THOMAS FERRARI V. BOARD OF EDUCATION OF THE TOWNSHIP OF BRICK, OCEAN COUNTY, 12/21/17, (#364-17)

#364-17
THOMAS FERRARI, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
TOWNSHIP OF BRICK, OCEAN COUNTY,
:
RESPONDENT.
_______________________________________:
SYNOPSIS
This matter is an ancillary claim for a stipend payment in a companion case in which petitioner
challenged his termination from employment as a Certificated Teacher of Military Science
in respondent’s school district without the benefit of a tenure hearing. 	Herein, the petitioner
claimed entitlement to a stipend that had been included in the collective bargaining agreement
between the respondent Board and the Brick Township Education Association (Association). 	The
parties submitted cross motions for summary decision.
The ALJ found, inter alia, that: 	there are no material facts at issue, and the matter is ripe for
summary decision; 	the petitioner’s position in the JROTC program was created pursuant to an
“Agreement for the Establishment of an Air Force Junior Reserve Officer Training Corps Unit”;
the Agreement included a statement that petitioner’s position as the instructor of senior rank in the
school’s JROTC program was equivalent to a department head position; the Board had entered into
a collectively negotiated agreement (CNA) with the Association which governed the terms and
conditions of employment for all certified personnel; petitioner was a member of the Association;
the CNAs between the Board and the Association 	provided for “Department Heads” to receive a
stipend annually; petitioner was never paid a stipend by the Board as a “Department Head”;
however, it is well settled that the Commissioner lacks jurisdiction to decide contractual claims
unless those claims implicate the agency’s expertise. The ALJ concluded that the Commissioner
does not have jurisdiction over this contractual dispute as it does not arise under the school laws.
Accordingly, the ALJ ordered that the petition be dismissed for lack of jurisdiction.
Upon review, the Commissioner concurred with the ALJ’s findings and conclusions, and adopted
the Initial Decision of the OAL as the final decision in this matter. The petition was dismissed with
prejudice for lack of jurisdiction.
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 21, 2017

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OAL DKT. NO. EDU 03464-17
AGENCY DKT. NO. 47-3/17
THOMAS FERRARI, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE 	: 	DECISION
TOWNSHIP OF BRICK, OCEAN COUNTY,
:
RESPONDENT.1
_______________________________________:
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	Respondent’s exceptions – submitted in accordance with
N.J.A.C. 1:1-18.4 – were also considered by the Commissioner.2 The Administrative Law Judge
(ALJ) dismissed the matter, concluding that the Commissioner does not have jurisdiction to hear
contractual disputes. 	The ALJ found that the underlying issue in the matter relates to
interpretation of the agreements entered into between the Board and Air Force, and the collective
negotiations agreement (CNA) between the Board and Education Association, and therefore, do
not implicate the agency’s special expertise.
Respondent takes exception to the ALJ’s finding that the Commissioner lacks
jurisdiction in this matter and seeks reversal of the Initial Decision. 	The Board argues that
petitioner’s claim for payment of stipends is a dispute that arises under the school laws.
Specifically, respondent submits: “petitioner seeks the benefit of the enforcement of a collective
1 The Commissioner notes that the companion case – Ferrari v. Bd. of Educ. of Twp. of Brick, Ocean County, OAL
Dkt. No. 19971-15, Agency Dkt. No. 326-10/15 – will be determined as a separate matter, as the two cases were not
consolidated.
2 Petitioner did not file a reply to respondent’s exceptions.

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bargaining agreement negotiated between the District and the Education Association. 	The very
benefits he seeks were only [allegedly] due him as a benefit of his employment with the
District.” The Board further argues that whether petitioner is entitled to the stipends set forth in
the CNA is “a question of interpretation best left to the Commissioner” because petitioner’s
“claim for stipends [ ] is linked to his employ with the District, as negotiated for him by the
bargaining 	unit 	of 	the 	Education 	Association.” 	While 	reflecting 	the 	Board’s 	obvious
disagreement 	with 	the 	findings 	and 	conclusions 	contained 	within 	the 	Initial 	Decision,
respondent’s exceptions are unpersuasive, and substantially recast and reiterate the arguments
made below. 	Upon a comprehensive review of the record, the Commissioner is in accord with
the ALJ’s determinations.
It 	is 	evident 	that 	respondent 	has 	failed 	to 	understand 	the 	scope 	of 	the
Commissioner’s jurisdiction. 	The Board’s contention that the interpretation of the subject
agreements 	should 	be 	“best 	left 	to 	the 	Commissioner” 	by 	virtue 	of 	petitioner’s
(former) employment in the District, is materially flawed. 	See Bd. of Educ. of the Twp. of E.
Brunswick v. Twp. Council of the Twp. of E. Brunswick, et al., 48 N.J. 94, 102 (1966) (holding
“[w]here the controversy does not arise under the school laws, it is outside the Commissioner's
jurisdiction even though it may pertain to school personnel”). 	It is well-settled that contractual
disputes are typically beyond the purview of the Commissioner’s jurisdictional mandate unless
they implicate the agency’s expertise. Dolan v. Centuolo, 2012 N.J. Super. Unpub. LEXIS 1627
(App. Div. 2009). 	As such, where the interpretation of a contract or a contractual provision is
the primary issue, the Commissioner lacks jurisdiction. 	See Bd. of Educ. of the Twp. of
Middletown v. Witmer, 2009 N.J. Super. Unpub. LEXIS 2260 (App. Div. 2009). 	There is no
dispute that the claim for stipends in this matter arise from contractual language and assertion of

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petitioner’s rights pursuant to the terms of the respective agreements. 	Petitioner avers that the
agreement entered into between the Board and the Air Force provides that his position was to be
deemed equivalent to that of a department head; and that petitioner was entitled to the negotiated
stipend for “Department Heads” as set forth in the CNA between the Board and the Education
Association. 	Such determination requires interpretation of the agreements and review of their
intent. 	The Commissioner, therefore, lacks jurisdiction to determine whether petitioner is
entitled to the stipend for “Department Head” as set forth in the CNA.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter and the petition of appeal is hereby dismissed with prejudice for lack of jurisdiction.
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	December 21, 2017
Date of Mailing: 	December 21, 2017
3 Pursuant to P.L. 2008, c. 36 (N.J.S.A. 18A:6-9.1), Commissioner decisions are appealable to the Superior Court,
Appellate Division.

New Jersey Is An Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION DISMISSING
PETITION FOR LACK OF JURISDICTION
OAL DKT. NO. EDU 03464-17
AGENCY DKT. NO. 47-3/17
THOMAS FERRARI,
Petitioner,
v.
BOARD OF EDUCATION OF THE
TOWNSHIP OF BRICK, OCEAN COUNTY,
Respondent.
_____________________________________
Edward A. Cridge, Esq., for petitioner (Mellk O’Neill, attorney)
Sebastian F. Ferrantell, Esq., for respondent (Montenegro Thompson Montenegro
& Genz, attorneys)
Record Closed: August 10, 2017 	Decided: September 12, 2017
BEFORE JOSEPH A. ASCIONE, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
This matter is a secondary matter to the matter, Ferrari v. the Board of Education
of the Township of Brick, Ocean County, OAL Docket # 19971-2015, Initial Decision,
September 12, 2017, Agency Docket # 326-10/51, wherein petitioner challenged his

OAL DKT. NO. EDU 03464-17
2
removal as a military science teacher without the granting of a tenure hearing by the
respondent the Board of Education of the Township of Brick, Ocean County (“Board,”
“Brick,” or “District”). The removal, a result of the loss of petitioner’s status as an
instructor 	of 	the 	United 	States 	Air 	Force, 	Junior 	Reserve 	Officer 	Training 	Corps
(JROTC).
The respondent disputed any obligation to provide a tenure hearing as the
certification by the State of New Jersey Department of Education as a military science
teacher is not independent of the Armed Forces certification as a military science
teacher. The latter’s determination qualifies one for certification as a New Jersey military
science teacher. The loss of that certification from the Armed Forces results in a failure
of the teacher to maintain the New Jersey certification as a military science teacher. The
Air Force provided an appeal process for petitioner to address the potential de-
certification, accordingly, his due process rights were addressed by the Air Force and
the decertification of petitioner resulted. Respondent successfully maintained that it had
no obligation to conduct a tenure hearing.
On or about December 11, 2015, Petitioner, Major Thomas Ferrari, filed a
complaint in the Monmouth County Superior Court, which was subsequently transferred
to Ocean County. The complaint, filed in the Law Division, alleges a breach of contract
for failure to pay stipends negotiated on his behalf between the Brick Township
Education Association (“the Association”) and Respondent, the Brick Township Board of
Education.
The parties filed motions and cross-motions for summary judgment before the
Hon. Arnold B. Goldman, J.S.C. Respondent took the position that the dispute arose
under the school laws, and should have been brought before the Commissioner. On
December 2, 2016, Judge Goldman issued an order dismissing the complaint without
prejudice, and directing that the matter be consolidated with the case pending in the
Office of Administrative Law (“OAL”), Docket No. EDU 19971-15.
Prior to issuance of an initial decision in the EDU 19971-15 matter, the parties
requested that the tribunal await the outcome of a New Jersey Superior Court decision

OAL DKT. NO. EDU 03464-17
3
directing the consolidation of an ancillary claim for a stipend payment with the within
action. The OAL advised the parties that the J.S.C. did not have the authority to either
assign or consolidate the matter and that the OAL jurisdiction depended on a transmittal
from the Department of Education. The parties sought that transmittal. This is that
matter, transmittal to the OAL occurred on March 13, 2017. Motions and Cross Motions
for Summary Judgement filed in the New Jersey Superior Court, Law Division, Ocean
County under Docket # L-2340-16 were filed by the parties with the OAL.
The OAL scheduled oral argument for August 10, 2017, the voice transcript of
that oral argument is recorded on that date under the EDU 19971-16 docket number.
The record closed on August 10, 2017. No order of consolidation issued in the two
matters, accordingly, separate Initial Decisions are being issued on the initial application
for a tenure hearing and the subsequent application for the interpretation of the contract
between the Board and the United States Air Force JROTC as it applies to the
petitioner. 	The 	separate 	initial 	decision 	reflects 	that 	counsel 	representing 	the
respondent in the subsequent matter differs from counsel representing the respondent
herein.
FACTS
The parties submitted their motion and cross motion for summary judgment filed
in the New Jersey Superior Court, there is no discrepancy between the each’s factual
presentations, accordingly, I FIND AS FACT the following:
1. 	In 	September 	2006, 	petitioner 	became 	an 	employee 	of 	respondent,
working as an instructor for the AFJROTC program at Brick Memorial High School.
Petitioner’s Statement of Undisputed Facts (“Petitioner’s Facts”), ¶9; Respondent’s
Statement of Unrefuted Facts (“Respondent’s Facts”), ¶1.
2. 	Respondent is a party to collectively negotiated agreements (“CNAs”) with
the Association. Petitioner’s Facts, ¶2. Via these CNAs, respondent recognizes the
Association “as the exclusive and sole-representative of collective negotiations
concerning the terms and conditions of employment for all certified personnel . . .”
Respondent’s Exh. B, p. 3. 	It is undisputed that petitioner was a member of the

OAL DKT. NO. EDU 03464-17
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Association, and his employment with respondent was subject to the terms and
conditions set forth in the CNAs executed between the Association and respondent.
Petitioner’s Facts, ¶9; Respondent’s Facts, ¶2.
3. 	On or about July 1, 2006, respondent and the Association entered into a
CNA, which provided that “Department Heads” would receive a stipend for the 2006-
2009 school years. 	See Petitioner’s Exh. A. 	On or about July 1, 2009, respondent
entered into a successor CNA with the Association, which provided that “Department
Heads” would receive stipends for the 2009-2012 school years. 	See Petitioner’s
Exh. B. 	Finally, on or about July 1, 2012, another CNA provided that “Department
Heads” would receive stipends for the 2012-2015 school years. 	See Petitioner’s
Exh. C. 	The dollar amount of each stipend is explicitly provided for in the CNAs.
See Petitioner’s Exhs. A-C.
4. 	Concurrently, in November 2006, respondent entered into an agreement
with the United States Air Force, entitled “Agreement for the Establishment of an Air
Force Junior Reserve Officer Training Corps Unit.” 	See Petitioner’s Exh. D. 	The
agreement provided, at Section 3(a)(iii), that:
“The institution principal (or equivalent) is the on-site person in charge of the
supervision of the AFJROTC Program. 	The Senior Aerospace Science Instructor
ensures the program operates satisfactorily and is appointed to a [sic] institution
position equivalent to that of a department head.” [Id. at p. 6.]
5. 	Respondent entered into successor agreements with the Air Force in April
2012 and December 2014, both of which contained the identical provision. 	See
Petitioner’s Exhs. E-F.
6. 	The AFJROTC Operations publication, Instruction 36-2001, defines the
Senior Aerospace Science Instructor (“SASI”) as:
“The AFJROTC instructor of senior rank at the host school responsible for day-
to-day unit operations. 	The SASI reports to the principal (or equivalent) and ensures
applicable instructions are complied with and the unit is operated in an efficient, military
manner. The SASI will be designated as a department head (or equivalent) at the host

OAL DKT. NO. EDU 03464-17
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school. The SASI acts as the unit commander providing overall direction to the ASI and
cadet programs/activities.” [See Petitioner’s Exh. I.]
Petitioner asserts that for the entirety of his employment, he was the instructor of
senior rank employed by respondent. Certification of Thomas Ferrari, ¶4.
6. 	Each year, Petitioner signed a “Tenure Teacher Contract
Salary Notice,” which indicated Petitioner’s salary, including any stipends
that he would be paid. 	Certification of Megan Osborn (“Osborn Cert.”),
Exh. D.
7. 	Each 	year, 	Petitioner 	signed 	a 	form 	accepting 	these
conditions.
8. 	Respondent 	never 	paid 	a 	stipend 	to 	petitioner 	as 	a
“Department Head.”
9. 	Petitioner held his position with Respondent until May 2015.
Osborn Cert., ¶2.
LEGAL DISCUSSION
“To exercise jurisdiction over a dispute, an administrative agency must have
specific legislative authority.” Dolan v. Centuolo, Nos. A-2470-10T4, A-2710-10T4, at
*11 (App. Div. July 9, 2012), <http://njlaw.rutgers.edu/collections/courts/> (citing
Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 426
(App. Div. 2002)). Pursuant to N.J.S.A. 18A:6-9, the Commissioner of Education
shall have jurisdiction to hear and determine, without cost to
the parties, all controversies and disputes arising under the
school laws, excepting those governing higher education, or
under the rules of the State board or of the commissioner . . .
.
[N.J.S.A. 18A:6-9 (emphasis added).]

OAL DKT. NO. EDU 03464-17
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“Our courts have long recognized the sweep of the Commissioner’s reviewing
powers . . . . ” Bd. of Educ. of E. Brunswick v. Twp. Council of E. Brunswick, 48 N.J. 94,
101 (1966). However, “the sweep of the Department’s interest and the Commissioner’s
jurisdiction does not extend to all matters involving boards of education.” Archway, 352
N.J. Super. at 424-25. “Where the controversy does not arise under the school laws, it
is outside the Commissioner's jurisdiction even though it may pertain to school
personnel.” E. Brunswick, 48 N.J. at 102.
Generally, “contractual disputes do not fall within the Commissioner’s
jurisdictional mandate unless they implicate the agency’s special expertise.” Dolan, at
*12. While the Commissioner may have jurisdiction over “contractual claims which are
incidental to his obligation to resolve education claims that are the subject of litigation,”
B.P. v. Bd. of Educ. of Lenape Reg’l High Sch. Dist., EDU 2782-02, Initial Decision
(August 16, 2002), adopted, Comm’r (October 7, 2002),
<https://njlaw.rutgers.edu/collections/oal/>, the Commissioner will not rule on the
enforceability of a contract where “the interpretation of the contract is the primary issue
at hand and not merely implicated in a question of the school laws.” Bd. of Educ. of
Middletown, No. A-5128-07T3, at *23 (App. Div. August 17, 2009),
<http://njlaw.rutgers.edu/collections/courts/>. This is because “contract claims against
boards do not arise under the school laws but rather from statutory and common law.”
Archway, 352 N.J. Super. at 425. Therefore, such claims are “typically and
appropriately adjudicated in the courts.” Ibid.
The Commissioner lacks jurisdiction to decide the contractual claim currently
before the OAL. Although the matter involves a board of education, the dispute does
not arise under the school laws. Rather, the primary issue is the interpretation of the
contractual language contained in the Air Force and Association agreements.
Interpretation of these contracts is not “incidental” to the Commissioner’s obligation to
decide petitioner’s pending tenure claim, as the two claims are distinct and separate.
Respondent argues that the Commissioner has jurisdiction over the matter
because “[t]he within dispute is a case in controversy arising under the school laws,
(N.J.S.A. 18A:6-9 et seq.).” Respondent’s Reply Brief, p. 3. However, Respondent fails

OAL DKT. NO. EDU 03464-17
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to explain how the contractual claim is connected to any specific statute under Title 18A.
Because the interpretation of the contractual language at issue does not implicate the
Department of Education’s special expertise, the matter should be decided in Superior
Court, where it was originally filed.
CONCLUSION
I 	CONCLUDE 	the 	Commissioner 	does 	not 	have 	jurisdiction 	to 	hear 	this
contractual dispute. Although the matter involves a board of education, the controversy
does not arise under the school laws. 	Rather, the primary issue is the interpretation of
two series of contracts. 	Because these contracts do not implicate the Department of
Education’s special expertise, the matter should be dismissed so that it may be decided
in a more appropriate forum.
This tribunal recognizes that this is not the efficient use of judicial resources,
however, the Commissioner and the OAL, is without jurisdiction to determine whether
petitioner is entitled to any stipend payments.
ORDER
Base on the foregoing, it is ORDERED the petition should be DISMISSED for
lack of jurisdiction.
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

OAL DKT. NO. EDU 03464-17
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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.
September 12, 2017
DATE 	JOSEPH A. ASCIONE, ALJ
Date Received at Agency: 	September 12, 2017
Date Mailed to Parties: 	September 12, 2017
cc: Patricia M. Reilly, Esq.
/lam

OAL DKT. NO. EDU 03464-17
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APPENDIX
LIST OF WITNESSES
For Petitioner:
None
For Respondent:
None
LIST OF EXHIBITS
For Petitioner:
P-1 	Superior Court filed Summary Judgment Motion and attachments
For Respondent:
R-1 	Superior Court filed Cross Motion for Summary Judgment and Opposition
to Summary Judgment