Shari Saks v. Board of Education of the Pinelands Regional School District, Ocean County, 3/24/25 (#102-25)

102-25
OAL Dkt. No. EDU 10148-22
Agency Dkt. No. 280-10/22
New Jersey Commissioner of Education
Final Decision
Shari Saks,
Petitioner,
v.
Board of Education of the Pinelands Regional School
District, Ocean County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law (OAL) have
been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge (ALJ) that any issues
concerning the Board’s failure to provide petitioner notice within 10 days of its decision to withhold her
salary increment should be addressed in the pending New Jersey Public Employee Relations Commission
(PERC) proceeding. Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass’n, 139 N.J.
141, 155 (1995).
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the petition of
appeal is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	March 24, 2025
Date of Mailing: 	March 26, 2025
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
SUMMARY DECISION-DISMISSAL
OAL DKT. NO. EDU 10148-22
AGENCY REF NO. 280-10/22
SHARI SAKS,
Petitioner,
v.
PINELANDS REGIONAL SCHOOL
DISTRICT BOARD OF EDUCATION,
OCEAN COUNTY
Respondent.
Edward A. Cridge, Esq., for petitioner (MELLK CRIDGE LLC, attorneys)
Kasi M. Gifford, Esq., for respondent (COOPER LEVENSON, P.A., attorneys)
Record Closed: December 31, 2024 	Decided: February 13, 2025
BEFORE ELAINE B. FRICK, ALJ:
STATEMENT OF THE CASE
Respondent, Pinelands Regional School District Board of Education (Pinelands or
the BOE) withheld petitioner, Shari Saks’ (Saks) increment for the 2022-2023 school year.
Petitioner appealed asserting the increment should not have been withheld. The parties

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2
have filed summary decision motions. 	Petitioner asserts summary decision should be
entered in her favor and the increment paid to her automatically because the BOE did not
comply with the statutory requirement to provide her notice within ten days that it withheld
her increment. The BOE contends that its failure to provide notice within ten days is not
prejudicial to Saks and that it appropriately withheld Saks’ increment due to her
inappropriate actions.
PROCEDURAL HISTORY
This 	matter was 	transmitted 	to 	the Office of Administrative Law 	(OAL) 	on
November 14, 2022, to be heard as a contested case. N.J.S.A. 52:14B-1 to 14B-15 and
N.J.S.A. 52:14F-1 to 14F-13. 	The dispute was transmitted to the OAL as petitioner’s
challenge to the BOE’s withholding of her increment for the 2022-2023 school year.
Multiple telephonic conferences were conducted with counsel for the parties. 	A
hearing date was not scheduled, at the joint request of the parties, as they dealt with
issues between them pending in other forums and deciding whether they would seek
consolidation of any of those matters. The parties ultimately decided that there were no
facts in dispute here, and advised that the matter could be dealt with by way of summary
decision motion filing.
Summary decision motion and cross motion filings were submitted. A telephonic
conference was conducted with counsel after the initial motion filings. 	The parties
confirmed the BOE’s substantive reasoning for withholding Sak’s increment was not at
issue in this forum. They advised that arguments made in their briefs as to the substantive
reasoning for the withholding of the increment were merely done to preserve such
arguments for their other proceedings. The parties were directed to submit supplemental
briefing to confirm the legal issue they assert is to be determined by summary decision
here. 	The supplemental briefs were submitted.
FACTUAL DISCUSSION AND FINDINGS

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The parties agreed to a Joint Stipulation of Facts which I FIND as FACTS set forth
verbatim from the parties’ stipulations:
1. 	At all times relevant hereto, Ms. Saks has been a tenured teaching staff
member employed by the Board.
2. 	At its meeting of July 18, 2022 (hereinafter the “July meeting”) the Board voted
to withhold Ms. Saks’s employment and adjustment increments for the 2022-
2023 School Year (hereinafter the “Subject Increments”).
3. 	Two members of the Board, Ms. Lisa Betty, [and] Ms. Kim Hanadel were absent
from the July Meeting, and did not participate in the vote to withhold the Subject
Increments.
4. 	The Board did not notify Ms. Saks that it had voted to withhold the Subject
Increments within ten days of the July Meeting. 	The Board did not notify Ms.
Saks of the aforesaid increment withholding until on or about October 5, 2022,
by way of correspondence of that date which she received from the Board’s
Superintendent.
5. 	The Board did provide Ms. Saks with a notice pursuant to Rice v. Union County
Regional High School Bd. of Ed., 155 N.J. Super. 64 (App. Div 1977), prior to
the July meeting.
6. 	The withholding of Ms. Saks’s increment was noted in the minutes of the July
Meeting, by reference to her employee number.
(Exhibit A to petitioner’s August 8, 2024, brief in support of motion for summary
decision, punctuation and capitalization original.)
The parties confirmed as an update to their stipulations that on July 25, 2024, an
arbitrator issued an award in the related tenure case. The arbitrator determined that Saks

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would be terminated from her tenured teaching position with the BOE, effective July 25,
2024.
Despite the matter having been transmitted to the OAL as petitioner’s challenge to
the BOE’s withholding of her increment for the 2022-2023, and the parties having
asserted substantive arguments in their initial summary decision briefing, the parties
confirmed in a subsequent telephonic conference that the substantive underlying facts
are not to be disputed and determined in this forum. They agree that any factual dispute
regarding the BOE’s withholding of Saks’ increment due to a disciplinary issue is properly
before the Public Employment Relations Commission (PERC). Petitioner has a pending
PERC appeal proceeding, which the parties advised they have held in abeyance to
pursue a determination in this forum.
The parties clarified in their supplemental briefing that they believe this matter is a
discrete procedural issue regarding educational law and its application. They agree that
the BOE withheld petitioner’s increment based upon a disciplinary issue. They assert the
determination to be made here is an educational law dispute as to whether the BOE
violated N.J.S.A. 18A:29-14 by failing to give Saks timely notice of the withholding of her
salary increment and if so, would the remedy for that statutory violation be automatic
payment of Saks’ increment.
LEGAL ANALYSIS AND CONCLUSION
In an administrative law matter, a “party may move for summary decision upon all
or any of the substantive issues in a contested case.” N.J.A.C. 1:1-12.5(a). The motion
“shall be served with briefs and with or without supporting affidavits.” 	N.J.A.C. 1:1-
12.5(b). The judge may grant the motion if the documents and information filed, together
with any submitted affidavits, “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.” Ibid. The
non-moving party will prevail if they “set forth specific facts showing that there is a genuine
issue which can only be determined in an evidentiary proceeding.” Ibid.
A BOE may withhold a teacher’s increment and is required to give written notice

OAL DKT. NO. EDU 10148-22
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of such action against the teacher within ten days of the BOE’s decision. N.J.S.A. 18A:29-
14. The controlling statute provides:
Any board of education may withhold, for inefficiency or other
good cause, the employment increment, or the adjustment
increment, or both, of any member in any year by a recorded
roll call majority vote of the full membership of the board of
education. It shall be the duty of the board of education, within
10 days, to give written notice of such action, together with the
reasons therefor, to the member concerned. The member
may appeal from such action to the commissioner under rules
prescribed by him. The commissioner shall consider such
appeal and shall either affirm the action of the board of
education or direct that the increment or increments be paid.
The commissioner may designate an assistant commissioner
of education to act for him in his place and with his powers on
such appeals. It shall not be mandatory upon the board of
education to pay any such denied increment in any future year
as an adjustment increment.
N.J.S.A. 18A:29-14.
The Employer-Employee Public Relations Act provides that “Disputes involving the
withholding of an employee’s increment by an employer for predominately disciplinary
reasons shall be subject to the grievance procedures established pursuant to law and
shall be subject to the provisions of section 8 of this act.” N.J.S.A. 34:13A-26. The parties
agree here that the dispute involving the withholding of Saks’ increment is for disciplinary
reasons. See N.J.S.A. 34:13A-27.
The parties are asserting the matter before the OAL here is an educational law
dispute, as to whether the BOE’s failure to comply with the ten-day notice procedural
requirement of N.J.S.A. 18A:29-14, should result in automatic reinstatement of the
increment to Saks.
An 	appeal 	concerning 	increment 	withholdings 	for 	predominantly 	disciplinary
reasons is subject to arbitration under N.J.S.A. 34:13A-26. 	If the PERC commissioner
determines that the reason for increment withholding relates to the staff member’s job
performance, that employee’s appeal is directed to be made to the Commissioner of
Education under N.J.S.A. 34:13A-27(d). See Edison Twp. Board of Education v. Edison

OAL DKT. NO. EDU 10148-22
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Twp. Principals & Supervisors Association, 304 N.J. Super. 459 (App. Div. 1997). Hence,
it is well settled that if the increment is withheld for performance issues, the DOE has
jurisdiction. If the increment is withheld for disciplinary issues, PERC has jurisdiction.
The parties have now indicated they agree that the BOE withheld Saks’ increment
due to disciplinary reasons. The BOE admittedly did not comply with providing notice to
Saks within ten days. 	The parties agree that the substantive arguments as to whether
the withholding of the increment was appropriate would be an issue determined through
PERC. 	A PERC appeal was filed, and the parties agreed to hold that proceeding in
abeyance while pursuing this procedural issue.
The parties are correct that PERC has jurisdiction under the Employer-Employee
Act of a dispute when an increment is withheld for disciplinary purposes. The DOE does
not have jurisdiction of an increment withholding due to disciplinary matters. 	Hence,
whether it is a procedural or substantive issue regarding the withholding of the increment
based upon disciplinary issues, PERC has jurisdiction.
The parties’ procedural arguments and substantive arguments shall be presented
through the PERC process, in that forum where Saks’ appeal is pending. 	Thus, the
determination whether the BOE’s failure to provide ten-day notice of intent to withhold
Saks’ increment for disciplinary reasons results in automatic payment of the increment to
Saks is properly addressed through PERC, the agency with jurisdiction.
I CONCLUDE that the DOE lacks jurisdiction for this asserted procedural dispute
and this matter shall thus be DISMISSED.
ORDER
It is ORDERED that each parties’ request for summary decision in their favor is
DENIED as this matter is DISMISSED for lack of jurisdiction.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.

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This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen 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. 	Exceptions 	may 	be 	filed 	by 	email 	to
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies and
Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500. A copy of any exceptions must be sent to the judge and to the other parties.
February 13, 2025
DATE 	ELAINE B. FRICK, ALJ
Date Received at Agency:
Date Mailed to Parties:
EBF/gd

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APPENDIX
• 	August 8, 2024, Notice of Motion for Summary Decision by petitioner Saks
• 	October 7, 2024, Notice of Cross Motion for Summary Decision by respondent
Pinelands
• 	October 16, 2024, Opposition to Cross Motion reply by Saks
• 	December 6, 2024, Supplemental brief by Saks
• 	December 20, 2024, Supplemental brief by Pinelands