Lucy Ferguson v. Board of Education of the Township of Hillside, Union County 11/15/2024, (#423-24)

423-24
New Jersey Commissioner of Education
Final Decision
Lucy Ferguson,
Petitioner,
v.
Board of Education of the Township of
Hillside, Union County,
Respondent.
Synopsis
Petitioner challenged her termination from the position of school custodian after eighteen (18) years of
employment without the filing of tenure charges and without a hearing. Petitioner was a member of the
Hillside Education Association, which served as the collective bargaining unit for janitorial and maintenance
staff; the collective bargaining agreement for the period from July 1, 2021, to June 30, 2024, contained a
provision stating that “(c)ustodians hired prior to July 1, 2018, following receipt of their fourth contract,
after having served continuously for three (3) calendar years (36 months) shall be placed under tenure…”.
The petitioner filed a motion for summary decision, which was opposed by the respondent Board.
The ALJ found, inter alia, that: on December 23, 2023, the Board issued a one-sentence letter terminating
petitioner effective December 29, 2023, without stating a reason for the termination; 	petitioner was a
tenured employee; and the Board terminated her without filing tenure charges or holding a disciplinary
hearing; and there are no material facts in dispute in this case, and the matter is ripe for summary decision.
The ALJ concluded that petitioner was improperly terminated and ordered that she be reinstated to her
position with back pay and benefits, retroactive to December 29, 2023.
Upon review, the Commissioner, inter alia, concurred with the findings and conclusions of the ALJ, and
adopted the Initial Decision of the OAL as the final decision in this matter. The Commissioner directed the
Board to reinstate petitioner as a school custodian effective December 29, 2023, with back pay and
benefits.
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.

423-24
OAL Dkt. No. 05247-24
Agency Dkt. No. 77-3/24
New Jersey Commissioner of Education
Final Decision
Lucy Ferguson,
Petitioner,
v.
Board of Education of the Township of Hillside,
Union County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered.
Upon review, the Commissioner agrees with the Administrative Law Judge (ALJ) – for the reasons
expressed in the Initial Decision – that petitioner was a tenured employee when the Board terminated
her employment. 	In addition, the Commissioner concurs with the ALJ that the Board improperly
terminated Petitioner without tenure charges or a disciplinary hearing.
Accordingly, the Initial Decision is adopted as the final decision in this matter, and petitioner’s
motion for summary decision is granted. 	The Board is directed to reinstate petitioner as a school
custodian effective December 29, 2023, with back pay and benefits.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	November 15, 2024
Date of Mailing: 	November 18, 2024
1 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
OAL DKT. NO. EDU 05247-2024
AGENCY DKT. NO. 77-3/24
LUCY FERGUSON,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF HILLSIDE,
Respondent.
________________________________
Nicholas Poberezhsky, Esq., for petitioner (Caruso Smith Picini, attorneys)
Raymond Hamlin, Esq., for respondent, (Hunt, Hamlin & Ridley, attorneys)
Record Closed: September 24, 2024 	Decided: October 4, 2024
BEFORE ANDREA PERRY VILLANI, ALJ:
STATEMENT OF THE CASE
Respondent, the Hillside Board of Education, summarily terminated petitioner,
Lucy Ferguson, a school custodian, after eighteen years of employment without filing
tenure charges and without a hearing. 	Can the termination stand? 	No. 	The Tenure
Employees Hearing Law, which confers tenure on public school janitors, prohibits
tenured employees from being terminated without a hearing.

OAL DKT. NO. EDU 05247-24
2
PROCEDURAL HISTORY
On December 22, 2023, Erskin Glover, Superintendent of the Hillside Public
Schools, notified Ferguson on behalf of the Hillside Board of Education that she was
terminated from her position as custodian effective December 29, 2023.
On March 25, 2024, Ferguson filed a Certified Petition of Appeal with the New
Jersey Department of Education.
On 	April 	17, 	2024, 	the 	New 	Jersey 	Department 	of 	Education, 	Office 	of
Controversies and Disputes, transmitted the case to the Office of Administrative Law
(OAL) under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act
establishing the OAL, N.J.S.A. 52:14F-1 to -23.
On May 17, 2024, I conducted a pre-hearing telephone conference. 	Counsel
agreed to adjourn the conference thirty days to allow for settlement negotiations.
On June 26, 2024, I held a second pre-hearing telephone conference, but no one
called in. The conference was rescheduled for July 8, 2024.
On July 8, 2024, the Board’s attorney did not call in for the conference. Counsel
for Ferguson stated his intention to file a motion for summary decision. I requested that
he contact the Board’s attorney and attempt to agree on a joint stipulation of facts.
On August 20, 2024, Ferguson filed her motion for summary decision, and
counsel confirmed that he issued a proposed joint stipulation of facts to the Board’s
attorney, but the Board never responded.
On September 23, 2024, the Board filed opposition to the motion for summary
decision. On September 24, 2024, Ferguson filed her reply, and I closed the record.

OAL DKT. NO. EDU 05247-24
3
FINDINGS OF FACT
Ferguson was employed by the Board as a full-time custodian and maintenance
worker beginning November 28, 2005. 	On May 22, 2009, the Board issued a salary
notification to Ferguson marked “Tenure.” 	(P-2.) 	On October 17, 2023, Ferguson was
removed from her active work duties and placed on paid administrative leave. 	On
December 22, 2023, the Board issued a one-sentence letter terminating Ferguson
effective December 29, 2023. (P-3.) It did not give a reason for the termination. (P-3.)
Ferguson was a member of the Hillside Education Association (HEA), which
served as the collective bargaining unit for janitorial and maintenance staff. 	The
Controlling Collective Bargaining Agreement (CBA) for the period of July 1, 2021, to
June 30, 2024, contained the following provision: “For custodian’s hired prior to July 1,
2018, following receipt of their fourth contract, after having served continuously for three
(3) calendar years (36 months) shall be placed under tenure…” (P-1.)
As such, Ferguson was a tenured employee, and the Board terminated her
without filing tenure charges or holding a disciplinary hearing. 	Although Ferguson
believes the Board fired her because she had an altercation with a co-worker, the Board
presented no evidence of this or a criminal indictment or even an investigation.
CONCLUSIONS OF LAW
Summary Decision
Under N.J.A.C. 1:1-12.5(b), summary decision may 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 the moving party is entitled to
prevail as a matter of law. 	N.J.A.C. 1:1-12.5(b) also holds that when a motion for
summary decision is made and supported, for an adverse party to prevail it must “by
responding affidavit set forth specific facts” showing there is a genuine issue that can
only be determined in an evidentiary proceeding.

OAL DKT. NO. EDU 05247-24
4
In this case, Ferguson filed an affidavit in the form of a Certified Petition of
Appeal and six exhibits supporting her position that she was employed by the Board for
eighteen years and received tenure. 	She also established that she was terminated
without tenure charges or a disciplinary hearing. 	In other words, her Motion was made
and supported. 	However, the Board did not respond with an affidavit as required by
N.J.A.C. 1:1-12.5(b). 	The Board only provided a letter brief, and that brief did not set
forth any specific facts showing that there is a genuine issue for trial.
Because 	N.J.A.C 	1:1-12.5(b) 	is 	almost 	identical 	to 	R. 	4:46, 	“Summary
Judgment,” subsection (c), New Jersey courts have applied the legal standard for
summary judgment to administrative proceedings. 	See Contini v. Bd. of Educ. of
Newark, 286 N.J. Super. 106, 122 (App. Div. 1995). 	Part of the legal standard for
summary judgment is that abstract doubt regarding material facts is not sufficient to
defeat it. 	See O’Loughlin v. Nat’l Cmty. Bank, 338 N.J. Super. 592, 606-07 (App. Div.
2001). 	To put it another way, competent opposition to summary judgment requires
“competent evidential material” beyond mere “speculation” and “fanciful arguments.”
Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App.
Div. 2005).
In this case, the Board argues that Ferguson should produce additional evidence
to “confirm” she was continually employed for eighteen years and thereby entitled to
tenure. 	At the same time, the Board does not actually dispute that Ferguson was
continually employed or that she was granted tenure. 	Also, as noted above, the Board
has not provided any specific facts indicating that Ferguson was not tenured. For these
reasons, the Board’s opposition amounts to nothing more than abstract doubt or mere
speculation. 	Therefore, I CONCLUDE that there are no material facts in dispute and
this case is ripe for summary decision.
Tenure Employees Hearing Law
N.J.S.A. 18A:17-3, “Tenure of janitorial employees,” confers tenure upon school
janitors if they are not employed for a fixed term. However, janitors employed for a fixed

OAL DKT. NO. EDU 05247-24
5
term 	may 	also 	be 	afforded 	tenure 	under 	the 	terms 	of 	a 	Collective 	Bargaining
Agreement. 	Wright v. Bd. of Educ., 194 N.J. Super 181, 184-85 (App. Div. 1983). 	In
Wright, the Appellate Division noted that N.J.S.A. 18A:17-3 “clearly affords a school
district the option of deciding whether it wishes to grant tenure to a janitor” and,
therefore, a collective bargaining agreement that confers tenure on a janitor employed
for a fixed term is not in derogation of that statute. Id. at 184.
In this case, Ferguson received tenure under both N.J.S.A. 18A:17-3 and a
Collective Bargaining Agreement (CBA). 	N.J.S.A. 18A:17-3 applies because Ferguson
was employed by the Board for eighteen years, clearly not a fixed term. 	Although the
Board 	suggests 	that 	N.J.S.A. 	18A:17-3 	does 	not 	apply 	because 	Ferguson 	was
employed for a fixed term of twelve months (July 1 st through June 30 th) eighteen times,
even if this were true, she is still entitled to tenure under Wright and the terms of the
CBA. 	Again, the CBA confers tenure after three years of continuous employment.
Although the Board questions whether Ferguson was “continuously” employed, it has
provided no facts whatsoever to the contrary.
N.J.S.A. 	18A:17-3 	holds 	that 	a 	tenured 	janitor 	may 	only 	be 	dismissed,
suspended, or reduced in compensation for misbehavior in the manner prescribed by
statute. 	N.J.S.A. 18A:6-10 states that tenured employees may not be dismissed or
reduced in compensation “except for inefficiency, incapacity, unbecoming conduct or
other just cause, and then only after a hearing held pursuant to this sub-article…”
Further, in Slater v. Bd. of Educ., 237 N.J. Super. 424, 426 (App. Div. 1989), the
Appellate Division stated, “a tenured employee may be suspended without pay only if
indicted or if tenure charges have been preferred and certified to the Commissioner of
Education. In all other circumstances, a suspension must be with pay.”
In this case, Ferguson was terminated on December 29, 2023, without tenure
charges or a disciplinary hearing. Similarly, there was no criminal indictment. Therefore,
I CONCLUDE that Ferguson was improperly terminated.

OAL DKT. NO. EDU 05247-24
6
ORDER
Based on the foregoing, I ORDER that Ferguson be reinstated to her position
effective December 29, 2023, with back pay and benefits.
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 case. 	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 becomes a
final decision under N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision is 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.
October 4, 2024 	________________________________
DATE 	ANDREA PERRY VILLANI, ALJ
Date Received at Agency: 	October 4, 2024
Date Mailed to Parties: 	October 4, 2024
sej

OAL DKT. NO. EDU 05247-24
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APPENDIX
DOCUMENTS RELIED ON:
Petitioner’s March 18, 2024 Certified Petition of Appeal
Exhibit P-1 	Collective Bargaining Agreement
Exhibit P-2 	Salary Notification
Exhibit P-3 	Termination Letter
Exhibit P-4 	Letter from Ferguson’s Attorney
Exhibit P-5 	Second Letter from Ferguson’s Attorney
Exhibit P-6 	Medical Bill
Petitioner’s August 20, 2024 Brief
Respondent’s September 23, 2024 Brief
Petitioner’s September 24, 2024 Reply Brief