ROSALEE S. ELSON V. BOARD OF EDUCATION OF THE CITY OF NEW BRUNSWICK, MIDDLESEX COUNTY, 8/15/13, (#292-13)

#292-13 (OAL Decision: Not yet available online)
ROSALEE S. ELSON, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY OF 	: 	DECISION
NEW BRUNSWICK, MIDDLESEX COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner – a tenured teaching staff member employed by the respondent Board since 2001 –
challenged the Board’s action in reducing her salary to recoup alleged overpayments made to
petitioner during the time period from September 2009 to January 2010. 	Petitioner contended that
the Board violated her tenure rights when it withheld a total of $5,000 in five monthly installments to
reimburse for a stipend which was inadvertently double-paid to the petitioner; petitioner sought to
have the Board reissue the $5,000 recoupment to her, and then recapture the same amount by
freezing petitioner’s salary for future years until the $5,000 is recouped. The Board contended that
there was no violation of petitioner’s tenure rights and she was not financially harmed by the
recoupment, as she was at all times fully aware of her appropriate salary step and the fact that she
had received a $5,000 overpayment for the period from September 2009 to January 2010.
The ALJ found, inter alia, that: although there is a body of case law that has established that a board
of education cannot require reimbursement of money paid in error through no fault of the employee,
the facts in the case at bar clearly differ in that here there is no dispute regarding petitioner’s position
on the salary guide nor the amount of salary she was entitled to for the 2009-2010 school year;
petitioner received full salary for the year, with full benefits; the contention that petitioner’s salary
was reduced by virtue of the withheld recoupment payments is without merit; petitioner was clearly
aware that she had received double payment of her stipend, as she brought the initial overpayment to
the attention of respondent’s payroll department and jokingly indicated that she would “love to keep
it”; the $5,000 overpayment was recaptured in the same manner in which it made; 	and the $5,000
double payment to petitioner was rightfully recouped as it was not a salary guide error but rather an
overpayment of which petitioner was aware. Accordingly, the ALJ ordered the petition dismissed.
Upon full review, the Commissioner concurred with the findings and conclusions of the ALJ, and
adopted the Initial Decision of the OAL as the final decision in this matter. The petition was
dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
August 15, 2013

1
OAL DKT. NO. EDU 7092-10
AGENCY DKT. NO. 92-5/10
ROSALEE S. ELSON, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY OF 	: 	DECISION
NEW BRUNSWICK, MIDDLESEX COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	Petitioner’s exceptions and the Board’s reply thereto were
filed in accordance with the prescriptions of N.J.A.C. 1:1-18.4, and were fully considered by the
Commissioner in reaching his determination herein.
Petitioner’s exceptions and the Board’s reply essentially replicate the briefs
submitted to the Administrative Law Judge (ALJ) in support of the parties’ respective cross-
motions for summary decision below. 	The Commissioner finds that the arguments advanced
therein were fully considered and addressed by the ALJ in his Initial Decision. 	Accordingly,
they will not be revisited in depth here.
Upon his full review, the Commissioner agrees with the ALJ’s determination that,
under the circumstances of this case, the Board did not violate petitioner’s tenure rights when it
reduced her semi-monthly paychecks to recoup an overpayment. The Commissioner further
agrees with the ALJ’s determination that the cases cited by petitioner respecting salary guide
errors are distinguishable from this case. The Commissioner finds the salient facts in this matter

2
more closely analogous to the situation in Trenton Education Association, et al. v. Board of
Education of the City of Trenton, decided by the State Board of Education, December 1, 1999.
In Trenton Education Association, supra, the State Board held that the Trenton
board had not violated the tenure rights of its custodial employees when it reduced six of their bi-
weekly paychecks during the 1992-93 school year in order to recoup an overpayment. The
overpayment in that case had not resulted from action by the Trenton board in erroneously
placing the custodians on the negotiated salary guide or incorrectly establishing their salaries
under the terms of that guide. 	Rather, the Trenton board had erred in calculating the specific
amounts to be included in the custodians’ bi-weekly paychecks based on their established annual
salaries. Nor was there any indication in that case that the custodial employees had received
compensation for the 1992-93 school year which was less than the amount established by the
Trenton board under the terms of the district’s negotiated guide or as set forth in that guide.
Under those circumstances, the State Board concluded that the Trenton board’s action in
recouping the overpayments by reducing the custodians bi-weekly paychecks during the course
of the year did not constitute an impermissible reduction in compensation as contemplated by
N.J.S.A. 18A:17-3 and 17-4.
Similarly, it is undisputed in the instant case that the overpayments did not result
from the incorrect establishment of petitioner’s salary. 	Rather, the district’s payroll department
erroneously double-paid the stipend amount owing to petitioner. 	Pursuant to the decision in
Trenton Education Association, supra, the tenure laws do not prohibit the Board from recovering
such an overpayment by reducing the petitioner’s paychecks. See also, Sklute et al. v. Board of
Education of the City of Trenton, OAL Docket No. EDU 9852-94 (October 18, 1995), aff’d,
Comm’r of Educ. (December 1, 1995), aff’d State Board, (February 2, 2000). 	Thus, under the

3
particular circumstances presented herein, the Commissioner concludes that the Board’s action in
deducting the amount of the overpayment from subsequent paychecks issued to the petitioner
did 	not 	constitute 	an 	impermissible 	reduction 	in 	compensation 	as 	contemplated 	by
N.J.S.A. 18A:6-10.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter and the within petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: August 15, 2013
Date of Mailing: 	August 15, 2013
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.