LUCY KOURTESIS V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND DOROTHEA POLIFRONI V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND SUSAN KENT V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND MARY BAGLIVI V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND RUTH LEIBOWITZ V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND PATRICIA WELLE V. AND ANNE CELMER V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND MICHELE MEYER V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND GWEN DUBNO V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND TERI J. LIEBERMAN V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND REGINA M. KARCH V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND CORINA DROZDOWSKI V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND ADRIANA C. SELF V. AND MARIA ERICKSON V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND BELLA POLINER V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND MICHELE SAPER V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. AND PRISCILLA A. KAPLAN V. BOE OF THE BERGEN CO. SPEC. SERV. SCH. DIST., BERGEN CO. (Consolidated), 12/5/11, (#535-11)

#535-11 (OAL Decision: Not yet available online)
LUCY KOURTESIS, ET AL., 	:
PETITIONERS, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
BERGEN COUNTY SPECIAL
SERVICES SCHOOL DISTRICT, 	:
BERGEN COUNTY,
:
RESPONDENT.
____________________________________:
SYNOPSIS
The petitioners in this consolidated case – tenured teachers and speech therapists employed by
respondent on an hourly basis to provide services to students in non-public schools – alleged that
their hours for the 2010-2011 school year were improperly reduced by respondent in violation of
their tenure and seniority rights. Petitioners contended that respondent should not have reduced
the hours of all the teachers and therapists in their collective bargaining unit, but should rather
have assigned the anticipated number of instructional hours based on seniority. The parties filed
cross motions for summary decision.
The ALJ found, inter alia, that: there are no genuine issues of material fact, and the matter is ripe for
summary judgment; respondent never guaranteed, by contract or otherwise, a minimum number of
hours to petitioners; petitioners acquired tenure by working on an hourly basis; petitioners have
flexible schedules with fluctuating hours; 	the 2009-2012 collective bargaining agreement under
which petitioners were employed limited hours worked in a day to not more than 6.75; no positions
were abolished, the number of staff was not reduced, and no positions were transferred, reassigned or
subjected to any other form of adverse action; accordingly, a reduction in force within the meaning of
N.J.S.A. 18A:28-9 never occurred; and there were no violations of the Open Public Meetings Act
(OPMA). 	Accordingly, the ALJ: determined that petitioners’ tenure and seniority rights were not
violated; granted respondent’s motion for summary judgment; and denied petitioner’s appeal.
Upon a thorough and independent review of the record and the Initial Decision, the Commissioner
concurred with the ALJ that: the actions of respondent in reducing the number of hours worked did
not constitute a RIF as described in N.J.S.A. 18A:28-9; did not violate the petitioners’ tenure rights;
and did not violate the OPMA. 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 5, 2011

1
OAL DKT NOS. EDU 14171-10; 14168-10; 14172-10; 14173-10; 14186-10; 14175-10;
14174-10; 14170-10; 356-11; 355-11; 354-11; 357-11; 28-11; 23-11; 24-11; 25-11; and 353-11
AGENCY DKT. NOS. 702-12/10; 661-11/10; 628-11/10; 669-11/10; 636-11/10; 666-11/10;
663-11/10; 695-11/10; 665-11/10; 644-11/10; 662-11/10; 627-11/10; 641-11/10; 671-11/10;
705-12/10; 629-11/10; and 643-11/10, respectively.
LUCY KOURTESIS, ET AL., 	:
PETITIONERS, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
BERGEN COUNTY SPECIAL
SERVICES SCHOOL DISTRICT, 	:
BERGEN COUNTY,
:
RESPONDENT.
____________________________________:
The petitioners in this consolidated case – tenured teachers and speech therapists
employed by respondent on an hourly basis to provide services to students in non-public schools
– allege that respondent violated their tenure and seniority rights when it decreased the number
of hours of their employment. 	They contend that, rather than reducing the hours of all the
teachers and therapists in their collective bargaining unit – in consequence of a decrease in
demand for services – respondent should have assigned the anticipated number of needed
instructional hours on the basis of seniority. More specifically, petitioners argue that their hours
should not have been decreased, and that any reduction in demand for services should have
resulted in the elimination of the positions of less senior colleagues. 	As an ancillary matter,
petitioners assert that respondent’s failure to give petitioners notice of the alleged reduction in
employment constituted a violation of the Open Public Meetings Act.

2
In her Initial Decision, the Administrative Law Judge (ALJ) determined 1) that
respondent’s above described action did not violate the petitioners’ tenure rights, and 2) that the
Open Public Meetings Act was not violated:
[S]ince the petitioners were not entitled to a minimum number of
hours, respondent’s assignment of fewer hours at the beginning of
the 	2010–2011 	school 	year 	did 	not 	violate 	their 	tenure 	and
seniority rights.
Initial Decision at 12.
Since no RIF took place, a board meeting to effectuate same was
not required. See N.J.S.A. 18A:28-9
Initial Decision at 13.
Upon full consideration of the record, Initial Decision and parties’ exceptions, the Commissioner
agrees.
Certain undisputed facts are key to an understanding of the issues presented in
this controversy. First, petitioners are employed to provide supplemental educational services to
students in private schools under programs mandated by State laws. 	The parties refer to the
programs as Chapter 192 and Chapter 193 programs, an allusion to the numeric designations of
the portions of the statutes that call for the services.
Although non-public schools are generally outside respondent’s jurisdiction, the
above-referenced state laws direct that certain special services be administered by respondent
and funded by the State. More specifically, when a student in a non-public school has a need for
such services the school, together with the parent of the eligible student, submits a formal request
to respondent. Respondent assigns the proper staff person to provide the services to the private
school student and requests funding for the services from the local school district. 	The local
school district is, in turn, reimbursed by the State. Neither the demand for services in any given
school year, nor the reimbursement rate for provided services, is determined by respondent.

3
The petitioners belong to a separate collective bargaining unit from salaried
teachers, which unit has a separate collective bargaining agreement (CBA) that covers wages,
hours, and conditions of employment. 	Pursuant to that CBA, petitioners may not work more
than 6.75 hours per day without prior administrative approval, and no minimum number of hours
is guaranteed. 	The 192/193 staff have no holiday or vacation schedules and are not required to
work on days that are holidays on the schedules of the private schools at which they work.
The 	record 	indicates 	that 	throughout 	their 	tenure, 	petitioners 	have 	signed
yearlong, hourly contracts which set forth their individual hourly rates and longevity stipends.
Their total hours have fluctuated from year to year, because the needs of the non-public schools
fluctuate. In addition, petitioners have been allowed to set their total number of service hours –
so long as the total did not exceed 6.75 hours per day. 	Schedules have never been assigned
based upon seniority, nor is there any such requirement in the collective bargaining agreement
for petitioners’ unit. 	Rather, respondent has tried to accommodate staff members by assigning
work based upon their preferred locations and number of hours. 	Respondent has also tried to
honor the requests of schools for particular staff.
As regards the across-the-board decrease in hours for the 2010-2011 school year,
there is testimony in the record that it was driven by the closure of three parochial schools in
which petitioners had been employed, as well as a 13 percent decrease in State funding for the
2010–2011 	school 	year. 	Rather 	than 	terminate 	employees 	in 	difficult 	economic 	times,
respondent’s supervisor of instruction decided to assign fewer hours across the unit.

4
Under the foregoing circumstances, the respondent’s action did not constitute a
reduction in force (RIF) – as described in N.J.S.A. 18A:28-9:
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
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.
[Emphasis added.]
While it is true that the courts have recognized that a reduction in hours of
employment can be a reduction in force, see, e.g., Klinger v. Cranbury Bd. of Educ., 190 N.J.
Super. 354, 357 (App. Div. 1982), certif. denied, 93 N.J. 277 (1983), for an actual reduction in
hours to equate to a RIF, staff must be entitled to a minimum number of hours of employment.
Conversely, an employee’s tenure/seniority rights will lay dormant where hours vary by nature
and no reasonable expectation of a prescribed set of hours exists. 	See, Theresa Alfieri and
Therese Mezak v. Board of Education of the Township of Saddle Brook, Bergen County,
(consolidated), Commissioner Decision No. 320-01, September 17, 2001, State Board Decision
No. 40-01, January 8, 2003, certif. den., Alfieri v. Bd. of Educ., 181 N.J. 547 (2004).
Similarly, the protections articulated in N.J.S.A. 18A:28-5 are not triggered by the
facts of this case. That statute provides, in pertinent part:
The services of all teaching staff members . . . and such other
employees 	as 	are 	in 	positions 	which 	require 	them 	to 	hold
appropriate certificates issued by the board of examiners, serving
in any school district or under any board of education, . . . shall be
under tenure during good behavior and efficiency and they shall
not 	be 	dismissed 	or 	reduced 	in 	compensation 	except 	for
inefficiency, incapacity, or conduct unbecoming such a teaching
staff member or other just cause and then only in the manner
prescribed by subarticle B of article 2 of chapter 6 of this Title,
after employment in such district or by such board for: 	(a) Three
consecutive calendar years, or any shorter period which may be

5
fixed by the employing board for such purpose; or (b) Three
consecutive academic years, together with employment at the
beginning of the next succeeding academic year; or (c) The
equivalent of more than three academic years within a period of
any four consecutive academic years.
[Emphasis added.]
None of the petitioners were “dismissed.” 	Nor can the Commissioner conclude
that any of them were “reduced in compensation," given that the nature of their employment
entailed fluctuating hours between and within school years, and their terms of employment
included no guarantees regarding the number of hours that they could expect to be assigned.
The instant matter is not the first such controversy to be brought before the
Commissioner. In Alfieri v. Saddlebrook Board of Education, cited supra, petitioners with jobs
that guaranteed them no minimum number of hours challenged the Saddlebrook Board of
Education’s action of requiring petitioners to teach students in groups – as opposed to
individually – thereby reducing the total amount of teaching hours. The Commissioner found:
[P]etitioners were not subject to a reduction in force or other
adverse employment action which would trigger their tenure and
seniority rights. It is undisputed that petitioners knowingly entered
into employment with the Board in positions having fluid hours,
not to exceed 19 or 19.5 hours per week, based on the needs of its
students for remedial instruction. Further, petitioners’ employment
hours fluctuated from year to year, even pay period to pay period,
based on those needs. 	Consequently, the Commissioner agrees
with the Board that, given the structure of the programs in which
petitioners were employed and the terms of their employment
agreements, they never had any tenure entitlement to a minimum
number of hours worked per year. 	Therefore, while petitioners’
hours of employment were fewer in the 1998-1999 school year
than in the previous year, tenure and seniority protections were not
triggered 	because 	their 	employment 	from 	its 	inception 	was
intended to be flexible in terms of the precise number of hours to
be worked.
(Alfieri v. Saddlebrook Board of Education, Commisssioner Decision
No. 320-01 at 5, citations to the record omitted.)

6
Upon review of the Commissioner’s decision, the State Board of Education
concurred:
[W]e 	agree 	with 	the 	Commissioner 	that, 	given 	the 	factual
circumstances of this case, the petitioners do not have a tenure
entitlement to the full-time positions they seek because they were
not 	subject 	to 	a reduction 	in 	staff 	under 	N.J.S.A. 	18A:28-9.
As set forth above, the petitioners were not employed for a fixed
number of hours. Rather, their hours were fluid up to a maximum
of 	19 	1/2 	hours 	per 	week. 	Consequently, 	their 	hours 	have
fluctuated not only from year to year but also from pay period to
pay period.
Under these circumstances, the fact that the petitioners may have
worked fewer hours in any given year than they had during the
preceding year does not mean that they were subject to a reduction
in 	staff 	within 	the 	meaning 	of 	N.J.S.A. 	18A:28-9. 	To 	hold
otherwise would require a conclusion that reductions in staff had
occurred from pay period to pay period, as well as from year to
year. . . .
When a teaching staff member asserts tenure rights on the basis of
a reduction in staff pursuant to N.J.S.A. 18A:28-9, consideration of
the hours of employment established by the district board upon the
staff member's appointment is the starting point for determining
whether such a reduction has occurred. In this case, the Board had
not required petitioners to work a definite number of hours each
week when it appointed them, but, rather, it merely had established
the maximum number of hours that they were permitted to work on
a weekly basis. . . . . The Board in this case did not act to reduce
the maximum number of hours that petitioners could work. Hence,
we concur with the Commissioner that, in the absence of any
guarantee of a minimum number of hours, a reduction in staff
within the meaning of the statute did not occur in this case.
Alfieri v. Saddle Brook Board of Education, State Board Decision No.
40-01 at 6-7.
The case was ultimately appealed to the New Jersey Supreme Court which denied certiorari (181
N.J. 547 (2004).

7
In their exceptions petitioners have relied on Spiewack v. Rutherford Board of
Education, 90 N.J. 63 (1982) and other cases generally relating to tenure and seniority. 	While
Spiewak stands for the proposition that part-time employees may earn tenure – and “bump” non-
tenured full-time employees in the same “position” – that proposition is not at issue in this case.
It is acknowledged that petitioners are tenured. However, there can be no finding of a reduction
in their employment when they have not been terminated and cannot, under the terms and
conditions of their employment, expect a specific minimum number of assigned work hours in a
given year, month, week or day. The other cases cited by petitioners are similarly inapposite to
the instant controversy.
Accordingly, the Commissioner concludes that respondent’s action may be
upheld, as it was reasonable and did not violate petitioners’ tenure rights. 	Further, the
Commissioner finds, for the reasons set forth in the Initial Decision, that the Open Public
Meetings Act was not violated by respondent. The petition is therefore dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision: December 5, 2011
Date of Mailing: 	December 5, 2011
1 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)