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289-20
New Jersey Commissioner of Education
Final Decision
Alicia Carsdale, Daniel Lee, Annemarie Mlinar, Christian
Gonzalez, Valerie Rodriguez, Aaron Thayer, Karen Indyk,
Peter Stanton, Mark Eastburn, Shannon Koch, Nancy
Abascal, Johanna Hunsbedt, Paidge Hinton-Mason, Emily
Spera, Kristin 	Hill, 	Amy Borgia, 	and 	the 	Princeton
Regional Educational Association,
Petitioners,
v.
Board of Education of the Township of Princeton, Mercer
County,
Respondent.
Synopsis
Petitioners, full-time tenured teachers, appealed the determination of the respondent Board to cease offering
them the option to work an additional sixth teaching period each day in lieu of their scheduled duty period for
the 2019-20 school year, they had done in some previous years. By this action, petitioners no longer received
additional pensionable remuneration which was paid to them during the 2018-19 and previous school years in
exchange for accepting the voluntary additional teaching period assignment. Petitioners asserted that this
decision violated their tenure rights as it effectively resulted in an impermissible reduction in their
compensation. The parties filed cross motions for summary decision.
The ALJ found, inter alia, that: there are no material facts at issue in this case and the matter is ripe for
summary decision; several petitioners had not worked the extra teaching assignment for the statutorily-defined
minimum period of time to be eligible for tenure in that position; although the remaining petitioners had worked
the required number of years to meet the statutory requirement, their claims were undermined by the undisputed
fact that the extra teaching assignment is subject to the identified need of the district; the extra teaching
assignments were temporary and conditional, and therefore, could not be used as the basis for tenured
compensation; and the Board’s decision to reduce the number of teaching hours based on need was in the nature
of a reduction in force (RIF), which is within the discretion of the board. 	Accordingly, the ALJ granted the
Board’s motion for summary decision, denied petitioners’ cross motion, and dismissed the petition.
Upon review, the Commissioner rejected the ALJ’s conclusion that petitioners could not earn tenure in the sixth
period teaching position, finding, inter alia, that: there is a clear statutory mandate that a certificated employee
serving in a position for which a certificate is required, for the requisite period of time, will achieve tenure;
therefore, certain named petitioners did achieve tenure in the positions at issue, while others did not; further, the
ALJ correctly determined that the Board has the discretion to implement a RIF. Accordingly the Commissioner
ordered that the Board: 	place petitioners who had earned tenure in the sixth period positions on a preferred
eligibility list for rehiring in any sixth period teaching positions for which they are qualified; conduct a seniority
analysis regarding all sixth period teaching positions for the 2019-2020 and 2020-2021 school years; and
compensate the tenured petitioners in the amounts they would have received if it is found that non-tenured or
less senior employees improperly filled those positions for which the tenured petitioners were qualified.
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.
December 21, 2020

OAL Dkt. No. EDU 11500-19
Agency Dkt. No. 170-7/19
New Jersey Commissioner of Education
Final Decision
Alicia Carsdale, Daniel Lee, Annemarie Mlinar,
Christian Gonzalez, Valerie Rodriguez. Aaron
Thayer, Karen Indyk, Peter Stanton, Mark Eastburn,
Shannon Koch, Nancy Abasal, Johanna Hunsbedt,
Paidge Hinton-Mason, Emily Spera, Kristin Hill,
Amy Borgia, and the Princeton Regional
Educational Association,
Petitioners,
v.
Board of Education of the Township of Princeton,
Mercer County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), the exceptions filed by petitioners pursuant to N.J.A.C. 1:1-18.4, and the reply thereto by
the Board have been reviewed and considered.
Petitioners in this matter are full-time tenured high school teachers; the Princeton
Regional Education Association (Association) represents the majority of Board employees,
including the individual petitioners in this matter. The Collective Bargaining Agreement (CBA)
between the Association and the Board provides that the daily teaching load in the high school
shall not exceed five teaching periods and one duty period. However, in cases of identified need,
the administration and the Association may agree to a sixth teaching period in lieu of a duty
period; the teachers who undertake the extra teaching assignment receive $10,000 in addition to
their base salary, or a prorated amount if they teach a sixth period on a part-time basis.
Petitioners had, in various years, agreed to teach a sixth period or a portion thereof, and received

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additional compensation for doing so. For the 2019-20 school year, the Board did not offer
petitioners the option of teaching a sixth period. Petitioners appealed, arguing that the Board had
reduced their compensation in violation of their tenure rights.
The Administrative Law Judge (ALJ) granted the Board’s motion for summary
decision. First, the ALJ concluded that several of the petitioners had not worked the extra
teaching assignment for the statutorily-defined minimum period of time to be eligible for tenure
in that position.1 Regarding the remaining petitioners, who had worked the required number of
years to meet the statutory requirement, the ALJ found that their claims were undermined by the
undisputed fact that the extra teaching assignment is subject to the identified need of the district.
The ALJ concluded that the extra teaching assignments were temporary and conditional, and
therefore, could not be used as the basis for tenured compensation. Additionally, the ALJ found
that the Board’s decision to reduce the number of teaching hours based on need was in the nature
of a reduction in force (RIF), which is within the discretion of the board.
In their exceptions, petitioners argue that the ALJ incorrectly found that they had
received payment for extra work. According to petitioners, they received pensionable income
for teaching regular classes during the regular school day, making that income compensation for
purposes of the Tenure Act. Petitioners assert that teaching during a sixth period of the regular
school day does not equate to a separately tenurable position; therefore, the ALJ erred in
dismissing the claims of the petitioners who had not taught a sixth period for the statutorily-
mandated time period. Petitioners contend that the ALJ incorrectly found that the CBA controls
the nature of the compensation, rather than the Tenure Act. Moreover, petitioners note that their
tenure rights cannot be waived or bargained away. Petitioners assert that, if the analysis in the
1 This conclusion applied to petitioners Gonzalez, Stanton, Eastburn, Hunsbedt, Spera, Hill, Hinton-Mason,
Rodriguez, Borgia, and Abscal.

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Initial Decision is extrapolated, it would permit districts to calculate all compensation on an
assignment basis as long as it was codified in the CBA, eviscerating tenure law and the
protections it affords. 	Petitioners cite to cases in which employees received stipends for work
directly related to their regular duties, in which the Commissioner held that those stipends could
not be eliminated because to do so would violate the employees’ tenure rights. 	Petitioners also
point to cases holding that, for purposes of the Tenure Act, compensation generally refers to
annual income, rather than hourly income, such that reducing a teacher’s hours implicates the
Tenure Act. 	Petitioners argue that the Board’s action should not be considered a reduction in
force, because they still worked the same number of hours – a full school day. 	Finally,
petitioners contend that if the Board’s action does constitute a reduction in force, a seniority
analysis would be necessary to determine who should continue teaching a sixth period.
In reply, the Board argues that petitioners are a party to the CBA, which clearly
stated the parameters of the extra teaching assignment and which demonstrates that the sixth
teaching period assignment was a voluntary and separate assignment and therefore not a part of
the tenure position of full-time teaching staff. 	The Board cites to cases holding that temporary
work is not covered by the Tenure Act. The Board notes that the CBA establishes the duties and
work load of teaching staff during the school day – five teaching periods and one duty period –
and contends that the addition of a sixth teaching period is an alteration in the terms and
conditions of employment by providing for extra work beyond what is prescribed for a full-time
teacher. Finally, the Board asserts its managerial prerogative to abolish positions as a reduction
in force and alleges a chilling effect on the ability of boards of education to offer extra duty work
to their existing staff if the sixth teaching period position is held to be tenurable.

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Upon review, the Commissioner disagrees with the ALJ’s conclusion that
petitioners could not obtain tenure in the sixth teaching period position. The Tenure Act,
N.J.S.A. 18A:28-1 et seq., “should be liberally construed to achieve its beneficent ends.”
Spiewak v. Board of Education of Rutherford, 90 N.J. 63, 74 (1982). The ALJ’s conclusion that
the sixth teaching period positions were not tenurable was based primarily on the finding that the
terms of the CBA made the position temporary. However, the New Jersey Supreme Court has
made clear that “the tenure provision of N.J.S.A. 18A:28-5 is a mandatory contractual term that
may not be waived2 or bargained away. . . Whether teachers are entitled to tenure never depends
on the contractual agreement between the teachers and the board of education.” Id. at 76-77.
“[A]ll teaching staff members who work in positions for which a certificate is required, who hold
valid certificates, and who have worked the requisite number of years, are eligible for tenure”
unless a specific statutory exception applies. Id. at 81. While N.J.S.A. 18A:16-1.1 provides an
exception for temporary employees, who are not entitled to tenure in the positions in which they
are acting, “that exception is limited to employees hired to take the place of an absent teacher.”
Id. at 77; see also Bridgewater-Raritan Educ. Ass’n v. Bd. of Educ. of Bridgewater-Raritan, 221
N.J. 349, 360 (2015). There is no indication in the record that petitioners were acting as
replacements for absent teachers. Accordingly, the exception provided in N.J.S.A. 18A:16-1.1
does not apply, and teachers who teach a sixth period are eligible for tenure in that position.
This conclusion is consistent with the New Jersey Supreme Court’s recent holding
in Melnyk v. Bd. of Educ. of the Delsea Reg’l High School Dist., Gloucester Cty., in which the
Court cautioned against “the ability of labels to cloud an analysis.” 241 N.J. 31, 33 (2020). In
2 The exception to this rule is when a tenured employee rejects an offer of reemployment following a RIF that
abolished their position, which has been consistently held to be a waiver of tenure rights. O’Toole v. Forestal, 211
N.J. Super. 394, 402 (1986).

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Melnyk, labeling a position as “extracurricular” and finding that the position was not tenurable
based on that label resulted in “short-circuiting” the analysis and improperly ignoring the
statutory criteria for obtaining tenure. Id. at 34. Here, the Initial Decision ended the analysis by
labeling the sixth teaching period position “temporary,” thereby disregarding the clear statutory
mandate that a certificated employee serving in a position for which a certificate is required, for
the requisite period of time, achieves tenure.
The position at issue in Melnyk was a teaching position in an alternative education
program held after school hours. Finding that the program was “part of the delivery of
constitutionally required educational services that comprise the system of a thorough and
efficient education,” the Court concluded that it was not comparable to traditional extracurricular
activities in which teachers cannot obtain tenure unless the activities require a different
instructional certificate than the one the teacher holds for their regular teaching duties. Id. at 43,
48. In Melnyk, the board of education conceded that the position would be tenure eligible if it
was filled by a person who was not employed in the district’s regular day program. Similarly,
here, there can be no question that a teaching position during the regular school day would be
tenure eligible if it were filled by a new hire, rather than by an existing teaching staff member.
The Commissioner does not find the differences in the timing of the teaching duties – after
school in Melnyk, during school here – to warrant a different outcome. Indeed, the fact that the
position at issue in Melnyk occurred after school hours was the fact relied upon by the board of
education to support its argument that the position was extracurricular and therefore not tenure-
eligible. The Court rejected that argument, and the Commissioner rejects it here as well. The
critical factor in Melnyk was that the position was “curricular,” and the sixth teaching periods fit
even more clearly in that category than the after-school position in Melnyk. As in Melnyk, an

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“instructional and tenure-eligible position did not become extracurricular and tenure ineligible
simply because petitioner already held tenure in another position.” Id. at 34. The Court in
Melnyk concluded that tenure eligibility “must therefore be analyzed purely on the basis of
Spiewak’s dictates.” Id. at 49-50. Following the Court’s clear ruling in Melnyk, the
Commissioner concludes that teaching staff members who teach a sixth period may obtain tenure
in that position if they hold the required certificate and teach in that position for the requisite
period of time.
The Commissioner does not find the Board’s arguments regarding the potential
chilling effect of this conclusion to be persuasive. Boards of education may continue to exercise
their managerial prerogative to implement a RIF regarding extra teaching duty positions,
provided that any teaching staff members tenured in those positions receive the procedural
protections afforded to them by the Tenure Act. Therefore, boards of education will not, as the
Board would have the Commissioner conclude, be required to pay teachers who had once
performed extra teaching duty assignments the additional compensation paid for such positions
even if those positions cease to exist. Nor, as the ALJ posited, would the Board be required to
continue to pay the additional compensation to teaching staff members who accepted a sixth
teaching period position for the requisite period of time and then later declined to continue in the
position. The Commissioner has held, and the Court has confirmed, that the refusal of
reemployment by a tenured employee constitutes a relinquishment of tenure and a waiver of
rights to future employment. O’Toole v. Forestal, 211 N.J. Super. 394, 402 (1986).
Turning to the analysis set forth by the Court in Spiewak and Melnyk, the
Commissioner concurs with the ALJ’s dismissal of the claims of those petitioners who did not
serve in the sixth teaching period position for the requisite period of time pursuant to N.J.S.A.

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18A:28-5(a)(1)-(3). The Court in Melnyk made clear that additional instructional duties are
separately tenurable, and the Commissioner finds no reason to treat the sixth teaching period
positions differently than the after-school position in Melnyk. Both positions involved teachers
performing extra teaching duties – beyond their core responsibilities – for extra compensation.
Because the sixth teaching period position is separately tenurable, petitioners must serve in that
position for the statutorily-mandated time period to obtain tenure. Petitioners Gonzalez, Stanton,
Eastburn, Hunsbedt, Spera, Hill, Hinton-Mason, Rodriguez, Borgia, and Abscal did not meet this
requirement.
As to the remaining petitioners, the Commissioner concurs with the ALJ that the
Board had the discretion to implement a RIF. Pursuant to N.J.S.A. 18A:28-9, the Board may
abolish positions for reasons of economy, reduction in the number of pupils, change in
organization of the district, or for other good cause. However, following a RIF, employees must
be placed on a preferred eligible list in order of seniority for reemployment whenever a vacancy
occurs. N.J.S.A. 18A:28-12. The record is not clear whether the positions held by petitioners
Carsdale, Lee, Thayer, Indyk, Koch, and Mlinar were completely abolished or whether they have
been filled by non-tenured or less senior employees.
Accordingly, as to petitioners Gonzalez, Stanton, Eastburn, Hunsbedt, Spera, Hill,
Hinton-Mason, Rodriguez, Borgia, and Abscal, the Initial Decision of the OAL, as modified
herein, is adopted as the final decision and their claims are hereby dismissed. The Board is
ordered to place petitioners Carsdale, Lee, Thayer, Indyk, Koch, and Mlinar (the tenured
petitioners) on a preferred eligibility list for rehiring in any sixth teaching period positions for
which they are qualified. The Board is further ordered to conduct a seniority analysis regarding
all sixth period teaching positions for the 2019-2020 and 2020-2021 school years. If non-tenured

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employees, or employees with less seniority than the tenured petitioners, improperly filled sixth
teaching period positions for which the tenured petitioners were qualified, the Board is directed
to compensate the tenured petitioners in the amounts they would have received if they had filled
the positions.
IT IS SO ORDERED.3
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	December 21, 2020
Date of Mailing: 	December 24, 2020
3 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).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING MOTION FOR
SUMMARY DECISION
OAL DKT. NO. EDU 11500-19
AGENCY DKT. NO. 170-7/19
ALICIA CARSDALE, DANIEL LEE,
ANNEMARIE MLINAR, CHRISTIAN
GONZALEZ, VALERIE RODRIGUEZ,
AARON THAYER, KAREN INDYK,
PETER STANTON, MARK EASTBURN,
SHANNON KOCH, NANCY ABASCAL,
JOHANNA HUNSBEDT, PAIDGE HINTON
MASON, EMILY SPERA, KRISTIN HILL,
AMY BORGIA, AND THE PRINCETON
REGIONAL EDUCATION ASSOCIATION,
Petitioners,
v.
BOARD OF EDUCATION
OF THE TOWNSHIP OF PRINCETON,
MERCER COUNTY,
Respondent.
Edward A. Cridge, Esq., for Petitioners (Mellk O’Neill, attorneys)
Brett E. J. Gorman, Esq., for Respondent (Parker McCay, P.A., attorneys)
New Jersey is an Equal Opportunity Employer

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Record Closed: October 16, 2020 Decided: November 4, 2020
BEFORE DAVID M. FRITCH, ALJ:
STATEMENT OF THE CASE
Petitioners, full-time tenured teachers, appeal the determination of their employer,
Respondent, Princeton Public School Board of Education (“Board”), to not continue to
offer Petitioners the option to work an additional sixth teaching period per day in lieu of
their otherwise scheduled daily duty period for the 2019-20 school year in their annual
contracts. In doing so, Petitioners no longer received the additional pensionable
remuneration which was previously paid to them during the 2018-19 school year in
exchange for accepting this voluntary additional teaching period assignment.
Petitioners challenge this decision as violative of their tenure rights as an impermissible
reduction in their compensation.
PROCEDURAL HISTORY
On July 16, 2020, Petitioners, through counsel, filed a verified petition with the
Commissioner of Education seeking to enjoin the Board from not including the
additional optional assignment and associated compensation in Petitioners’ 2019-20
contracts. The matter was transmitted to the Office of Administrative Law (“OAL”) as a
contested matter in accordance with N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to
-13, where it was filed on August 19, 2019. On May 14, 2020, the undersigned held a
telephone status conference with the parties wherein the parties indicated that they both
wished to file cross-motions for summary decision and a briefing schedule was
established with the agreement of the parties. Consistent with this briefing schedule,
Respondent filed its motion for summary decision on July 1, 2020. On July 9, 2020,
Petitioners filed their cross-motion for summary decision and their response to
Respondent’s motion. Respondent filed an answering brief in response to Petitioners’
cross-motion and in further support of its motion on July 31, 2020. Oral argument was

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held via telephone conference on September 3, 2020. The record remained open to
allow the parties to amend the factual record with respect to the school year, or years,
that Petitioners received the additional assignment and associated remuneration in
question beyond the 2018-19 school year. Following receipt of this additional factual
information in a joint statement of supplemental facts on October 16, 2020, the record
on the cross-motions closed.
STATEMENT OF FACTS
Accompanying Petitioners’ motion was a joint stipulation of facts executed by counsel
for both parties. These stipulated facts were further augmented by the parties’ filing of a
supplemental joint stipulation of facts following oral argument on the motions.
Accordingly, I FIND the following FACTS have been stipulated by the parties and are
not contested:
1. Petitioners are certificated teaching staff members employed by the Board.
2. The Princeton Regional Education Association (Association), is the majority
representative for certain employees of the Board and is the representative of
the individual Petitioners in this matter.
3. The Association and the Board are parties to a collective bargaining agreement
(CBA). Paragraph 8(B)(1) of that agreement provides:
The daily teaching load in the high school shall not exceed
five (5) hours per day of pupil contact, consisting of five (5)
teaching periods and one (1) duty period. In case of
identified need, the administration and the Association shall
mutually agree to an assigned sixth teaching period in lieu of
a duty period. Teachers assigned to a sixth period five days
a week for the school year shall receive $10,000.00 in
pensionable salary added to their base salary for that year or
portion thereof. Teachers shall be offered the option of a
sixth period with the right to decline. A refusal to accept a
sixth period shall not result in a reduction of contract time.
There shall be a limit of three teachers within a department
teaching sixth periods. The high school day shall consist of
seven (7) hours and one (1) minute.

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[Pet. Br. at Ex. 1.]
4. The Board has referenced paragraph 8(B)(1) of the CBA in assigning staff to a
sixth period. (Pet. Br. at Ex. 2 and 3.)
5. Previously, teachers have received prorated remuneration for the sixth period
coverage under the terms of the CBA, ¶ 8(B)(1), when they taught a sixth period
on a less-than-full-time basis—i.e., teaching a sixth period every other day, or
half-time. In such cases, the teacher would receive a prorated portion of the
$10,000 provided for in the CBA, ¶ 8(B)(1).
6. Teachers who do not teach at the high school have also received additional
remuneration based on the performance of additional teaching duties during the
regular school day.
7. In the past, when Association members (teachers) were teaching a sixth period,
full-time, this would be referred to in Board documents as a “0.2” or “1.2”—i.e.,
the teacher was handling 120 percent of their regular teaching load. Similarly,
when a teacher was teaching a sixth period on a less-than-full-time basis, it
would be referred to as a “0.1” or “1.1”, i.e., the teacher was handling 110
percent of their regular teaching load.
8. In the past, where Association members (teachers) were working a “1.2” or “1.1”
schedule during a certain school year have not been assigned that additional
teaching duty during a subsequent school year, their overall remuneration was
reduced in that subsequent school year to reflect the absence of the additional
remuneration previously received for teaching that sixth teaching period. (See, e.g.,
Pet. Br. at Ex. 3.)
9. Prior to the commencement of the present matter, the Association has not
challenged reductions in overall remuneration based upon a teacher’s
assignment, and subsequent non-assignment, to a “1.2” or “1.1” schedule.
10. The additional duties performed by Petitioners as reflected in a “1.1” or “1.2”
contract designation are regular teaching duties performed during regular school
hours.

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11. Petitioner Alicia Carsdale’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. A1) listed her status as “1.1,” and her base salary as $79,809.
a. 	The 	additional 	“0.1” 	reflected 	Carsdale’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Carsdale received the indicated base salary during the 2018-19 school
year.
c. 	Carsdale also performed these additional teaching duties and received
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, and 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 1.)
d. 	For the 2019-20 school year, Carsdale’s employment contract listed her
status as “1” and her base salary as $75,187. 	(Pet. Br. at Ex. A2.) 	Carsdale
received this indicated base salary during the 2019-20 school year.
12. Petitioner Daniel Lee’s employment contract for the 2018-19 school year (Pet. Br.
at Ex. B1) listed his status as “1.1,” and his base salary as $67,139.
a. 	The 	additional 	“0.1” 	reflected 	Lee’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Lee received the indicated base salary during the 2018-19 school
year.
c. 	Lee also performed these additional teaching duties and received
additional remuneration for these additional duties during the 2015-16,
2016-17, and
2017-18 school years. (See Joint Supp. Statement of Facts at ¶ 2.)
d. For the 2019-20 school year, Lee’s employment contract listed his status
as
“1” and his base salary as $63,130. 	(Pet. Br. at Ex. B2.) 	Lee received this
indicated base salary during the 2019-20 school year.
13. Petitioner Christian Gonzalez’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. C1) listed his status as “1.2,” and his base salary as $73,090.

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a. 	The 	additional 	“0.2” 	reflected 	Gonzalez’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Gonzalez received the indicated base salary during the 2018-19 school
year.
c. 	Gonzalez did not perform these additional teaching duties or receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, or 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 3.)
d. 	For the 2019-20 school year, Gonzalez’s employment contract listed his
status as “1” and his base salary as $65,380. (Pet. Br. at Ex. C2.) Gonzalez
received this indicated base salary during the 2019-20 school year.
14. Petitioner Aaron Thayer’s employment contract for the 2018-19 school year (Pet.
Br. at Ex. D1) listed his status as “1.2,” and his base salary as $89,285.
a. 	The additional “0.2” reflected Thayer’s performance of additional
teaching duties during the school day.
b. 	Thayer received the indicated base salary during the 2018-19
school year.
c. 	Thayer 	also 	performed 	these 	additional 	teaching 	duties 	and
received additional remuneration for these additional duties during the
2014-15, 201516, 2016-17, and 2017-18 school years. 	(See Joint Supp.
Statement of Facts at ¶ 4.)
d. 	For the 2019-20 school year, Thayer’s employment contract listed
his status as “1” and his base salary as $82,639. 	(Pet. Br. at Ex. D2.)
Thayer received this indicated base salary during the 2019-20 school year.
15. Petitioner Karen Indyk’s employment contract for the 2018-19 school year (Pet.
Br. at Ex. E1) listed her status as “1.1,” and her base salary as $103,180.
a. 	The additional “0.1” reflected Indyk’s performance of additional
teaching duties during the school day.
b. 	Indyk received the indicated base salary during the 2018-19 school
year.

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c. 	Indyk also performed these additional teaching duties and received
additional remuneration for these additional duties during the 2014-15,
201516, 2016-17, and 2017-18 school years. (See Joint Supp. Statement
of Facts at ¶ 5.)
d. 	For the 2019-20 school year, Indyk’s employment contract listed
her status as “1” and her base salary as $94,550. 	(Pet. Br. at Ex. E2.)
Indyk received this indicated base salary during the 2019-20 school year.
16. Petitioner Peter Stanton’s employment contract for the 2018-19 school year (Pet.
Br. at Ex. F1) listed his status as “1.2,” and his base salary as $93,075.
a. 	The additional “0.2” reflected Stanton’s performance of additional
teaching duties during the school day.
b. 	Stanton received the indicated base salary during the 2018-19
school year.
c. 	Stanton 	did 	not 	perform 	these 	additional 	teaching 	duties 	or 	receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, or 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 6.)
d. 	For the 2019-20 school year, Stanton’s employment contract listed
his status as “1” and his base salary as $86,730. 	(Pet. Br. at Ex. F2.)
Stanton received this indicated base salary during the 2019-20 school
year.
17. Petitioner Mark Eastburn’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. G1) listed his status as “1.2,” and his base salary as $109,822.
a. 	The 	additional 	“0.2” 	reflected 	Eastburn’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Eastburn received the indicated base salary during the 2018-19 school
year.
c. 	Eastburn did not perform these additional teaching duties or receive
additional remuneration for these additional duties during the 2014-15, 2015-
16, 2016-17 school years. (See Joint Supp. Statement of Facts at ¶ 7.)

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d. 	For the 2019-20 school year, Eastburn’s employment contract listed his
status as “1” and his base salary as $102,298. (Pet. Br. at Ex. G2.) Eastburn
received this indicated base salary during the 2019-20 school year.
18. Petitioner Johanna Hunsbedt’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. H1) listed her status as “1.2,” and her base salary as $75,345.
a. 	The 	additional 	“0.2” 	reflected 	Hunsbedt’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Hunsbedt received the indicated base salary during the 2018-19 school
year.
c. 	Hunsbedt did not perform these additional teaching duties or receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, or 2016-17 school years. 	(See Joint Supp. Statement of Facts at ¶
8.) 	Hunsbedt did perform these additional teaching duties and receive
additional remuneration for these additional duties during the 2017-18 school
year. (Ibid.)
d. 	For the 2019-20 school year, Hunsbedt’s employment contract listed her
status as “1” and her base salary as $67,830. (Pet. Br. at Ex. H2.) Hunsbedt
received this indicated base salary during the 2019-20 school year.
19. Petitioner Emily Spera’s employment contract for the 2018-19 school year (Pet.
Br. at Ex. I1) listed her status as “1.1,” and her base salary as $63,839.
a. 	The additional “0.1” reflected Spera’s performance of additional
teaching duties during the school day.
b. 	Spera received the indicated base salary during the 2018-19 school
year.
c. 	Spera did not perform these additional teaching duties or receive
additional remuneration for these additional duties during the 2016-17, or
2017-18 school years. (See Joint Supp. Statement of Facts at ¶ 9.)

9
d. 	For the 2019-20 school year, Spera’s employment contract listed
her status as “1” and her base salary as $58,800. 	(Pet. Br. at Ex. I2.)
Spera received this indicated base salary during the 2019-20 school year.
20. Petitioner Kristin Hill’s employment contract for the 2018-19 school year (Pet. Br.
at Ex. J1) listed her status as “1.1,” and her base salary as $64,939.
a. 	The 	additional 	“0.1” 	reflected 	Hill’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Hill received the indicated base salary during the 2018-19 school
year.
c. 	Hill did not perform these additional teaching duties or receive
additional remuneration for these additional duties during the 2016-17, or
2017-18 school years. (See Joint Supp. Statement of Facts at ¶ 10.)
d. 	For the 2019-20 school year, Hill’s employment contract listed her
status as
“1” and her base salary as $59,950. 	(Pet. Br. at Ex. J2.) 	Hill received this
indicated base salary during the 2019-20 school year.
21. Petitioner Paige Hinton-Mason’s employment contract for the 2018-19 school
year (Pet. Br. at Ex. K1) listed her status as “1.2,” and her base salary as
$117,870.
a. 	The additional “0.2” reflected Hinton-Mason’s performance of additional
teaching duties during the school day.
b. 	Hinton-Mason received the indicated base salary during the 2018-19
school year.
c. 	Hinton-Mason did not perform these additional teaching duties or receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, or 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 11.)
d. 	For the 2019-20 school year, Hinton-Mason’s employment contract listed
her status as “1” and her base salary as $108,733. 	(Pet. Br. at Ex. K2.)

10
Hinton Mason received this indicated base salary during the 2019-20 school
year.
22. Petitioner Shannon Koch’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. L1) listed her status as “1.2,” and her base salary as $119,786.
a. 	The additional “0.2” reflected Koch’s performance of additional
athletic training duties during her regular work hours.
b. 	Koch received the indicated base salary during the 2018-19 school
year.
c. 	Koch also performed these additional teaching duties and received
additional remuneration for these additional duties during the 2014-15,
201516, 2016-17, and 2017-18 school years. (See Joint Supp. Statement
of Facts at ¶ 12.)
d. 	For the 2019-20 school year, Koch’s employment contract listed her
status as “1” and her base salary as $102,298. (Pet. Br. at Ex. L2.) Koch
received this indicated base salary during the 2019-20 school year.
23. Petitioner Valerie Rodriguez’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. M1) listed her status as “1.2,” and her base salary as $75,345.
a. 	The 	additional 	“0.2” 	reflected 	Rodriguez’s 	performance 	of 	additional
teaching duties during the school day.
b. 	Rodriguez received the indicated base salary during the 2018-19 school
year.
c. 	Rodriguez did not perform these additional teaching duties or receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, or 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 13.)
d. 	For the 2019-20 school year, Rodriguez’s employment contract listed her
status as “1” and her base salary as $67,830. (Pet. Br. at Ex. M2.) Rodriguez
received this indicated base salary during the 2019-20 school year.

11
e. 	In January 2020, as a result of Rodriguez obtaining her master’s degree,
her salary was increased to $73,389. (Pet. Br. at Ex. M3.)
24. Petitioner Amy Borgia’s employment contract for the 2018-19 school year (Pet.
Br. at Ex. N1) listed her status as “1.1,” and her base salary as $75,055.
a. 	The additional “0.1” reflected Borgia’s performance of additional
teaching duties during the school day.
b. 	Borgia 	received 	the 	indicated 	base 	salary 	during 	the 	2018-19
school year.
c. 	Borgia did not perform these additional teaching duties or receive
additional remuneration for these additional duties during the 2014-15,
2015-16, 2016-
17, or 2017-18 school years. (See Joint Supp. Statement of Facts at ¶ 14.)
d. 	For the 2019-20 school year, Borgia’s employment contract listed
her status as “1” and her base salary as $70,738. 	(Pet. Br. at Ex. N2.)
Borgia received this indicated base salary during the 2019-20 school year.
25. Petitioner Annemarie Mlinar’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. O1) listed her status as “1.1,” and her base salary as $69,399.
a. 	The additional “0.1” reflected Mlinar’s performance of additional
teaching duties during the school day.
b. 	On or about February 2019, Mlinar received her master’s degree
and received an amended contract for the 2018-19 school year (Pet. Br. at
Ex. O2) where her base salary was raised to $75,055, prorated.
c. 	Mlinar received the indicated base salary during the 2018-19 school
year.
d. 	Mlinar also performed these additional teaching duties and received
additional remuneration for these additional duties during part of the 2014-
15 school year and for the entirety of the 2015-16, 2016-17, and 2017-18
school years. (See Joint Supp. Statement of Facts at ¶ 15.)

12
e. 	For the 2019-20 school year, Mlinar’s employment contract listed
her status as “1” and her base salary as $70,738. 	(Pet. Br. at Ex. O3.)
Mlinar received this indicated base salary during the 2019-20 school year.
26. Petitioner Nancy Abascal’s employment contract for the 2018-19 school year
(Pet. Br. at Ex. P1) listed her status as “1.0,” and her base salary as $87,820.
a. 	On or about March 2019, Abascal was reassigned to the status of
“1.1” and her salary was raised to $96,602.00. (Pet. Br. at Ex. P2.)
b. 	The additional “0.1” reflected Abascal’s performance of additional
teaching duties during the school day.
c. 	Abascal received the indicated base salary during the 2018-19
school year.
d. 	Abascal 	did 	not 	perform 	these 	additional 	teaching 	duties 	or 	receive
additional 	remuneration 	for 	these 	additional 	duties 	during 	the 	2014-15,
201516, 2016-17, or 2017-18 school years. 	(See Joint Supp. Statement of
Facts at ¶ 16.)
e. 	For the 2019-20 school year, Abascal received an employment
contract that erroneously listed her status as “1.1.” 	(Pet. Br. at Ex. P3.)
Abascal requested a correction of this status and received a revised
contract for the 2019-20 school year which listed her status as “1” and her
base salary as $91,575. 	(Pet. Br. at Ex. P4.) 	Abascal received this
indicated base salary during the 2019-20 school year.
LEGAL DISCUSSION
N.J.A.C. 1:1-15.5 provides that summary decision should be granted “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 language is substantially similar to summary
judgment under New Jersey Court Rule 4:46-2(c). 	Though not required to do so, the
OAL uses the standards for summary judgment, as set forth by the New Jersey

13
Supreme Court, as our standards for summary decision. “[S]ince there are pronounced
similarities in the exercise of judicial and ‘quasi-judicial’ powers, . . . court fashioned
doctrines for the handling of litigation do in fact have some genuine utility and relevance
in administrative proceedings.” City of Hackensack v. Winner, 82 N.J. 1, 29 (1980). It
is recognized that the OAL performs many “quasi-judicial” or adjudicative functions and
that, in doing so, “[j]udicial rules of procedure and practice are transferable to [the OAL]
when these are conducive to ensuring fairness, independence, integrity, and efficiency
in administrative adjudications.” Matter of Tenure Hearing of Onorevole, 103 N.J. 548,
554-55 (1986).
Summary decision is granted if, after considering the evidence presented in the light
most favorable to the non-moving party, there exists no genuine issue of material fact.
Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995). The essential
question is “whether the evidence presents a sufficient disagreement to require [a
hearing] or whether it is so one sided that one party must prevail as a matter of law.” Id.
at 533. The Brill Court recognized that this necessarily involves the judge in the
process of weighing the evidence presented. Id. When determining whether a genuine
issue of material fact exists, “the court should be guided by the same evidentiary
standard of proof . . . that would apply” at a hearing. Id. This weighing differs from the
weighing the judge would perform after a hearing in that “on a motion for summary
[decision] the court must grant all the favorable inferences to the non-movant.” Id. at
536.
"When 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.” N.J.A.C.
1:1-12.5(b). “If an adverse party does not so respond, a summary decision, if
appropriate, shall be entered.” Id. I CONCLUDE that, under the Brill standards, this
matter is appropriate for summary disposition. The undisputed facts, as set forth by the
parties in their cross-motions and joint submissions of stipulated facts, are further

14
supported by tangible, undisputed evidence. Accordingly, as there are no disputed
material facts, the matter is ripe to be determined for summary decision.
The purpose of teaching-staff tenure laws is to “aid in the establishment of a competent
and efficient school system by affording teaching staff members ‘a measure of security
in the ranks they hold after years of service.’” Carpenito v. Rumson Bd. of Educ., 322
N.J. Super. 522, 528-29 (App. Div. 1999) (quoting Viemeister v. Prospect Park Bd. of
Educ., 5 N.J. Super. 215, 218 (App. Div. 1949)). Thus, tenured teaching staff members
“shall not be dismissed or reduced in compensation except for inefficiency, incapacity,
or conduct unbecoming such a teaching staff member or other just cause.” N.J.S.A.
18A:6-10.
Petitioners’ claim is based on N.J.S.A. 18A:6-10, which holds that persons with tenure
in the public school system cannot be dismissed or reduced in compensation
“during good behavior and efficiency in the public school system of the state.” (See Pet.
Br. at 3-4.) Compensation is defined in N.J.S.A. 18A:6-10. (Id. at 4.) Petitioners argue
that the additional remuneration they received in the 2018-19 school year for teaching a
sixth teaching period is “remuneration in exchange for the performance of [their] core
duty,” namely teaching during the school day, and is “compensation” for the purposes of
N.J.S.A. 18A:6-10. (Id. at 4.) As such, Petitioners contend, “the Board did not have the
authority to reduce the Petitioner[s’] remuneration—in fact N.J.S.A. 18A:6-10
compensation” and they should be entitled to “have their salaries retroactively restored
to their 2018-19 levels, together with all lawful interest, benefits, and emoluments as
may otherwise be necessary to make them whole.” (Id. at 7.)
Respondent avers that the remuneration for this additional teaching period was
payment for an “extra duty assignment” which paid “additional compensation added to
[Petitioners’] base salary on the basis of providing additional work beyond which is
prescribed in the CBA for a full-time teaching staff member.” (Resp. Br. at 6.) The offer
of this additional sixth teaching period is “subject to an identified need” of the Board and
the additional teaching period is offered with “a right to decline” which gives Petitioners

15
“the opportunity to voluntarily accept or decline this extra duty and corresponding
additional compensation.” (Id. at 6.) Accordingly, Respondent contends that:
None of the Petitioners named in this matter have been
reduced in compensation from their base salary. 	Rather,
Petitioners were offered the extra duty assignment at the
time 	there 	was 	an 	identified 	need, 	and 	subsequently
returned to their normal full-time duties, at their contractual
full-time base salary when that need no longer existed,
pursuant to the applicable provision of the CBA. [Id. at 6‒7.]
Respondent argues that, under the undisputed facts of this matter, “Petitioners were
never subject to a decrease in their base salary under the CBA, only a reduction of the
extra period (and the corresponding compensation) that was no longer necessary or
needed.” (Id. at 7.)
The question, therefore, is whether Petitioners have tenure rights with respect to their
otherwise voluntary assignment to teach a sixth daily teaching period. 	As Petitioners
note (Pet. Br. at 4), “compensation” is defined in N.J.S.A. 18A:66-2, which defines
compensation as:
[T]he contracted salary, for services as a teacher as defined
in this article, which is in accordance with established salary
policies of the member’s employer for all employees in the
same 	position 	but 	shall 	not 	include 	individual 	salary
adjustments which are granted primarily in anticipation of the
members 	retirement 	or 	additional 	remuneration 	for
performing temporary or extracurricular duties beyond the
regular school day or the regular school year.
N.J.S.A. 18A:66-2(d)(1).
A tenured teaching staff member’s contractual salary is the primary component of their
“compensation,” which, absent a reduction in force or tenure charges, cannot be
reduced.

16
N.J.S.A. 18A:6-10. 	See also 	Allen, et. al. v. Bd. of Educ. of the Twp. of Clark, Union
County, 	EDU 	1445-02, 	Final 	Decision, 	(April 	30, 	2004) 	http://lawlibrary.
rutgers.edu/oal/search.html. 	In addition to salary, however, there are other payments
which also constitute “compensation” such as longevity increments which increase a
teacher’s salary in consideration of long-term service and payments for additional
education. Id. (citing Middletown Twp. Bd. of Educ., P.E.R.C. No. 99-72 (1998); Green
Twp. Bd. of Educ., P.E.R.C. No. 99-73 (1999).) See also Bd. of Educ. v. Neptune Twp.
Educ. Ass’n, 144 N.J. 16, 34 (1995). 	This incremental remuneration, like salary, once
awarded becomes a component of the teacher’s tenure-protected salary. Id.
In contrast, however, other negotiable benefits paid to teachers are otherwise excluded
from the scope of “compensation” for the purposes of tenure protection. Id. These may
include early retirement inducement payments (Fair Lawn Educ. Ass’n v. Fair Lawn Bd.
of Educ., 161 N.J. Super. 67 (App. Div. 1978), aff’d 79 N.J. 574 (1979)), lumpsum end
of year payments to a department chair at the end of a school year (Bishop v.
Bd. of Trustees, 4 N.J.A.R. 179 (1980)), “customary” overtime (McLean v. Glen Ridge
Bd. of Educ., 1977 S.L.D. 311), and payments for extra-curricular assignments (Dignan
v. Bd. of Educ. of the Rumson-Fair Haven Reg’l High School, 71 S.L.D. 336). 	The
question, therefore, is whether Petitioners possess tenure rights with respect to their
agreeing to work an additional daily teaching period in lieu of their daily “duty period”
and the additional remuneration paid to them for that assignment.
Petitioners argue that the additional remuneration they received was not “for services
connected to extracurricular activities such as coaching sports or the school yearbook.
They received this remuneration for performing additional teaching duties, during the
regular school day” and it was “incorporated into Petitioners’ normal, pensionable
salaries.” 	(Resp. Br. at 7.) 	In support of their position, Petitioners cite to Melnyk v. Bd.
of Educ. of the Delsea Reg’l High Sch. Dist., 241 N.J. 31 (2020). (Resp. Br. at 6.) The
teacher in Melnyk was assigned to staff a teaching position in an alternative education
program designed to assist the employing school district meet their constitutionally-
mandated educational services requirements. 	Melnyk, 241 N.J. at 43. 	The teacher in
Melnyk provided teaching services in this program in addition to their regular teaching

17
assignment and received additional hourly compensation for their services in this
program for numerous years until the school district assigned another, non-tenured
teacher to fulfil these duties for the upcoming school year. Id. at 37.
The Melnyk Court held that, because the teacher had worked in their alternative
instructional position for the requisite period of time and held the required instructional
certificate to teach in that position, she was entitled to tenure protections against
removal or reduction in compensation associated with that position. Id. at 50. The
Melnyk Court concluded that, because the teacher had acquired tenure rights to her
position with the alternate education program outside of her separate tenure rights in
her capacity in the school’s regular day program, the teacher’s position in this alternate
education program was “separately tenure eligible and her compensation for it could not
be reduced without compliance with the procedural protections of the Tenure Act.” Ibid.
Petitioners’ argument under Melnyk is that they acquired tenure in this assignment to
teaching an additional period in lieu of their duty period each day and their additional
compensation for this assignment is now part of their tenured compensation. Among
the requirements for tenure in a position is that the teacher has “served the requisite
period of time” in a position to obtain tenure. Spiewak v. Summit Board of Education,
90 N.J. 63, 74 (1982). Pursuant to N.J.S.A. 18A:28-5a, a teacher must serve in an
employed position for “[t]hree consecutive academic years, together with employment at
the beginning of the next succeeding academic year” or “the equivalent of more than
three academic years within a period of four consecutive academic years” to obtain
tenure in that position.
On the record initially presented in the parties’ cross-motions, it was clear only that
Petitioners agreed to accept the additional sixth teaching period during the 2018-19
school year but were not asked to continue in this additional sixth teaching period for
the 2019-20 school year. Following oral argument, the parties were given the
opportunity to amend the factual record to determine if any of the named Petitioners
were offered this additional teaching period and accepted that assignment and extra

18
remuneration in any other school year. 	Based on the information provided in the
parties’ 	joint 	supplemental 	statement 	of 	facts, 	Petitioners 	Gonzalez 	(Joint 	Supp.
Statement of Facts at ¶ 3), Stanton (id. at ¶ 6), Eastburn (id. at ¶ 7), Hunsbedt (id. at ¶
8), Spera (id. at ¶ 9), Hill (id. at ¶ 10), Hinton-Mason (id. at ¶ 11), Rodriguez (id. at ¶ 13),
Borgia (id. at ¶ 14), and Abscal (id. at ¶ 16) did not work this extra teaching assignment
and receive this additional remuneration for three consecutive years or more than three
academic years within the period of four academic years. I CONCLUDE, therefore, that
it is uncontested on the record presented, that Petitioners Gonzalez, Stanton, Eastburn,
Hunsbedt, Spera, Hill, Hinton-Mason, Rodriguez, Borgia, and Abscal have not worked
in this position of teaching for a sixth daily teaching period for the statutorily defined
minimum period of time to meet this requirements of N.J.S.A. 18A:28-5a(1)‒(3) to be
eligible for tenure in that position. 	(See Resp. Br. at 3 (noting that the Petitioners did
not “serve in the position for longer than the statutorily mandated 4 years” to obtain
tenure in the additional duty assignment).)
While Petitioners Carsdale (Joint Supp. Statement of Facts at ¶ 1), Lee (id. at ¶ 2),
Thayer (id. at ¶ 4), Indyk (id. at ¶ 5), Koch (id. at ¶ 12), and Milnar (id. at ¶ 15) have
demonstrated that they have worked the extra teaching period assignment the minimum
number of years to meet the requirements of N.J.S.A. 18A:28-5a(1)‒(3), their tenure
claims are undermined by the undisputed fact that the assignment to teach in this sixth
period is subject to the identified need of the District and offered, along with the
additional remuneration, to teachers with a right for the teacher to decline the additional
assignment. 	(Pet. Br. at Ex. 1 at ¶ 8(B)(1).) 	Unlike the teacher in Melnyk, who was
removed 	from 	an 	additional 	teaching 	assignment 	(and 	the 	associated 	additional
remuneration) and replaced in that assignment by a non-tenured teacher (see Melnyk,
241 N.J. at 620), the Petitioners in the present matter were relieved of their additional
duty, and associated additional remuneration, in their 2019-20 contracts after the
District determined that this additional need for teaching that additional period “no
longer existed.” (Resp. Br. at 7.)
A similar issue was previously addressed by the Commissioner in the matter McLean
v. Bd. of Educ. of Glen Ridge, 1977 S.L.D. 311. In the McLean matter, the petitioner, a

19
janitor, sought compensation for overtime duties which had been “customarily” assigned
to him on the basis that the money he previously earned through customary overtime
assignments was part of his statutorily protected “compensation.” Id. at 312‒13. The
Commissioner disagreed with this argument, finding that “compensation” has been
defined to “include contracted salary but to exclude an entitlement to add thereto
payment for ‘extra work’.” Id. at 313. Relying on Reed and Hills v. Trenton Board of
Education, 1938 S.L.D. 437, the Commissioner in McClean held that the tenure act was
not designed to address “a temporary increase [in salary] given for extra work done”
because, to do so, would mean that “any temporary payments to teachers for temporary
work could not be made without incurring the liability of permanent indebtedness and
school boards would be tempted to put all extra services upon teachers without any
extra compensation whatsoever.” Id. at 313 (quoting Reed, 1938 S.L.D. at 441). The
Commissioner in McClean declined to extend tenure protection to these extra payments
because doing so would remove a “necessary flexibility” from the school boards. Id. at
314.
Here, as in McClean, the additional remuneration at issue was given to Petitioners for
an extra assignment which was offered in cases of “identified need” by the District and
extended to the teachers “with the right to decline.” (Pet. Br. at Ex. 1.) The District
identified a need for this additional period in the 2018-19 school year, and Petitioners
agreed to perform this additional assignment and receive the agreed-upon additional
remuneration. The District did not identify the need to continue these additional
assignments in the 2019-20 school year, and the opportunity to continue working this
additional teaching period and receive the additional remuneration was not extended to
Petitioners for the 2019-20 school year.
Petitioners contend that they are salaried employees who are not paid “by the hour” or
“by the class.” (Pet. Br. at 4.) Regardless of whether they are assigned to a sixth daily
teaching period, they are “still working the same number of hours in the school building,
during the school day.” (Id.) Petitioners argue that allowing the Board to withdraw this
additional teaching period, and its associated remuneration, would eviscerate tenure
protections by permitting compensation of teachers to rely on an
“assignment” or “piece-work” basis which Districts could use to reduce compensation by
reducing a teacher’s work assignments. (Id.) Petitioners assert that the remuneration
previously received for this sixth teaching period, once granted, “cannot be reduced”

20
because that additional money paid for that period is now part of their statutorily
protected
“compensation.” (Id. at 7.)
Petitioners’ argument, however, overlooks the temporary nature of the additional work
performed. As the terms of the CBA clearly delineate, this additional teaching period is
a voluntary assignment that is offered by the District upon the District finding an
identified need for this extra work. (Pet. Br. at Ex. 1, ¶ 8(B)(1).) This additional
assignment is a departure from the contractually defined responsibilities of a teacher in
the District to handle a teaching load of “five (5) hours per day of pupil contact,
consisting of five (5) teaching periods and one (1) duty period.” (Pet. Br. at Ex. 1.) The
conversion of the sixth period from a duty period to a teaching period, and a teacher’s
eligibility for the additional remuneration that accompanies that conversion, has two
identified prerequisites—the District must identify the need for a sixth teaching period,
and the teacher must agree to accept the assignment for that sixth teaching period.
(Id.) Where it is mutually agreed upon that a sixth teaching period is needed and the
teacher agrees to perform that duty, the teacher receives additional remuneration which
is “added to their base salary for that year or portion thereof.” (Ibid.) This additional
language highlighting that the additional remuneration is added to a teacher’s base
salary only for the year or portion of the year they work the additional teaching period
highlights the temporary and conditional nature of these assignments. As the Appellate
Division has noted, such temporary and conditional assignments cannot be used to
form the basis of tenured compensation, holding that:
[W]here employment is offered and accepted on a temporary
basis and its temporary nature is understood by both
employer and employee to be one of its essential predicates,
such employment cannot then be relied on by the employee
as the basis of tenure.
Spiewak v. Board of Education, 180 N.J. Super. 312, 318 (App.Div.
1981).
See also Point Pleasant Beach Teachers Assoc. v. Callam, 173 N.J. Super. 11, 17

21
(App.Div. 1980) (denying to extend tenure to teachers hired on a temporary “as needed”
basis to provide remedial aid to children).
The CBA defines the daily teaching load as “five teaching periods and one duty period.”
(Pet. Br. at Ex. 1, ¶ 8(B)(1).) The conversion of the duty period to an additional teaching
period is an optional additional assignment of teaching duties, which the teachers may
decline without reduction in their contracted time. (Ibid.) In exchange for accepting this
additional teaching assignment, Petitioners were given contractually agreed upon
additional remuneration. (Ibid.) N.J.S.A. 18A:66-2(d)(1) explicitly excludes from
tenured compensation “additional remuneration for performing temporary or
extracurricular duties beyond the regular school day.” See also Reed and Hills, 1938
S.L.D. at 441 (“The prohibition against reduction of salary [in the Tenure Act] applies to
a permanent scheduled salary and not to a temporary increase given for extra work
done”); McLean v. Bd. of Ed. of Glen Ridge, 1977 S.L.D. 311, 314 (additional payments
for voluntary overtime not covered as tenure-protected compensation). Although
Petitioners contend that the additional teaching period involved providing “additional
teaching duties during the regular school day” (Resp. Br. at 7), it remains factually
uncontested that the addition of a sixth daily teaching period to a teacher’s schedule
also requires the teacher to perform additional duties such as lesson preparation,
review of student assignments, and grading of exams, which occur beyond the
designated teaching period and, presumably, have to be conducted on time outside the
defined regular school day. It is this additional work that accompanies the acceptance
of the additional daily teaching period which justifies the District offering additional
remuneration to teachers who voluntarily assume this additional workload when offered
by the District based on the
District’s identified needs.
Further supporting the conclusion that the additional remuneration received by
Petitioners is not tenure-protected compensation is that it remains factually undisputed
that the offering of this additional teaching period, the associated remuneration, is
subject to an “identified need” by the District for this additional work (Pet. Br. at Ex. 1 at

22
¶ 8(B)(1)), and the District no longer has a need for this additional work. (Resp. Br. at
7.) Respondent argues that, under these circumstances, “when that need ended, so did
the extra work and corresponding compensation for the employee.” (Ibid.) See also
Dingan v. Bd. of Ed. of Rumson Fair-Haven Reg. High Sch., 71 S.L.D. 336, 342 (“[t]he
extra compensation ceases when the extra-classroom assignment is no longer
performed”);
Dallolio v. Bd. of Ed. of the City of Vineland, 1965 S.L.D. 18, 22 439 (“[W]hen the extra
work is no longer performed the extra compensation for that purpose can no longer be
claimed”). To accept Petitioners’ argument on its face that, once a teacher accepts this
sixth teaching period and the associated remuneration, their tenure-protected
compensation is upwardly adjusted to include the additional payments for this additional
voluntary work and that upwardly adjusted salary “cannot be reduced” because the
additional money paid for that period is now part of their statutorily protected
“compensation” (Id. at 7) would yield bizarre results. Such an interpretation would,
presumably, give a teacher who previously accepted this additional teaching period in
the 2018-19 school year but exercises their contractually protected option to refuse to
teach that additional period in subsequent years (Pet. Br. at Ex. 1) the right to continue
collecting the additional renumeration for that extra teaching period as part of their now-
tenured compensation without continuing the accompanying obligation to perform the
extra duties in subsequent school years. For the reasons stated above, I CONCLUDE,
therefore, that this additional remuneration Petitioners received in the 2018-19 and
other school years for this sixth teaching period is not tenure-protected compensation
within the definition of N.J.S.A. 18A:66-2(d)(1).
Also weighing against Petitioners’ claim in this matter is the statutory mandate
that tenure laws cannot be used to limit the right of a board of education to reduce the
number of teaching staff members or abolish positions for reasons of economy.
N.J.S.A. 18A:28-
9. The District’s determination to reduce the number of teaching periods needed and to
not extend the option for the additional period to Petitioners in their 2019-20 contracts
amounts to a reduction of hours and associated compensation which remains within the
rights of the District under N.J.S.A. 18A:28-9 regardless of tenure provisions. As the

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Appellate Division noted in Klinger v. Board of Education, 190 N.J. Super. 354, 357
(1982) (internal citations omitted):
Whether of tenured or nontenured teachers, reduction in force
is entirely within the authority of the board if done for reasons
of economy. 	Reduction in hours of employment is considered
a reduction in force.
See also Papovich v. Bd. of Ed. of Borough of Wharton, 1975 S.L.D. 737, 745
(reduction of a teacher’s position from full-time employment to three days per week
constitutes “a reduction of staff”). 	Here, the Board made its determination that the
additional 	teaching period 	was 	no 	longer 	needed and exercised 	its 	discretion 	to
eliminate the option for teaching that additional period. 	For this reason, I further
CONCLUDE that the Board’s action in this matter constitutes a reduction in staff and
cannot be limited by the application of tenure laws. N.J.S.A. 19A:28-9.
CONCLUSION
In light of the above, I CONCLUDE that Respondent’s motion for summary
decision should be GRANTED, and Petitioners’ cross-motion for summary decision
should be DISMISSED.
ORDER
It is therefore ORDERED that Respondent’s July 1, 2020, motion for summary
decision is hereby GRANTED, and Petitioners’ July 9, 2020, cross-motion for summary
decision is hereby DENIED and Petitioners’ petition to enjoin the Board from not
including 	the 	additional 	optional 	assignment 	and 	associated 	compensation 	in
Petitioners’ 2019-20 school year contracts is DISMISSED.
I hereby FILE this initial decision with the COMMISSIONER OF THE DEPARTMENT
OF EDUCATION for consideration.

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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 (13) 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, P.O. Box 500, Trenton, New Jersey
086250500, marked “Attention: Exceptions.” 	A copy of any exceptions must be sent to
the judge and to the other parties.
November 4, 2020 	DATE
Date Received at Agency:
Date Mailed to Parties:
/dw
DAVID M . FRITCH , ALJ

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