Jeffrey Klein v. Board of Education of the Passaic County Technical Institute, Passaic County and Michelle Owens v. Board of Education of the Passaic County Technical Institute, Passaic County, 3/17/2020, (#99-20)

New Jersey Commissioner of Education
Final Decision
Jeffrey Klein,
Petitioner,
v.
Board of Education of the Passaic County
Technical Institute, Passaic County,
Respondent.
Michelle Owens,
Petitioner,
v.
Board of Education of the Passaic County
Technical Institute, Passaic County,
Respondent.
Synopsis
Petitioner appealed a suspension without pay imposed by the respondent Board. Petitioner was charged with the
disorderly persons offense of possession of hashish and was suspended by the Board with pay. 	Following
petitioner’s receipt of a six-month conditional discharge, the Board changed the suspension to one without pay.
The ALJ found, inter alia, that: 	no genuine issues of material facts existed, and the matter was ripe for
summary decision; N.J.SA. 18A:6-8.3 provides that tenured employees may be suspended without pay only if
they are indicted or if tenure charges have been certified against them; and petitioner had not been indicted and
the Board had not certified tenure charges against him. The ALJ concluded that the suspension without pay was
in contravention of N.J.SA. 18A:6-8.3. Accordingly, the ALJ granted petitioner’s motion for summary decision
and ordered the Board to reinstate petitioner’s suspension with pay.
Upon review of the record in this matter, the Commissioner concurred with the ALJ’s findings and conclusion.
The Initial Decision was adopted as the final decision in this matter.
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 17, 2020
99-20

OAL Dkt. Nos. EDU 08805-19, EDU 10789-19 (Consolidated)
Agency Dkt. Nos. 101-5/19, 149-6/19
New Jersey Commissioner of Education
Decision
Jeffrey Klein,
Petitioner,
v.
Board of Education of the Passaic County
Technical Institute, Passaic County,
Respondent.
Michelle Owens,
Petitioner,
v.
Board of Education of the Passaic County
Technical Institute, Passaic County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
In February 2019, petitioner Klein,1 a special education teacher, was charged
with the disorderly persons offense of possession of hashish and suspended with pay by the
Board. In May 2019, after Klein received a six-month conditional discharge that did not require
1 Petitioner Klein’s matter was previously consolidated by the OAL with a similar matter involving Michelle Owens.
On September 26, 2019, Owens withdrew her petition.

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him to plead guilty, the Board changed his suspension to one without pay. The ALJ found that
under N.J.S.A. 18A:6-8.3, a tenured employee may be suspended without pay only if the
employee was indicted or if tenure charges were certified against him. 	Neither of those
circumstances were present here, so the ALJ found that the suspension without pay was
improper.
Upon review, the Commissioner concurs with the ALJ’s conclusion that, in the
absence of tenure charges or an indictment, the Board was not permitted to suspend Klein
without pay. Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter for the reasons expressed therein. 	The Board is directed to reinstate Klein’s suspension
with pay, retroactive to May 2, 2019.
IT IS SO ORDERED. 2
COMMISSIONER OF EDUCATION
Date of Decision: 	March 17, 2020
Date of Mailing: 	March 17, 2020
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
JEFFREY KLEIN, 	OAL DKT. NO EDU 08805-19
Petitioner, 	AGENCY DKT. NO. 101-5/19
v.
BOARD OF EDUCATION OF THE
PASSAIC COUNTY TECHNICAL 	CONSOLIDATED
INSTITUTE, PASSAIC COUNTY,
Respondent.
____________________________
MICHELLE OWENS, 	OAL DKT. NO. EDU 10789-19
Petitioner, 	AGENCY DKT. NO. 149-6/19
v.
BOARD OF EDUCATION OF THE
PASSAIC COUNTY TECHNICAL
INSTITUTE, PASSAIC COUNTY,
Respondent.
____________________________
Ronald J. Ricci, Esq., for Petitioners (Ricci & Fava, LLC, attorneys)
Albert C. Buglione, Esq., for Respondent (Buglione, Hutton & Deyoe,
LLC, attorneys)
Record Closed: January 29, 2020 	Decided: February 21, 2020

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BEFORE JULIO C. MOREJON, ALJ:
STATEMENT OF THE CASE
Petitioners, Jeffrey Klein (Klein), and Michelle Owens, allege that respondent,
Board of Education of the Passaic County Technical Institute, (PCTI), decision to
suspend them without pay is in violation of their respective tenure rights under N.J.S.A.
18A:6-8.3.
PROCEDURAL HISTORY
Klein filed his Verified Petition (Petition) with the Commissioner of the New
Jersey Department of Education (Commissioner), on May 10, 2019, contesting PCTI’s
decision to suspend him without pay on May 2, 2019. 	Owens filed her Petition with the
Commissioner on June 21, 2019, contesting PCTI’s decision to suspend her without pay
on June 14, 2019. 	PCTI filed an Answer to Klein’s Petition with the Commissioner on
June 17, 2019, and PCTI filed an Answer to Owens’ Petition with the Commissioner on
June 24, 2019.
The two matters were transferred to the Office of Administrative Law (OAL), as a
contested cases under N.J.S.A. 52:14B-1 to –15 and N.J.S.A. 52:14F-1 to –13, as
follows: Klein’s matter was filed on June 27, 2019, and Owens’ matter was filed on
August 7, 2019. Thereafter, on September 17, 2019, an Order of Consolidation was
entered.
On August 23, 2019, Klein filed a motion for summary decision. On October 3,
2019, PCTI filed its opposition to Klein’s motion for summary decision, and on October
9, 2019, Klein filed a reply to PCTI’s opposition.
On September 19, 2019, Owens’ filed her motion for summary decision, and on
September 26, 2019, Owens withdrew her Petition pursuant to an agreement with PCTI
and her motion for summary decision was withdrawn.

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On January 29, 2020, oral argument was held, at which time the record closed.
DISCUSION
The following facts are undisputed, and I FIND them to be FACTS of this case:
Klein was hired by PCTI as a special education teacher in 2007 and received
tenure in 2011. 	On February 9, 2019, Klein was charged with possession of hashish
under 5 grams. 	This was in violation of N.J.S.A. 2C:35-10a (4), a disorderly persons
offense. 	As a result of the charge and arrest, PCTI suspended Klein with pay on
February 11, 2019.
On April 29, 2019, Klein appeared in municipal court on the disorderly persons
offense and received a six-months conditional discharge under. N.J.S.A. 2C:36A-1 On
May 2, 2019, the Board changed the suspension from with pay to without pay, as a
result of Klein entering into conditional discharge. 	Klein has not been indicted nor has
he been notified of tenure charges against him.
The conditional discharge concluded on October 31, 2019, at which time the
original charge of N.J.S.A. 2C:35-10a (4), would be dismissed, provided Klein complied
with the terms of his conditional discharge. 3 As part of his conditional discharge, Klein
was not required to enter a guilty plea, but did have to pay mandatory fines and
assessments.
Klein seeks 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 “the judgment or order sought shall
3 During oral argument on January 29, 2020, counsel for Klein represented that Klein had complied with
the terms of his conditional discharge and the underlying misdemeanor charge was dismissed.

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be rendered 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 judgment 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 alleged disputed issue in favor
of the non-moving party. 	Our courts have held that 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 v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995), citing Anderson v. Liberty Lobby, Inc., 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. 	Anderson, 477 U.S. at 252.
Conversely, it is critical that a favorable ruling on a summary judgment motion not "shut
a deserving litigant from his [or her] trial." 	Judson v. Peoples Bank and Trust Co. of
Westfield, 17 N.J. 67, 77 (1954).
No genuine issues of material fact exist in this case. For the reasons set forth in
greater detail below, Klein is entitled to summary decision ordering his suspension be
with pay and awarding back pay. 	As the underlying facts are not in dispute in this
matter, the fundamental issue to be decided is whether Klein’s suspension without pay
is proper, and whether he is entitled to backpay.
The relevant statute, N.J.S.A. 18A:6-8.3, provides:
Any employee or officer of a board of education in this State
who is suspended from his employment, office or position,
other 	than 	by 	reason 	of 	indictment, 	pending 	any
investigation, hearing or trial any appeal therefrom, shall
receive 	his 	full 	pay 	or 	salary 	during 	such 	period 	of
suspension, except that in the event of charges against such
employee or officer brought before the board of education or

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the 	Commissioner 	of 	Education 	pursuant 	to 	law, 	such
suspension may be with or without pay or salary as provided
in Chapter 6 of which this section is a supplement . . . “
[N.J.S.A. 18A:6-8.3].
Klein 	moves 	for 	summary 	decision 	claiming 	that 	he 	should 	be 	placed 	on
suspension with pay and additionally, that he is entitled to back pay for the period he
has been suspended without pay. In support of his argument, he relies on a variety of
cases; the most decisive is the seminal case of Slater v. Bd. of Educ. of Ramapo-Indian
Hills Reg. High Sch. Dist., 237 N.J. Super. 424 (App. Div. 1989). 	In Slater, a tenured
school 	employee 	was 	arrested 	for 	the 	sale 	of 	marijuana. 	He 	was 	immediately
suspended without pay. 	Months later, he was indicted and convicted, which led to his
forfeiture of employment. 	The court held that “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.”
Id. at 246. 	Further, since the employee was not indicted at the time of suspension, nor
were tenure charges certified against him, the suspension should have been with pay
up until he was indicted. Accordingly, the court remanded for entry of an order requiring
backpay to the date of indictment.
PCTI contends that Klein behaved inappropriately and that his possession of
hashish 	in 	addition 	to 	improperly 	securing 	his 	illicit 	drugs 	amounts 	to 	conduct
unbecoming of a teacher.4 	However, the appropriateness of Klein’s conduct is not the
dispositive issue. In fact, it is well settled law that a tenured school employee may be
suspended without pay only if indicted or if tenure charges were certified [emphasis
supplied], neither scenario which exists herein. 	Furthermore, PCTI relies on In the
Matter of Tenure Charges of Brenda Bruni (No. 207-9/17) (February 9, 2018), where a
“teacher inter alia had drug charges that were dismissed, and a two-month suspension
without pay was imposed” to support the assertion that withholding Klein’s salary is
proper during this probationary period. 5 The Bruni decision is distinguishable herein as
4 PCTI refers to an alleged incident where a fourteen-year-old classmate of Klein’s daughter received a
marijuana edible and began vomiting.
5 PTCI, Br. at 5

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Bruni was suspended with pay for several months pending investigation. Before her
penalty of suspension without pay was levied, tenure charges were brought against her
[emphasis supplied].
In the present matter, Klein is a tenured employee. He has not been indicted and
tenure charges have not been certified against him. 	While he was arrested and
charged with a misdemeanor drug offense, he entered a conditional discharge term that
did not require him to plead guilty. Conditional discharge in misdemeanor drug offenses
is set forth in N.J.S.A. 2C:36A-1, which states in pertinent part:
Whenever 	any 	person 	who 	has 	not 	previously 	been
convicted of any offense under section 20 of P.L.1970, c.226
(C.24:21-20), or a disorderly persons or petty disorderly
persons offense defined in chapter 35 or 36 of this title . . . .
and who has not previously participated in a program of
supervisory treatment . . . or conditional dismissal . . .or a
Veterans 	Diversion 	Program 	. 	. 	. 	is 	charged 	with 	or
convicted 	of 	any 	disorderly 	persons 	offense 	or 	petty
disorderly persons offense under chapter 35 or 36 of this
title, the court upon notice to the prosecutor and subject to
subsection c. of this section, may on motion of the defendant
or the court:
(1) 	Suspend further proceedings and with the consent of
the 	person 	after 	reference 	to 	the 	State 	Bureau 	of
Identification 	criminal 	history 	record 	information 	files,
place 	him 	under 	supervisory 	treatment 	upon 	such
reasonable terms and conditions as it may require; or
(2) 	After a plea of guilty or finding of guilty, and without
entering a judgment of conviction, and with the consent
of the person after proper reference to the State Bureau
of Identification criminal history record information files,
place 	him 	on 	supervisory 	treatment 	upon 	reasonable
terms and conditions as it may require, or as otherwise
provided by law.
A guilty plea is not required under N.J.S.A. 2C:36A-1, in every case, and it was
not required of Klein when he entered into his conditional discharge for a six-month
term. 	In addition, PCTI has not certified tenure charges against Klein for his conduct.

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As such, I CONCLUDE that Klein’s initial suspension with pay was appropriate under
N.J.S.A. 18A:6-8.3 and should not have been converted to a suspension without pay.
In addition, I CONCLUDE that since Klein was neither indicted nor facing tenure
charges, he is entitled to backpay commencing May 2, 2019 when his penalty was
modified to suspension without pay. I/M/O Tenure Hearing of Robert G. Morton, EDU
0253-97, 	Initial 	Decision 	(06/11/99), 	adopted, 	Comm’r 	(07/30/99)
<http://lawlibrary.rutgers.edu/oal/ 	search.html>. 	In 	Morton, 	a 	tenured 	teacher 	was
indicted on numerous drug offenses, to which he pled guilty and was sentenced to
probation. Thereafter, Morton was suspended without pay for one month before tenure
charges were certified against him. 	He was eventually granted backpay for the time
between his conviction and the certification of his tenure charges.
Also, in Adrian McConney v. Twp of Piscataway Bd. of Educ. Middlesex Cty,
EDU 0576 (2017), McConney was a tenured teacher who was indicted on “official
misconduct” charges. He was subsequently suspended without pay. 	The indictment
was eventually dismissed and McConney was placed on payroll a month after. 	The
court in McConney grants him backpay for the month between the dismissal of his
indictment and his reinstatement on payroll.
Accordingly, Klein’s motion for summary decision is GRANTED and PCTI’s
opposition to said motion is DENIED.
ORDER
It is hereby ORDERED that Klein’s motion for summary decision that PCTI’s
decision to suspend him without pay since May 2, 2019, is in contravention of N.J.S.A.
18A:6-8.3, is GRANTED.
It is hereby further ORDERED that since Klein was neither indicted nor facing
tenure charges, he is entitled to backpay commencing May 2, 2019, when PCTI
modified Klein’s suspension from with pay to a suspension without pay, and it is hereby

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further ORDERED that PCTI is to reinstate Klein’s suspension with pay retroactive to
May 2, 2019.
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.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked "Attention: Exceptions." A copy of any exceptions must be sent to
the judge and to the other parties.
February 21, 2020
DATE 	JULIO C. MOREJON, ALJ
Date Received at Agency: 	February 21, 2020
Date Mailed to Parties: 	February 21, 2020
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