IN THE MATTER OF THE TENURE HEARING OF DAVID SHIFFER, SCHOOL DISTRICT OF THE TOWNSHIP OF WEST ORANGE, ESSEX COUNTY, 5/9/16, (#178-16)

#178-16
IN THE MATTER OF THE TENURE HEARING 	:
OF DAVID SHIFFER, SCHOOL DISTRICT 	: 	COMMISSIONER OF EDUCATION
OF THE TOWNSHIP OF WEST ORANGE, 	: 	DECISION
ESSEX COUNTY. 	:
SYNOPSIS
Petitioning Board filed tenure charges of insubordination and other just cause against respondent,
a tenured custodian, and sought to terminate his employment with the district. 	Neither
respondent nor any attorney acting on his behalf filed an answer to the petition following notice
pursuant to N.J.A.C. 6A:3-5.3 and 6A:3-5.4.
The Commissioner concluded that, pursuant to N.J.A.C. 6A:3-5.4(g), the allegations – which
respondent has chosen not to deny – may be deemed admitted and are sufficient to warrant
termination of the respondent from his tenured position. Accordingly, the Commissioner granted
summary decision to the petitioner and dismissed the respondent from his tenured custodial
position in petitioner’s school district.
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.
May 9. 2016

1
AGENCY DKT NO. 90-3/16
IN THE MATTER OF THE TENURE HEARING 	:
OF DAVID SHIFFER, SCHOOL DISTRICT 	: 	COMMISSIONER OF EDUCATION
OF THE TOWNSHIP OF WEST ORANGE, 	: 	DECISION
ESSEX COUNTY. 	:
For the Petitioner, Matthew J. Giacobbe, Esq.
No appearance by or on behalf of Respondent, David Shiffer
This 	matter 	was 	opened 	before 	the 	Commissioner 	of 	Education 	on
March 21, 2016, 	through 	tenure 	charges 	of 	insubordination 	certified 	by 	Jeffrey 	Rutzky,
Superintendent of the West Orange School District (“District”), together with supporting
evidence against respondent, David Shiffer, a tenured custodian in the District’s employ. 	The
District provided respondent with written notice of such certification at the respondent’s last
known address, via hand delivery, on March 15, 2016. 	The District also served a copy of the
tenure charges on the respondent’s union representative.
On March 22, 2016, the Commissioner directed the respondent – via both
certified and regular mail – to file an answer to the charges. 	This communication clearly
provided notice to respondent that, pursuant to N.J.A.C. 6A:3-5.3 and 6A:3-5.4, an individual
against whom tenure charges are certified “shall have 15 days from the day such charges are
filed with the Commissioner to file a written response to the charges with the Commissioner,”
and that failure to answer within the prescribed period would – absent granting of an extension
for good cause shown – result in the charges being deemed admitted. 	The certified mail return

2
receipt card indicates that the March 22, 2016 notice was delivered to the respondent on
March 26, 2016. No reply to the tenure charges was received from or on behalf of respondent.
The certified tenure charges and statement of supporting evidence filed by the
petitioner in this matter indicate the respondent has been employed by the District as a tenured
custodian since January 2006. 	In accordance with N.J.S.A. 18A:17-41 and Article XIII of the
Collective Bargaining Agreement (CBA)1 between the District and the Union, the District may
terminate an employee who does not secure a Black Seal License2 within 24 months of
permanent employment. The job description for the Custodian position, approved by the District
on June 21, 2010, also provides that the possession of a Black Seal License is a qualification of
employment.
On January 18, 2011, the District provided the respondent with notice that he was
required under the CBA to obtain a Black Seal License. 	Despite several additional notices
from the District, the respondent failed to obtain a Black Seal License.3 Therefore, on
February 21, 2014, the District provided the respondent with written notice advising him that,
based on his failure to secure a Black Seal License, he was being assessed a one day suspension
and that he would not be entitled to overtime until he secured the requisite license. 	Again, the
respondent failed to secure a Black Seal License and on May 1, 2014, the District provided the
respondent with written notice advising him that, based on his failure to secure a Black Seal
License, his salary increment was being withheld. 	The respondent was also advised that the
failure to secure a Black Seal License by January 1, 2015 would result in his termination. 	To
1 The CBA covered the period between July 1, 2011 and June 30, 2015.
2 It appears that the Black Seal License is a type of Fireman’s License that is also referred to as a low pressure boiler
operator’s license.
3 The Statement of Evidence outlines several occasions upon which the District provided the respondent with notice
that he was required to obtain a Black Seal License, and that his failure to do so would jeopardize his employment
status. All of the notice dates will not be repeated here.

3
date, the respondent has failed to obtain the required Black Seal License, despite the District
having provided him with ample notice and opportunities to secure the license.
Deeming the allegations to be admitted, and noting that respondent has failed to
respond to the charges certified against him, the Commissioner finds that the District’s charges
of insubordination and other just cause against the respondent have been proven and warrant
respondent’s dismissal. 	The respondent’s repeated failure to obtain the requisite Black Seal
License despite numerous warnings and directives from the District demonstrates egregious
insubordination and inability to fulfill the requirements of his position as a custodian in the
District. Accordingly, summary decision is hereby granted to the petitioner, and the respondent
is dismissed from his tenured position with the District.
IT IS SO ORDERED.4
COMMISSIONER OF EDUCATION
Date of Decision: May 9, 2016
Date of Mailing: 	May 9, 2016
4 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1)