as long as she has her teaching job in Somerville. But, by then the school district had already filed its lawsuit to have her fired for living out of state for months without the waiver.
Many cities and local governments around the country have residency laws requiring police officers, firefighters and other public employees to live within their borders. But, Drake’s attorneys argued in court that New Jersey may be the only state in the nation to require all public employees, including teachers, to live in state.
Under the “New Jersey First” law the only exceptions are for workers who can prove a financial hardship, cite a health reason or provide a letter from their employer that are “critical” in their workplace. In addition, any employee who was already living out of state when the law was signed in 2011 is grandfathered in and doesn’t need to move, according to the law.
A 2018 analysis of state records by NJ Advance Media found at least 2,310 public employees have bypassed the law and gotten a pass to live out of state because they successfully applied for exemptions.
Many of those got exemptions were teachers who presented letters to the review board from their school districts saying they are “critical” employees and should get a waiver to live in New York, Pennsylvania or Delaware.
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Kelly Heyboer may be reached at [email protected].