WENDY J. EBERWEIN-O’DONNELL V. BOARD OF EDUCATION OF THE TOWNSHIP OF WINSLOW, CAMDEN COUNTY, 7/16/12, (#283-12)

#283-12 (OAL Decision: Not yet available online)
WENDY J. EBERWEIN-O’DONNELL, 	:
:
PETITIONER,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE 	DECISION
TOWNSHIP OF WINSLOW, 	:
CAMDEN COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner appealed the decision of the respondent Board to terminate her employment as a tenured social
worker through a reduction in force (RIF) at the end of the 2009-2010 school year. Petitioner contended
that the Board continued to employ another social worker – Kimberly McDermott – who had less
seniority, thereby violating her tenure rights under N.J.S.A. 18A:1-1 et seq. 	The Board asserted that
petitioner surrendered her tenure and seniority rights by tendering her resignation from the school district
in 2006. Petitioner rescinded her resignation shortly after she submitted it and before the effective date of
the resignation, and the Board granted her request to rescind the resignation. Petitioner filed a motion for
summary decision.
The ALJ found, inter alia, that: while a teaching staff member may not unilaterally rescind her
resignation after the school board accepts the resignation, the teaching staff member and the school board
nevertheless may mutually agree to rescind the resignation after the school board accepts the resignation;
when the Board accepted petitioner’s offer to rescind her resignation on August 7, 2006 – the effective
date of petitioner’s resignation – the parties thereby entered a mutual agreement to rescind the
resignation; at the time of the mutually agreed-upon rescinding of the resignation, Kimberly McDermott
was not yet employed by the Board as a social worker; when the parties agreed to rescind the resignation
on August 7, 2006, the petitioner remained an employee of the school district with no break in service;
accordingly, petitioner was continuously employed by the Board from September 1, 2005 to the date of
the RIF in 2010 and had more seniority than McDermott, whose employment as a social worker with the
Board did not begin until 2006. 	The ALJ concluded that petitioner should have been retained for the
2010-2011 school year instead of McDermott and granted her motion for summary decision.
Upon careful and independent review, the Commissioner concurred with the ALJ’s findings and
conclusions and, accordingly, adopted the Initial Decision of the OAL granting summary decision to
petitioner. The Commissioner ordered the Board to compensate petitioner for all salary, benefits and
emoluments, less mitigation, that she was entitled to for the 2010-2011 school year. Further, as the social
worker position was abolished by the Board in a second RIF effective September 2011, petitioner is
entitled to be placed on the preferred eligibility list in accordance with her seniority rights as of that date.
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.
July 16, 2012

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OAL DKT. NO. EDU 9323-10
AGENCY DKT. NO. 177-7/10
WENDY J. EBERWEIN-O’DONNELL, 	:
:
PETITIONER,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE 	DECISION
TOWNSHIP OF WINSLOW, 	:
CAMDEN COUNTY,
:
RESPONDENT.
:
The 	record 	of 	this 	matter 	and 	the 	Initial 	Decision 	of 	the
Office of Administrative Law 	(OAL) 	have 	been 	reviewed. 	The 	Board’s 	exceptions 	and
petitioner’s reply thereto – submitted in accordance with the directives of N.J.A.C. 1:1-18.4 –
were fully considered by the Commissioner in reaching his determination herein.
The 	Board’s 	exceptions 	mirror 	its 	arguments 	advanced 	before 	the
Administrative Law Judge (ALJ) below. 	As it is determined that the ALJ fully considered and
addressed such arguments in her decision, these will not be revisited here.
Upon full deliberation, the Commissioner concurs with the ALJ that summary
decision is appropriately granted to petitioner as he is in full agreement – for the reasons
comprehensively detailed in the Initial Decision – that the mutual agreement of rescission of
petitioner’s 2006 resignation did not cause a break in her service with the Board and, absent such
break in service, petitioner did not forfeit her tenure and seniority rights at any point during the
2005-06 school year. 	As such, the Board’s termination of petitioner from her social worker
position through a RIF at the end of the 2009-10 school year – rather than Kimberly McDermott,

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who had less seniority in that position – was a violation of petitioner’s tenure and seniority
rights.
Accordingly, the recommended decision of the OAL is adopted as the final
decision in this matter. 	The Winslow Board of Education is hereby directed to compensate
petitioner for all salary, benefits, and emoluments, less mitigation, that she was entitled to for the
2010-11 school year absent her improper dismissal at the end of the 2009-10 school year. As the
social worker position was abolished by the Board in a second RIF effective September 2011,
petitioner is entitled to be placed on the preferred eligibility list in accordance with her seniority
rights as of that date.
IT IS SO ORDERED.*
ACTING COMMISSIONER OF EDUCATION
Date of Decision: July 16, 2012
Date of Mailing: 	July 17, 2012
* 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).