New Jersey Education Association v. Board of Education of the Hudson County Schools of Technology, Hudson County, 4/24/2023, (#121-23)

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OAL Dkt. No. EDU 00727-21
Agency Dkt. No. 127-6/20
New Jersey Commissioner of Education
Final Decision
New Jersey Education Association,
Petitioner,
v.
Board of Education of the Hudson County
Schools of Technology, Hudson County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by respondent Hudson County Schools of Technology Board of Education
(HCST) pursuant to N.J.A.C. 1:1-18.4, and the reply thereto filed by petitioner New Jersey
Education Association (NJEA), have been reviewed and considered.1
In this matter, the NJEA is seeking payment from HCST for the legal fees and costs that it
incurred in defending a criminal matter involving an HCST secretary, Graciela Rubet. Rubet was
accused of taking a gift bag belonging to another employee from a locker on June 22, 2018.
Following an investigation into the incident, the Board attorney directed the district to have
charges filed against Rubet. Thereafter, on or about August 9, 2018, the superintendent
reported the incident to the police, provided them with a copy of video surveillance, and
informed them that she wanted to pursue a criminal complaint against Rubet. On August 29,
2018, the North Bergen Municipal Court issued a criminal complaint against Rubet, charging her
1 HCST’s reply to the NJEA’s reply was not considered, as such a filing is not contemplated by N.J.A.C. 1:1-18.4.
Despite HCST’s assertions, the Commissioner notes that the NJEA’s reply exceptions were timely filed in
accordance with the extension that it received from the Commissioner with HCST’s consent.
121-23

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with the fourth-degree crime of theft by unlawfully taking or exercising control over movable
property. On February 24, 2020, the charges against Rubet were dismissed. Rubet was
defended in the criminal matter by the Law Firm of Caruso Smith Picini, P.C. (Law Firm). On
April 24, 2020 and again on August 25, 2020, the Law Firm sent demand letters to the Board,
requesting reimbursement in the amount of $155,367.27 to defray Rubet’s legal costs in
defending the criminal charges against her. The NJEA then filed the instant petition of appeal.
Following cross-motions for summary decision, the Administrative Law Judge (ALJ)
found that the NJEA is entitled to reimbursement for the legal fees and costs associated with
defending Rubet in the criminal matter, pursuant to N.J.S.A. 18A:16-6.1. Specifically, the ALJ
concluded that the criminal charge arose out of and in the course of the performance of
Rubet’s position as a secretary at HCST. The ALJ noted that N.J.S.A. 18A:16-6.1 provides an
exception to indemnification when a criminal complaint is filed by or on behalf of the Board. In
this case, the ALJ found that the complaint was filed by a police officer and on behalf of Edward
Sellmeyer, the employee who owned the gift bag, and not by or on behalf of HCST, such that
the exception does not apply. Finally, the ALJ found that the NJEA is entitled to indemnification
even though the funds will be paid to the Law Firm rather than to Rubet herself, and that a
settlement agreement and release between Rubet and HCST does not affect the NJEA’s right to
seek indemnification.2
In its exceptions, HCST argues that the NJEA is not entitled to indemnification for several
reasons. First, according to HCST, Rubet’s actions in going into a coworker’s locker and taking a
2 The settlement stemmed from Rubet’s suspension from employment during the pendency of the criminal matter.
In the agreement, HCST agreed to pay Rubet $115,000 to compensate for her pain and suffering during the
suspension period in exchange for a general release for any claims arising out of the suspension during the
suspension period.

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gift bag does not arise out of and in the course of the performance of her duties as a secretary
as it is unrelated to her job responsibilities. Second, HCST argues that the ALJ erred in finding
that this matter was not filed by or on behalf of the Board as it ignores that the school
contacted police and made the request to file a criminal complaint. Third, HCST contends that
Rubet does not have a right to reimbursement for her legal fees because she waived her rights
to bring any action against the Board in a settlement agreement with HCST. Finally, HCST
maintains that the NJEA does not have an independent right or standing to bring this action as
the NJEA is not an employee of HCST.
In reply, the NJEA argues that the ALJ correctly concluded that the complaint was not
filed by or on behalf of HCST. The NJEA explains that police officers issue complaints, and
therefore the complaint in this case was issued by the officer who signed the summons. The
NJEA also points out that the complaint was filed on behalf of Sellmeyer, who was the actual
victim because he owned the property, and not the Board. As such, the NJEA maintains that it
is entitled to reimbursement of Rubet’s legal fees. Additionally, the NJEA contends that the
settlement agreement between Rubet and HCST did not release any rights of the NJEA because
it was not a party to the settlement. Accordingly, the NJEA’s position is that it funded Rubet’s
legal fees, and it is therefore entitled to reimbursement under N.J.S.A. 18A:16-6.1.
Upon review, the Commissioner finds that the NJEA is not entitled to payment for the
legal fees and costs incurred in the defense of Graciela Rubet because the criminal matter was
initiated by HCST. The statute provides:
Should any criminal or quasi-criminal action be instituted against
any such person for any such act or omission and should such
proceeding be dismissed or result in a final disposition in favor of
such person, the board of education shall reimburse him for the

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cost of defending such proceeding, including reasonable counsel
fees and expenses of the original hearing or trial and all appeals.
No employee shall be entitled to be held harmless or have his
defense costs defrayed as a result of a criminal or quasi-criminal
complaint filed against the employee by or on behalf of the board
of education.
[N.J.S.A. 18A:16-6.1 (Emphasis added).]
When interpreting a statute, the goal is to discern the legislative intent, which can be
gleaned from the plain meaning of the language. Board of Education of the City of Sea Isle City
v. Kennedy, 196 N.J. 1, 12 (2008). In doing so, courts intend to give meaning to all statutory
provisions, without rendering any language “inoperative, superfluous, void[,] or insignificant.”
In re DiGuglielmo, 252 N.J. 350, 360-61 (2022) (alteration in original) (quoting Sanchez v. Fitness
Factory Edgewater, LLC, 242 N.J. 252, 261 (2020)). The language of N.J.S.A. 18A:16-6.1
indicates that an employee will not have her legal costs indemnified if the criminal complaint is
filed against the employee “by or on behalf of the board of education.” In order to effectuate
meaning to each provision of the statute without rendering any words superfluous, the
Commissioner notes that there must be a different meaning when a complaint is filed “by” a
board versus when a complaint is filed “on behalf of” a board, as the provisions are separated
by “or,” indicating that there are two separate scenarios when the legal costs will not be
defrayed.
Considering the plain meaning of the statute in this circumstance, the complaint was
filed on behalf of Sellmeyer, the victim who owned the property that was allegedly stolen.
Conversely, the complaint was filed by HCST. The Board attorney directed the district to have
charges filed. Thereafter, the superintendent reported the incident to police, and the police
incident report specifically indicates that “Mrs. Lin-Rodriguez informed me that at this time, she

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would like to pursue criminal complaints against Rubet.” HCST initiated the criminal action by
reporting it to police and pressing charges. The Commissioner is not persuaded by the NJEA’s
argument that the complaint was filed by the police officer who signed the summons. While
the officer physically signed the complaint, that is an officer’s job. However, it was HCST that
reported the incident and pursued the charges with the police, such that the police followed
through and issued the summons. The legislature could only intend that that a complaint is
filed by the party that presses charges.3 As the complaint was filed by HCST, Rubet shall not be
held harmless and have her legal costs defrayed under N.J.S.A. 18A:16-6.1. Therefore, the NJEA
is not entitled to reimbursement of the costs it spent for Rubet’s legal defense.4
Accordingly, the Initial Decision of the OAL is rejected. HCST’s motion for summary
decision is granted, and the NJEA’s motion for summary decision is denied. The petition of
appeal is hereby dismissed.
IT IS SO ORDERED.5
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
3 While it appears to be undisputed that the gift bag at issue in this matter belonged to Sellmeyer, the criminal
summons indicates that the gift bag belonged to HSCT. If such were true, the complaint would have been filed on
behalf of HCST in addition to being filed by HCST.
4 As this issue is dispositive, the Commissioner need not determine any of the remaining issues in this matter.
5 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
April 24, 2023
April 26, 2023

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 00727-21
AGENCY DKT. NO. 127-6/20
NEW JERSEY EDUCATION ASSOCIATION,
Petitioner,
v.
BOARD OF EDUCATION OF THE HUDSON
COUNTY SCHOOLS OF TECHNOLOGY,
HUDSON COUNTY,
Respondent.
_______________________________________
Joshua Forsman, Esq., for petitioner (Caruso, Smith, Picini, P.C., attorneys)
Michelle Schott, Esq., for respondent (Purcell, Mulcahy & Flanagan, LLC,
attorneys)
Record Closed: July 28, 2022 	Decided: February 3, 2023
BEFORE ELISSA MIZZONE TESTA, ALJ
PROCEDURAL HISTORY AND STATEMENT OF CASE
Petitioner, New Jersey Education Association (“NJEA”), seeks payment by the
respondent, the Board of Education of the Hudson County Schools of Technology

OAL DKT. NO. EDU 00727-21
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(“Respondent”, “Board” or “HCST”) for legal fees and costs associated with defending a
criminal matter. 	On January 21, 2021, this matter was transferred to the Office of
Administrative Law (“OAL”) from the New Jersey Department of Education.
Respondent filed a Motion to Dismiss in Lieu of an Answer in accordance with
N.J.A.C. 6A:3-1.10 and N.J.A.C. 6A:3-1.5(g). On April 8, 2021, pursuant to a telephone
conference held with the undersigned and counsel for the parties, it was agreed that there
are no disputed facts with respect to this matter, and respondent’s Motion to Dismiss in
Lieu of an Answer was converted to a Motion for Summary Decision. 	Subsequently,
petitioner filed a Cross-Motion for Summary Decision and each party then submitted
opposition and replies to each Summary Decision Motion. 	On January 5, 2022, Oral
Argument was held on the Summary Decision Motions. 	On July 28, 2022, a telephone
conference was held to clarify whether the reasonableness of the attorneys’ fees in
question was an issue to be decided before the undersigned; it was agreed and
determined that the only issue to be decided by way of this Initial Decision is whether
respondent is required to reimburse petitioner for the cost of the legal fees associated
with Rubet’s criminal defense pursuant to N.J.S.A. 18A:16-6.1. 	The record was then
closed.
FACTUAL DISCUSSION
The following facts are undisputed, and I therefore FIND them to be the FACTS of
the case:
1. 	On June 22, 2018, Graciela Rubet was employed as a secretary by the
Hudson County Schools of Technology.
2. 	On June 22, 2018, it was alleged that Rubet unlawfully took property while
on school grounds during the course of her employment.
3. 	On August 29, 2018, a Criminal Complaint against Rubet, alleging theft by
unlawfully taking or exercising control over property, was issued by the

OAL DKT. NO. EDU 00727-21
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North Bergen Municipal Court, (Exhibit A. 	Criminal Complaint). 	The
Complaint was signed by Officer Eric Weyand (Exhibit A). 1
4. 	John R. Dineen, Esq., Board Counsel for HCST, directed HCST to have
criminal charges filed against Rubet and those charges were filed on the
district’s behalf. 	(Exhibit R. 	Certification of John R. Dineen, Esq., Board
Counsel for HCST).
5. 	The North Bergen Police Department Incident Report attached to the
Criminal Complaint also indicate that then Acting Superintendent Amy Lin-
Rodriguez of the District requested that criminal charges be filed against
Rubet. (Exhibit A., Criminal Complaint, Police Incident Report).
6. 	The Police Incident Report indicates that Lin-Rodriguez viewed Rubet on a
surveillance camera taking a gift bag from an employee’s locker. 	(Exhibit
A., Criminal Complaint, Police Incident Report).
7. 	It is undisputed that there is no evidence to suggest that Rubet’s job
responsibilities as a secretary included going into the lockers of other
employees.
8. 	Rubet was represented in her criminal defense matter by the Law Firm of
Caruso Smith Picini, P.C. (Exhibit C, April 24, 2020 Demand Letter for
Rubet‘s Legal Fees, with Invoices).
9. 	The Criminal Complaint against Rubet was ultimately dismissed by the
North Bergen Municipal Court on or about February 24, 2020. 	(Exhibit D.
New Jersey Automated Criminal Complaint System Charged, Disposition
Inquiry Report).
10. 	As per the billing records of Rubet’s attorneys, a few days prior to the
Criminal Complaint being dismissed against her, her attorneys began
negotiating 	with 	respondent’s 	Board 	Counsel 	regarding 	a 	Settlement
Agreement between Rubet and respondent. 	(Exhibit C., April 24, 2020
Demand to respondent for Rubet’s Legal Fees, with Invoices; See Counsel
Entries on February 20, 2020.)
1 The referenced Exhibits are attached to the Motion and Cross-Motion for Summary Decision.

OAL DKT. NO. EDU 00727-21
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11. 	On April 24, 2020, a Demand Letter from Nicolas Poberezhsky of the
Caruso Smith Picini Law Firm “to defray Ms. Rubet’s legal costs” was
forwarded to respondent. 	(Exhibit C. April 24, 2020 Demand Letter to
Respondent for Rubet’s Legal Fees with Invoices).
12. 	In 	the 	Demand 	Letter, 	Mr. 	Poberezhsky 	demands 	$155,367.27 	be
forwarded to his law firm “to defray Rubet’s legal costs.” 	(Exhibit C. April
24, 2020 Demand Letter to Respondent for Rubet’s Legal Fees, with
Invoices).
13. 	Rubet and respondent agreed to settle their differences related to the matter
involved in the Municipal Court Criminal Complaint and their Settlement
Agreement was fully executed on or about July 17, 2020. 	(Exhibit E.,
Settlement Agreement).
14. 	Under the terms of the Agreement, Rubet was paid $115,000. 	(Exhibit E.
Settlement Agreement, ¶8).
15. 	The General Release in the Settlement Agreement reads, in part, as
follows:
General Release – As an inducement for the Employer to enter into this
Agreement, 	the 	Employee 	does 	hereby 	remise, 	release 	and 	forever
discharge the Employer and its officials, officers, directors, employees,
agents, successors and assigns from any and all debts, obligations, suites,
actions, causes of action, claims or demands, in law or in equity, which the
Employee ever had now has or hereafter can, shall or may have, for upon
or by reason of any matter, cause or thing whatsoever arising
16. 	The General Release further reads, in part, as follows:
. . . In the event that any action or proceeding has been filed or instituted,
the Employee agrees to cause its immediate dismissal with prejudice.
Employee further agrees not to participate as a plaintiff either individually or
as part of a class, as if so named, she shall withdraw with prejudice from
the matter. (Exhibit E., Settlement Agreement, ¶10) (Emphasis added).
17. 	The Settlement Agreement further provides as follows:
KNOWING AND VOLUNTARY WAIVER – The Employee acknowledges
that in the execution of this Agreement, she is affecting a knowing and
voluntary waiver of any claims, liabilities or causes of action against
Employer, its officials, and employees . . .. 	The Employee has consulted
with an attorney and has read this Agreement and fully understands all of
its terms.

OAL DKT. NO. EDU 00727-21
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(Exhibit E. Settlement Agreement. ¶12) (Emphasis added).
18. 	The Petition in this matter was filed on or about October 20, 2020 with the
New Jersey Education Association as the petitioner and the Hudson County
Schools of Technology as respondent. (Exhibit F., Petition without Exhibits). The
petitioner seeks to have the Hudson County Schools of Technology pay to the New
Jersey Education Association $155,367.27 “to defray Ms. Rubet’s legal costs” that
appear to have been incurred by the Caruso Smith Picini Law Firm in representing
Ms. Rubet in the Municipal Court action referenced in the proceeding paragraphs.
(Exhibit F., Petition; Exhibit C, April 24, 2020 Demand Letter to Respondent for
Graciela Rubet’s Legal Fees, with Invoices. See list paragraph on first page).
20. 	Petitioner submits documentation of hours spent by her attorneys in
representing Rubet in her criminal matter. 	(Exhibit C, April 24, 2020 Demand
Letter to Respondent for Rubet’s Legal Fees, with Invoices).
21. 	No documentation is provided as to what entity is obligated to pay Rubet’s
legal fees and under what conditions, pursuant to contract or other legal vehicle,
although it is undisputed that she has no outstanding legal fees.
22. 	There is no representation in the Petition, or documentation provided by
petitioner, New Jersey Education Association indicating that Rubet is responsible
for the payment of the $155,367.27 for legal fees that are sought.
LEGAL ANALYSIS AND CONCLUSION
A party may move for summary decision under N.J.A.C. 1:1-12.5(b), which “may
be rendered if the papers and discovery, which have been filed, together with the
affidavits, if any, show that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to prevail as a matter of law.” 	This Motion shares
similarities with the summary judgment rule established in New Jersey Court Rules, R.
4:46-2. See, Judson v. People’s Bank and Trust Co. of Westfield, 17 N.J. 67, 74 (1954).
Pursuant to this standard, all inferences of doubt are drawn against the movant and in
favor of the party against whom the motion is directed. 	Id. at 75. 	Here, both the

OAL DKT. NO. EDU 00727-21
6
respondent and the petitioner are moving parties. Summary Judgment is precluded when
it is determined that “there exists a genuine issue of material fact.” Brill v. Guardian Life
Insurance Co., 142 N.J. 520 (1995).
Petitioner and respondent agree that no genuine issues of material fact exist in this
case. 	Therefore, the primary legal question to be determined is whether respondent is
required to reimburse petitioner for the cost of the legal fees associated with Rubet’s
criminal defense pursuant to N.J.S.A. 18A:16-6.1.
The indemnity of board of education employees in certain criminal and quasi-
criminal actions is governed by N.J.S.A. 18A:16-6.1, which provides in pertinent part:
Should any criminal or quasi-criminal action be instituted
against any such person for any such act or omission and
should such proceeding be dismissed or result in a final
disposition in favor of such person, the board of education
shall reimburse him for the cost of defending such proceeding,
including 	reasonable 	counsel 	fees 	and 	expenses 	of 	the
original hearing or trial and all appeals. No employee shall be
entitled to be held harmless or have his defense costs
defrayed as a result of a criminal or quasi-criminal complaint
filed against the employee by or on behalf of the board of
education.
In Bower v. East Orange Bd. of Educ. (Bower I) 149 N.J. 416 (1997), the New Jersey
Supreme Court interpreted N.J.S.A. 18A:16-6.1 to be read in conjunction with N.J.S.A.
18A:16-62 and adopted a two-part standard to determine whether board of education
employees are entitled to indemnification of counsel fees and expenses incurred in the
defense 	of 	criminal 	charges 	under 	the 	statute. 	To 	prevail, 	the 	employee 	must
demonstrate by a preponderance of the evidence that 1) any act or omission on which
2 N.J.S.A. 18A:16-6 provides: “Whenever any civil or administrative action or other legal proceeding has been or shall
be brought against any person holding any office, position or employment under the jurisdiction of any board of
education, including any student teacher or person assigned to other professional pre-teaching field experience, for
any act or omission arising out of and in the course of the performance of the duties of such office, position, employment
or student teaching or other assignment to professional field experience, the board shall defray all costs of defending
such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save
harmless and protect such person from any financial loss resulting therefrom; provided that
(a) no employee shall be entitled to be held harmless or have his defense costs
defrayed in a disciplinary proceeding instituted against him by the board or when
the employee is appealing an action taken by the board...”

OAL DKT. NO. EDU 00727-21
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the criminal charges are based, arose "out of and in the course of the performance of his
duties", and 2) the charges were either dismissed or resulted in a final disposition
favorable to the employee. Id. at 423.
Rubet has satisfied the second prong under Bower – all criminal charges against her
were ultimately dismissed. 	The next inquiry then focuses on whether the act on which
the criminal charges are based arose out of and in the course of the performance of her
duties as a secretary. 	Respondent contends that N.J.S.A. 18A:16-6.1 does not apply
here because the act upon which the criminal charge was based did not arise out of
Rubet’s performance of her duties as a secretary. 	Rather, respondent argues, when
Rubet allegedly stole a gift bag from another employee’s locker, she was acting outside
of the scope of her employment duties.
The facts underlying the criminal charge are to be "analyzed strictly rather than
liberally, so that reimbursement of legal fees and expenses should only ensue when the
circumstances are such as to fit clearly within the legislative limitations." Powers v. Union
City Bd. of Ed., 124 N.J. Super. 589 (Law Div.1973) aff'd, 127 N.J. Super 294 (App. Div.),
certif. denied, 65 N.J. 575, (1974) (analyzing a prior version of the indemnification
provision). This is so because a public employee should not be "encouraged to engage
in acts which may constitute crimes by the assurance that an acquittal on the charge will
permit him to saddle defense costs upon the taxpayers of the community." Ibid.
In Bower, after setting forth the two-part test for indemnification under N.J.S.A.
18A:16-6.1, the Supreme Court elaborated on the scope of the term “arose out of and in
the course of the performance of [the employee’s] duties.” Bower, a kindergarten teacher,
was criminally charged with sexually abusing his students during the school day and on
school 	premises. 	The 	charges 	were 	ultimately 	dismissed. 	Bower 	requested
indemnification from the Board for the legal fees associated with the defense of his
criminal action pursuant to N.J.S.A. 18A:16-6.1, which the board denied. Bower appealed
to the State Board of Education.
The State Board of Education remanded the matter to the OAL in light of the
dismissal of Bower’s indictment with prejudice. The State Board instructed, on remand,

OAL DKT. NO. EDU 00727-21
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that Bower had the burden of establishing both a nexus between the alleged conduct and
the performance of his duties and a favorable disposition of the criminal charges. 	The
ALJ recommended the denial of Bower’s request for indemnification because he was
unable to establish that the conduct alleged in the criminal matter arose out of the
performance 	of 	his 	duties 	as 	a 	teacher. 	The 	Commission 	adopted 	the 	ALJ’s
recommendation, noting that the record was devoid of proof that Bower’s alleged actions
were linked to his teaching responsibilities. The State Board affirmed the Commissioner’s
ruling, emphasizing that Bower had failed to meet his "affirmative burden" of establishing
a relationship between the conduct alleged and the performance of his duties as a
teacher.
Bower's attorneys separately filed suit on behalf of Bower and themselves in the
Law Division, seeking a judgment for attorney fees and disbursements, representing the
work done in defending Bower against both indictments. 	The Law Division judge
concluded that the criminal charges indeed had arisen out of the performance of Bower's
duties because his involvement with the children was produced by his contact with them
as a teacher. The judge awarded both the attorney fees and disbursements.
The Appellate Division reversed the judgment of the State Board and affirmed the
judgment of the Law Division. 	The Appellate Division found that to arise “out of” the
employment responsibilities, the criminal charges “must be of such nature the risk of
which might have been contemplated by a reasonable person when entering the
employment, as incidental to it.” Bower v. East Orange Bd. of Educ., 287 N.J. Super. 15,
32 (App. Div. 1996). Such a risk “is incidental to the employment when it belongs to or
relates to what a teacher has to do in fulfilling his contract of service.” Ibid. The Supreme
Court affirmed. See, Bower v. East Orange Bd. of Educ., 149 N.J. 416 (1997).
The Court found it “undisputed” that the alleged events “took place in the school,
during school hours, and while Bower was required to be engaged in performing his duties
as a teacher.” Id. at 432. 	However, the Court denied the Board’s assertion of a
supplementary requirement that the employee present specific testimony that rebuts the
charges or explains their specific relationship to the employee’s performance of their
assigned duties, as the requirement was absent from the statute, nor had it been imposed

OAL DKT. NO. EDU 00727-21
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by administrative regulation. Id. at 433. All that is required of employees under the statute,
the Court concluded, is proof by a preponderance of the evidence that the acts upon
which the criminal charges were predicated arose out of and in the course of performance
of the duties of employment, which Bower plainly satisfied. Id. at 434.
In McHarris v. North Brunswick Bd. of Educ., EDU 4968-01, Initial Decision (Dec. 8,
2005), McHarris, an In-School Suspension (ISS) supervisor was arrested and charged
with criminal sexual contact based on allegations of inappropriate conduct with two
students in the ISS classroom. During the time period of the allegations, the two students
were not assigned to ISS. 	McHarris was subsequently acquitted of all criminal charges
after a jury returned a verdict of not guilty and he sought indemnification from the board
of education.
McHarris had testified that, while the students in question were not assigned to the
ISS classroom, he allowed non-ISS assigned students to have their lunch break in the
room and that other teachers and staff frequently visited the classroom. 	The Assistant
Principal also confirmed that neither of the two students were assigned to the classroom.
She testified that non-ISS students were not permitted to enter that room, however, there
was no written policy in this regard and that it was difficult to keep other students out of
the room. The ALJ also found that there was no proof of any verbal instruction to McHarris
that non-ISS students were not permitted in the room, and that the school administration
was on notice that McHarris allowed non-assigned students in the classroom during a
free period. 	As such, the ALJ concluded that the alleged acts arose out of and in the
course of McHarris’ duties and that he was entitled to reimbursement under N.J.S.A.
18A:16-6.1.
In contrast, in Crews v. Hackensack Bd. of Educ., EDU 07629-06, Initial Decision (May
2, 2007), adopted, Comm’r (May 31, 2007), Crews, a teacher for the Hackensack School
District, challenged the board’s denial of reimbursement of legal fees incurred in
connection with her defense against a criminal complaint for disorderly conduct. 	While
school was in session, Crews was observed to be under the influence of a controlled
substance or alcohol. 	Pursuant to the District’s substance abuse policy, Crews was
required to immediately undergo a medical examination. 	While another employee

OAL DKT. NO. EDU 00727-21
10
attempted to accompany her to a doctor, Crews exited the school grounds. Police were
summoned and the officers detected the smell of alcohol on her. 	They summoned an
ambulance. 	When it arrived, Crews became more agitated and louder was flailing her
arms, was cursing and said that she did not want to go with the ambulance. She yelled
to get the f--- off her and to keep his f---ing hands off her. The officer told her she would
be arrested if she did not calm down. 	The officers arrested her for disorderly conduct
when she persisted and tried to push away from the officers. After a bench trial, Crews
was acquitted, and the charges were dismissed.
The ALJ concluded that Crew’s disorderly conduct charge neither arose out of nor
arose in the course of the performance of her duties as a teacher. In so finding, the ALJ
noted that the arrest occurred off school property on a public street when she was not in
the process of educating children or attempting to fulfill her obligation to undergo a
medical test under the substance abuse program. 	As such, the ALJ found that Crews
was not entitled to reimbursement under N.J.S.A. 18A:16-6.1.
Here, as was the case in Bower and McHarris, but in contrast to Crews, Rubet was
charged with a crime that allegedly occurred on school premises. She was charged with
the theft of a gift bag that was in the locker of a fellow employee, Mr. Sellmeyer. The risk
of a secretary being charged with the theft of an item in the school is “of such nature that
the risk of which might have been contemplated by a reasonable person when entering
the employment, as incidental to it.” Bower, 287 N.J. Super. at 32. Rubet’s presence on
school grounds demonstrates that this risk was at least incidental to Rubet’s position as
a school secretary. Thus, the criminal charge against Rubet arose out of her employment
in the district and the first requirement of the two-part test is satisfied.
I therefore CONCLUDE that the criminal charge against Rubet arose out of and
occurred in the course of the performance of her position as a secretary for HCST.
Respondent next contends that the exception carved out in N.J.S.A. 18A:16-6.1,
which denies indemnity for an employee when the criminal or quasi criminal matter was
filed “by or on behalf of the board of education” applies here. 	Respondent asserts that
because Board Counsel and the Acting Superintendent requested that the District and

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the Police Department file criminal charges against Rubet, the Criminal Complaint was
filed on behalf of the district.
A person is guilty of theft if they “unlawfully take, or exercise unlawful control over,
movable property of another with the purpose to deprive him thereof.” 	N.J.S.A. 2C:20-
3A. 	“Victim” is defined as “a person who suffers a personal, physical or psychological
injury or death or incurs loss or injury to personal or real property as a result of a crime
committed against that person . . .” N.J.S.A. 2C:43-3(e). An individual convicted of theft
may be ordered to pay restitution to the victim. N.J.S.A. 2C:43-3.
Here, Edward Sellmeyer, meets the statutory definition of “victim,” because he alone
allegedly suffered a loss of property in the form of a gift bag worth approximately $200.
Additionally, the criminal complaint was signed by Officer Eric Weyand, who charged
Rubet with the violation of N.J.S.A. 2C:20-3A, the offense of Theft by Unlawful Taking in
the Fourth Degree. 	While respondent may have wanted and advocated for criminal
charges to be filed against Rubet, the charges were not filed “on behalf of” respondent.
Criminal charges such as the one at issue here are filed by or on behalf of the victim, and
here, Mr. Sellmeyer fits that definition. 	No action was or could have been taken by
respondent to officially press charges against Rubet – its only connection to the incident
was that it took place on school property.
I therefore CONCLUDE that the Complaint was filed by Officer Weyand on behalf
of Mr. Sellmeyer, not on the behalf of respondent. Accordingly, the exception carved out
in N.J.S.A. 18A:16-6.1 is not applicable here.
Respondent 	next 	argues 	that 	the 	indemnification 	statute 	refers 	only 	to 	an
employee, not to other entities that may pay the employee’s legal fees.
A board’s obligation to pay for the indemnification of third parties under N.J.S.A.
18A:16-6.1 is not relieved even if the employees themselves did not shoulder any of the
costs. In Salaam v. Irvington Bd. of Educ., EDU 13483-10, Initial Decision (May 17, 2012),
adopted, Comm’r (June 25, 2012), a criminal complaint was filed against Salaam, a
teacher employed by the Irvington Board of Education, for allegedly assaulting a fifteen-

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year-old student. 	The criminal complaint was eventually dismissed. 	Salaam was a
member of the NJEA and had obtained his legal services through a law firm that
participated in the program. Salaam requested reimbursement for his attorney fees under
N.J.S.A. 18A:16-6.1. The Board of Education ignored his request and Salaam appealed.
The ALJ concluded that the Board was required to reimburse the NJEA for
Salaam’s fees even though Salaam himself did not pay the fees. 	The ALJ rejected the
Board’s argument that Salaam had no standing to bring the case because NJEA financed
his defense, and that Salaam had no fees to be reimbursed. The ALJ explained that:
the fact that a third party finances the defense is irrelevant as
the obligation to pay for the cost remains with the board of
education. In other words, the fact that a third party finances
the defense does not relieve a board of education of its
obligation under the statute to pay for it.
The ALJ further found that NJEA was entitled to indemnification, as the fact that
Salaam “chose to protect himself from potentially ruinous defense costs” should not “inure
to the benefit of the Board of Education.” The Commissioner adopted the ALJ’s decision
in full. 	On appeal, the Appellate Division affirmed these rulings. See, Salaam v. Bd. of
Educ. of Irvington, Essex County, 2014 N.J. Super. Unpub. Lexis 268 (App. Div. February
4, 2014).
Similarly, a qualifying employee who is defended by an insurance company is
entitled to indemnification pursuant to N.J.S.A. 18A:16-6 and 6.1, even when the
reimbursement monies will ultimately be paid to the defending insurer rather than the
employee. 	In Waters & Horace Mann Co. v. Tom’s River Bd. of Educ, EDU 2611-10,
Initial Decision (April 4, 2011), adopted, Comm’r (May 11, 2011), Waters, an Art Teacher,
was alleged to have made inappropriate sexual comments to a student. 	Waters was
named as a defendant, among others, in a lawsuit brought by the student. 	The claims
included negligent supervision as well as violation of the Anti-Bullying Bill of Rights Act.
Waters sought coverage through the NJEA, and the Horace Mann Insurance Company
provided his defense. This policy contained a Subrogation Clause, which stated that:

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In the event of any payment under this contract, the Company
shall be subrogated to all the Insured’s rights of recovery
therefore against any person or organization and the Insured
shall execute and deliver instruments and papers and do
whatever else is necessary to secure such rights. 	The
Insured shall do nothing after loss of prejudice to such rights.
The lawsuit was dismissed against Waters without any finding of liability. Waters
& the Horace Mann Co. brought an N.J.S.A. 18A:16-6 claim (involving civil actions)
seeking reimbursement in the amount of $59,023.82, representing the settlement as well
as attorney's fees and costs incurred in defending Waters. 	The board refused, arguing
that Waters had not actually incurred any expense in his defense, only Horace Mann had,
and that Horace Mann is not an “employee” and therefore did not have standing to bring
a claim.
The ALJ noted that Waters was faced with four choices following the Board's
refusal to provide him with a defense: "raise the money himself; persuade a defense
counsel to take the case and cover the upfront costs in hopes of indemnification; forgo
hiring counsel to provide a defense; or draw upon the insurance policy." 	The ALJ
concluded that the intent of N.J.S.A. 18A:16-6 was to defray the employee’s expenses;
the subrogation clause in the insurance policy clearly stated that the Company shall be
subrogated to all the Insured’s rights of recovery against any person or organization; the
petitioners’ contention that the statute does not require an employee to personally go out
of pocket to claim indemnification, and that it is sufficient that Waters petitioned for
reimbursement, as in line with the Appellate Division’s holdings in Sekuler v. Montgomery
Township Board of Education, A-000091- 96T1 (App. Div. May 8, 1997) certif. denied,
151 N.J. 464 (1997); and the interpretation urged by the Board was overly mechanistic
and not within the statute or existing case law. 	Accordingly, the ALJ granted the
petitioners’ request for relief and ordered the board to reimburse petitioners for all costs
and fees expended on behalf of Waters in connection with the defense and settlement of
the Superior Court lawsuit. The Commissioner adopted the decision in full.
The Appellate Division affirmed, holding that the subrogation clause was valid, and
that nothing in the legislative history supports the Board’s position that Horace Mann
cannot seek reimbursement under the statute because it is not a board employee. See,

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14
Waters v. Bd. of Educ. of Toms River, 2011 N.J. Super. Unpub. LEXIS 3083 (App. Div.
Dec. 22, 2011). The Court determined that the purposes and policies of the statute are
advanced by allowing for reimbursement of costs in situations in which, in the face of
board refusal to defend a case, a school employee relies on his union's insurance policy
to fund legal representation. To conclude otherwise, the court held, that it “would create
a loophole for school boards that would undermine the statutory purpose of defraying the
costs of a school employee's defense of a suit.” Id. at *19. Thus, a qualifying employee
who is defended by an insurance company is entitled to indemnification pursuant to
N.J.S.A. 18A:16-6 and 6.1, “even when the reimbursement monies will ultimately be paid
to the defending insurer rather than the employee.” Ibid.
The Court also questioned the decision of Meisenbacher v. Newark Bd. of Educ.,
1 N.J.A.R. 162, 165 (Dep't of Educ. 1980), certif. granted, remanded, 91 N.J. 251 (1982),
which the board had relied upon in its arguments. 	In that case, the ALJ held that an
attorney who represented a school employee in a civil matter did not have standing to
seek reimbursement from the Newark Board of Education. The court concluded that the
reasoning in Meisenbacher was “questionable” because the ALJ relied on broad language
in Hartmann v. Maplewood Sch. Transp. Co., 106 N.J. Super. 187, 192 (Law Div. 1969),
aff'd 109 N.J. Super. 497 (App. Div. 1970) without acknowledging the factual differences
between Hartmann, which involved a school bus company's driver and the issue of
whether the driver was a "school employee" for the purposes of N.J.S.A. 18A:16-6, and
the facts of the case before him, namely, the defense of a teacher in the district. Id. at
*15-16 n.1
Here, because Rubet is entitled to reimbursement of legal fees for the cost of her
criminal defense, the NJEA, who provided the funding for these fees, is entitled to same.
As stated in Salaam and Waters, the Board is not relieved of its obligation under the
statute to pay simply because the NJEA is not an “employee” of the Board. 	It does not
make a difference which party filed the petition under N.J.S.A. 18A:16-16.1, and the
Board has not cited any authority to the contrary.
I 	therefore 	CONCLUDE 	that 	the 	NJEA, who 	defended 	Rubet, 	a 	qualifying
employee, is entitled to indemnification pursuant to N.J.S.A. 18A:16-6.1 even when the

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15
reimbursement monies will ultimately be paid to the defending attorneys rather than Rubet
herself. 	Accordingly, the NJEA is entitled to restitution for legal fees under N.J.S.A.
18A:16-6.1.
Finally, 	respondent 	contends 	that, 	even 	if 	Rubet 	is 	found 	to 	be 	entitled 	to
reimbursement under N.J.S.A. 18A:16-6.1, she waived such entitlement pursuant to her
prior Settlement Agreement with respondent.
The New Jersey Supreme Court has enunciated the standard to determine
whether a party has waived its legal rights. 	As a threshold matter, "[w]aiver is the
voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169,
177 (2003). 	The party must "have full knowledge of [its] legal rights and intent to
surrender those rights." Ibid. A party need not expressly state its intent to waive a right;
rather, waiver can occur implicitly if "the circumstances clearly show that the party knew
of the right and then abandoned it, either by design or indifference." Ibid. Such a waiver
must be done "clearly, unequivocally, and decisively." Ibid. Determining whether a party
waived a right is a fact-sensitive analysis. See, Ibid.
In the Settlement Agreement, Rubet waived any future claims that she personally
may be entitled to against the respondent. 	However, Rubet did not claim to waive any
rights on behalf of NJEA. 	Significantly, she did not and does not have the authority to
waive any rights on behalf of the NJEA. The NJEA itself did not sign any form of release
as part of agreement between Rubet and the respondent, nor was it a party to any of the
previous actions involving Rubet. 	It never demonstrated a voluntary and intentional
relinquishment of its right to seek reimbursement under N.J.S.A. 18A:16.6.1, as is
required under New Jersey law. Accordingly, the District cannot use Rubet’s Settlement
Agreement as a shield to avoid its financial obligations under N.J.S.A. 18A:16.6.1.
I therefore CONCLUDE that Rubet’s Settlement Agreement did not affect NJEA’s
legal rights under N.J.S.A. 18A:16-6.1 because the NJEA was not a party to the
agreement and because Rubet did not have authority to waive NJEA’s legal rights.

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CONCLUSION
I CONCLUDE that the NJEA is entitled to reimbursement for legal fees and costs
associated with defending Rubert in the criminal matter. 	Rubet was charged with a
Criminal Complaint connected with on-duty conduct and the charges were subsequently
dismissed. 	As a result, Rubet would be entitled to reimbursement of reasonable legal
fees under N.J.S.A. 18A:16.6.1. Since Rubet would be entitled to reimbursement of legal
fees, the NJEA, who funded those legal fees, is accordingly entitled to reimbursement.
Therefore, having reviewed both parties’ submissions, I CONCLUDE that no
issues of material fact exist. 	I further CONCLUDE that respondent is in violation of
N.J.S.A. 18A:16.6.1 and that petitioner is entitled to reimbursement for Rubet’s legal fees
and costs.
ORDER
It is therefore ORDERED that the petitioner’s Motion for Summary Decision be and
hereby is GRANTED. It is further ORDERED that the respondent’s Motion for Summary
Decision be and hereby is DENIED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Commissioner of the Department of Education
does not adopt, modify or reject this decision within forty five days and unless such time
limit is otherwise extended, this recommended decision shall become a final decision in
accordance with N.J.S.A. 52:14B 10.
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

OAL DKT. NO. EDU 00727-21
17
THE DEPARTMENT OF EDUCATION, ATTN: BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO 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.
February 3, 2023
DATE 	ELISSA MIZZONE TESTA, ALJ
Date Received at Agency: 	February 3, 2023
Date Mailed to Parties: 	February 3, 2023
EMT/sej

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BRIEFS RELIED ON
For Petitioner
Cross-Motion for Summary Decision with Supporting Brief
Opposition to Respondent’s Motion
For Respondent
Motion for Summary Decision with Supporting Brief
Opposition to Petitioner’s Cross-Motion