Trenton Education Association, et. al. v. Board of Education of the City of Trenton, Mercer County, 12/14/2020, (#283-20)

283-20
New Jersey Commissioner of Education
Final Decision
Trenton 	Education 	Association, 	Karin 	Davis,
Michele Fekete, Ben Kenion, Inger Morin, Debjit
Mitra, 	Wendy 	Lockhart, 	Bernadette 	Piscopo,
Tiffani 	Finley, 	Wanda 	Perry, 	Janice 	Phillips,
Stephanie Shaffer, Cheryl Caruso, Heather Baron,
Elizabeth Manzi, and Alexa Sherman,
Petitioners,
v.
Board of Education of the City of Trenton,
Mercer County,
Respondent.
Synopsis
The Trenton Education Association (TEA) and several of its members challenged a 2016 reduction in
force (RIF), implemented by the Trenton Board of Education (Board) as the result of a budget shortfall.
Specifically, the Board abolished the individual petitioners’ occupational, physical, and speech-language
therapy positions, and subsequently contracted with the 	Monmouth-Ocean Educational 	Services
Commission (MOESC) to provide these mandated special education services to its students. 	The
MOESC, in turn, provided these services through private agencies that entered into contracts with
MOESC rather than services provided directly by MOESC employees. Petitioners appealed, arguing that
this arrangement was improper, and sought reinstatement and other remedies. The TEA and the Board
filed cross-motions for summary decision.
The ALJ found, inter alia, that: N.J.A.C. 6A:14-5.1(c)1.v prohibits public school districts from
contracting with private providers for speech-language therapy services unless the district is financially
unable to hire sufficient staff to provide the services; one of the speech-language therapists, petitioner
Caruso, was not tenured at the time of the RIF and the Board is largely unrestricted in its ability to non-
renew non-tenured employees; 	the Trenton Education Association’s claim regarding the remaining
speech-language therapists can be severed and continued; however, there is no restriction on a district’s
ability to contract with private providers for occupational and physical therapy services; therefore, the
Board’s utilization of MOESC to arrange for private occupational and physical therapy providers was
lawful. Accordingly, the ALJ: dismissed the petitions of Caruso, occupational therapists Kenion, Fekete,
and Mitra, and physical therapist Lockhart; denied the parties’ cross-motions for summary decision
pertaining to the tenured speech-language therapists: and granted the Board’s motion regarding the
provision of occupational and physical therapy services through MOESC.
Upon review, the Commissioner granted the Board’s motion for summary decision, finding. inter alia,
that: the Board’s decision to implement a RIF was not arbitrary, capricious, unreasonable or undertaken in
bad faith; the Commissioner lacks jurisdiction to determine if and how the limitation on a board of
education’s ability to contract with private providers for speech-language therapy services is applicable to
the Board’s contract with MOESC and whether that contract is valid; 	such jurisdiction lies with the
Office of Special Education, not the Commissioner. Accordingly, the petition 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.
December 14, 2020

OAL Dkt. No. EDU 13998-16
Agency Dkt. No. 183-7/16
New Jersey Commissioner of Education
Final Decision
Trenton Education Association, Karin Davis,
Michele Fekete, Ben Kenion, Inger Morin,
Debjit Mitra, Wendy Lockhart, Bernadette
Piscopo, Tiffani Finley, Wanda Perry, Janice
Phillips, Stephanie Shaffer, Cheryl Caruso,
Heather Baron, Elizabeth Manzi, and Alexa
Sherman,
Petitioners,
v.
Board of Education of the City of Trenton,
Mercer County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law
(OAL), the exceptions filed by both parties pursuant to N.J.A.C. 1:1-18.4, and the replies thereto
by both parties, have been reviewed.
This matter involves a reduction in force (RIF) implemented by the Board in
2016, when it was facing a budget shortfall of $5.9 million. The Board abolished the individual
petitioners’ 	occupational, 	physical, 	and 	speech-language 	therapy 	positions.1 	However,
recognizing that it was still legally obligated to provide these special education services to its
students, the Board contracted with the Monmouth-Ocean Educational Services Commission
(MOESC) to provide the services, through private agencies that entered into contracts with
1 The remaining individual petitioners are Ben Kenion, Michele Fekete, Debjit Mitra, Wendy Lockhart, and
Cheryl Caruso.

2
MOESC rather than services provided directly by MOESC employees. 	Petitioners appealed,
arguing that this arrangement was improper, and sought reinstatement among other remedies.
Following discovery at the OAL, the parties filed cross-motions for summary
decision. 	The ALJ found that N.J.A.C. 6A:14-5.1(c)1.v prohibits public school districts from
contracting with private providers for speech-language therapy services unless the district is
unable to hire sufficient staff to provide the services. 	The ALJ concluded that the Board’s
contract with MOESC, which in turn provided for MOESC to contract with private agencies, was
invalid unless the Board can meet the regulatory exception by showing that it was unable to hire
sufficient staff to provide speech-language therapy services due to its financial circumstances.
The ALJ dismissed the petition of speech-language therapist Caruso, because she was not
tenured at the time of the RIF, and the Board is largely unrestricted in its ability to non-renew
non-tenured employees. 	The ALJ found that the Trenton Education Association’s (TEA) claim
regarding the provision of speech-language therapy services could be severed and continued, and
denied the TEA’s and the Board’s cross-motions for summary decision.
As to the provision of occupational and physical therapy services, the ALJ found
that there is no restriction on a district’s ability to contract with private providers for these
services, and therefore the Board’s utilization of MOESC to arrange for private occupational and
physical therapy providers was lawful. 	Accordingly, the ALJ dismissed the petitions of
occupational therapists Kenion, Fekete, and Mitra, and physical therapist Lockhart.
In their exceptions, petitioners argue that the ALJ improperly accepted the
Board’s allegedly unsubstantiated assertion that the RIF was necessitated by the district’s overall
budgetary shortfall. According to petitioners, N.J.S.A. 18A:28-9 and associated case law permit
a RIF “for reasons of economy,” and because the Board did not provide any evidence that the

3
therapist positions at issue were abolished for reasons of economy or that the RIF would actually
save money, summary decision in favor of petitioners should have been granted. 	Petitioners
assert that the ALJ incorrectly permitted the Board to enter into a “sham transaction” with
MOESC for occupational and physical therapists, because the county superintendent did not
approve the contracts between MOESC and the private providers, which is required by
N.J.S.A. 18A:6-63. 	Finally, petitioners argue that the Board violated the tenure rights of the
tenured occupational and physical therapists by using non-tenured therapists – the private
providers contracted by MOESC – to provide the same occupational and physical therapy
services previously provided by the tenured therapists.
In reply, the Board argues that it provided extensive evidence of a budget shortfall
of nearly $6 million for the 2016-17 school year and that its fiscal decisions related to the
shortfall were made in collaboration with the State Monitor appointed by the Commissioner.
According to the Board, petitioners were required to prove that the RIF was arbitrary, capricious,
or unreasonable, or undertaken in bad faith, and they failed to meet that burden. Moreover, the
Board asserts that N.J.S.A. 18A:6-63 does not apply to the contract between the Board and
MOESC, but only applies to contracts between MOESC and private providers, and that the
Board should not be responsible for verifying to what extent MOESC may or may not have
complied with statutes or regulations regarding contracts to which the Board was not a party.
Finally, the Board argues that the petitioners were properly RIF’ed and their positions were
outsourced through MOESC, and, as such, there are no vacancies to which the tenured
petitioners would have a right of reemployment. 	The Board also notes that petitioners’
exceptions do not dispute the ALJ’s conclusion that the claims of the non-tenured petitioners
should be dismissed.

4
The Board also filed its own exceptions, arguing that the petition of appeal does
not seek any relief other than damages personal to the individually named petitioners, and the
only possible relief that could be awarded to the TEA as the sole remaining petitioner would be a
finding that the Board violated regulations regarding the provision of special education services
– relief which was not sought in the petition. 	Therefore, according to the Board, the
Commissioner does not have jurisdiction to hear this matter, both because jurisdiction over the
alleged violation of N.J.A.C. 6A:14-5.1 lies with the Office of Special Education rather than the
Commissioner, and because the petition is now moot since all relief requested therein pertains to
petitioners whose claims have subsequently been dismissed. Alternatively, the Board argues that
the TEA does not have standing to pursue the action because damages are not available to it,
such that the petition should be dismissed in its entirety. The Board further asserts that the ALJ
improperly determined that the Board was prohibited from outsourcing its speech-language
therapy services unless it established that it was unable to hire sufficient staff. According to the
Board, the Initial Decision improperly conflated two independent provisions of the relevant
regulation, and the restriction of N.J.A.C. 6A:14-5.1(c) – related to the district’s inability to hire
sufficient staff – only applies to outsourcing services directly to private providers, and not to
outsourcing to an educational services commission, as the Board did here. 	Finally, the Board
argues that it presented ample evidence of the district’s budget shortfall, proving that its RIF was
undertaken in good faith for reasons of economy, and that by ruling that there were unresolved
issues of facts on this issue, the ALJ improperly shifted the burden of proof from petitioners to
the Board.
In reply, petitioners argue that the Commissioner has jurisdiction because the
underlying claim in this matter relates to whether the individual petitioners’ tenure rights had

5
been violated, an issue properly raised by the TEA as the majority representative of a
negotiations unit consisting of hundreds of district employees. Petitioners also maintain that the
case is not moot, and that the TEA has standing to pursue it, based on the conclusions made by
the ALJ related to the Board’s obligations in implementing the RIF and entering into the contract
with MOESC for speech-language therapy services. Petitioners assert that the Board knew at the
time it entered into the contract with MOESC that MOESC would need to contract with private
providers for services, such that the Board’s action was unlawful. Finally, petitioners argue that
while the Board presented evidence of an overall budgetary shortfall, it presented no specific
evidence that its abolition of speech language, physical, and occupational therapy positions saved
any money.
Upon a comprehensive review, the Commissioner concludes that the Board’s
motion for summary decision must be granted. 	A 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 that the moving party is entitled to
prevail as a matter of law.” N.J.A.C. 1:1-12.5(b); see also Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 528-29 (1995). 	Here, the material facts are not in dispute, as both parties
acknowledge that the Board implemented a RIF that affected petitioners, that the Board
subsequently outsourced special education services which had previously been performed by
petitioners to MOESC, and that MOESC used private providers to deliver special education
services to the Board’s students.
First, 	the 	Commissioner 	concludes 	that 	the 	Board’s 	decision 	to 	RIF 	236
employees, 	including 	the 	individual 	petitioners 	here, 	was 	not 	arbitrary, 	capricious, 	or
unreasonable, or undertaken in bad faith. 	The ALJ concluded that in the face of an undisputed

6
economic crisis, facing a serious budget gap and with an economic motivation, the Board
legally abolished the positions of the occupational and physical therapists. 	The Commissioner
concurs and finds petitioners’ arguments to the contrary to be unpersuasive. 	Pursuant to
N.J.S.A. 18A:28-9, the Board may abolish positions for reasons of economy. Petitioners bear the
burden of proof to demonstrate that the Board’s decision to implement a RIF was arbitrary,
capricious, or unreasonable, or undertaken in bad faith. Kopera v. W. Orange Bd. of Educ., 60 N.J.
Super. 288 (App. Div. 1960); see also Wollman v. Bd. of Educ. of the City of Trenton, Mercer
County, 1995 N.J. Agen. LEXIS 506 (May 3, 1995). Given the evidence of the district’s financial
circumstances, petitioners have not met that burden.
Petitioners argued, and the ALJ agreed, that even a lawful RIF may violate
employees’ tenure rights if the board of education enters into an illegal arrangement to provide
mandatory services that were previously provided by tenured employees. 	Therefore, the
Commissioner must address the Board’s contract with MOESC. With regard to the claims of the
occupational and physical therapists, the Commissioner concurs with the ALJ’s conclusion that
these claims must be dismissed. 	The New Jersey Supreme Court has held that the threshold
question in determining whether a board of education has violated an employee’s tenure rights
by outsourcing services performed by a tenured employee to an educational services commission
(ESC) is whether the board has the authority to contract with an ESC to provide those services.
Impey v. Bd. of Educ., 142 N.J. 388, 392 (1995) (holding that the board of education did not
violate the tenure rights of a speech correctionist when it abolished her position and entered into
a contract with an ESC to provide those services). See also Anders v. Bd. of Educ. of the Twp. of
Lakewood, Ocean County, Commissioner Decision No. 2-01 (Jan. 2, 2001) (holding that the
board of education was permitted to abolish its in-district child study teams and enter into a

7
contract with MOESC for those services, and that the board did not violate the tenure rights of
the petitioners); Trigani v. Bd. of Educ. of the Borough of Monmouth Beach, Commissioner
Decision No. 415-02 (Dec. 2, 2002) (holding that a school psychologist, social worker, and
speech therapist were not unlawfully terminated and that the board of education had the authority
to contract with MOESC for those services); Becton Ed. Ass’n v. Bd. of Educ. of Carlstadt-East
Rutherford Regional Sch. Dist., Commissioner Decision No. 513-04 (Dec. 20, 2004), aff’d State
Board of Education, Decision No. 3-05 (May 4, 2005) (holding that the board did not unlawfully
terminate a school psychologist and learning disabilities teacher-consultant and that the board’s
contract 	with 	an 	ESC 	for 	those 	services 	was 	compliant 	with 	statutory 	and 	regulatory
requirements).
In assessing the Board’s authority to contract with MOESC for occupational and
physical therapy services, the Commissioner looks to N.J.S.A. 18A:6-63, which allows ESCs to
enter into contracts to provide special education services to public school districts. Furthermore,
N.J.A.C. 6A:14-5.1(c) 	allows boards of education to contract with 	private providers 	for
occupational and physical therapy services, and the only restriction is that the providers must be
certified and licensed according to State statutes and rules.2 	There is no allegation that the
private providers with whom MOESC contracted did not meet these requirements. 	Petitioners
have argued that the Board entered into a “sham transaction” with MOESC to avoid regulatory
requirements prohibiting boards of education from contracting with private providers. However,
because the Board could have contracted directly with private occupational and physical therapy
2 Petitioners have argued that N.J.A.C. 6A:14-5.1(c)1.v, restricting a district’s ability to enter into contracts with
private providers, applies to contracts for occupational and physical therapy services. That provision clearly states
that it applies to contracts for speech language therapy services, and the Commissioner declines to expand its
meaning beyond its plain language.

8
providers under N.J.A.C. 6A:14-5.1(c), the Commissioner concludes that there is no impropriety
in the Board’s decision to contract with MOESC, who in turn contracted with private providers.3
Next, the Commissioner concludes that the claim of petitioner Caruso, the sole
remaining speech-language therapist in the matter, must be dismissed. A board of education has
virtually 	unlimited 	discretion 	in 	hiring 	or 	renewing 	non-tenured 	staff 	members 	absent
constitutional constraints or legislatively-conferred rights. 	Dore v. Bedminster Twp. Bd. of Ed.,
185 N.J. Super. 447, 456 (App. Div. 1982). 	As such, where non-tenured staff members
challenge a board’s decision to terminate their employment on the grounds that the reasons
provided by the board are not supported by the facts, they are entitled to litigate that question
only if the facts they allege, if true, would constitute a violation of constitutional or legislatively-
conferred rights. 	Truncellito v. Bd. of Educ. of the Twp. of Lyndhurst, Commissioner Decision
No. 271-19+, decided December 3, 2019, citing Guerriero v. Bd. of Ed. of the Borough of Glen
Rock, decided by the State Board of Education February 5, 1986, aff’d Docket #A-3316-85T6
(App. Div. 1986). 	Petitioner Caruso has not alleged any violations of her constitutional or
legislatively-conferred rights. 	Therefore, the Commissioner finds that the Board’s non-renewal
of Caruso was proper.4
The final issue for the Commissioner to decide is whether the TEA may continue
to pursue its claim regarding the validity of the Board’s contract with MOESC for speech-
language therapy services. In Long Beach Island Education Association and John Puljer v. Bd.
3 Petitioners’ argument that the county superintendent did not approve of the Board’s use of MOESC to contract
with private occupational and physical therapy providers is unpersuasive. N.J.S.A. 18A:6-63, on which petitioners
rely for this assertion, requires the county superintendent’s approval of contracts between ESCs and private
agencies. The Commission cannot conclude that the Board violated petitioners’ tenure rights based on the actions of
MOESC, which is not a party to this matter and over which the Board has no authority.
4 This principle also applies as a secondary reason for the dismissal of the claim of petitioner Mitra, who was not
tenured at the time of the RIF.

9
of 	Educ. 	of 	the 	Long 	Beach 	Island 	Consolidated 	School 	District 	and 	Dawn 	Watson,
Commissioner Decision No. 330-09 (Oct. 13, 2009), the Commissioner held that in the absence
of underlying claims of infringement of tenure and seniority rights or other rights and
responsibilities under the school laws, the Commissioner has no jurisdiction to adjudicate a claim
that a board of education’s contract for the provision of special education services violated
New Jersey’s special education regulations because such review falls exclusively within the
purview of the Department’s Office of Special Education Programs.5 N.J.A.C. 6A:9-14.2.
While the question of the validity of the Board’s contract in light of the special
education regulations and the tenure and seniority rights of the Board’s employees were
intertwined at the time the petition was filed, jurisdiction is an ongoing question and the
Commissioner concludes that it is appropriate to assess her jurisdiction based on the current
posture of the case. 	Here, with the dismissal of petitioner Caruso’s claim, there is no active
claim that the Board has violated the tenure or seniority rights afforded to any speech-language
therapist. 	If the Commissioner allowed the TEA’s claim regarding speech-language therapy
services to proceed and that claim was ultimately successful, there is no relief that the
Commissioner can order. 	The record demonstrates that ten speech-language therapists were
subject to a RIF. 	One of the therapists never joined in this matter, and of the remaining nine,
eight have withdrawn their claims during the pendency of this proceeding. 	Petitioner Caruso’s
claim has been dismissed for the reasons stated herein. 	Therefore, there are no speech-language
therapists affected by the RIF whose tenure interests the TEA can represent.6
5 The name of the relevant office has subsequently been changed to the Office of Special Education Policy and
Dispute Resolution (SEPDR).
6 To the extent that the validity of the Board’s contract with MOESC may affect the rights of other members of the
TEA, those claims are purely speculative.

10
Furthermore, the only possible outcome of permitting the TEA’s claim to proceed
would be a ruling on the validity of the Board’s contract with MOESC – a ruling that could only
be rendered with regard to the regulations governing the provision of special education and
related services. 	Accordingly, the Commissioner lacks jurisdiction to determine whether and
how the limitation on a board of education’s ability to contract with private providers for speech-
language therapy services is applicable to the Board’s contract with MOESC, and whether that
contract is valid.
Accordingly, the Board’s motion for summary decision is granted and the petition is
hereby dismissed.
IT IS SO ORDERED.7
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	December 14, 2020
Date of Mailing: 	December 15, 2020
7 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).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
AMENDED ORDER GRANTING
PARTIAL SUMMARY DECISION
OAL DKT. NO. EDU 13998-16
AGENCY DKT. NO. 183-7/16
TRENTON EDUCATION ASSOCIATION;
KARIN DAVIS, MICHELE FEKETE, BEN
KENION, INGER MORIN, DEBJIT MITRA,
WENDY LOCKHART, BERNADETTE
PISCOPO, IFFANI FINLEY, WANDA PERRY,
JANICE PHILLIPS, STEPHANIE SHAFFER,
CHERYL CARUSO, HEATHER BARON,
ELIZABETH MANZI AND ALEXA SHERMAN,
Petitioners,
v.
BOARD OF EDUCATION OF THE CITY OF
TRENTON, MERCER COUNTY,
Respondent.
___________________________
Stephen B. Hunter, Esq., for petitioners (Detzky, Hunter & DeFillippo, LLC,
attorneys)
Sandra Varano and Howard M. Nirenberg, Esq., for respondent (Nirenberg &
Varano, attorneys)

OAL DKT. NO. EDU 13998-16
2
BEFORE JEFF S. MASIN, ALJ (Ret., on recall):
This contested case involves a limited challenge by the Trenton Education
Association and several of its members to a reduction in force (RIF) instituted by the
Trenton Board of Education in the spring of 2016, which, according to the Board,
resulted in the reduction of 236 employees. The instant matter addresses not that large
group, but instead several petitioners who lost their positions as speech/language,
physical or occupational therapists who provided mandatory therapeutic services to
special education students in the District. The Board contends that it lawfully abolished
these positions in good faith for economic reasons. The petitioners, who argue that the
Board had other choices for saving money rather than riffing their positions, also argue
that when the Board eliminated their positions it knew that its intended plan for
continuing 	to 	provide 	these 	legally-mandated 	speech/language, 	physical 	and
occupational 	therapy involved 	the 	Board’s 	plan 	to 	enter 	into a 	contract 	with 	the
Monmouth-Ocean Educational Services Commission (MOESC). 	Further, the Board
acknowledged in that contract that in order to fill the needed positions and provide
adequate services MOESC would be not be utilizing employees of the MOESC, but
instead independent contractors, thus using contracts with private agencies to provide
the services. 	The petitioners contend that under applicable law the local Board of
Education was itself barred by N.J.A.C. 6A:14-5.1(c) from engaging private contractors
to provide these services, unless, as the regulation provides, the District was unable to
provide 	such 	services 	through 	in-district 	employees, 	and 	that 	the 	contractual
arrangement to obtain such private contractors to work in the District’s schools through
the MOESC contract was illegal. 	In response, the Board contends that its arrangement
with the MOESC conformed with clear legal authority, codified in N.J.S.A 18A:6-63,
which allows local districts to contract with Educational Services Commissions (ESC)
for the provision of services and additionally permits such ESCs to contract with private
agencies to provide such services. 	It contends that authorization permitted the use of
such private agencies within the local district. 	In addition, it points to N.J.A.C. 6A:14-
5.11, which requires that districts either “employ or contract” for speech-language
specialists and other school personnel and authorizes this to be accomplished via “joint

OAL DKT. NO. EDU 13998-16
3
agreements” with ESCs. 	Each party moves for summary decision, as authorized by
N.J.A.C. 1:1-12.5.
The Petition of Appeal was filed on July 6, 2016. 	Originally it listed fifteen
individual petitioners, in addition to the Education Association. According to information
supplied recently by the Board, sixteen therapists were noticed that their positions
would be abolished as of July 1, 2016. 	One speech/ language therapist resigned on
May 11, 2016, and was not included among the petitioners. 	From the remaining fifteen
noticed, one speech/language therapist, Bernadette Piscopo, and one occupational
therapist, Inger Morin, each retired as of July 1, 2016. It is apparent that these two were
included amongst those who received notices that their positions would be riffed as of
July 1. Thus, eight speech/language therapists, three occupational therapists and one
physical therapist, were noticed and then became petitioners. However, as of the date
of 	this 	opinion, 	besides 	the 	Association, 	there 	are 	only 	five 	remaining 	individual
petitioners. These are occupational therapists Ben Kenion and Michele Fekete, each
tenured, and Debjit Mitra, non-tenured; Wendy Lockhart, a tenured physical therapist,
and Cheryl Caruso, a non-tenured speech language therapist.
The several therapists received notice on April 25, 2016, that they were to be
riffed, effective at the end of the 2015-2016 school year, June 30, 2016. 	Their petition
sought a finding that their tenure rights had been violated by their RIF; that they were
entitled to employment in their full-time therapist capacities, that they be reinstated
retroactive to July 1, 2016, that the Board make them whole for their losses attributable
to the unlawful RIF, and that the Board make them aware of their seniority and
reemployment rights, where applicable, pursuant to N.J.S.A. 18A:28-12, “if the Board of
Education subsequently determines to end its outsourcing of Therapists to provide
state-mandated ‘related services’ and decides to either use ‘in-district’ Therapists again,
and for such other relief as the Commissioner deems just and appropriate.”
After 	the 	Board 	filed 	an 	answer 	to 	the 	petition, 	the 	contested 	case 	was
transferred to the Office of Administrative Law. 	Discovery disputes were managed by

OAL DKT. NO. EDU 13998-16
4
the then assigned administrative law judge. 	On April 15, 2019, the Board moved for
summary decision, as permitted by N.J.A.C. 1:1-12.5. 	The petitioners responded on
June 21, 2019, cross-moving for summary decision. 	The Board replied on August 14,
2019. 	The contested case was transferred to this judge, retired and serving on recall,
on June 25, 2019. 	Oral argument was held on October 30, 2019, at which time the
record concerning the cross-motions closed. 	However, due to the need for further
information 	with 	which 	to 	assess 	the 	cross-motions, 	the 	record 	was 	reopened.
Information sought by the judge was supplied by letters received from the Board and
petitioners, respectively, on February 20 and March 2, 2020. The record concerning the
motion 	then 	re-closed. 	Subsequent 	discussions 	concerning 	a 	possible 	settlement
resulted in a request to delay issuance of this Order. 	However, on May 	15, 2020, the
judge was informed that the Order should proceed.
In order to fully understand the arguments concerning the cross-motions, it is
necessary to review certain undisputed facts. 	Initially, the Board contends that in the
spring of 2016, 	it faced a clear economic crisis. 	It notes the minutes of its March 21,
2016 	meeting, 	where 	the 	proposed 	budget 	for 	the 	2016-2017 	school 	year 	was
discussed and a 5.9 million-dollar shortfall identified. Seeking to deal with this situation,
the Board riffed hundreds of employees. 	The Board agrees that even after abolishing
the positions of the riffed petitioners, it was not relieved of its legal duty to provide the
legally-mandated therapeutic services of speech/language, occupational and physical
therapy that the petitioners had previously provided. 	In order to continue to do so, the
Board 	entered 	into 	a 	contract 	with 	the 	Monmouth-Ocean 	Educational 	Services
Commission under which the ESC was to provide the services. 	The language of the
contract affirms the petitioners’ argument that the Board knew at the time that it entered
into this agreement that the ESC did not have therapists in its own employ and thus
would of necessity have to contract with outside, private vendors to provide the therapy
services that were to be delivered in the Trenton schools.8 	According to the Board’s
recent letter, as of July 1, 2016, the first day that the riffed employees were no longer on
the Board’s payroll, the MOESC contract was providing five occupational therapists, two
8 As opposed to providing such services in schools operated by the ESC.

OAL DKT. NO. EDU 13998-16
5
physical therapists and seven speech/language therapists. 	As the parties agree, after
the date the petitioners filed their petition, it became clear that the arrangement that the
Board made with the ESC had not produced sufficient personnel needed to provide the
level of services necessary to meet the demands of the Trenton school population. 	As
acknowledged by the Board and as noted in the Certification provided by Lester
Richens, the appointee of the Commissioner of Education as the State Monitor for the
Trenton Board of Education during the 2015-2016 school year and thereafter, at the
Board’s October 24, 2016, meeting it was announced that the ESC “would not be able
to provide a sufficient number of speech therapists.” 	As Richens then noted, and as
counsel 	confirmed 	at 	oral 	argument, 	the 	Board 	then 	recalled 	three 	of 	the 	riffed
speech/language therapists to supplement the services being provided by the ESC’s
private contractors, thus bringing to ten the number of speech/language therapists
working in the District.9 	However, at that same Board meeting, Richens noted that in
addition to the recall of these three therapists, the Board was “also contracting out for
another group to come and provide a service so we can get the compensatory time
in.”10 Thus, as the Board does not dispute, as of at least October 24, 2016, the District,
while utilizing both recalled, in-district personnel and MOESC-provided contractors, was
seeking to provide at least a portion of the mandated therapy services by entering into
its own direct contract with outside vendors, rather than through additional recalls of its
own employees. 	In its recent letter, the Board appears to seek to clarify the situation
existing after the recall of the three speech/language therapists, explaining that after the
recall it had “resolved the deficiency,” however, Richens’ statement at the time of the
recall of these three does not exactly tally with this statement. Nevertheless, as
explained by the Board in response to my request for additional information,
9 One of the three recalled speech/language therapists was Janice Phillips. 	She retired in June 2018.
According to counsel for the petitioners, her position was not filled by a ”District employed” Therapist.
10 Richens also notes that he was “aware” that the Board had entered into the contract with the MOESC
dated June 28, 2016, and that pursuant to that agreement, the MOESC was “going to utilize independent
contractors for these services.” 	Richens’ Certification is silent as to any “approval” that he may have
granted for such an arrangement. As will be discussed below, the Board acknowledges it did not obtain
any approval for either the June contractual arrangement of the later October arrangements from the
county superintendent, but it notes Richens’ role as the Commissioner’s appointed monitor for the
Trenton District.

OAL DKT. NO. EDU 13998-16
6
sometime 	thereafter 	in 	the 	2016-2017 	school 	year, 	a 	MOESC
speech language pathologist resigned. 	As such, Kaleidoscope was
asked to provide two part-time speech language pathologists. 	One
started in mid-April and worked for approximately 7 weeks in the
spring of 2017. The other worked approximately 4 weeks from the
end of May through the remainder of the school year.
Kaleidoscope is a private contractor, not associated with the MOESC’s efforts to fulfill
the agreement that the Commission had with the Board.
The record does not contain any similar information about any action by the
Board to recall physical or occupational therapists after July 1, 2016.
Based 	upon 	this, 	it 	appears 	that 	the 	Board 	claims 	that 	the 	need 	for
speech/language therapy in the District after July 1, 2016, was fully met by the
utilization of ten speech/language therapists, that number made up of the seven
MOESC-procured therapists, the recalled three in-house therapists, and eventually, the
substitution of two part-time Kaleidoscope personnel for the resigned MOESC therapist.
Although their petition was filed immediately after the effective date of the RIF,
the petitioners contend in their briefs that the Board has continued to fail to provide
adequate services ever since the spring 2016 reduction.
The Legal Framework
Several relevant statutes and regulations must be considered in assessing these
motions. 	Initially, the Tenure Act, N.J.S.A. 18A:28-9, addresses the right of a board of
education to reduce teaching staff, including tenured employees.
Nothing 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
whenever, in the judgment of the board, it is advisable to abolish
any such positions for reasons of economy or because of reduction

OAL DKT. NO. EDU 13998-16
7
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.
However, 	N.J.A.C. 	6A:14-5.1(c) 	mandates 	that 	boards 	provide 	certain 	therapeutic
services for students. The regulation provides specific directions and limitations as to
the manner in which the services of these therapists may be procured.
(a) 	Each district board of education, independently or through joint
agreements, shall employ or contract with child study teams as set
forth in N.J.A.C. 6A:14-3.1(b), speech correctionists or speech-
language 	specialists 	and 	other 	school 	personnel 	in 	numbers
sufficient to ensure provision of required programs and services
pursuant to this chapter.
1. 	Joint agreements for child study team services
may be entered into with local education agencies
including other local school districts, educational
services commissions, jointure commissions and
county special services school districts
. . . .
(c) 	For the services listed below, district boards of education may
contract 	with 	private 	clinics 	and 	agencies 	approved 	by 	the
Department of Education, private professional practitioners who are
certified and licensed according to State statutes and rules, and
agencies or programs that are certified, approved or licensed by the
Department of Human Services or by the Department of Health to
provide 	counseling 	or 	mental 	health 	services. 	For 	the 	related
services listed in (c)1iii and v below, approved private schools for
students 	with 	disabilities 	may 	contract 	with 	private 	clinics 	and
agencies 	approved 	by 	the 	Department 	of 	Education, 	private
professional practitioners who are certified and licensed according
to State statutes and rules, and agencies or programs that are
certified, 	approved 	or 	licensed 	by 	the 	Department 	of 	Human
Services or by the Department of Health to provide counseling or
mental 	health 	services. 	All 	instructional, 	child 	study 	team 	and
related 	services 	personnel 	provided 	by 	approved 	clinics 	and
agencies 	and 	private 	professional 	practitioners 	shall 	be 	fully
certified . . .
1. For public school students: . . .

OAL DKT. NO. EDU 13998-16
8
iii. Related services
(1) Certified occupational therapy assistants . . . shall
work under the supervision of an appropriately
licensed, and where applicable, certified provider of
such services.
(2) Physical therapy assistants shall work in the
presence of and under the supervision of a certified
physical therapist.
. . .
v. 	Speech-language 	services 	provided 	by 	a 	speech-language
specialist 	when 	a 	district 	or 	private 	school 	for 	students 	with
disabilities is unable to hire sufficient staff to provide the service.
N.J.S.A. 18A:6-63 addresses the authority of ESCs. It provides that such
b. Commissions may enter into contracts with other public and
private 	agencies 	for 	the 	provision 	of 	approved 	services 	and
programs 	to 	participating 	public 	school 	districts 	and 	nonpublic
schools. These contractual arrangements shall conform to rules
and regulations of the State Board of Education and be approved
by the county superintendent or superintendents, as the case may
be.
As noted the remaining individual petitioners include both tenured and non-tenured
personnel. 	And of these, only one is a speech/language therapist, and she was non-
tenured. 	As a general rule, a school board may dismiss a non-tenured employee for
practically any reason. 	Unlike a tenured employee, the Board need not have good
cause for such a dismissal, or failure to renew a nontenured employees‘ contract for
another school year.
Parties’ Contentions
In 	moving 	for 	summary 	decision, 	the 	Board 	argues 	that 	in 	the 	face 	of 	a
substantial deficit clearly identified at its March meeting, it had to take significant steps

OAL DKT. NO. EDU 13998-16
9
to economize. Thus, for reasons directly involving this economic necessity, it exercised
its authority to reduce force, as allowed under N.J.S.A. 18A:28-9, in order to abolish
over 200 positions. As it faced a legitimate economic crisis, and as the existence of that
economic motivation is not in dispute, the petitioners have no basis for asserting the
impropriety of the reduction in force affecting their positions. 	Further, as the Board
exercised its legal right to enter into a contract with the MOESC, which had the legal
authority to contract with private contractors to provide the services needed by Trenton,
its means of providing those services after the RIF was lawful. 	As the petitioners‘
petition only asserts the impropriety of the reduction, the Board’s motion must be
granted and the petition must be dismissed.
The petitioners do not appear to directly dispute that the Board had an economic
problem at the time that it considered and decided to reduce the force. 	The Education
Association does not here object to the reduction of positions held by other than these
therapists, that is, those originally included in the petition. However, in their brief and
arguments, the petitioners advert to the idea that the Board could have made up its
shortfall, or at least that part that purportedly required the abolition of their particular
positions, by other reductions, such as in the administrative ranks of the District. 	But it
appears that the main thrust of the petitioners’ arguments do not challenge that the
Board faced an economic crunch. 	Instead, they contend that since the arrangement
that the Board sought to utilize to provide the required services involved an illegal
attempt to use private contractors as therapists within the District’s schools, the abolition
of the petitioners’ positions could not be carried out through such a scheme. In effect, if
the services rendered by those whose positions were abolished were not legally
provided subsequent to the RIF, then, as the services could not themselves be
abolished, the initial attempt to abolish the positions must be deemed to have failed and
the positions must be deemed to have remained open. 	In such case, the Board was
then legally required to offer the positions to the tenured employees who had been
riffed, in accordance with their seniority for such positions. 	If the Board’s attempt to fill
these positions through its contract with the ESC violated the law, then summary
decision is warranted for the petitioners.

OAL DKT. NO. EDU 13998-16
10
One of the petitioners’ contentions is that when the Board noticed them that their
positions were to be abolished, it did not provide any specific economic justification for
the action. 	It did not provide any analysis of the costs, direct or indirect, of the
continued employment of the petitioners as against the costs associated with the plan to
provide the services through the ESC, or any other such plan. 	Thus, it baldly claimed
an economic motivation, without any details to demonstrate that the reduction in force of
these 	positions 	would 	actually 	save 	money. 	At 	oral 	argument, 	counsel 	for 	the
petitioners conceded that he was not aware of any statute, rule or caselaw that
specifically required such information to be provided at the time when employees are
noticed of a reduction in force. However, he points to caselaw which he asserts at least
suggests such a necessary and also supports the propriety of considering the legality of
a Board’s plan to replace the services provided by riffed employees who provided
mandated services and the right of such employees to a remedy if that plan is found to
be illegitimate.
McKenna v. Board of Education of the Andover Regional High School District,
Sussex County, an unpublished and therefore not binding decision of the Appellate
Division, 2013 N.J. Super. Unpub. Lexis 435, involved two tenured members of the
District’s Child Study Team (CST) who challenged the abolition of their positions in a
reduction in force justified as a cost-saving measure. In lieu of the employment of these
two, the Board intended to arrange for CST services provided by the Sussex County
Educational Services Commission. 	One of the employees resigned when she learned
of the plan. The other employee did not resign. A month after the Board authorized the
RIF, it authorized the District’s superintendent to enter into a contract with the ESC to
provide CST services. 	The Board later replied to a request from the appellant’s labor
union for details of the Board’s staffing plan, and the response was that the Board
intended to provide the CST services through “both employees of the SCESC” and also
by “third party consultants.” The petitioners then filed a verified petition with the
Commissioner 	of 	Education, 	claiming 	that 	the 	Board’s 	decision 	to 	eliminate 	their
positions violated their tenure rights. They contended that the Board’s plan to enter into

OAL DKT. NO. EDU 13998-16
11
an 	agreement 	with 	the 	ESC 	was 	“arbitrary, 	capricious 	and/or unreasonable” 	and
violated N.J.S.A. 18A:46-5.1 and N.J.A.C. 6A:14-3.1.
The Board defended the legality of its action as cost-saving, and the legality of
the 	shared-service 	arrangement 	with 	the 	ESC. 	Additionally, 	it 	challenged 	the
petitioners’ standing to complain about its action. 	The administrative law judge who
heard the contested case dismissed the petitioner’s challenge solely on the basis of
standing. The Commissioner adopted that decision. On appeal, the Appellate Division
agreed that the petitioner who had resigned lacked standing and dismissed that
challenge. 	However, it reversed as to the remaining petitioner, McKenna, finding that
she had standing and remanded the case for consideration on the merits.
In its analysis of the standing question, the court noted that the petitioners
acknowledged that the Board’s abolition of the CST “in a vacuum would not be
actionable.” 	However, given what they argued was an illegal arrangement to replace
the CST, their “vested rights as tenured educators” were sufficient to give them legal
standing to challenge the arrangement. 	The ALJ and Commissioner had assumed that
any “proven defects in the Agreement between the Board and the SCESC could be
cured in a manner that would not involve the possible reinstitution of the CST unit in the
school district.” But the court found “[T]hat conclusive assumption . . . unwarranted.”
Assuming, for the sake of argument, that it was shown that . . . the
Agreement with the SCESC does not, in fact, save the district
money, or that the Board otherwise lacked “good cause” to displace
the 	in-house 	program, 	the 	continued 	legal 	viability 	of 	the
arrangement might be suspect . . .
Moreover, if it were shown that the Agreement’s reliance upon the
services of private contractors does not fully comply with applicable
statutes or regulations, there is no guarantee that the SCESC
would be able to achieve such compliance, or could do so without
raising the contractual charges to the Board. There is also no
assurance that the SCESC would be willing to renegotiate the
terms of the Agreement.

OAL DKT. NO. EDU 13998-16
12
Depending 	upon 	how 	these 	or 	other 	scenarios 	of 	a 	nullified
Agreement would unfold, it is entirely conceivable that the Board
might consider reinstating its in-house CST.
. . .
We are mindful of the “managerial prerogative[s]” of a school
districts to reduce its teacher personnel . . . Even so, that does no it
mean that the district can fire its tenured staff and replace the CST
with what is proven to be an illegal arrangement.
The Board argues that since McKenna only decided the standing issue and did
not rule on the merits of Ms. McKenna’s claims, and as the decision is unpublished and
therefore not precedential, it has no bearing here. 	But the case does offer the
persuasive argument that if a board, having reduced staff who provided mandated
services for purported economic reasons, resorts to arguably unlawful means in order to
continue 	to 	provide 	such 	mandated 	services, 	then 	the 	legality 	of 	the 	Board’s
arrangements can be considered to determine if the replaced employees may have
claims to the positions necessary to provide those services in a lawful manner. In other
words, if a board’s plan to economize involves unlawful action, such action cannot be
sustained even in the face of the economics involved.
Here, 	the undisputed facts 	are that 	the Board 	riffed 	these petitioners 	and
proposed to replace their part in providing mandatory services by means of a contract
with the MOESC. As events developed, even if that initial contractual arrangement may
have been legal, at least in regard to one of the forms of therapeutic services these
petitioners 	provided, 	the 	MOESC 	was 	unable 	to 	provide 	adequate 	replacements,
providing the Board with only seven speech/language therapists, thereby necessitating
the Board’s recall of three tenured, riffed speech/language therapists. 	And then, when
the 	Board 	was 	faced 	with 	the 	resignation 	of 	one 	of 	the 	MOESC-provided
speech/language 	therapists, 	the 	Board 	resorted 	to 	contracting 	directly 	with
Kaleidoscope, an outside, private contractor, in order to supplement the services of
remaining 	MOESC-contracted 	private 	providers 	and 	the 	newly-recalled 	tenured
employees, a plan much akin to the one the Board utilized in McKenna. 	It can be

OAL DKT. NO. EDU 13998-16
13
argued that both the first plan, the MOESC contract, and the second plan, the direct
contracting with outside speech/language contractors, involved the Board in unlawful
actions. 	If that is the case, it can then be argued that the Board, having the legal
obligation to adequately provide the therapeutic services, had to reinstate the abolished
positions, or at least some of them, in order to lawfully service its students. (It may be
that 	the 	Board 	could 	find 	another, 	legally 	secure 	plan 	that 	did 	not 	necessitate
reinstitution of abolished positions, but that is purely speculative). 	And, as the tenured
petitioners had the legal right under N.J.S.A. 18A:28-12 to be placed on a preferential
rehiring list, the Board would then have been obligated to offer some, or all, of the
petitioners those reinstated positions.
The Board contends that it is entitled to summary decision simply due to the
essentially undisputed existence of a large economic problem which underlay the
decision to RIF these employees, a reduction thus supported by N.J.S.A. 18A:28-9.
Indeed, if the arrangement with the MOESC arrangement is deemed lawful, then, in
absence 	of 	any 	meaningful 	challenge 	to 	the 	existence 	of 	a 	legitimate 	economic
motivation, summary decision would result in favor of the Board, at least regarding the
initial decision to RIF. The decision to resort to its own contracting with the private
contractor, Kaleidoscope, to fill the position vacated by the resigning MOESC contract
therapist may, however, present a separate problem.
The authority of a school board to manage its staff and to reduce staff in the face
of economic necessity is well-understood. Impey 	v. Board of Education, 142 N.J. 388
(1995); In re Maywood Board of Education, 168 N.J. Super. 45, 55 (App. Div. 1979).
Here, of course, unlike with other discretionary services that the Board offers to its
students, even if the economics of a reduction of these therapist positions could play a
positive part in meeting the District’s economic problems, the services they provided
had to continue. As such, while the overall existence of an economic motivation for the
significant reductions-in-staff the Board instituted is undisputed, the legality of the
means employed by the Board to continue to provide these mandatory services is
clearly in dispute.

OAL DKT. NO. EDU 13998-16
14
Thus, if the petitioners establish that the Board’s arrangements for continued
therapeutic services after the RIF were and continue to be unlawful, in whole or in part,
summary decision establishing that the Board improperly riffed these employees would
lie. That would lead to a determination that the Board had to reestablish on its rolls the
riffed positions, and at least some, if not all, of the tenured employees would be entitled
to restoration. 	Alternatively, if the Board’s initial arrangement with the ESC was lawful,
given its failure to adequately cover the District’s needs through that arrangement, once
the Board was aware of this shortfall and itself resorted to direct private contracting, in
the absence of another lawful means of covering the deficit in services, the Board would
have been required to reestablish sufficient positions to cover the deficit, and to offer the
positions to these tenured petitioners in the respective specialties and in the order of
their seniority.
Discussion
A 	motion 	for 	summary 	decision 	can 	only 	be 	granted 	where 	the 	affidavits,
certifications, and other evidential materials produced by the parties presenting and
opposing the motions demonstrate that there are no genuine disputes of material facts
needed to allow the resolution of the legal issues pertinent to the case. The proofs must
be considered in light of the applicable legal standards and burdens of proof and with
the opponent of the motion given the benefit of all reasonable inferences arising from
the evidence. 	Brill v. Guardian Life Ins. Co. Of America, 142 N.J. 520, 540 (1995).
Here, each party believes that it is entitled to summary decision.
The petition filed in July 2016 challenged the legality of the Board’s RIF of fifteen
therapists. 	It sought a determination that the Board’s actions to provide mandatory
services previously performed by these therapists involved an illegal use of private
contractors in the District’s schools, illegal despite the Board’s use of the MOESC
arrangement as the means to secure these private providers. No amended petition has
been filed since July 2016.

OAL DKT. NO. EDU 13998-16
15
Fundamentally, the petitioners argue that the Board’s arrangement with the
MOESC was, as a matter of law, illegal, as it violated state statute and regulation. 	On
the other hand, the Board contends it acted legally, employing a strategy that was well
within the authority it and the MOESC each had under the law. 	With regard to the RIF
itself and the Board’s arrangement with the MOESC, I FIND that the facts concerning
the existence of a serious budget gap for the Board, of the RIF, and of the arrangement
with the MOESC, are not in dispute. While the petition filed in July did not of course
address anything that occurred subsequent to its filing, I also FIND that to the extent
relevant to the determination of the legal issues cognizable here, the subsequent
determination by the Board that additional resources were necessary to meet the need
for speech/language services, the actions taken in October 2016 to recall three riffed
employees and later, to replace one speech/language therapist through a contract with
Kaleidoscope are not in issue.
Faced as it was with a significant financial dilemma, the Board might have first
thought that it could abolish positions held by tenured and non-tenured personnel and
directly contract for less costly private contractors as replacements. However, as it at
least initially concedes,11 it could not directly contract for outside personnel to perform
speech/language therapy services, as N.J.A.C. 6A:14-5.1(c) 1.v. clearly prohibits public
school districts from such contracting with private contractors for such services, with a
caveat that such is prohibited “unless the public school district is unable to hire sufficient
staff to provide the service.” 	Presumably aware of this clear regulatory prohibition
against its own ability to enter into such contracts, and apparently not of a mind in the
spring of 2016 to contend that if push came to shove it could not find a means to hire
sufficient 	numbers 	of 	speech 	therapists 	and 	thus 	could 	as 	of 	that 	time 	directly
contracted with outside vendors, the Board instead attempted to achieve replacement of
the riffed speech/ language therapists’ mandatory services through the vehicle of an
11As will be noted, while this concession seems to relate at least to the Board’s understanding of its
choices in the spring of 2016 when it needed to furnish services provided by the newly-riffed therapists, at
least at oral argument, it seems to be claiming that it could contract directly for such private services once
its attempt to fully furnish necessary services through the vehicle of the MOESC proved inadequate.

OAL DKT. NO. EDU 13998-16
16
entity that did have the general legal authority to contract with private vendors. It cannot
be disputed that on its face, N.J.S.A. 18A:6-63 b. provides such authority to the
MOESC, since “Commissions may enter into contracts with other public and private
agencies for the provision of approved services and programs to participating public
school districts and nonpublic schools.” 	While, as noted in Attorney General’s Formal
Opinion No. 1-1981, initially this statute did not authorize such contracting with “private
agencies”, since the issuance of that opinion the statute has been amended and now
provides ESCs with such authority. Thus, the Board argues its initial attempt to provide
these services involved no breach of the limits of its own authority and a wholly
legitimate process that vitiates any concern arising under the McKenna rationale. The
statute’s clear language authorizes the ESC to contract with both school districts and
with private agencies, and the direct language of the statute must govern. As such, it is
entitled to summary decision and the petitioners’ motion should therefore be denied and
their petition dismissed. 	However, the question arises as to whether the local Board
could legally use the ESCs’ acknowledged statutory contracting authority to obtain
private contractors’ services in its district schools for a specific set of mandated therapy
services that it could not, in most instances, itself contract for under equally clear and
unambiguous language in N.J.A.C. 6A:14-5.1(c) 1.v.
Notably, the second sentence of N.J.S.A. 18A:63 b. provides a limitation on the
ESC’s authority and a caution that, despite the clear general authorizing language, that
authority must be understood and implemented in conformity with other provisions of
law, including non-statutory provisions in the form of State Board rules and regulations.
It cautions that “These contractual arrangements [that is, those authorized by the
subpart’s first sentence] shall conform to rules and regulations of the State Board of
Education and be approved by the county superintendent or superintendents, as the
case may be.” 	And N.J.A.C. 6A:14-5.1(c) 1.v. is a “rule and regulation of the State
Board of Education.” 	The question then is why would it be that, with only a limited
exception, 	a 	local 	district 	that 	cannot 	obtain 	speech/language 	specialist 	services
through private agencies to provide these services in the district’s schools by its own
contracting authority should be able to do so through the more general authority granted

OAL DKT. NO. EDU 13998-16
17
to the ESC. 	And, in addition to this basic question of statutory authority, the Board
concedes, with a caveat explained below, that, even if the law would allow its action, it
did not obtain approval from the county superintendent for the arrangement proposed
by the contract.12
It must be assumed that the State Board had reasons for generally prohibiting
such private contractor arrangements for speech/language services for public school
students, and in the absence of any indication in the amendment to the ESC’s authority
that specifically addresses such a defined area, the State Board’s rule must be given
precedence over the more general authority, as the means to achieve conformity
between these legal standards. 	As such, I CONCLUDE that unless the Board could
demonstrate its inability to hire “sufficient staff,” that the arrangement with the MOESC
was 	an 	invalid 	means 	for 	the 	Trenton 	Board 	to 	provide 	the 	services 	of 	the
speech/language 	therapists 	for 	its 	students. 	However, 	as 	for 	the 	provision 	of
occupational and physical therapy, it must be noted that the only limitation stated in
N.J.A.C. 6A:14-5.1(c)iii with regard to the ability of a board to contract for these services
relates to certain supervisory requirements and, therefore, I CONCLUDE that the
Board’s utilization of the MOESC to arrange for the provision of these therapies after
July 1, 2016, did not violate that rule and was a lawful action by the Board in conformity
with its authority, as well as that of the MOESC.
As noted, the petition does not address actions subsequent to July 2016.
However, those events do provide useful information concerning the context of the RIF
and the MOESC arrangement. When that arrangement failed to provide adequate
12 The Board notes that State Monitor Richens was clearly aware of both the ESC arrangement and the
subsequent direct Board private contract arrangement to supplement the inadequate resources produced
by the ESC contract. Richens acknowledges this in his Certification. He never specifically says that he
approved these, and the Board may be understood to see his lack of any stated objection as approval.
The regulation refers to the need for approval of ESC contracting arrangements as requiring approval
from the county superintendent and does not mention a state monitor. It also does not provide that the
county superintendent could approve an arrangement that otherwise violated existing statutes. No power
to waive otherwise applicable statutes or regulations is mentioned regarding such an approval. Neither is
it suggested that the state monitor had such power. 	If such authority did exist, it would seem that an
approval involving any such waiver would be in writing, or at the very least given in a verbal statement at
a Board meeting, and would not simply be implied by a lack of any expressed disapproval.

OAL DKT. NO. EDU 13998-16
18
speech/language specialist services to meet the District’s needs, even eventually after
the recall of three of the riffed speech therapists, the Board implemented another
scheme, involving its own direct contracting with a private provider, to supplement the
services obtained through the ESC under that unlawful arrangement. Again, unless the
exception 	was 	established, 	that 	arrangement 	was 	also 	invalid. 	Thus, 	the 	picture
presented is of a Board first utilizing a potentially 	unlawful “end run” arrangement with
the ESC, in practical violation of the specific prohibition against the provision of the
District contracting speech/language specialist services with private contractors, and
then resorting to a direct contracting arrangement that again was potentially prohibited.
The Board, by its own admission, found that in order to provide what it deemed
sufficient speech/language services for its students, it needed ten therapists. During the
2016-2017 school year, this number was achieved first through the use of seven
MOESC contractors and three later-recalled in-district staff, and then by six MOESC
contractors, three in-district recalled staff and two part-time Kaleidoscope-provided
private 	contractors. 	As 	of 	July 	1, 	2016, 	there 	were 	nine 	riffed 	speech/language
therapists. 	Three were recalled, apparently in October 2016. 	Clearly, given the illegal
nature of the MOESC arrangement, all nine should been recalled as of July 1. 	Indeed,
since the arrangement for their replacement was illegal, their RIF was not a valid act on
the Board’s part and, in the absence of a lawful means of providing the mandatory
services, they could not have their positions abolished.
This said, it is recognized that there is an exception to the prohibition against a
Board directly contracting for speech/language specialist services with private providers.
It may not do so “unless the public-school district is unable to hire sufficient staff to
provide the service.” 	This language does not identify the possible causes of the
District’s inability to hire sufficient staff. 	It could be that after a diligent search, the
District could not achieve the hiring of sufficient qualified therapists. 	Or, perhaps, the
inability spoken of could be due to serious financial reasons. 	Here, the Board has not
suggested that it could not identify and hire sufficient staff, as it had such personnel on
board prior to the RIF. 	Thus, the Board’s defense to why its actions did not violate the

OAL DKT. NO. EDU 13998-16
19
law must rest on a claim that it could not hire sufficient staff due because it did not have
the money to do so.
The Board points to the general principal that its acts are presumed to be lawful,
and thus its RIF, based upon economic difficulties recognized in statute as permitting
reductions in staff, including of tenured employees, must be presumed lawful. However,
given that the State Board regulation provides only this limited exception for direct local
Board private contracting for speech/language services where the Board is “unable to
hire sufficient staff to provide the service,” it seems that more than a mere identification
of a general budget shortfall is needed before it can be concluded that the Board is so
limited in its options that it cannot hire, or, in this scenario presumably retain, sufficient
speech/language therapy staff, and can therefore rely on the exception. 	At oral
argument, Board counsel, attempting to justify why the Board could directly contract
after the failure of the ESC contract to deliver adequate speech/language staffing,
raised the claim that it was “impossible” for the District to otherwise meet its needs.
This presumably means that it was economically impossible “to hire sufficient staff.”
And certainly, the Board’s undisputed evidence does establish the existence of a budget
shortfall that at least at this stage can be the implied basis for a claim of such inability to
”hire.“ 	But the record does not contain any evidence that seeks to demonstrate that,
faced with the budget gap and the mandatory duty to deliver speech/language therapy
services, the Board could not have found a means to retain these therapists. 	Indeed,
when 	it 	saw 	that 	the 	staffing 	provided 	through 	the 	MOESC 	arrangement 	was
insufficient, it apparently found a way to recall three of the riffed therapists. 	And, as
noted, the union has argued that the Board could have made other choices in how to
meet the budget problem without having to RIF those providing mandated related
services. Thus, while the details of the dispute over the budget possibilities and choices
have not been spelled out in detail, the existence of a material dispute over the
necessity of the RIF of these personnel is established.
The petitioners bear the ultimate burden of establishing the illegality of the
reduction in force as it affected them. 	While the Board’s freedom to manage it staffing

OAL DKT. NO. EDU 13998-16
20
needs 	is 	certainly 	well-understood, 	nevertheless, 	since 	the 	Board’s 	fundamental
defense to the petition has been based upon the legality of its arrangement with the
MOESC, without specifically acknowledging that it must or that it could meet the
“inability” exception, it is fair to allow the Board to seek to demonstrate that status, if it
chooses to do so. 	Since the Board effectively relies upon an exception to the general
prohibition 	of 	its 	contracting 	for 	private 	providers, 	it 	is 	the 	Board’s 	burden 	to
demonstrate that inability. If it does so, the petitioners will fail to meet their ultimate
burden of proof; if the Board fails to establish that its actions qualify under the
exception, the petitioners will meet their burden. 	As such, while the petitioners’ motion
for summary decision establishes that without qualifying under the exception, the
Board’s action was illegal, if the Board can successfully show that it was ”unable to hire
sufficient staff” due to its economic situation, it may yet prevail.
Finally, it must be noted that to the extent this order has determined certain
applicable legal principles, the status of the several remaining petitioners going forward
varies. The Education Association remains a viable petitioner, but the physical and
occupational therapists’ claims are extinguished by the determination that in the face of
an undisputed financial crisis, the Board acted legally when it abolished their positions.
As for the remaining non-tenured speech/language therapist, as the Board is largely
unrestricted in its decision not to renew its association with the therapist, the only
conceivable way in which Ms. Caruso might have any recourse against the Board would
be if the Board were to fail to establish that it could not obtain speech/language therapy
services and therefore failed to prove that it was entitled to use the exception permitting
it to obtain private therapist through the MOESC arrangement. 	Nevertheless, if it failed
to prove this, in such a scenario the right to fill the necessary positions would have been
available for those with tenure, and not for an untenured employee with no tenure
protections. As such, Ms. Caruso has no real claim for relief.
Given these considerations, as the case moves forward, the sole remaining
viable petitioner is the Education Association itself. 	As such, the Board is entitled to
summary decision regarding the claims of the remaining individual petitioners. The

OAL DKT. NO. EDU 13998-16
21
contested 	cases 	of 	petitioners 	Caruso, 	Lockhart, 	Kenyon, 	Mitra 	and 	Fekete 	are
DISMISSED. 	The 	Association’s 	continued 	claim 	will 	be 	severed 	from 	the 	other
remaining petitioners’ claim. 	In respect to its claim pertaining to the Board’s conduct,
vis-a-vis 	the 	tenured 	speech/language 	therapists, 	the 	cross-motions 	for 	summary
decision must be DENIED.
The parties and judge have agreed that given the legal conclusions reached, the
age of the matter and the expense and time needed for further proceedings, it would be
in the best interests of the parties and the most efficient means of expeditiously
resolving the entire case and the legal ramifications for similar parties going forward, for
this order to be reviewed at this time by the Commissioner. Therefore, this order
granting partial summary decision is being submitted under N.J.A.C. 1:1-12.5(e) for
immediate review. 	This recommended order may be adopted, modified or rejected by
the COMMISSIONER OF EDUCATION who by law is authorized to make the final
decision in this matter. 	If the COMMISSIONER OF EDUCATION does not adopt,
modify or reject this order within forty-five days and unless such time limit is otherwise
extended, this recommended order shall become a final decision in accordance with
N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 13998-16
22
Within thirteen days from the date on which this order was mailed to the parties,
any party may file written exceptions with the COMMISSIONER OF EDUCATION
,marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the judge
and to the other parties.
July 31, 2020
DATE 	JEFF S. MASIN, ALJ (Ret., on recall)
Date Received at Agency:
Date Mailed to Parties:
mph

OAL DKT. NO. EDU 13998-16
23
EXHIBITS:
On behalf of Petitioners—Attached To Brief:
Exhibit A 	Formal opinion No. 1-1981, January 14, 1981
Exhibit B 	Portion of Board minutes for June 14, 2017, with attachment
Exhibit C 	Monmouth-Ocean Educational Services Commission Invitation to
Bid and Contract Documents
On behalf of Respondent—Attached to Brief in Support of Motion for Summary
Decision:
Exhibit A 	Petition of Appeal
Exhibit B 	Board meeting minutes, April 25, 2016
Exhibit C 	Agreement for Provision of Educational Services, dated June 28,
2016
On behalf of Respondent—Attached to Brief in Opposition to Petitioners’ Motion
for Summary Decision and Reply to Petitioners’ Opposition to Respondent’s
Motion for Summary Decision:
Exhibit A 	Board meeting minutes for March 21, 2016
Exhibit B 	Board meeting minutes for April 25, 2016
Exhibit C 	Employee Salary Report for Human Resource Year 2015-2016
For Respondent:
Exhibit 1 	Certification of Lester Richens, with attachments
Exhibit 2 	Letter dated February 20, 2020, from Howard M. Nirenberg, Esq.,
with attached list (Exhibit A)