Morris Lucky v. Board of Education of the City of Englewood, Bergen County, 3/27/19, (#82-19)

New Jersey Commissioner of Education
Final Decision
Morris Lucky,
Petitioner,
v.
Board 	of 	Education 	of 	the 	City 	of 	Englewood,
Bergen County,
Respondent.
Synopsis
The petitioner – a tenured Student Assistance Coordinator (SAC) formerly employed in the respondent
Board’s school district prior to a Reduction in Force (RIF) – alleged that the Board terminated his
employment pursuant to the RIF without regard to his tenure and seniority rights. Petitioner sought
reinstatement and back pay. The Board contended that its actions were consistent with applicable law
and regulation. The parties filed opposing 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; petitioner holds standard certificates as both a SAC and as a School Social
Worker; he has been employed by the Board since 2010 and has worked exclusively as a SAC, and
never as a Social Worker; 	petitioner’s RIF at the end of the 2016-2017 school year came in the
aftermath of a decision to eliminate the full-time SAC position in favor of a position that combined the
SAC with a School Counselor; because petitioner does not hold certification as a School Counselor,
the new position was given to an outside candidate with the required dual certification; petitioner
contended that the SAC aspects of the new position should have been assigned to him; pursuant to
N.J.S.A. 18A:28-9, the Board has the right to reduce the work force for reasons of economy,
reorganization, or for other good cause; petitioner has the burden to prove that the Board’s action was
arbitrary, capricious or in bad faith; and the Board demonstrated that there were valid educational
reasons for combining the two positions. The ALJ concluded that the Board did not violate petitioner’s
tenure or seniority rights; accordingly, the petition was dismissed.
Upon comprehensive review, the Commissioner concurred with the ALJ’s findings and conclusions as
thoroughly set forth in the Initial Decision. Accordingly, the recommended decision of the OAL was
adopted as the final decision in this matter; summary judgment was granted in favor of the Board, and
the petition of appeal was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.
March 27, 2019
82-19

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OAL Dkt. No. EDU 13727-17
Agency Dkt. No. 173-8/17
New Jersey Commissioner of Education
Final Decision
Morris Lucky,
Petitioner,
v.
Board of Education of the City of Englewood,
Bergen County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), as well as the exceptions filed by petitioner – and respondent’s reply thereto – have been
reviewed and considered.1 Upon review, the Commissioner is in accord with the Administrative Law
Judge’s (ALJ) findings and determination of the matter.
In this matter, petitioner’s contention is that his tenure and seniority rights were
violated when the Board eliminated the Student Assistance Coordinator (SAC) position by way of a
reduction in force (RIF), and subsequently combined the SAC position with a School Counselor (SC)
position. 	As petitioner does not hold a SC certificate, the new SAC/SC position was offered to a
dually certified, non-tenured candidate. 	Although the petitioner also possesses a School Social
Worker (SSW) endorsement, the record establishes that there are currently no non-tenured – or
tenured but less senior – SSWs employed by the Board. 	The ALJ found that the Board presented
valid educational reasons for combining the two positions because the Board can offer better
integrated counseling services and improve efficiency in the delivery of counseling services to
1 The Commissioner received, but did not consider, petitioner’s filing dated March 8, 2019 and respondent’s
filing dated March 11, 2019, as said submissions were beyond the scope of N.J.A.C. 1:1-18.4.

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students. The ALJ further found that petitioner’s tenure and seniority rights were not violated as he
does not possess a SC certificate and there are currently no other positions in the District upon which
he can assert such rights.
Petitioner has filed exceptions to the ALJ’s determination, stating that the District’s
decision to combine the SAC and SC positions to defeat petitioner’s tenure and seniority rights is
arbitrary, capricious, and unreasonable. 	Petitioner argues that the Board should not be allowed to
combine two separate jobs with distinguishable functions into one position as a matter of
convenience, resulting in the violation of the rights of tenured teachers. Petitioner further argues that
he should have been offered the “part-time” SAC position following the RIF based on his tenure
rights and seniority in the SAC position. Lastly, petitioner argues that summary decision is improper
because the record is inconclusive as to whether petitioner should have been recalled from the
eligibility list to fill positions for which petitioner was qualified by way of his tenure and/or seniority
rights.
In its reply, the Board contends that the combined SAC/SC position was not created
to defeat petitioner’s tenure rights; rather, it was for the benefit of the students as substantiated in the
record. Respondent clarifies that there is no “part-time” SAC position because the SAC and SC roles
are 	integrated 	into 	a 	single 	SAC/SC 	position, 	and 	the 	individual 	serving 	in 	that 	position
simultaneously provides SAC and SC services to the school community. Respondent reiterates that
petitioner’s tenure and seniority rights were not violated as a result of the RIF and the subsequent
combination of the SAC and the SC positions. 	Respondent further submits that there are no
unresolved issues of fact in this matter with respect to petitioner’s entitlement to any other position in
the District.
As a preliminary matter, the Commissioner finds that there are no material facts in
dispute because it has been established that petitioner possesses an educational services certificate

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with the SAC and SSW endorsements, he has only served as a SAC in the District, there are currently
no non-tenured – or tenured but less senior – SSWs employed by the Board, and there are no other
positions in the District upon which petitioner might assert his tenure/seniority rights. Therefore, the
ALJ’s disposition of this case via summary decision was proper.
With regard to petitioner’s remaining contentions, the Commissioner finds his
arguments unpersuasive. 	The Commissioner disagrees that the two positions were combined to
“defeat” petitioner’s tenure and seniority rights. 	The Board has clearly established – as detailed in
the Initial Decision and supported by the record – that valid educational bases exist for the District’s
consolidation of the two positions into a single position. 	The Board’s decision, therefore, was not
arbitrary, capricious or unreasonable. Moreover, petitioner admittedly does not possess the requisite
SC endorsement to serve in the newly created position; therefore, petitioner does not have
entitlement over the SAC/SC position and it was properly filled by an individual who holds the
required certification and endorsements.
Accordingly, the Initial Decision is hereby adopted as the final decision in this
matter; summary judgment is granted in favor of respondent, and the petition of appeal is dismissed
with prejudice.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	March 27, 2019
Date of Mailing: 	March 27, 2019
2 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 13727-17
AGENCY DKT. NO. 173-8/17
MORRIS LUCKY,
Petitioner,
v.
BOARD OF EDUCATION OF THE CITY
OF ENGLEWOOD, BERGEN COUNTY,
Respondent.
__________________________________
Alfred Maurice, Esq., for petitioner (Springstead and Maurice, attorneys)
Sandra Varano, Esq., for respondent (Nirenberg and Varano, attorneys)
Record Closed: January 31, 2019 	Decided: February 14, 2019
BEFORE ELLEN S. BASS, ALJ:
STATEMENT OF THE CASE
Morris 	Lucky, 	a 	tenured 	Student 	Assistance 	Coordinator 	(SAC) 	formerly
employed by the Englewood Board of Education (the Board), alleges that the Board
terminated his employment pursuant to a Reduction-in-Force (RIF) without regard to his
tenure and seniority rights. 	He seeks reinstatement and back pay. 	The Board replies
that its actions were consistent with applicable law and regulation.

OAL DKT. NO. EDU 13727-17
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PROCEDURAL HISTORY
The 	petition of 	appeal 	was 	filed 	with 	the Commissioner 	of 	Education 	(the
Commissioner) on August 3, 2017. The Board filed an answer on September 12, 2017.
The contested case was transmitted to the Office of Administrative Law (OAL) on
September 14, 2017.
After completing discovery, the parties determined that the outcome of this
matter 	could 	impact 	the 	employment 	status 	of 	Jalesah 	Brooks, 	a 	school 	district
employee. Accordingly, via letter dated February 27, 2018, she was advised of her right
to intervene pursuant to N.J.A.C. 1:1-16.4. Brooks did not reply.
Via letter dated August 23, 2018, the parties jointly asked that this matter be
resolved via Cross-Motions for Summary Decision. 	Motions were filed on or about
October 26, 2018. 	In his brief, Lucky for the first time asserted an entitlement to the
position held by School Social Worker Jerome Land. 	I conferred with counsel to
determine if Land now needed to be invited to intervene. 	Further information was
exchanged by the parties, and petitioner’s counsel advised via letter dated November
29, 2018, that his client no longer claimed Land’s position. 	It was agreed that Land did
not need to be invited to intervene. 	It was further agreed that now that the issue
presented was clearer to the parties, they would file supplemental briefs.
Lucky filed a supplemental brief on December 16, 2018, and the Board filed its
supplemental brief on January 31, 2019, at which time the record closed.
ISSUE PRESENTED
The parties agree that the only issue presented is whether the Board’s action in
abolishing the full-time SAC position; creating a dual SAC/School Counselor position;
and appointing a nontenured staff member to fill that position, violated Lucky’s tenure
and seniority rights.

OAL DKT. NO. EDU 13727-17
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FINDINGS OF FACT
The salient facts are not in dispute, and I FIND:
Lucky holds a standard New Jersey Educational Services Certificate endorsed as
both a Student Assistance Coordinator and as a School Social Worker. 	He holds no
other endorsements on his certificate. 	Lucky commenced his employment with the
Board in September 2010; throughout, he has worked exclusively as a SAC, and never
as a Social Worker. 	In May 2017, Lucky was advised that his employment would be
terminated at the end of the 2016-2017 school year due to a staff reorganization. At the
time of his RIF, Lucky was the only SAC employed by the school district. Since his RIF,
the district has not employed a full-time SAC. There are currently no nontenured Social
Workers employed by the school district.
Lucky’s RIF came in the aftermath of a decision to eliminate the full-time SAC
position in favor of a position that combined a SAC with a School Counselor. 	Since
Lucky does not hold a certification as a School Counselor, the position was given to an
outside candidate, Jalesah Brooks. 	Brooks holds these dual certifications. 	The
rationale for combining the two positions was explained by the Director of Pupil
Personnel Services, Jamie Ciofalo, via certification:
Under the prior system, students in need of SAC counseling would
meet with a SAC and then have to meet with a different individual
for academic school counseling services. 	By combining these
positions, these students are now able to interact and develop a
relationship with one counselor who provides drug, alcohol, social
and/or emotional support as well as the services of academic
school counseling. 	The decisions made with respect to school
counseling, such as formulating educational and career plans, are
informed by the information obtained as a result of the counseling
provided as a SAC and vice versa. 	The further advantage of
combining 	the 	positions 	is 	that 	the 	student 	does 	not 	have 	to
schedule two appointments…and miss more class time.
Brooks is assigned a case load that includes students who require SAC services.
Ciofalo explained that “Brooks simultaneously provides SAC and [student counseling]

OAL DKT. NO. EDU 13727-17
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services to the students and therefore she integrates the two positions. 	As such, her
duties are not neatly split between these two roles.” The school district has developed a
job description that is consistent with Ciofalo’s description of the goals of this dual
position.
Lucky contends that the action of the Board in creating this dual position was
inconsistent with his tenure and seniority rights, which are superior to those of Brooks, a
newcomer to the school district. 	He thus contends that the SAC aspects of Brooks’
position should have been assigned to him.
CONCLUSIONS OF LAW
The 	parties 	seek 	relief 	pursuant 	to 	N.J.A.C. 	1:1-12.5, 	which 	provides 	that
summary decision should be rendered “if the papers and discovery which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to prevail as a matter of
law.” 	Our regulation mirrors R. 4:46-2(c), which provides that “[t]he judgment or order
sought 	shall 	be 	rendered 	forthwith 	if 	the 	pleadings, 	depositions, 	answers 	to
interrogatories and admissions on file, 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 a judgment or order as a matter of law.”
A determination whether a genuine issue of material fact exists that precludes
summary decision requires the judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational fact finder to resolve the allegedly disputed issue in
favor of the non-moving party. 	Our courts have long held that “if the opposing party [in
a summary judgment motion] offers . . . only facts which are immaterial or of an
insubstantial nature, a mere scintilla, ‘[f]anciful, frivolous, gauzy or merely suspicious,’
he will not be heard to complain if the court grants summary judgment.” 	Brill v.

OAL DKT. NO. EDU 13727-17
5
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995) (quoting Judson v. Peoples
Bank & Trust Co., 17 N.J. 67, 75 (1954)).
The “judge’s function is not himself [or herself] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” 	Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). When the evidence “is so one-sided that one party must prevail as a matter of
law,” the trial court should not hesitate to grant summary judgment. 	Liberty Lobby, 477
U.S. at 251–52.
I CONCLUDE that this matter is ripe for summary decision. 	There are no
material disputed facts that require a plenary hearing, and the Board is entitled to
judgment as a matter of law. 	Tenure is a legislative status; it is earned by operation of
law, and upon meeting the precise requirements of the tenure statute. 	Spiewak v.
Rutherford Bd. of Educ., 90 N.J. 63 (1982); Zimmerman v. Newark Bd. of Educ., 38 N.J.
65 (1962); N.J.S.A. 18A:28-5. 	Lucky was employed under tenure; accordingly, the RIF
that resulted in his termination needed to be made according to standards established by
the Commissioner and approved by the State Board. 	N.J.S.A. 18A:28-10; see N.J.A.C.
6A:32-5.1; Howley v. Ewing Twp. Bd. of Educ., 1982 S.L.D. 1328, 1339, aff’d, 1983 S.L.D.
1554.
Lucky asserts that the Board’s action in creating a position that included his prior
duties, but incorporated qualifications that he could not meet, was inconsistent with his
tenure and seniority rights and thus violative of the school laws. 3 The prerogative of the
Board to reduce force is well-established. N.J.S.A. 18A:28-9 provides that
[n]othing in this title or any other law relating to tenure of service
shall be held to limit the right of any board of education to reduce
the number of teaching staff members, employed in the district
3 Because he holds a School Social Worker endorsement, Lucky might have been entitled to social work
positions held by nontenured staff. 	He does not raise this as an issue because discovery revealed
neither nontenured Social Workers, nor less senior Social Workers, are currently employed in Englewood.
It is for this reason that the parties concluded that Lucky could lay no claim to the position held by Jerome
Land, who is a tenured Social Worker with greater years of service in the school district.

OAL DKT. NO. EDU 13727-17
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whenever, in the judgment of the board, it is advisable to abolish
any such positions for reasons of economy or because of reduction
in the number of pupils or of change in the administrative or
supervisory organization of the district or for other good cause upon
compliance with the provisions of this article.
Pursuant to the statute, the Board may reduce its ranks and/or reorganize the delivery
of services to its students. Consolidating positions, as the Board did here, is among the
actions within a local board’s authority. 	Francin v Maywood Bd. of Educ., EDU 09131-
08, 	Initial 	Decision 	(July 	6, 	2009), 	aff’d 	Commissioner 	(August 	20, 	2009),
<http://njlaw.rutgers.edu/collections/oal/>, citing Dunellen Bd. of Educ. v Dunellen Ed.
Ass’n. 64 N.J. 17, 30 (1973). 	The burden is on Lucky to demonstrate that the action of
the Board in doing so here was arbitrary, unreasonable or implemented in bad faith.
Francin, Commissioner’s Decision, at page 4.
Lucky cannot meet this burden. 	The Board has presented valid educational
reasons for combining the work of a SAC with that of a student counselor; its actions in
doing so promote efficiency and the delivery of better integrated counseling services.
Lucky has proffered no facts to contest the Board’s assertion that the consolidation of
the two positions sprung from a legitimate desire to better deliver services to its
students. 	Lucky lacks the certifications needed to fill this position, and as a result
cannot lay claim to it based on his tenure and seniority rights.
Francin presents analogous facts. There, the board determined that it wished to
deliver instructional services by staff certificated in both Physical Education and Health.
The petitioning teacher was tenured but held an endorsement only as a Teacher of
Physical Education. 	She unsuccessfully challenged the action of the local board in
terminating her employment, while retaining nontenured staff in the dual Physical
Education 	and 	Health 	role. 	In 	upholding 	the 	action 	of 	the 	board 	there, 	the
Commissioner noted that in Dennery v Bd. of Educ., 131 N.J. 626, 638-39 (1993), the
Court had determined that it was “unable to conclude…that the requirement of two
certificates to qualify for a single education position is anomalous, arbitrary or irrational.
Nor is it unlawful or invalid.” 	See also: Martin v. South Amboy Bd. of Educ., EDU

OAL DKT. NO. EDU 13727-17
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13631-12, Initial Decision (March 28, 2014), aff’d, Commissioner (May 13, 2013),
<http://njlaw.rutgers.edu/collections/oal/>.4
I CONCLUDE that the Board did not violate Lucky’s tenure or seniority rights
when it abolished his full-time SAC position; created a dual SAC/school counselor
position; and assigned the newly created position to a dually certificated non-tenured
staff member. 5
ORDER
Based on the foregoing, the petition of appeal is DISMISSED.
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.
4 Lucky’s reliance on cases such as Bednar v Westwood Bd. of Educ., 221 N.J. Super. 239 (App. Div.
1987) is misplaced. The Board rightly points out that Bednar concerned the right of a tenured teacher to
a position held by a nontenured colleague, where the petitioning teacher was certificated for the position
but had no seniority rights. Lucky lacks the credentials to perform the duties of the combined SAC/School
Counselor position.
5 Lucky’s contention that the dual position of SAC/School Counselor was an unrecognized title requiring
approval by the County Superintendent of Schools is a nonstarter. 	While N.J.A.C. 6A:9B-5.5 does
require that unrecognized titles receive such approval, both SAC (N.J.A.C. 6A:9B-14.2) and School
Counselor (N.J.A.C. 6A:9B-14.8) are recognized titles. 	The Board and Lucky both shared input from
County Superintendent Joseph Zarra regarding the requirement to secure this approval, both generally
and in this specific instance. These submissions were uncorroborated hearsay and entitled to no weight.
See: N.J.A.C. 1:1-15.5(b).

OAL DKT. NO. EDU 13727-17
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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, P.O. Box 500, Trenton, New
Jersey 08625-0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must
be sent to the judge and to the other parties.
February 14, 2019
DATE 	ELLEN S. BASS, ALJ
Date Received at Agency: 	February 14, 2019
Date Mailed to Parties:
sej