South Harrison Township Education Association v. Board of Education of the Township of South Harrison, Gloucester County, 3/17/2020, (#100-20)

New Jersey Commissioner of Education
Final Decision
South Harrison Township Education Association,
Petitioner,
v.
Board of Education of the Township of South Harrison,
Gloucester County,
Respondent.
Synopsis
Petitioner, the South Harrison Township Education Association (Association), filed a petition of appeal against
the respondent Board for violations arising under the school laws pursuant to N.J.S.A. 18A:6-9, violation of
Board policy, and arbitrary and capricious conduct for improperly withholding wages from Heidi Wagner, a
former Association member who retired on January 1, 2019. 	The Association contended that the Board
unilaterally 	changed 	the 	terms 	of 	Wagner’s 	employment 	to 	a 	per 	diem 	employee 	in 	violation 	of
N.J.S.A. 18A:27-6 and reduced the salary of a tenured employee in violation of N.J.S.A. 18A:6-10. The Board
maintained that the retired teacher received an appropriately pro-rated final paycheck based on the number of
days she worked prior to her retirement. The parties filed cross motions for summary decision.
The ALJ found, inter alia, that: 	there is no genuine issue as to any material fact, and the matter is ripe for
summary decision; the issue in this matter is whether the Board’s action in deduction $1,146.86 from the final
paycheck of a retiring teacher constituted a reduction in compensation in violation of N.J.S.A. 18A:6-10;
N.J.S.A. 18A:28-5 provides that teachers who are under tenure shall not have their compensation reduced except
for inefficiency, incapacity or unbecoming conduct; N.J.S.A. 18A:27-6(3) provides that salary payments must be
made in equal semi-monthly installments; and the Board’s policy did not provide any basis for prorating
Wagner’s final paycheck. The ALJ concluded that the Board’s recalculation of Wagner’s semi-monthly salary
by deducting $1,146.86 to reflect a per diem basis of pay constituted an improper reduction in compensation in
violation of N.J.S.A. 18A:27-6(3), N.J.S.A. 18A:28-5, and N.J.S.A. 18A:6-10. 	Accordingly, the ALJ granted
summary decision to petitioner.
Upon comprehensive review, the Commissioner concurred with the ALJ’s findings and conclusions as
thoroughly set forth in the Initial Decision. Accordingly, the recommended decision of the OAL was adopted as
the final decision in this matter. The Commissioner ordered the Board to compensate Wagner for the difference
between her full semi-monthly salary and what she received in her final paycheck.
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
100-20

OAL Dkt. No. EDU 05378-19
Agency Dkt. No. 61-3/19
New Jersey Commissioner of Education
Decision
South Harrison Township
Education Association,
Petitioner,
v.
Board of Education of the Township
of South Harrison, Gloucester 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 this matter, the South Harrison Township Education Association represents the
interests of its member, Heidi Wagner, who had been employed by the Board as an elementary
school teacher for thirty years. 	In August 2018, the Board approved Wagner’s notice of
retirement, effective January 1, 2019. From September 2018 to the first pay period of December
2018, petitioner received her salary of $76,594 in semi-monthly installments of $3,829.70. 	For
the final paycheck in the second pay period of December 2018, the Board deducted $1,146.86
from Wagner’s paycheck and indicated that her salary had been prorated based on the number of
days she had actually worked, relying upon a Board policy that authorizes the withholding of
salary or wages for services not provided.
Upon review, the Commissioner concurs with the ALJ’s conclusion that the
Board improperly reduced Wagner’s salary in violation of her tenure rights. 	Pursuant to

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N.J.S.A. 18A:27-6(3), teacher salaries, including those of tenured teachers and teachers who
work less than a full year, must be calculated on the basis of monthly or semi-monthly pay
periods. 	See Tucker v. Bd. of Educ. of the Twp. of Montgomery, Somerset Cty., Commissioner
Decision No. 277-05 (decided August 3, 2005). The Board is therefore precluded from adjusting
the contracted salary installment for a teacher not on leave status who has worked each day
during the period that teaching staff members were required to report to work. 	Ibid. 	The
Commissioner reiterates the ALJ’s statement in the Initial Decision that there is nothing
discretionary or ambiguous about N.J.S.A. 18A:27-6(3). There is no indication in the record that
Wagner failed to report to work on any day that schools were in session during the second pay
period of December 2018.1 The Board’s decision to reduce her salary is therefore a violation of
her protection against reduction in compensation under N.J.S.A. 18A:28-5.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter. 	The Board is directed to compensate Heidi Wagner for the $1,146.86 difference
between the salary payment she was owed for the second pay period of December 2018 and what
she actually received, together with such additional pension contributions as are necessitated by
this action.
IT IS SO ORDERED. 2
COMMISSIONER OF EDUCATION
Date of Decision: 	March 17, 2020
Date of Mailing: 	March 17, 2020
1 The ALJ found that, for this reason, the Board could not use its policy regarding “services not rendered” as
justification for withholding earned wages. While the Commissioner bases this decision on the Board’s statutory
obligations, which the Board cannot abrogate through its policy, the Commissioner also concurs with the ALJ’s
conclusion that the policy does not provide sufficient justification for the Board’s decision.
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
OAL DKT. NO. EDU 05378-19
AGENCY DKT. NO. 61-3/19
SOUTH HARRISON TOWNSHIP
EDUCATION ASSOCIATION,
Petitioner,
v.
SOUTH HARRISON TOWNSHIP
BOARD OF EDUCATION,
GLOUCESTER COUNTY,
Respondent.
___________________________________
Jeffrey P. Catalano, Esq., for petitioner (Zeller & Wieliczko, LLP, attorneys)
R. Taylor Ruilova, Esq., for respondent (Comegno Law Group, P.C., attorneys)
Record Closed: February 12, 2020 	Decided: February 20, 2020
BEFORE KATHLEEN M. CALEMMO, ALJ:
STATEMENT OF THE CASE
Petitioner, 	South 	Harrison 	Township 	Education 	Association 	(petitioner 	or
Association), filed a petition of appeal against the South Harrison Township Board of
Education, Gloucester County (respondent or Board) for violations arising under school
laws pursuant to N.J.S.A. 18A:6-9, violation of Board policy, and arbitrary and capricious

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conduct for improperly withholding wages from a former Association member who retired
on 	January 	1, 	2019. 	The 	Board 	maintained 	that 	the 	retired 	teacher 	received 	an
appropriately prorated final paycheck based on the number of days she worked prior to her
retirement.
PROCEDURAL HISTORY
This matter arose with the Association’s March 21, 2019, filing of its petition of
appeal with the Office of the Commissioner of Education. 	On April 10, 2019, the Board
filed a notice of motion to dismiss the petition in lieu of answer or, in the alternative, to
compel arbitration. The Commissioner of Education transmitted the matter to the Office of
Administration Law (OAL) where it was filed on April 18, 2019.
By Order, dated August 20, 2019, I denied the Board’s motion to dismiss and
scheduled the matter for a telephone conference. 	During the telephone conference, the
parties agreed that there were no material facts in dispute and the matter could be
resolved summarily. 	On December 4, 2019, I received the Association’s brief and
certification in support of its motion for summary decision. On January 8, 2020, I received
the Board’s opposition, cross-motion for summary decision, and supporting certification.
On January 27, 2020, I received the Association’s letter brief in reply. 	On February 12,
2020, I received the Board’s letter brief in reply to the Association’s opposition. Thereafter,
I closed the record.
ISSUES PRESENTED
The petition raises the following issues for determination:
1. 	Whether the Board’s action in deducting $1,146.86 from the final paycheck of a
retiring tenured teacher constituted a reduction in compensation in violation of N.J.S.A.
18A:6-10?

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2. Whether the Board’s action was arbitrary, capricious, and unreasonable, when it
prorated the final paycheck of a tenured teacher who retired on January 1, 2019, to reflect
the actual number of days she worked?
STATEMENT OF FACTS
The 	following 	facts 	pertinent 	to 	the 	cross-motions 	for 	summary 	decision 	are
uncontroverted, and I FIND:
On July 1, 2017, the Association and the Board entered into a Collective Bargaining
Agreement (CBA), effective July 1, 2017 through June 30, 2020. 	Certification of Cosmas
P. Diamantis, Esquire (CPD Cert.), Exhibit 2.
Heidi Wagner (Wagner) was employed with the South Harrison School District
(District) for thirty years as an elementary school teacher and was a member of the
Association. 	At the Board’s August 20, 2018 meeting, the Board approved Wagner’s
notice of retirement, effective January 1, 2019. Wagner’s last day of work was December
31, 2018.
The CBA, at Article 11 (B) (1), provides for teachers employed on a ten-month basis
to be paid in twenty equal semi-monthly installments. 	(CPD Cert, Exhibit 2.) 	Wagner’s
salary for the 2018-2019 school year was $76,594, as set forth in the CBA. Id. Starting in
September 2018, and continuing through the first pay period in December 2018, Wagner
received $3,829.70 in semi-monthly installments. 	Rather that receiving her semi-monthly
installment for the second pay period in December 2018, Wagner received a paycheck that
was $1,146.86 less than the $3,829.70 she had been receiving since September 2018.
On behalf of Wagner, the Association filed a grievance requesting that the “docked”
pay of $1,146.86 be returned to Wagner. (CPD Cert., Exhibit 1 at B.)
In 	a 	letter, 	dated 	February 	12, 	2019, 	Dr. 	James 	J. 	Lavender, 	(Lavender),
Superintendent of Schools, denied the Association’s request to reimburse Wagner the
money that had been deducted from her last paycheck. 	(CPD Cert., Exhibit 1 at C.) 	His

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written response was as follows:
Mrs. Wagner was employed and provided a salary based on a
complete contract year of 187 days. 	However, Mrs. Wagner
worked 72 days during the 2018-2019 school year, constituting
an 	early 	separation 	from 	her 	contract. 	Therefore, 	Mrs.
Wagner’s salary was prorated based on the number of days
she actually worked. 	In Mrs. Wagner’s case, her annual salary
was $76,595. 	By dividing 187 contract days into her salary,
Mrs. Wagner’s daily rate of pay was equal to $409.59. 	To
prorate her salary correctly, the payroll administrator multiplied
her daily rate by the number of days she worked.
The Board calculated Wagner’s entitlement based on the 72 days she worked
against the 187 contract days in the school year. 	Public holidays and other school
closures from the first full staff day of school on September 4, 2018 through December 31,
2018, were not included in the Board’s prorated calculation. 	According to the 2018-2019
South Harrison school calendar, the teachers had 72 working days from September 4,
2018 through December 31, 2018. 	The school was closed to both students and staff for
13 days: November 5, 2018 through November 9, 2018; November 22 and 23, 2018; and
December 24, 2018 through December 31, 2018. (CPD Cert., Exhibit 1 at A.)
In support of its decision to prorate Wagner’s wages, the Board relied upon Board
Policy 6510 which authorizes withholding of salary or wages for services not provided.
(CPD Cert., Exhibit 1 at D.)
The 	Association 	maintains 	that 	the 	Board 	unilaterally 	changed 	the 	terms 	of
Wagner’s employment to a per diem employee in violation of N.J.S.A. 18A:27-6 and
reduced the salary of a tenured employee in violation of N.J.S.A. 18A:6-10.
LEGAL DISCUSSION
Summary 	decision 	may 	be 	rendered 	in 	an 	administrative 	proceeding 	if 	the
pleadings, discovery and 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.” N.J.A.C.
1:1-12.5(b). 	The standard to be applied in deciding a motion pursuant to N.J.A.C. 1:1-

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12.5(b) is essentially the same as that governing a motion under R. 4:46-2 for summary
judgment in civil litigation. 	Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121,
(App. Div. 1995), certif. denied, 145 N.J. 372 (1996).
A court should grant summary judgment when the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, show that there is no
genuine issue of material fact and that the moving party is entitled to a judgment as a
matter of law. 	Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-529 (1995). 	The
Supreme Court of New Jersey has adopted a standard that requires judges to “engage in
an analytical process to decide whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 533.
A court should deny a motion for summary decision when the party opposing the
motion has produced evidence that creates a genuine issue as to any material fact
challenged. 	Brill, 142 N.J. at 528-29. 	When making a summary decision, the “judge’s
function is not to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Id. at 540.
Here, the parties agree that there are no material issues of fact in dispute, and both
have filed cross-motions for summary decision. 	After careful review of the record, I am
satisfied that the material facts giving rise to this matter are not in dispute and that this
matter can be decided as a matter of law. Accordingly, I CONCLUDE that it is appropriate
to decide this matter by way of summary decision.
N.J.S.A. 18A:28-1 to -18 defines the conditions under which teaching staff members
are entitled to the security of tenure. Tenure is a “statutory right imposed upon a teacher’s
contractual employment status.” 	Zimmerman v. Newark Bd. of Educ., 38 N.J. 65, 72
(1962), 	certif. 	denied, 371 	U.S. 	956 	(1963). 	These 	statutory provisions 	supersede
contractual terms. 	Spiewak v. Rutherford Bd. of Educ., 90 N.J. 63, 72 (1982). 	They are
“designed to aid in the establishment of a competent and efficient school system by
affording to principals and teachers a measure of security in the ranks they hold after years

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of service.” 	Viemeister v. Prospect Park Bd. of Educ., 5 N.J. Super. 215, 218 (App. Div.
1949).
Wagner’s claim springs from N.J.S.A. 18A:6-10, which provides as follows:
No person shall be dismissed or reduced in compensation,
(a) if he is or shall be under tenure of office, position or
employment during good behavior and efficiency in the
public school system of the state, or
. . . .
except 	for 	inefficiency, 	incapacity, 	unbecoming 	conduct, 	or
other just cause, and then only after a hearing held pursuant to
this subarticle, by the commissioner, or a person appointed by
him to act in his behalf, after a written charge or charges, of the
cause 	or 	causes 	of 	complaint, 	shall 	have 	been 	preferred
against such person, signed by the person or persons making
the same, who may or may not be a member or members of a
board of education, and filed and proceeded upon as in this
subarticle provided.
Similarly, N.J.S.A. 18A:28-5 provides that teachers who are under tenure shall not
have 	their 	compensation 	reduced 	except 	for 	inefficiency, 	incapacity, 	or 	unbecoming
conduct.
Wagner was a tenured teacher with thirty years’ experience. At its August 20, 2018
meeting, the Board approved Wagner’s notice of retirement, effective January 1, 2019. At
the start of the 2018-2019 school year, Wagner’s salary was $76,594. In accordance with
N.J.S.A. 18A:27-6(3), Wagner was required to be paid in equal semimonthly or monthly
installments. 	As stated, Wagner was paid in semimonthly installments through the first
installment in December 2018. 	Without prior notification, Wagner’s paycheck for the
second installment in December 2018, was reduced by $1,146.86.
Without addressing the requirement set forth in N.J.S.A 18A:27-6(3) that a teacher’s
salary be payable in equal semimonthly installments, the Board maintained that Wagner
was appropriately paid for services rendered in accordance with Board Policy, 6510,

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Payroll Authorization. 	(CPD Cert., Exhibit 1 at C.) 	The Board relied on one sentence in
the policy which states that “[t]he School Business Administrator/Board Secretary is
authorized to withhold salary or wages for services not rendered, in accordance with Board
policy.” 	The next sentence in the policy states that “[s]taff members shall be paid in
accordance 	with 	the 	provision 	in 	their 	collective 	bargaining 	agreement 	and/or 	in
accordance with a schedule provided to all employees prior to the beginning of the
contract or school year.” 	There is nothing in the record to suggest that Wagner failed to
perform teaching services on each day that school was in session from the beginning of
the school year until December 31, 2018. 	The Board never articulated what services
Wagner failed to render. The Board is attempting to use Board Policy 6510 as justification
for changing the terms of Wagner’s contract of employment from a salary paid on equal
installments to per diem. 	Without articulating which services Wagner failed to render, the
Board cannot use this policy as a justification for withholding earned wages. Therefore, I
CONCLUDE that Board Policy 6510 did not provide any basis for the Board’s action in
prorating Wagner’s final paycheck.
The Board simply ignored the statutory language requiring salary payments to be
paid in equal semimonthly installments. There is nothing discretionary or ambiguous about
N.J.S.A. 18A:27-6(3) and its requirement. 	The Board did not maintain that its prior
installment payments of $3,829.70 were in error. 	Rather, the Board maintained that its
actions were justified because of Wagner’s early termination from her contract. 	Yet, the
Board approved Wagner’s retirement date in August 2018, and issued semimonthly
installment payments based on her contract amount for the next three and one-half
months. 	In contradiction to the Board’s argument, Wagner was paid her full salary
installments for the month of November 2018, when there were only fifteen teaching days.
Wagner received her full contractual pay for each month that she worked until her last
payment when she was docked for the days when school was not in service.
To accept the Board’s reasoning would lead to illogical results. 	Would a tenured
teacher who had to resign mid-year for health or personal reasons be required to pay back
the money she already earned? 	The Board’s actions herein, interfered with Wagner’s
earned contractual rights not a prospective right. 	Consequently, the Board’s reliance on
New Jersey Ass’n of Sch Adm’rs v. Schundler, 211 N.J. 353 (2012), is unfounded. 	In

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Schundler, the New Jersey Supreme Court reiterated a well settled principal that the
Legislature and the Commissioner of Education may enact prospective legislation that
modifies the terms and conditions of public service. Such reasoning has no bearing on the
Board’s actions herein. 	The Board’s decision affected Wagner’s contractual right to her
earned salary. 	This modification to her existing salary did not stem from a policy, was not
negotiated through a collective bargaining agreement, and cannot be justified under exiting
law.
The Legislature made the policy decision to limit how compensation could be
reduced when it enacted the tenure statutes. 	N.J.S.A. 18A: 28-5 provides that tenured
teachers during good behavior and efficiency, shall not have their compensation reduced
without 	just 	cause. 	Likewise, 	N.J.S.A. 	18A:6-10 	provides 	that 	a 	tenured 	teacher’s
compensation shall not be reduced during good behavior and efficiency.
As sited by the Association, the Commissioner of Education reviewed a similar
issue in the matter of Diane M. Tucker, Petitioner, v. Board of Education of Montgomery
Township, Somerset County, Respondent, 234-7/03, 2005 WL 1794528 (N.J. Adm. June
20, 2005). 	In Tucker, the Commissioner of Education adopted the initial decision and
concurred with the ALJ that the applicable statute, N.J.S.A. 18A:28-5, required that
teachers’ salaries, including those of tenured teachers and teachers who work less that a
full year, be calculated on the basis of monthly or semimonthly pay periods. The Board of
Education of Montgomery Township had recalculated Mrs. Tucker’s semi-monthly salary
on a per diem basis which caused her to suffer a reduction in compensation. 	The issue in
Tucker was not retirement but maternity leave, however, the reasoning by the ALJ and the
Commissioner 	is 	illustrative. 	With 	Board 	approval, 	Ms. 	Tucker 	had 	structured 	her
maternity leave so that she would return to work on April 16, 2003, the first day of the pay
period and the day before spring recess. 	Following the school recess, Ms. Tucker
returned to work on April 28, 2003, for the last three days of the pay period. Consequently,
Ms. Tucker worked every single day the school was open. 	The ALJ concluded that the
Board’s recalculation of Ms. Tucker’s semi-monthly salary on a per diem basis by failing to
pay her for the spring recess constituted an improper reduction in compensation in
violation 	of 	N.J.S.A. 	18A:28-5. 	The 	Commissioner 	of 	Education 	agreed. 	The
Commissioner ordered the Board to pay Ms. Tucker $1,310.40, representing the difference

9
between the salary payment she was owed and what she received on a per diem basis.
Further, the Commissioner stated that N.J.S.A. 18A:27-6(3) precludes a board from
adjusting the contracted salary installment for a teacher who has worked each day during
the period that teaching staff members were required to report to work. 	There is no
difference between what the Board attempted to do in Tucker and what the Board is
attempting to do herein. 	Wagner worked each day from the start of the school year until
December 31, 2018, that teaching staff members were required to work and she should be
compensated accordingly. The Board adjusted her salary while she was still employed so
the argument that Wagner was in the process of retiring is of no import.
For the reasons expressed above, I CONCLUDE that the Board’s recalculation of
Wagner’s semi-monthly salary by deducting $1,146.86 to reflect a per diem basis of pay
constituted an improper reduction in compensation in violation of N.J.S.A. 18A:28-5 and
18A:6-10. I further CONCLUDE that Wagner was entitled to receive her full semi-monthly
salary of $3,829.70 for the second pay period in December 2018.
The 	Board’s 	actions 	in 	unilaterally 	converting 	Wagner’s 	salary 	from 	equal
semimonthly installments to a per diem rate of pay violated N.J.S.A. 18A-27-6(3) and
constituted an improper reduction in compensation in violation of N.J.S.A. 18A:28-5 and
18A:6-10. 	In this instance, I CONCLUDE that the Board’s actions were arbitrary and
capricious. 	The Board acted to reduce a retiring tenured teacher’s salary without any
basis in law, policy, or agreement.
Based upon the foregoing, I CONCLUDE that the Board’s recalculation of Wagner’s
semi-monthly 	salary 	on 	a 	per 	diem 	basis 	constituted 	an 	improper 	reduction 	in
compensation and must be overturned.
CONCLUSION
The Association’s motion for summary decision is GRANTED and the Board’s
cross-motion for summary decision is DENIED.

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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 20, 2020
DATE 	KATHLEEN M. CALEMMO, ALJ
Date Received at Agency:
Date Mailed to Parties:
KMC/tat
APPENDIX
LIST OF EXHIBITS

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For petitioner:
Certification of Cosmas P. Diamantis, Esq.
Exhibit 1 – Petition of Appeal with attachments: 	Exhibit A – 2018-2019 South
Harrison School Calendar; Exhibit B – Grievance Form; Exhibit C – February 12,
2019, letter from Dr. Lavender; Exhibit D – 6510 Payroll Authorization Policy; Exhibit
E – Association’s Grievance Form; and Exhibit F – February 29, 2019, Board’s
response.
Exhibit 2 – CBA
For respondent:
Certification of Counsel, incorporating by reference, Exhibits to Certification of
Cosmos P. Diamantis, Esq.