John Moylan v. Board of Education of the Borough of Saddle River, Bergen County, 4/14/2022, (#76-22)

OCR transcription for search; preserved printed pages are authoritative

76-22
New Jersey Commissioner of Education

Final Decision

John Moylan,

Petitioner,

Board of Education of the Borough of
Saddle River, Bergen County,

Respondent.

Synopsis

Petitioner has worked for the respondent Board as a Teacher of Music since 2005, during which time the
Board has implemented several reductions in force (RIF), and petitioner’s position has fluctuated between
full and part time. At present, petitioner is a part time employee, teaching 60% of a full time schedule.
Petitioner alleged that the Board is improperly employing a non-tenured teacher in a full-time position for
which petitioner is qualified, in violation of petitioner’s tenure rights. Petitioner argued that he was the
subject of a RIF in 2019 which activated his tenure and seniority rights. The Board filed a motion for
summary decision, which was opposed by the petitioner.

The AU found, inter alia, that: there are no material facts at issue here, and the matter is ripe for summary
decision; petitioner is a tenured teacher in respondent’s school district; petitioner’s employment in the
district has been solely as a music teacher; and he cannot claim seniority rights to a position he has never
held; accordingly, petitioner is not entitled to the position he claims. The ALJ granted summary decision to
the Board and dismissed the petition.

The Commissioner found, inter alia, that: a RIF did not occur in 2019 as the Board rescinded its vote to
reduce petitioner’s hours, and while a RIF did occur in 2017, petitioner did not at that time hold any
endorsement other than the Teacher of Music endorsement; petitioner retains his tenure right to
reemployment for a greater number of hours should a vacancy arise in the district within the scope of his
Teacher of Music endorsement, but he has no right to reemployment for any position requiring another
endorsement. Accordingly, the Commissioner granted the Board’s motion for summary decision and
dismissed the petition. In so doing, the Commissioner noted that the AU’s analysis regarding seniority does
not apply in this case — where petitioner is a tenured teacher and the teacher holding the position which
petitioner is seeking is not tenured — because seniority only becomes an issue when ranking two or more
tenured teachers for the same position.

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.

OAL Dkt. No. EDU 08416-20
Agency Dkt. No. 168-8/20
New Jersey Commissioner of Education
Final Decision
John Moylan,
Petitioner,
v.
Board of Education of the Borough of
Saddle River, Bergen County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL), the
exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the Board’s reply thereto, have
been reviewed and considered.
Petitioner has been employed by the Board as a music teacher since 2005. Throughout that
time, the Board implemented several reductions in force (RIF), and petitioner’s employment
fluctuated between part-time and full-time. Petitioner is currently a part-time employee teaching
60 percent of a full-time schedule, and he alleges that the Board is improperly employing a non-
tenured teacher in a full-time position for which petitioner is qualified, in violation of petitioner’s
tenure rights. Specifically, a teacher who was assigned to teach physical education and health for
60 percent of a full time schedule was also assigned to teach Response to Intervention (RTI) – a type
of basic skills course – for 40 percent of a full-time schedule, bringing that teacher’s schedule to full-
time. Petitioner asserts that he should have been assigned to teach the RTI courses so that he
would be a full-time employee. The Administrative Law Judge (ALJ) found that petitioner was
76-22

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asserting seniority rights to a position that he had never held, and therefore petitioner was not
entitled to that position.1
In his exceptions, petitioner argues that he was subject to a RIF in April 2019 that activated
his tenure and seniority rights. Petitioner argues that his tenure right does not require him to have
previously provided RTI instruction, as his tenure rights encompass all the endorsements to his
instructional certificate that he held at the time of the April 2019 RIF. Petitioner notes that in
April 2019, he held an instructional certificate with endorsements as a Teacher of Music,
Elementary School Teacher K-6, and Teacher of Supplemental Instruction: Reading and
Mathematics K-8. According to petitioner, he had tenure rights to all positions within the scope of
any of those endorsements, including the RTI courses, and it was improper for the Board to assign a
non-tenured teacher to the RTI courses rather than petitioner.
In reply, the Board argues that the April 2019 RIF was rescinded by the Board in June 2019,
such that petitioner was employed for the same number of hours for the 2019-2020 school year as
he had been in 2018-2019, and therefore there was no RIF to trigger petitioner’s tenure rights. The
Board notes that, at the time of the previous RIF in the spring of 2017, petitioner only had a Teacher
of Music endorsement, which does not entitle him to tenure rights to a position other than a music
position.
Upon review, the Commissioner finds that a RIF did not occur in April 2019. While the
Board voted to reduce petitioner’s hours, it rescinded that vote and petitioner suffered no
reduction in hours. In order to be eligible for reemployment following a RIF, the teacher must have
1 The Commissioner notes that a tenured teacher seeking reemployment to a position for which he holds the
appropriate endorsement is entitled to preference in a RIF over a non-tenured teacher, even if the tenured teacher
has no experience in the position he is seeking. Capodilupo v. Bd. of Educ., 218 N.J. Super. 510 (App. Div. 1987).
Seniority becomes an issue when ranking two or more tenured teachers for the same position. For this reason, the
ALJ’s analysis is inapplicable to this matter, in which petitioner is a tenured teacher and the teacher holding the
position which petitioner is seeking is not tenured. However, for the reasons explained herein, petitioner does not
have any right to the position held by the non-tenured teacher.

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been dismissed. N.J.S.A. 18:28-12. The same principle applies when a teacher’s hours are reduced
following a RIF – the teacher’s hours must have actually been reduced. No reduction occurred here,
as petitioner served as a 0.6 full-time equivalent employee in the school year before the RIF and the
school years after. As no RIF occurred in April 2019, petitioner’s tenure right to reemployment was
not triggered at that time.
It is undisputed that, at the time of the previous RIF in spring 2017, petitioner did not
possess an Elementary School or Supplemental Instruction endorsement, and only possessed a
Teacher of Music endorsement. Accordingly, while petitioner retains his tenure right to
reemployment for a greater number of hours should a vacancy arise in the district within the scope
of his Teacher of Music endorsement, he has no right to reemployment for any position requiring
another endorsement. See Francey v. Bd. of Educ. of City of Salem, Salem Cty., 286 N.J. Super. 354
(App. Div. 1996) (holding that reemployment rights are based on the certificates and endorsements
held at the time of the RIF and that endorsements acquired after the date of the RIF do not give rise
to reemployment rights); Lobello v. Bd. of Educ. of Warren Hills Regional School Dist. Warren Cty.,
Commissioner Decision No. 161-11 (Apr. 27, 2011).
Accordingly, the Board’s motion for summary decision is granted, and the petition of appeal
is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 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.
April 14, 2022
April 14, 2022

i

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION
SUMMARY DECISION

OAL DKT. NO. EDU 08416-20
AGENCY DKT. NO. 168-8/20

JOHN MOYLAN,

Petitioner,

vs.
BOARD OF EDUCATION OF THE
BOROUGH OF SADDLE RIVER,
BERGEN COUNTY,

Respondent.

Kathleen Naprstek Cerisano, Esq., for Petitioner (Zazzali, Gazelle, Nowak,

Kleinbaum and Friedman, P.C., attorneys)

Mark A. Wenczel, Esq., for Respondent (Cleary, Giacobbe, Alfieri & Jacobs,
LLC, attorneys)

Record Closed: February 3, 2022 Decided: February 28, 2022

BEFORE: THOMAS R. BETANCOURT, ALJ:

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EDU 08416-20

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner filed a petition with the Commissioner of the New Jersey Department of
Education alleging a violation of his tenure rights. The matter was transferred to the

Office of Administrative Law (OAL) as a contested matter September 4, 2020.

A prehearing conference was held on October 1, 2020, and a Prehearing Order

was entered by the undersigned on the same date.

Respondent filed a Motion for Summary Decision dated September 17, 2021.
Petitioner filed his responsive brief, dated November 8, 2021. Respondent filed its reply
brief, dated December 8, 2021.

Oral argument was held on the motion on February 3, 2022.

FACTUAL DISCUSSION

Petitioner began his employment with the Respondent Board in the 2005/2006
school year as a .6 full time equivalent (FTE) music teacher and a .4 FTE computer
teacher. Petitioner continued in that employment for the 2006/2007 school year.

During the 2007/2008 and2008/2009 school years Petitioner was employed as a

.8 FTE music teacher.

From October 28, 2009 through the 2011/2012 school year Petitioner was

employed as a full-time 1.0 FTE music teacher.

During the 2012/2013 and 2013/2014 school years Petitioner was employed as a

.8 FTE music teacher due to a reduction in force (RIF).

During the 2014/2015 school year Petitioner was employed as a full-time 1.0 FTE

music teacher.

OAL DKT. NO. EDU 08416-20

During the 2015/2016 school year Petitioner was employed as a .8 FTE music
teacher due to a RIF.

Petitioner continued as a .8 FTE music teacher during the 2016/2017 school
year.

During the 2017/2018 school year Petitioner was employed as a 6 FTE music
teacher due to a RIF.

During the 2018/2019 school year Petitioner was offered and accepted

employment as a .6 FTE vocal music/basic skills instructor.

When the Board made its employment assignments on May 31, 2018, Petitioner

did not possess an Elementary School Teacher K-6 endorsement.

At the time of his initial hire, Petitioner possessed an instructional certificate with
an endorsement as a Teacher of Music, issued the New Jersey Department of
Education. On or about June 14, 2018, Petitioner received an endorsement as an
Elementary School teacher K-6 to his instructional certificate. By memo dated
September 12, 2018, Petitioner advised Dr. Cinotti, the Board Superintendent to advise
her that he held endorsements to his instruction certificate for Teacher of Music,
Elementary School Teacher K-6, and Teacher of Supplemental Instruction: Reading and
Mathematics K-8. In November 2018 Petitioner was issued a certificate of eligibility as

a Teacher of Preschool through Grade 3.

Dr. Gina Cinotti began as Superintendent on July 1, 2018. Petitioner's
assignment for the 2018/2019 school year was changed from .6 FTE vocal music/basic
skills instructor to 66 FTE employment as Vocal Music and Instrument, which Petitioner
accepted. This assignment consisted of .4 FTE music teacher and .2 FTE music

instrumental instruction.

The Board had intended to reduce Petitioner’s position to a .4 FTE position due
toa RIF. After Petitioner advised of his intention to exercise bumping rights, Petitioner

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OAL DKT. NO. EDU 08416-20

was offered continued employment as a .6 FTE music teacher, which Petitioner

accepted.

During the 2019/2020, 2020/2021 and 2021/2022 school years the District has

offered, and Petitioner has accepted, employment as a .6 FTE music teacher.

During his employment with the Respondent Board, Petitioner only worked as a
music teacher, other than the 2005/2006 and 2006/2007 school years, when he was
employed as a .6 FTE music teacher and .4 FTE computer teacher.

The Respondent Board eliminated the Basic Skills Program at the end of the
2018/2019 school year. It was replaced by a Response to Intervention (RTI) program
so as to comply with New Jersey Quality Single Accountability Continuum (NJQSAC)
requirements of the New Jersey Department of Education.

Petitioner has provided music instruction in Vocal Music, Recorders, and Music
infusion since the 2019/2020 school year. Another teacher in the classroom is
responsible for instruction in other areas. During this school year Petitioner was
assigned to Linda Garage’s classroom on Tuesday and Wednesday to provide music
infusion into the classroom. During his time in Ms. Garage’s classroom, Petitioner
assisted with non music instruction. This assistance with non music instruction was not
what he was employed to do. This non music instruction was undertaken without the

knowledge or approval of Respondent.

When Ms. Garage retired Respondent employed Anthony Verdi, who holds a
provisional certificate as a Teacher of Health and Physical Education issued in January
2020, and a certificate of eligibility as an Elementary School Teacher K-6, for the
2020/2021 school year to a full-time position, which included RTI instruction.

OAL DKT. NO. EDU 08416-20

LEGAL ANALYSIS AND CONCLUSION
Summary Decision

A motion for summary decision may be granted if the papers and discovery
presented, as well as any affidavits which may have been filed with the application,
show that there is no genuine issue of material fact and the moving party is entitled to
prevail as a matter of law. N.J.A.C. 1:1-12.5(b). If the motion is sufficiently supported,
the non-moving party must demonstrate by affidavit that there is a genuine issue of fact
which can only be determined in an evidentiary proceeding, in order to prevail in such
an application. Ibid. These provisions mirror the summary judgment language of
R._4:46-2(c) of the New Jersey Court Rules.

The motion judge must “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.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

And even if the non-moving party comes forward with some evidence, this forum must

grant summary decision if the evidence is “so one-sided that [the moving party] must

prevail as a matter of law.” Id. At 536 (citation omitted).

A careful reading of the certifications submitted both in support of, and opposition
to, the motion for summary decision demonstrates that there are no material relevant

facts in dispute.

Petitioner claims as disputed fact his assignment to teach music infusion during
his 2019/2020 school year, presumably on the basis of his claim in his certification that
he, in fact, assisted Ms. Garage with non music instruction. While this may well be true,
Petitioner was not employed to teach non music instruction. Accordingly, he could not
obtain tenure or seniority rights for choosing to assist Ms. Garage outside the scope of
his employment. This may be a fact. It is not a material fact as Petitioner assisting Ms.
Garage does not give rise to a claim of tenure or seniority.

OAL DKT. NO. EDU 08416-20

Based on the foregoing, | CONCLUDE that there are no relevant material facts in
dispute and the matter is ripe for summary decision.

Tenure Rights

The tenure of teaching staff is authorized by the Tenure Act, N.J.S.A. 18A:28-1,
et seq. A teaching staff member must hold a valid certificate to “teach, administer,
direct or supervise the teaching, instruction, or educational guidance of . . . pupils in
such public schools and of such other certificate, if any, as may be required by
law.” N.J.S.A. 18A:26-2. In order to attain tenure, a teaching staff member must hold
the appropriate certificate for his or her position. NJ.S.A. 18A:28-4. In addition to
certification, the teaching staff member must also be employed by the school district or
board for: “(a) [t]hree consecutive calendar years, or any shorter period which may be
fixed by the employing board for such purpose; or (b) [t]hree consecutive academic
years, together with employment at the beginning of the next succeeding academic
year; or (c) [t]he equivalent of more than three academic years within a period of any

four consecutive academic years.”_N.J.S.A. 18A:28-5.

There are three types of educational certificates issued by the Board of
Examiners: (1) instructional; (2) administrative and supervisory; and (3) educational
services. N.J.A.C. 6:11-2.3. The Board of Examiners may also issue special
“endorsements” under the appropriate certificates. Ibid. A teaching staff member must
have the appropriate certificate and endorsement for his or her position. For example,
an art teacher would be required to hold an instructional certificate with an art
endorsement, which “authorizes the holder to teach art in all public
schools.” N.J.A.C. 6:11-6.2(a)(2). A teaching staff member may possess multiple
endorsements under a certificate, qualifying him or her to fill any position covered by the
corresponding endorsement. For example, an art teacher holding an instructional
certificate with an art endorsement and an english as a second language endorsement
is authorized to teach both art and English as a second language in ali public
schools. N.J.A.C. 6:11-6.2(a)(2), (a)(8).

OAL OKT. NO. EDU 08416-20

Seniority is determined in accordance with N.J.A.C. 6A:32-5.1(b), as follows:

Seniority, pursuant to N.J.S.A. 18A:28-13 et seq., shall be
determined according to the number or fraction of academic
or calendar years of employment in the school district in
specific categories as hereinafter provided. The periods of
unpaid absences not exceeding 30 calendar days aggregate
in one academic or calendar year, leaves of absence at full
or partial pay, and unpaid absences granted for study or
research, except for leaves of absence or suspension
resulting from confirmed discipline, shall be credited toward
seniority. All other unpaid absences or leaves of absence
shall not receive seniority credit.

N.J.A.C. 6A:32-5.1(I)18ii states:

Any person employed at the elementary level in a position
requiring an educational services certificate or an
instructional endorsement shall acquire seniority only in the
elementary category and only for the period of actual service
under such educational services certificate or instructional
endorsement.

Petitioner asserts seniority to a position he never held. He cannot claim seniority
for a position which he did not hold, notwithstanding his claim to the contrary in his
certification. What he, and Ms. Garage, chose to do in her classroom beyond the scope
of his employment contract does not give rise to a claim of seniority.

Nothing set forth in the Certification of Petitioner and the Certification of Ms.
Garage give rise to Petitioner’s assertion that he is entitled to seniority rights. He never

held the position to which he claims seniority. His employment was that of a music

teacher.

Based upon the foregoing, | CONCLUDE that Respondent must prevail as a

matter of law.

ORDER

It is hereby ORDERED that Petitioner's Complaint is DISMISSED, with prejudice.

OAL DKT. NO. EDU 08416-20

| 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.

Lhuany 28, 000 Lb ME —

DATE THOMAS R. BETANCOURT, ALJ

Date Received at Agency: Pe twuity Ao, of OSD
Date Mailed to Parties: tebumes Jp, HO AD

db

OAL DKT. NO. EDU 08416-20

APPENDIX

List of Moving Papers

For Respondent:

Motion for Summary Decision

Certification of Dr. Gina Cinotti., with Exhibits A through L
Brief in Support of Motion for Summary Decision

Reply Brief in Support of Motion for Summary Decision

For Petitioner:

Brief in opposition
Certification of John Moylan, Petitioner, with Exhibits A through S
Certification of Linda Garage