Lillian Rodriguez-Mayor, Matthew Swartz, Vate Tchero, Sanyika Montague, Latisha Lagrier, Vickie Leaverette, O’Lan Nickson, Lawrence Sullivan, Vanessa Coggins, Nancy Kresge, Jennylind Lewis, Miriam Lugo, Nydia Morales, Jessica Valle, and Valerie Walker v. Board of Education of the City of Newark, Essex County, 10/15/26 (#415-26)

415-26
OAL Dkt. No. EDU 00842-22
Agency Dkt. No. 225-11/21
New Jersey Commissioner of Education
Final Decision
Lillian Rodriguez-Mayor, Matthew Swartz, Vate
Tchero, 	Sanyika 	Montague, 	Latisha 	Lagrier,
Vickie Leaverette, O’Lan Nickson, Lawrence
Sullivan, 	Vanessa 	Coggins, 	Nancy 	Kresge,
Jennylind Lewis, Miriam Lugo, Nydia Morales,
Jessica Valle, and Valerie Walker1,
Petitioners,
v.
Board of Education of the City of Newark, Essex
County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioners and respondent Board of Education of the City of Newark
(Board) pursuant to N.J.A.C. 1:1-18.4, and the replies thereto, have been reviewed and
considered.
The Board employed petitioners as teaching staff members during the 2020-2021 and
2021-2022 school years. Petitioners allege that the Board failed to provide them with written
notice, as required by N.J.S.A. 18A:29-14, when withholding their salary increments for the 2021-
1 During the pendency of the proceedings, the parties agreed that petitioners Vanessa Coggins and O’Lan
Nickson should be dismissed from the matter because they received their salary increments for the 2021-
2022 school year. Additionally, petitioner Sanyika Montague withdrew his claim. For these reasons, the
Commissioner hereby dismisses Vanessa Coggins, O’Lan Nickson, and Sanyika Montague from this matter.

2
2022 school year. Accordingly, they seek restoration of their salary increments for the 2021-2022
school year and all corresponding benefits and emoluments.
The Board concedes that it did not provide petitioners with written notice pursuant to
N.J.S.A. 18A:29-14. However, the Board disagrees that its violation of the notice requirement
requires restoration of the petitioners’ salary increments. Instead, the Board contends that it is
undisputed that petitioners’ teaching performance was rated unsatisfactory during the 2020-
2021 school year, which warranted the withholding of their increments during the 2021-2022
school year regardless of the notice issue.
Because the parties agreed that none of the facts were disputed, they filed motions for
summary decision. 	The Administrative Law Judge (ALJ) made findings of fact based upon the
parties’ Stipulation of Facts and Joint Exhibits. 	After considering the parties’ positions and
analyzing N.J.S.A. 18A:29-14 and related case law, the ALJ granted petitioners’ motion for
summary decision upon concluding that the Board’s withholding of petitioners’ salary increments
without having provided written notice was arbitrary, capricious or unreasonable. 	The ALJ
directed the Board to pay petitioners’ salary increments for the 2020-2021 school year, although
a review of the entirety of the Initial Decision makes clear that the salary increments at issue
were withheld during the 2021-2022 school year due to unsatisfactory performance during the
2020-2021 school year.
In their exceptions, petitioners argue that the 2021-2022 school year is when the
increments were withheld, not the 2020-2021 school year; that petitioners Coggins, Nickson, and
Montague are no longer part of the case and should be dismissed; and that the ALJ did not
address their request to restore all corresponding benefits and emoluments.

3
In response to petitioners’ exceptions, the Board contends that the Initial Decision is
substantively flawed due to the aforementioned factual errors and the failure to dismiss three
petitioners from the case; that petitioners do not defend the incorrect legal standard applied by
the ALJ because it serves their interests; and that the ALJ’s failure to address petitioners’ request
for corresponding emoluments further demonstrates that the Initial Decision is flawed and needs
to be rejected in its entirety.
In its own exceptions, the Board agrees with petitioners that the 2021-2022 school year
is when the increments were withheld, and that petitioners Coggins, Nickson, and Montague
should be dismissed from the case. 	However, the Board contends that the ALJ’s decision to
restore petitioners’ increments was arbitrary, capricious, and unreasonable; that should the
Commissioner consider a remand, no hearing is required because petitioners stipulated that they
received unsatisfactory performance ratings for the 2020-2021 school year; and that petitioners
no longer employed by the Board should be excluded from any potential increment restoration.
In response to the Board’s exceptions, petitioners agree that the Board withheld the
increments at issue during the 2021-2022 school year, and that Coggins, Nickson, and Montague
should be dismissed from the case. They maintain, however, that the ALJ’s conclusion is correct
because he properly interpreted and applied the plain language of the governing statute and
relevant case law. 	Additionally, petitioners argue that the Board lacks legal support for its
contention that retirees should be excluded from any increment restoration in this matter.
Upon review, the Commissioner concurs substantially with the ALJ’s findings and
conclusions as stated in the Initial Decision, with certain minor exceptions explained herein.

4
Contrary to the Board’s contentions, the Commissioner does not find that the Initial Decision is
fatally flawed or should be rejected in its entirety.
At the outset, the Commissioner agrees with both parties that the increments withheld
during the 2021-2022 school year are the increments at issue, and that Vanessa Coggins, O’Lan
Nickson, and Sanyika Montague should be dismissed from the case. 	It is apparent from a
complete reading of the Initial Decision, including the factual findings, that the ALJ understood
that the increments withheld during the 2021-2022 school year are the increments at issue. The
Commissioner finds that the ALJ’s direction on pages 18 and 19 of the Initial Decision that
increments withheld during the 2020-2021 school year be restored were typographical errors.
The Commissioner further finds that the ALJ addressed the circumstances concerning Coggins,
Nickson, and Montague on page 2, footnote 1 of the Initial Decision. Although the ALJ did not
expressly exclude them from the relief granted to petitioners, the Commissioner deems that
procedural oversight to be harmless and easily remedied in the final decision.
Turning to the central legal issue, the Commissioner agrees with the ALJ that the Board’s
decision to withhold petitioners’ increments without providing written notice was arbitrary,
capricious, or unreasonable. The Legislature granted boards of education discretion “to withhold
increments from teachers who had not performed well during the previous year.” Probst v. Bd.
of Educ. of Borough of Haddonfield, 127 N.J. 518, 526 (1992). 	N.J.S.A. 18A:29-14 provides, in
relevant part:
Any board of education may withhold, for inefficiency or other
good 	cause, 	the 	employment 	increment, 	or 	the 	adjustment
increment, or both, of any member in any year by a recorded roll
call majority vote of the full membership of the board of education.
It shall be the duty of the board of education, within 10 days, to
give written notice of such action, together with the reasons

5
therefor, to the member concerned. The member may appeal from
such action to the commissioner under rules prescribed by him.
The commissioner shall consider such appeal and shall either affirm
the action of the board of education or direct that the increment
or increments be paid. . . . It shall not be mandatory upon the board
of education to pay any such denied increment in any future year
as an adjustment increment.
Because the withholding of salary increments falls within the Board’s discretionary
powers, petitioners challenging increment withholdings must prove by a preponderance of
evidence that the Board’s actions were arbitrary, capricious, or unreasonable. Kopera v. Bd. of
Educ. of W. Orange, 60 N.J. Super. 288, 294 (1960). 	In deciding whether a board action is
arbitrary, capricious, or unreasonable, the Commissioner must determine whether the board
followed the law. In re Herrmann, 192 N.J. 19, 28 (2007). In this case, the Board concedes that
it did not follow the written notice requirement mandated by N.J.S.A. 18A:29-14 but nonetheless
withheld the increments. The record fully supports the conclusion that the Board’s withholding
of petitioners’ increments did not comply with law and is therefore arbitrary, capricious, or
unreasonable.
The Commissioner also agrees with the ALJ’s plain language reading of N.J.S.A. 18A:29-14
as it pertains to the appropriate remedy for the Board’s arbitrary, capricious, or unreasonable
actions. 	“In interpreting a statute, [the] overriding goal is to give effect to the Legislature’s
intent.” 	Richardson v. Bd. of Trs., 192 N.J. 189, 195 (2007). 	The “best indicator” of the
Legislature’s intent “is the statutory language.” Ibid. “If the plain language leads to a clear and
unambiguous result, then [the] interpretive process is over.” 	Ibid. 	As cited above, N.J.S.A.
18A:29-14 directs the Commissioner, on appeal, to “either affirm the action of the board of
education or direct that the increment or increments be paid.” Because the Commissioner agrees

6
with the ALJ that the Board’s actions in withholding the increments were arbitrary, capricious, or
unreasonable, the Commissioner does not affirm the Board’s actions. Instead, pursuant to the
clear and unambiguous language of N.J.S.A. 18A:29-14, the Commissioner must direct that the
increments be paid.
The cases upon which the Board relies in their exceptions are distinguishable from the
present matter and do not require the Commissioner to bypass the mandate expressed within
N.J.S.A. 18A:29-14. 	For instance, the Board incorrectly cites Dore v. Bedminster Board of
Education, 185 N.J. Super. 447 (App. Div. 1982) for the broad proposition that a board’s failure to
follow procedures under Title 18A does not serve to reverse the board action under scrutiny. In
Dore, the petitioner, a nontenured teacher, contended that because the board did not conduct
three evaluations of his teaching performance during the 1975-1976 school year as required by
N.J.S.A. 18A:27-3.1, its decision not to renew his employment contract was arbitrary, capricious,
or unreasonable. Id. at 450-51.
The Appellate Division in Dore rejected the petitioner’s argument and concluded that “the
lack of strict compliance” with the statute at issue was not “a sufficient reason to afford petitioner
either reinstatement or financial reward.” Id. at 455. The court reasoned that while the statute
required at least three evaluations during each school year, it “does not provide for any penalty
in the event a local board fails to follow the proscribed procedures.” Id. at 456. Thus, the court
concluded that the Commissioner lacked the power to reinstate the petitioner or penalize the
board of education under the circumstances presented. Ibid.
This case is different. 	For one thing, Dore does not address N.J.S.A. 18A:29-14. 	And
N.J.S.A. 18A:29-14 is distinguishable from N.J.S.A. 18A:27-3.1 because the plain language of

7
N.J.S.A. 18A:29-14 grants the Commissioner authority to “direct that the increment or increments
be paid.” The Appellate Division’s concern in Dore was that the Commissioner lacked authority
under the controlling statute to either reinstate the petitioner or penalize the district for its
failure to conduct the requisite number of teacher evaluations. That concern is not present here,
as the Commissioner possesses the statutory authority to direct that increments be paid if
petitioners establish that the board’s action in withholding the increments was arbitrary,
capricious, or unreasonable. Petitioners in this case have met their burden.
In further support of its position that the notice deficiency does not automatically make
the Board’s withholding of the increments arbitrary, capricious, or unreasonable, the Board cites
Margaret Sidberry v. Board of Education of the City of Trenton, OAL Dkt. No. EDU 06610-09, Initial
Decision (Sept. 24, 2010), adopted, Commissioner Decision No. 464-10 (Nov. 8, 2010). There, the
board of education denied Sidberry a salary increment for the 2009-2010 school year based upon
unsatisfactory performance as a school psychologist, specifically noncompliance with completion
of Individualized Education Plans (IEPs) for which she had been reprimanded. She contended
that the increment withholding was arbitrary, capricious, or unreasonable because she did not
receive written notice as required by N.J.S.A. 18A:29-14.
Notably, Sidberry did receive a hand-delivered “Rice” notice2 advising her that she could
appear at the April 27, 2009, board meeting to discuss the withholding of her increment for the
2009-2010 school year. 	Initial Decision, at 20. 	In response, she wrote a letter to the board
arguing why her increment should not be withheld and appeared at the meeting. Ibid. The ALJ
2 A “Rice” notice issued by a board of education provides an employee with notice that the board intends
to discuss a personnel matter at an upcoming meeting that could adversely affect the employee. Rice v.
Union County Reg’l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73-74 (App. Div. 1977).

8
found that after the board voted to withhold her increment, it sent a letter to Sidberry dated
April 28, 2009, which advised her of the intention to withhold her increment for the 2009-2010
school year but failed to provide the reason for the withholding. Id. at 22-23. Although Sidberry
claimed she never received the letter, the ALJ found “this Letter is evidence that the required
notice was given by the Board” and that failure to recite the reasons for the increment
withholding was insufficient to invalidate the board’s action because Sidberry “was aware of the
reasons, eloquently stated her defenses thereto in her letter to the board dated April 27, 2009,
and she attended the Board meeting wherein her case was discussed.” 	Id. at 23. 	The
Commissioner agreed with the ALJ “that the salary withholding should not be nullified on the
basis that the Board did not satisfy the procedural requirements outlined in N.J.S.A. 18A:29-14,”
explaining that “[i]t was abundantly clear from the record that the petitioner was fully aware of
the reason why her increment was withheld,” i.e., failure to submit IEPs. Final Decision at 1-2.
Unlike in Sidberry, petitioners in the present matter were not informed that their
increment withholding would be discussed at an upcoming Board meeting, were not afforded
the opportunity to contest it before the Board voted, and were not invited to appear at the Board
meeting during which the increment withholding was discussed. Moreover, the board in Sidberry
produced evidence that it partially complied with the statutory notice requirement in N.J.S.A.
18A:29-14 by sending Sidberry a letter notifying her of the increment withholding within the 10-
day timeframe but without stating the reason for the withholding. 	In this case, the Board
concedes that it did not send any written notice to petitioners notifying them of the increment
withholding as required by N.J.S.A. 18A:29-14. All told, the Commissioner’s decision in Sidberry
was based upon unique factual circumstances in that case that are not present here. And while

9
the ALJ in Sidberry concluded that N.J.S.A. 18A:29-14 “does not set forth the consequences for
the failure of the board of education to provide such notice,” Initial Decision at 23-24, a reading
of the statute’s plain language offers reasonable support for the opposite conclusion.
More recently, in Neil Thomas v. State-Operate School District of the City of Newark, OAL
Dkt. No. EDU 13591-15, Initial Decision (June 26, 2017), adopted, Commissioner Decision No.
221-17 (Aug. 10, 2017), the Commissioner agreed with the ALJ that the district’s violation of the
written notice requirement codified at N.J.S.A. 18A:29-14 warranted restoration of Thomas’s
salary increment for the 2014-2015 school year. There, the district withheld Thomas’s increment
following two years of unsatisfactory ratings which led to the filing of tenure charges against him.
Initial Decision, at 4-5. An arbitrator dismissed the tenure charges and ordered that Thomas be
reinstated to his teaching position with appropriate back pay and benefits. 	Id. at 5. 	When
Thomas returned to work, he realized that his increment had been withheld when his back pay
appeared insufficient. Id. at 6. When questioned, the district conceded that it had not provided
Thomas with written notice of the increment withholding pursuant to N.J.S.A. 18A:29-14. Id. at
11.
Citing the Legislature’s use of the word “shall” in N.J.S.A. 18A:29-14, the ALJ in Thomas
concluded that “[a] district’s obligation to provide notice of the decision to withhold a teacher’s
increment, and the ability of a teacher to appeal the withholding of the increment, are mandatory
and imperative terms of public employment reflecting a public policy position established by the
legislature and are accordingly non-negotiable.” Id. at 19. The ALJ also highlighted the statutory
language which makes clear that the Commissioner “shall consider such appeal and shall either
affirm the action of the board of education or direct that the increment or increments be paid.”

10
Id. at 10. Accordingly, the ALJ recommended restoration of Thomas’s increment based upon the
procedural violation of N.J.S.A. 18A:29-14, and the Commissioner ordered the district to restore
it for that same reason.
The Board’s attempt to distinguish Thomas in its exceptions is unavailing. 	The Board
claims that the holding in Thomas “was a result of the dismissal of a preceding inefficiency tenure
charge requiring reinstatement and restoration of back salary, as well as the invalidity of CBA
language permitting automatic increment withholdings, none of which are in play in this case.”
Board’s Exceptions, at 18. However, a review of the Initial Decision and Final Decision in Thomas
makes clear that the holding was dictated by the plain language of N.J.S.A. 18A:29-14 and the
district’s failure to comply with the written notice requirement. The Board’s exceptions ignore
both the ALJ’s application of N.J.S.A. 18A:29-14 and the Commissioner’s restoration of Thomas’s
salary 	increment 	based 	expressly 	upon 	the 	district’s 	violation 	of 	the 	statutory 	notice
requirement.
As to petitioners’ claim in their exceptions that the ALJ did not address their request to
restore all corresponding benefits and emoluments, the Commissioner agrees that this request
was not discussed in the Initial Decision. Because this legal issue does not involve any contested
material facts, the Commissioner can address it herein without the need for a remand.
The New Jersey Supreme Court has previously recognized “the lasting effect of
withholding actions on a teacher’s future compensation.” Probst, 127 N.J. at 527. “[T]eachers
who have been subject to a withholding ‘will always lag one step behind’ their colleagues due to
the ‘effect of an earlier employment decision.’” Id. at 527 (quoting N. Plainfield Educ. Ass’n v. Bd.
of Educ. of Borough of N. Plainfield, 96 N.J. 587, 595 (1984)). As petitioners point out in their

11
exceptions, the reduction in petitioners’ salaries during the 2021-2022 school year resulting from
the increment withholding reduced their pensionable salaries and future (or current) pension
benefits. 	The Commissioner agrees that increment restoration in this case affects not only
petitioners’ 2021-2022 salaries but also warrants recalculation of their salaries for subsequent
years of employment with the Board.
Additionally, the Commissioner finds that the Board has offered no legal support for its
assertion—raised for the first time in their exceptions—that petitioners who are no longer
employed by the district should be excluded from restoration of their increments.
Accordingly, the Initial Decision, with modifications as explained herein, is adopted as the
final decision in this matter, and the petition of appeal is hereby granted. The Board is directed
to restore petitioners’ salary increments for the 2021-2022 school year along with all
corresponding benefits and emoluments.
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	October 15, 2026
Date of Mailing: 	October 15, 2026
3 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.

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION ON
MOTION TO DISMISS
OAL DKT. NO. EDU 00842-22
AGENCY DKT. NO. 225-11/21
LILLIAN RODRIGUEZ-MAYOR,
MATTHEW SWARTZ, VATE TCHERO,
SANYIKA MONTAGUE, LATISHA LAGRIER,
VICKIE LEAVERETTE, O’LAN NICKSON,
LAWRENCE SULLIVAN, VANESSA COGGINS,
NANCY KRESGE, JENNYLIND LEWIS,
MIRIAM LUGO, NYDIA MORALES, AND
JESSICA VALLE AND VALERIE WALKER,
Petitioners,
v.
BOARD OF EDUCATION OF THE CITY
OF NEWARK, ESSEX COUNTY,
Respondent.
Katheleen Naprstek Cerisano, Esq., (Zazzali, Fagella, Nowak, Kleinbaum &
Freidman, P.C., attorneys), petitioners
Bernard Mercado, Esq. (General Counsel, Board of Education of the City of
Newark, attorneys), for respondent
Record Closed: June 18, 2026 	Decided: July 24, 2026

OAL DKT. NO. EDU 00842-22
2
BEFORE JULIO C. MOREJON, ALJ:
STATEMENT OF THE CASE
Petitioners, who are current or former teaching staff members employed by
Respondent Board of Education of the City of Newark, Essex County, (the Board) allege
that the Board’s determination to withhold Petitioners’ salary increments violates N.J.S.A.
18A:29-14, by failing to provide Petitioners’ with notice, and that the same violates
N.J.S.A. 10:4-6, N.J.S.A. 10:4-12.
PROCEDURAL HISTORY
On December 2, 2021, Petitioners filed a petition of appeal (Petition) with the New
Jersey Department of Education, Commissioner of Education (Commissioner), which was
amended on January 11, 2022, to include the following named Petitioners who will be
referred to collectively herein as “Petitioners”: Lillian Rodriguez-Mayor, Matthew Swartz,
Vate 	Tchero, 	Sanyika 	Montague, 	Latisha 	Lagrier, 	Vickie 	Leaverette, 	O’lan
Nickson,Lawrence Sullivan, Vanessa Coggins, Nancy Kresge, Jennylind Lewis, Miriam
Lugo, Nydia Morales, Jessica Valle and Valerie Walker. 1
In the petition, Petitioners allege that the Board violated N.J.S.A. 18A:29-14 by
neglecting to provide them with notice after the Board voted to withhold their increments.
Petitioners further allege that the Board did not notify them that their increments would be
a subject of the Board’s June 22, 2021, meeting, otherwise known as “Rice” notice, in
violation of N.J.S.A. 10:4-12. 	Petitioners also allege that “[e]ven if the Board had a
purported reason or reasons to withhold [Petitioners’] increment, the Board’s purported
1 By correspondence dated August 8, 2024, Petitioners Vanessa Coggins and O’Lan Nickson requested
to be dismissed herein , as they did not have their increments withheld and instead, received their full salary
increments. 	This occurred despite Petitioners Coggins and Nickson having unsatisfactory performance
during the prior 2020-21 school year.
By correspondence dated, April 20, 2026, Petitioner Sanyika Montague withdrew herein, as she had
settled her claim in the Petition with the Board.

OAL DKT. NO. EDU 00842-22
3
reasons were 	arbitrary, 	capricious, or unreasonable, 	and therefore 	in 	violation of
[Petitioners’] rights under N.J.S.A. 18A:29-14.” 	As relief, Petitioners have asked the
Commissioner to find that the Board violated their procedural rights under N.J.S.A. 10:4-
12 and N.J.S.A. 18A:29-14 and, as a result, to order to the Board to restore their
increments for the 2021-2022 school year.
On January 31, 2022, The Board filed an answer with the Commissioner. 	In its
answer, the Board stated that it did not know whether Petitioners were provided “Rice”
notice prior to the June 22, 2021, school board meeting, but admitted that it failed to
provide Petitioners the notice required under N.J.S.A. 18A:29-14. The Board denied that
the appropriate remedy for the alleged violation of the notice requirements under N.J.S.A.
18A:29-14 is the restoration of Petitioners’ increments. 	The Board also denies that its
decision to withhold the increments was arbitrary, capricious, or unreasonable.
On February 3, 2022, the Commissioner transmitted the matter to the Office of
Administrative Law as a contested case under N.J.S.A. 52:14B-1 to -15 and N.J.A.C. 1:1-
1.1 to -21.6.
This matter was scheduled for a hearing on January 23, 2024. On January 16,
2024, the parties requested to file mutual motions for summary decision in lieu of a
hearing, as they agreed that there were no facts in dispute, and a ruling on the appliable
law was appropriate. Thereafter, a motion filing schedule was agreed upon, which was
amended on November 14, 2024.
On December 20, 2024, the parties filed their respective motions for summary
decision On January 10, 2025, the filed their respective reply briefs in opposition to the
motion for summary decision filed herein. In their cross-motions, the parties dispute
whether the consequences of the Board’s failure to comply with the notice requirements
under N.J.S.A. 18A:29-14 is the restoration of Petitioners’ increments for the 2021-2022
school year.
I closed the record on June 18, 2026.

OAL DKT. NO. EDU 00842-22
4
FINDINGS
The parties have submitted a Stipulation of Facts and Joint Exhibits, which are
incorporated below in the Initial Decision as FACT herein:
1. 	The Board is responsible for the administration and operation of the public
schools in the City of Newark in Essex County, New Jersey.
2. 	Petitioners were all certified teaching staff members employed by the Board
during the 2020-21 school year and during the 2021-22 school year.
3. 	Petitioners are compensated for their service as certified teaching staff
members pursuant to salary guides set forth in collective negotiations
agreements between the Board and the Newark Teachers Union, Local
481, American Federation of Teachers, AFL-CIO ("NTU"). The most recent
collective negotiations agreement ("Agreement") was effective July 1, 2019,
through June 30, 2024. (J-1).
4. 	Article XIV of the Agreement between the Board and NTU addresses the
salary of teaching staff members and Section IA includes the following
provision: 	The granting of employment and adjustment increments is not
automatic. Employment and/or adjustment increments may be withheld for
performance 	and/or 	disciplinary 	reasons 	in 	accordance 	with 	N.J.S.A.
18A:29-14. Id.
5. 	As a result of New Jersey legislation enacting the Teacher Effectiveness
and Accountability for the Children of New Jersey Act ("TEACHNJ") on
August 6, 2012, all teaching staff members in New Jersey public schools
are currently required by law to have their job performance assessed by the
school 	district 	utilizing 	a 	model 	evaluation 	rubric 	approved 	by 	the
Commissioner of Education in which they receive one of the following
annual 	ratings: 	"Highly 	Effective" 	(''HE"), 	"Effective" 	("EF"), 	"Partially
Effective" 	("PE") 	or 	Ineffective 	("IE"). 	N.J.S.A. 	18A:6-123(b)(l). 	A

OAL DKT. NO. EDU 00842-22
5
performance annual evaluation rating of either "Partially Effective" ("PE") or
"Ineffective" 	("IE") 	is 	considered 	unsatisfactory 	performance 	under
TEACHNJ. 	Any 	tenured 	teaching 	staff 	member 	who 	receives 	two
consecutive performance annual evaluation ratings of either PE or IE shall
be served with a charge of inefficiency in order to be removed from their
tenured employment by a school district under N.J.S.A. 1SA:6-17.3.
6. 	As a result of Petitioners receiving either a PE or IE performance annual
evaluation rating, the Board approved a resolution at its June 22, 2021,
Board meeting authorizing the withholding of increments of a number of
certified teaching staff members including Petitioners. All teaching staff
members were identified on the resolution solely by employee identification
numbers rather than names. (J-2).
7. 	The Board did not provide each of the Petitioners with written notice of their
increment withholdings following the Board meeting as required under
N.J.S.A. 18A: 29-14, and Petitioners would learn of the same subsequently
thereto.
8. 	During 	the 	2020-21 	school 	year 	petitioner 	Lillian 	Rodriguez-Mayor
(Rodriguez-Mayor) held the position of Social Worker.
9. 	For 	the 	2020-21 	school 	year, 	petitioner 	Rodriguez-Mayor 	received 	a
performance rating of Partially Effective in a mid-year evaluation dated
February 	10, 	2021. 	She 	ultimately 	received 	a 	performance 	annual
evaluation rating of Ineffective in an annual evaluation dated May 11, 2021.
10. 	Rodriguez-Mayor resigned her employment with the Board effective May
31, 2022.
11. 	During the 2020-21 school year petitioner Matthew Swartz (Swartz) held the
position of Teacher of Physical Education.

OAL DKT. NO. EDU 00842-22
6
12. 	For the 2020-21 school year, Swartz received a performance rating of
Partially Effective in a mid-year evaluation dated January 20, 2021. 	He
ultimately received a performance annual evaluation rating of Partially
Effective in an annual evaluation dated May 7, 2021.
13. 	Swartz resigned his employment with the Board effective April 1, 2022.
14. 	During the 2020-21 school year petitioner Vate Tchero (Tchero) held the
position of World Language Teacher.
15. 	For the 2020-21 school year Tchero received a performance annual
evaluation rating ineffective in an annual evaluation dated June 9, 2021.
16. 	Tchero resigned his employment with the Board at the end of the 2022-23
school year.
17. 	During the 2020-21 school year petitioner Sanyika Montague (Montague)
held the position of Teacher.
18. 	For the 2020-21 school year Montague received a performance annual
evaluation rating of Partially Effective in an annual evaluation dated May 4,
2021.
19. 	During the 2020-21 school year petitioner Latisha LaGrier (LaGrier) held the
position of Teacher.
20. 	For the 2020-21 school year LaGrier received a performance annual
evaluation rating of Partially Effective in an annual evaluation dated June
14, 2021.
21. 	LaGrier resigned her employment with the Board effective November 27,
2022.

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7
22. 	During the 2020-21 school year petitioner Vickie Leaverette (Leaverette)
held the position of Teacher.
23. 	For the 2020-21 school year, petitioner Leaverette received a performance
annual evaluation rating of Partially Effective in an annual evaluation dated
June 14, 2021.
24. 	During the 2020-21 school year petitioner Lawrence Sullivan (Sullivan) held
the position of Teacher.
25. 	For the 2020-21 school year Sullivan received a performance annual
evaluation rating of Partially Effective in an annual evaluation dated June 4,
2021.
26. 	During the 2020-21 school year petitioner Nancy Kresge (Kresge) held the
position of Special Education Teacher.
27. 	For 	the 	2020-21 	school 	year, 	petitioner 	Kresge 	received 	a mid-year
performance rating of Partially Effective in a mid-year evaluation dated
February 3, 2021, and ultimately received a performance annual evaluation
rating of Partially Effective in an annual evaluation dated April 27, 2021.
28. 	During the 2021-21 school year, petitioner Jennylind Lewis (Lewis) held the
position of Elementary Teacher.
29. 	For the 2020-21 school year Lewis received a performance rating of
Partially Effective in a mid-year evaluation dated February 5, 2021, and
ultimately received a performance annual evaluation rating of Partially
Effective in an annual evaluation dated April 19, 2021.
30. 	During the 2020-21 school year petitioner Miriam Lugo (Lugo) held the
position of Elementary Teacher.

OAL DKT. NO. EDU 00842-22
8
31. 	For the 2020-21 school year Lugo received a performance rating of
Effective in a mid-year evaluation dated February 3, 2021, and ultimately
received a performance annual evaluation rating of Partially Effective in an
annual evaluation dated March 29, 2021.
32. 	Lugo resigned her employment with The Board effective June 30, 2022, for
retirement purposes.
33. 	During the 2020-21 school year petitioner Nydia Morales (Morales) held the
position of Elementary Teacher.
34. 	For the 2020-21 school year Morales received a performance rating of
Partially Effective in a mid-year evaluation dated February 5, 2021, and
ultimately received a performance annual evaluation rating of Partially
Effective in an annual evaluation dated May 7, 2021.
35. 	During the 2020-21 school year petitioner Jessica Valle (Valle) held the
position of Elementary Teacher.
36. 	For the 2020-21 school year Valle received a performance rating of
Ineffective in a mid-year evaluation dated February 5, 2021, and ultimately
received a performance annual evaluation rating of Ineffective in an annual
evaluation dated April 19, 2021.
37. 	During the 2020-21 school year petitioner Valerie Walker (Walker) held the
position of Elementary Teacher.
38. 	For the 2020-21 school year Walker received a performance rating of
Partially Effective in a mid-year evaluation dated February 8, 2021, and
ultimately received a performance annual evaluation rating of Partially
Effective in an annual evaluation dated April 27, 2021.

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9
39. 	During the 2020-21 school year, the teaching performance of all Petitioners
was rated as unsatisfactory.
LEGAL ANAYALYSIS AND CONCLUSIONS
I. 	The standards for summary decision.
Under N.J.A.C. 1:1-12.5, “[a] party may move for summary decision upon all or
any of the substantive issues in a contested case.” 	N.J.A.C. 1:1-12.5(a). 	Summary
decision may be granted if “[t]he 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.” 	N.J.A.C.
1:1-12.5(b). 	And “[w]hen a motion for summary decision is made and supported, an
adverse party in order to prevail must by responding affidavit set forth specific facts
showing that there is a genuine issue which can only be determined in an evidentiary
proceeding.” Ibid.
It is well established that when a movant demonstrates a right to summary
judgment, the burden shifts to the opponent of the motion to demonstrate by competent
evidence that a genuine issue of material fact exists requiring a trial. Robbins v. Jersey
City, 23 N.J. 229, 241 (1957); James Talcott, Inc. v. Shulman, 82 N.J. Super. 438, 443
(App. Div. 1964). And “[m]ere sworn conclusions of ultimate facts, without material basis
or supporting affidavits by persons having actual knowledge of the facts, are insufficient
to withstand a motion for summary judgment.” Talcott at 443.
Inasmuch as the parties have stipulated to the facts herein, along with exhibit J-1,
concerning Incremental Withholdings, I CONCLUDE that there are no material issues of
fact that must be determined and this matter is ripe for summary decision.
II. 	The law governing increment withholdings.
Under N.J.S.A. 18A:29-14, by which school boards may withhold teachers’ salary
increments:

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10
Any board of education may withhold, for inefficiency or other
good cause, the employment increment, or the adjustment
increment, or both, of any member in any year by a recorded
roll call majority vote of the full membership of the board of
education. It shall be the duty of the board of education, within
10 days, to give written notice of such action, together with the
reasons therefor, to the member concerned. The member may
appeal from such action to the commissioner under rules
prescribed by him. The commissioner shall consider such
appeal and shall either affirm the action of the board of
education or direct that the increment or increments be paid.
[N.J.S.A. 18A:29-14.]
Under the rules prescribed by the Commissioner of Education, “[i]f a district board
of education acts to withhold a teaching staff member's salary increment based upon
teaching performance pursuant to N.J.S.A. 18A:29-14, the teaching staff member may
file a petition of appeal[.]” N.J.A.C. 6A:3-4.1.
As the Supreme Court explained in Bd. of Educ. of Bernards Twp. v. Bernards
Twp. Educ. Assoc., 79 N.J. 311 (1979), “N.J.S.A. 18A:29-14 explicitly authorizes a local
board to withhold an increment only for ‘inefficiency or other good cause,’" such that “[t]he
decision to withhold an increment -- although directly affecting the work and welfare of a
teacher - is thus dependent upon an evaluation of the quality of the services which the
teacher has rendered.” Id. at 321. Because “[t]he purpose of the statute is thus to reward
only those who have contributed to the educational process thereby encouraging high
standards of performance,” “[i]n determining whether to withhold a salary increment, a
local board is therefore making a judgment concerning the quality of the educational
system.” Ibid.
In other words, a school board’s statutory authority to withhold a teacher’s
increment is discretionary. Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288 (App.
Div. 1960). 	As the Commissioner commented shortly after the Legislature enacted
N.J.S.A. 18A:29-14: “Even though a board of education has the power to withhold a salary

OAL DKT. NO. EDU 00842-22
11
increment, such authority cannot be wielded in a manner which ignores all the basic
elements of fair play.” Fitzpatrick v. Bd. of Educ. of the Bor. of Montvale, 1969 S.L.D. 4.
Prior to an increment withholding, “the most elemental requirements of due process
demand at least that the employee to be so deprived be put on notice that such a
recommendation is to be made to his employer on the basis of the unsatisfactory
evaluation and that he be given a reasonable opportunity to speak in his own behalf.” Id.
at 7. This doesn’t mean that “deprivation of a salary increase requires service of written
charges, entitlement to a full[-]scale plenary hearing or the kind of formal procedures
necessary to dismissal of tenured employees.” Ibid. Nonetheless, “any employee has a
basic right to know if and when his superiors are less than satisfied with his performance
and the basis for such judgment” because “[w]ithout such knowledge the employee has
no opportunity either to rectify his deficiencies or to convince the superior that his
judgment is erroneous.” Ibid. [emphasis supplied].
If a school board decides to withhold the teacher’s increment based on a teacher’s
unsatisfactory evaluation, the school board must follow the procedures for doing so under
N.J.S.A. 18A:29-14. 	First, an increment withholding may only be accomplished by “a
recorded roll call majority vote of the full membership of the board of education.” N.J.S.A.
18A:29-14. 	Second, “[i]t shall be the duty of the board of education, within 10 days, to
give written notice of such action, together with the reasons therefor, to the member
concerned.” 	Ibid. 	[emphasis supplied]. 	Importantly, “[t]he intent of the notification
requirement in N.J.S.A. 18A:29-14 is to give the affected employee opportunity to appeal
the action to the Commissioner.” 	Hillman v. Bd. of Educ. of Caldwell-W.Caldwell, 1977
S.L.D. 218, 226.
With respect to the required notice under N.J.S.A. 18A:29-14, the Commissioner
has held in some cases that the failure of a school board to either provide a teacher with
10 days’ notice or the reasons for an increment withholding requires the restoration of the
teacher’s increment; in other cases in which a school board neglected to strictly follow the
notice requirements, the Commissioner did not disturb an increment withholding if the
teacher had actual notice of the school board’s action and the reasons for the increment
withholding. 	A review of relevant cases indicates that, in the early to late 1970s, the
Commissioner strictly interpreted the notice requirements under N.J.S.A. 18A:29-14 and

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ordered school boards that failed to provide teachers with timely notice of and the reasons
for an increment withholding to restore the increments.
For example, in Gill v. Clifton Bd. of Educ., 1976 S.L.D. 661, aff’d, State Bd. of
Educ., 1976 S.L.D. 666, aff’d, App. Div., 1977 S.L.D. 1289, in which the school board did
not timely notify the teacher of the reason for its decision to withhold her increment, the
Commissioner held that “[w]hile there is no question that the Board may withhold salary
increments by virtue of its authority at N.J.S.A. 18A:29-14, it must follow the precise
mandate set forth.” Id. at 666. Thus, because the school board in that case violated the
statutory 	notice 	requirement, 	the 	Commissioner 	concluded 	that 	the 	school 	board
improperly withheld the teacher’s increment and ordered the school board to reimburse
her.
Then, in Holly v. Passaic Bd. of Educ., 1978 S.L.D. 442, the Commissioner
followed Gill and noted that “[t]he Commissioner is constrained to observe that the
language of the statute is precise” and “unequivocal,” such that the school board’s failure
to provide the teacher with the reasons for withholding his increment within 10 days of the
board’s 	action 	resulted 	in 	the 	restoration 	of 	his 	increment. 	According 	to 	the
Commissioner, “[t]he Board’s assertion that it complied with the statute when the
Superintendent and the principal informed petitioner of his alleged deficiencies prior to its
action to withhold his increment is without merit.” Id. at 444.
Thereafter, the Commissioner began to take a more relaxed view of a school
board’s failure to timely notify an affected teacher after a vote to withhold his salary
increment if the teacher otherwise knew that such action by the school board was likely
due to a negative evaluation. In Marshall v. Bd. of Educ. of the S. Reg’l High Sch. Dist.,
1978 S.L.D. 593, 596, the teacher “was in receipt of the Superintendent’s evaluation and
was well aware that the Superintendent had recommended that the Board withhold his
increment,” the teacher 	privately met with the school board about the 	increment
withholding and was at the open meeting when the school board voted to withhold his
increment. 	Id. at 596. 	Thus, “[t]o argue that the Board failed ‘to give written notice of
such action, together with the reasons therefor’ in the Commissioner’s judgment places
form over substance.” Ibid. While “the Board was indeed remiss in not following the letter

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13
of the law by its failure to notify” the teacher after the vote, “such failure is not fatal in the
total circumstances.” Ibid.
The Commissioner continued the “substance over form” and “total circumstances”
approach with respect to a teacher’s notice of an increment withholding in Baker v.
Bergenfield Bd. of Educ., 1978 S.L.D. 740, wherein, like in Marshall, the Commissioner
declined to set aside a school board’s action despite its failure to give 10 days’ notice
under N.J.S.A. 18A:29-14 because the teacher’s “evaluations during the 1973-1974
school year were such as to make him a likely candidate for the withholding of a salary
increment and [he] had notice prior to the end of that school year of the Superintendent’s
inclination to make such a recommendation to the Board.” 	Id. at 742. 	In addition, the
teacher “conceded the fact that he was notified on October 4, 1974, that the Board
intended to take formal action on October 8, 1974, to withhold his salary increment.” Ibid.
Then, in Martin v. Bd. of Educ. of N. Highlands Reg’l Sch. Dist., 1979 S.L.D. 852,
the Appellate Division approved of the more forgiving “substance over form” and “total
circumstances” assessment of a school board’s failure to provide notice within 10 days of
its vote to withhold a teacher’s increment. The court explained that “the substance of the
statutory requirement is satisfied when the school board acts by public recorded roll call
vote prior to the commencement of the school year involved and the individual affected
is informed of the reasons for the action, whether before or after the public roll call vote.”
Id. at 853.
Similarly, in Huth v. Bd. of Educ. of the Bor. of Morris Plains, 1980 S.L.D. 847, the
Commissioner upheld a teacher’s increment withholding even though the school board
did not give her 10 days’ notice. 	In that case, “[w]hile the Commissioner deplore[d] the
Board’s failure to strictly adhere to the procedural format as prescribed by statute, he
nevertheless” determined that the teacher “knew, or should have known, of the Board
action in regard to withholding of her increment and the reasons for said action.” 	Id. at
854. 	That is, she “knew that the Superintendent intended to recommend to the Board
that her salary increment be withheld” due to an unsatisfactory evaluation and, at a
hearing held by the Department of Education, she “testified that the Board’s action to
withhold her salary increment came as no surprise to her.” Id. at 852.

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14
Here, the parties rely on more recent cases to support their respective positions.
The Board cites Sidberry v. Trenton Bd. of Educ., EDU 6610-09, Initial Decision, 2010
N.J. AGEN LEXIS 508 (Sept. 24, 2010), adopted, 2010 N.J. AGEN LEXIS 775 (Nov. 8,
2010). 	In that case, the Commissioner agreed with “the Administrative Law Judge that
the Board’s decision to withhold the petitioner’s increment was reasonable based upon
her failure to produce fully completed individual education plans” for special education
students and that “the salary withholding should not be nullified on the basis that the
Board did not satisfy the procedural requirements outlined in N.J.S.A. 18A:29-14.” 2010
N.J. AGEN LEXIS 775, **1-2. According to the Commissioner, “[i]t was abundantly clear
from the record that petitioner was fully aware why her increment was withheld.” 	Id. at
*2. 	Specifically, even though the teacher denied receiving the superintendent’s timely
letter advising her that the school board had withheld her increment, she was nonetheless
aware of her negative evaluation and “was invited before the Board to discuss her job
performance, and the potential withholding of a salary increment.” 	2010 N.J. AGEN
LEXIS 508, *4.
In contrast, Petitioners’ rely on Neil Thomas v. State-Operated Sch. Dist. of the
City of Newark, EDU 13591-15, Initial Decision, 2017 N.J. AGEN LEXIS 421 (June 26,
2017), adopted, Comm’r (Aug. 10, 2017), nj.gov/education/legal/commissioner. 	In
Thomas, unlike in the aforementioned cases, the school board actually filed tenure
charges against the teacher for inefficiency because he had received two consecutive
“partially effective” annual evaluations. 	2017 N.J. AGEN LEXIS 421, **4-5. 	Also, while
the initial decision in Thomas states that the school board withheld the teacher’s
increment for the 2014-2015 school year, it is not clear when, in relation to the filing of
tenure charges on July 29, 2014, the school board voted to withhold the increment.
Nonetheless, the school board never notified the teacher of the increment withholding
and declined to restore his increment even after an arbiter dismissed the tenure charges
against him. Id. at *6. Indeed, the teacher did not know his increment had been withheld
for the 2014-2015 school year until he was reinstated to his position in the middle of that
school year. Id. at *1-2, 5-6. And when the teacher’s union asked the school board about
his insufficient paycheck, the school board responded that “[t]he Arbitrator decision [did]
not 	state 	that 	[Petitioner’s] 	increment 	withholding 	be 	restored.” 	Id. 	at 	*6. 	The

OAL DKT. NO. EDU 00842-22
15
Administrative Law Judge, on cross-motions for summary decision, granted the teacher’s
motion because the school board violated N.J.S.A. 18A:29-14 by failing to notify the
teacher of the increment withholding. According to the judge, “[t]here is no dispute that
Petitioner neither received an increment for the 2014-2015 school year, nor was he
notified of the decision to withhold the increment, or the reasons supporting it. As a result,
he had no opportunity to appeal the decision. 	Id. at *19. 	Ultimately, the Administrative
Law Judge ordered the school board to restore the increment, and the Commissioner
adopted the initial decision as the final decision in that case.
While the outcomes in similar cases arising under N.J.S.A. 18A:29-14 have been
somewhat inconsistent over the years, I believe a “total circumstances” or “substance
over form,” rather than a strict compliance, approach is most logical when determining
whether a school board’s failure to provide the 10 days’ notice under N.J.S.A. 18A:29-14
warrants the restoration of a teacher’s withheld increment. 	On the one hand, “[t]he
purpose of the statute is . . . to reward only those who have contributed to the educational
process thereby encouraging high standards of performance,” and “[i]n determining
whether to withhold a salary increment, a local board is therefore making a judgment
concerning the quality of the educational system”, as the Board argues. 	Thus, it would
seem anomalous, on appeal of a school board’s decision to withhold an increment, to
reward an underperforming teacher with the restoration of the increment just because the
school board did not notify the teacher of its decision within 10 days.
On the other hand, N.J.S.A. 18A:29-14 clearly requires a school board to provide
the affected teacher with notice within 10 days of its increment decision. 	Moreover,
“[e]ven though a board of education has the power to withhold a salary increment, such
authority cannot be wielded in a manner which ignores all the basic elements of fair play”,
as the Petitioners argue herein.
These numerous and, at times, competing considerations are best reconciled by
the Appellate Division’s opinion in Martin: “the substance of the statutory [notice]
requirement is satisfied when the school board acts by public recorded roll call vote prior
to the commencement of the school year involved and the individual affected is informed
of the reasons for the action, whether before or after the public roll call vote.” 	And to

OAL DKT. NO. EDU 00842-22
16
determine whether the affected teacher was properly “informed,” the relevant factors
under a “total circumstances” approach, as set forth in Marshall and Huth, include receipt
of 	a 	negative 	evaluation, 	whether 	the 	teacher’s 	supervisor 	informed 	her 	of 	the
supervisor’s 	intention 	to 	recommend 	her 	increment 	be 	withheld 	because 	of 	the
unsatisfactory evaluation, and whether the teacher is given a chance to appear before
the school board during the meeting at which an increment vote will be held, 	These
factors will help determine whether, as the Commissioner stated in Huth, despite a school
board’s “failure to strictly adhere to the procedural format as prescribed by statute . . . [the
teacher] “knew, or should have known, of the Board action in regard to withholding of her
increment and the reasons for said action.”
Here, there are no genuine issues of material fact with respect to these factors, as
the parties have stipulated to material facts. 	The Board admits that it failed to provide
timely statutory notice of its decision to withhold Petitioners’ increments for the 2021-2022
school year and Petitioners admit that they received negative evaluations for the 2020-
2021 school year. 	The procedural requirements for increment withholdings, N.J.S.A.
18A:29-14 vests with local school districts the authority to withhold a teacher’s salary
increments when that teacher has not performed satisfactorily during the prior school
year. Probst v. Board of Education of the Borough of Haddonfield, 127 N.J. 518 (1992).
Here, the Board acknowledges that it did not comply with the notice requirements
under N.J.S.A 18A:29-14, and argues that a decision to withhold a salary increment “is a
matter of essential managerial prerogative which has been delegated by the legislature
to the board.” Citing to Gementis v. State-operated School District of the City of Newark,
2008 N.J.Agen Lexis 24, Dkt. No. EDU 01117-06 (OAL 2008(citing Reilly v. Bd. of Ed. of
theTwp. of Parsippany-Troy Hills, 1989 S.L.D. 1830, 1843 (citing Colavita v. Hillsborough
Twp. Bd. of Ed., 1983 S.L.D. (Nov. 3, 1983), citing Board of Education of the Twp. of
Bernards, Somerset County v. Bernard Twp. Education Association, 79 N.J. 311, 321
(1979)). The Board then argues that the purpose of N.J.S.A 18A:29-14 is to “reward only
those who have contributed to the educational process thereby encouraging high
standards of performance so that the receipt of an increment is not a statutory right, but a
reward for good performance and the acknowledgment that the teacher’s overall
performance has met the high standards of performance required by the school district.”

OAL DKT. NO. EDU 00842-22
17
Bernards Twp. Bd. of Ed. V. Bernards Twp. Ed. Ass’n., 79 N.J. 311, 321 (1979); North
Plainfield Ed. Ass’n. v. North Plainfield Bd. of Ed., 96 N.J. 587, 594 (1984).
Finally, the Board argues that a failure to provide notice under N.J.S.A. 18A:29-
14, does not serve to reverse an increment withholding or restore salary increments given
the elevated arbitrary, capricious and unreasonable legal standard that Petitioners must
prove. (citing Sidberry).
Petitioners 	argue 	that 	the 	notice 	requirements 	of 	N.J.S.A. 	18A:29-14 	are
“imperative” and should not be diminished as merely a procedural violation as the Board
has proposed. Petitioners acknowledge that while the Agreement between the Board and
NTU recognizes that teaching staff members are subject to an observation and evaluation
process in which there are four (4) ratings, and while Petitioners recognize that
increments may be withheld for performance and/or disciplinary reasons, the Agreement
also specifically states that increment withholdings “must be in accordance with N.J.S.A.
18A:29-14.” In highlighting this point Petitioners argue that the Board is certainly aware
of its obligation to provide all teaching staff members including Petitioners with written
notice of its decision to withhold their increments, as it was previously a party to litigation
on this same issue in the Neil Thomas v. State-Operated School, matter. Petitioners
argue further that the Board’s withholding of Petitioners salary increments for the 2021-
2022 school year is improper and invalid. In their Petition, Petitioners allege that “[e]ven
if Respondent had a purported reason or reasons to withhold [Petitioners’] increment,
Respondent’s 	purported 	reasons 	were 	arbitrary, 	capricious, 	or 	unreasonable, 	and
therefore in violation of [Petitioners’] rights under N.J.S.A. 18A:29-14.” In response, the
Board does not offer a reason and simply argues that a procedural violation of N.J.S.A.
18A:29-14 alone does not result in Petitioners requested relief of reinstating their salary
increments. I disagree.
A petitioner challenging the increment withholding by a Board has the burden of
proving that the denial of the salary increment was arbitrary, capricious or unreasonable.
Kopera v. Board of Education of West Orange, 60 N.J. Super. 288.

OAL DKT. NO. EDU 00842-22
18
The withholding of an increment from a teaching staff member by a board of
education is a significant matter. 	In order to protect against arbitrary, capricious or
unreasonable action by the Board in withholding of a teaching staff member’s salary
increment, N.J.S.A. 18A:29-14, provides that 	“It shall be the duty of the board of
education, within 10 days, to give written notice of such action, together with the reasons
therefor, to the member concerned.” The statue provides further that “The member may
appeal from such action to the commissioner under rules prescribed by him. 	The
commissioner shall consider such appeal and shall either affirm the action of the board
of education or direct that the increment or increments be paid.” [emphasis provided].
In the within matter, the Board not only admits that it did not comply with the notice
requirements of N.J.S.A. 18A:29-14, but provides as its reason that it was due to
“employee changeover” and then maintains that because the statue does not maintain a
penalty for its failure, this tribunal is powerless to reverse their action. 	A review of the
record and the applicable law reveals that the Board’s conduct is contrary to the statutory
requirements of N.J.S.A. 18A:29-14, and that they are mistaken in their argument in
defense of the same. Contrary to the Board’s argument, a reading of N.J.S.A. 18A:29-14,
reveals that the same does allow for a penalty if a school board fails to comply with the
10 day notice requirement, as the statute provides that after considering the teaching staff
member’s appeal from the Board’s action, the Commissioner “shall either affirm the action
of the board of education or direct that the increment or increments be paid.” The “appeal”
is the Petition filed herein, and the “action” by the Board is their admitted conducted in not
complying with the 10 day notice provision, and their decision not to grant Petitioners’
salary increments. (N.J.S.A. 18A:29-14).
For the forgoing reasons, I CONCLUDE that the Board’s admitted conduct without
adequate or justifiable reason in failing to provide the teaching staff member with notice
as required under N.J.S.A. 18A:29-14, without reason, and their decision to deny
Petitioners’ salary increment was arbitrary, capricious or unreasonable, and that as a
result of the same, the Board’s actions is reversed, and they be directed to pay Petitioners
their allowed salary increment for school year 2020-2021.

OAL DKT. NO. EDU 00842-22
19
I further CONCLUDE that since Petitioners’ moving papers demonstrate there is
no genuine issue as to any material fact challenged, and the Board has not complied with
the requirements under N.J.S.A. 18A:29-14, Petitioners are entitled to prevail as a matter
of law under N.J.A.C. 1:1-12.5(b).
ORDER
IT IS hereby ORDERED that for the reasons set forth herein, Petitioners’ motion
for summary decision is GRANTED and as claimed in the Petition filed herein, the Board
is directed to pay Petitioners their allowed salary increment for school year 2020-2021,
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.

OAL DKT. NO. EDU 00842-22
20
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
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.
July 24, 2026
DATE 	JULIO C. MOREJON, ALJ
Date Received at Agency: 	July 24, 2026
Date E-Mailed to Parties: 	July 24, 2026
JCM/lr

OAL DKT. NO. EDU 00842-22
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APPENDIX
List of Exhibits
Joint Exhibits
J-1A 	Joint Stipulation of Facts
J-1 	Incremental Withholding
For Petitioners
Petitioners’ letter brief in support of motion
Petitioners’ reply letter brief
For Respondent
Respondent’s letter brief in support of motion
Certification of Bernard Mercado, with Exhibits A through F
Respondent’s reply brief