Harold Walker v. Board of Education of the City of East Orange, Essex County, 10/7/21, (#212-21)

212-21
New Jersey Commissioner of Education
Final Decision
Howard Walker,
Petitioner,
v.
Board of Education of the City of East Orange,
Essex County,
Respondent.
Synopsis
Petitioner has been employed as a principal in the respondent Board’s school district since the 2004-2005 school
year, initially at the Garvin Elementary School from July 2005 through the end of the 2015-2016 school year.
Petitioner was subsequently transferred to the position of principal at the Healy Middle School (Healy). Due to
a “partially effective” evaluation of his performance for the 2016-2017 school year at Healy, petitioner was
placed on a Corrective Action Plan (CAP) and his increment was withheld for the 2017-2018 school year.
Subsequently, his increment for the 2018-2019 school year was also withheld, based again on a “partially
effective” performance evaluation. Petitioner filed an appeal challenging the withholding of his increment for
the 2018-19 school year, contending that the evaluation process was not proper and that the decision to withhold
his increment was arbitrary and capricious.
The ALJ found, inter alia, that: The Board was arbitrary, capricious and unreasonable in withholding
petitioner’s increment; further, the Board acted in an unfair and prejudicial manner when it placed the petitioner
on a CAP almost immediately after transferring him to Healy – a lower performing school that had been
identified as in need of comprehensive support; and petitioner was not given clear and transparent direction
regarding what was expected of him in his new assignment as principal at Healy. The ALJ concluded that the
District’s Assistant Superintendent, who served as petitioner’s evaluator, was subjective rather than objective in
her evaluations of petitioner, and that the petitioner is a “good educator,” despite “personal traits that make him
appear that he is better or smarter than those around him.” As such, the ALJ reversed the Board’s withholding
of petitioner’s increment for the 2018-19 school year.
Upon review, the Commissioner found, inter alia, that: the Board was not arbitrary, capricious, or unreasonable
in withholding petitioner’s increment for the 2018-19 school year; pursuant to N.J.S.A. 18A:29-14, a board may
withhold “for inefficiency or other good cause, the employment increment, or the adjustment increment, or both,
of any member in any year.”; in this case, there is sufficient evidence in the record to support the Board’s
decision to withhold petitioner’s increment for the 2018-19 school year based on performance. The
Commissioner disagreed with the ALJ’s finding that petitioner was not given clear direction regarding job
expectations in his position at Healy, as Dr. Walker had more than 10 years of experience as a principal and
should have been well aware of the expectations of that position, regardless of his school assignment.
Accordingly, the Initial Decision of the OAL was rejected and 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.

OAL Dkt. No. EDU 15251-18
Agency Dkt. No. 202-8/18
New Jersey Commissioner of Education
Decision
Howard Walker,
Petitioner,
v.
Board of Education of the City of East Orange,
Essex County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed, as have the exceptions filed by the respondent Board in
accordance with N.J.A.C. 1:1-18.4, and petitioner’s reply thereto.
Petitioner is a principal employed by the Board of Education of the City of
East Orange (Board). He has worked for the school district since 1989, rising to the rank of
principal in the 2004-05 school year. Petitioner served as principal of Garvin Elementary School
from July 2005 through the end of the 2015-16 school year, at which time he was transferred to
the position of principal of the Healy Middle School (Healy). Due to a “partially effective”
performance evaluation for 2016-17, petitioner was placed on a Corrective Action Plan (CAP)
and his increment was withheld for the 2017-18 school year. At the end of the 2017-18 school
year, Assistant Superintendent Deborah Harvest recommended that his increment be withheld
again for the 2018-19 school year. Petitioner filed an appeal challenging the withholding of his
increment for the 2018-19 school year.
212-21

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Following a hearing, the Administrative Law Judge (ALJ) found that the Board
was arbitrary, capricious and unreasonable in withholding petitioner’s increment. The ALJ
concluded that Dr. Harvest was subjective, rather than objective, in her evaluations of petitioner,
and that petitioner is a “good educator,” despite “personal traits that make him appear that he is
better or smarter than those around him.” (Initial Decision at 12). The ALJ further found that it
was unfair and prejudicial of the Board to place petitioner on a CAP almost immediately after
transferring him to Healy, without a “clear and transparent directive… about what was expected
of him.” Ibid. As such, the ALJ reversed the Board’s withholding of petitioner’s increment for
the 2018-19 school year.1
In its exceptions, the Board argues that it acted in accordance with
N.J.S.A. 18A:29-14 when it withheld petitioner’s 2018-19 increment due to performance issues.
The Board argues that the ALJ improperly found that the Board did not give petitioner adequate
time to adjust when he was transferred to Healy before placing him on a CAP. The Board cites
to Nortiza Andino, et al. v State Operated School District of the City of Jersey City, Hudson
County, Commissioner’s Decision No. 388-98 (September 4, 1998) for the proposition that being
transferred to a new position does not make an increment withholding arbitrary, capricious or
unreasonable. In that case, one teacher was transferred from third to first grade only a few days
before being evaluated. While the ALJ found that her increment should not be withheld because
the teacher had not received training in the position, the Commissioner upheld the increment
withholding, finding that her performance had been found to be below the acceptable level for an
elementary teacher on two occasions and that evaluations “go to the very core of her job as a
teacher, irrespective of the grade she is responsible for teaching.” Id. at 31. As such, the Board
1 The Initial Decision ordered that petitioner’s increment withholding for the 2017-18 school year be
reversed. This appears to be a typographical error as the increment being challenged in this matter is for
the 2018-19 school year.

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argues that petitioner’s evaluations go to the core of his job as a principal, regardless of what
school he is overseeing. Additionally, the Board points out that petitioner was evaluated three
times during the 2017-18 school year as a result of his CAP – twice by Dr. Harvest and once by
another administrator – and he received the “partially ineffective” rating due to his scores,
justifying his increment withholding. Accordingly, the Board urges the Commissioner to reject
the Initial Decision.
In reply, petitioner argues that the ALJ correctly reversed the 2018-19 increment
withholding because Dr. Harvest based her evaluations of his performance on unclear criteria
and overlooked his efforts to improve Healy. Petitioner points out that such efforts resulted in
the removal of Healy from “comprehensive” status (i.e., lower performing schools that the
Department of Education has identified as needing comprehensive support) in January 2019.
Petitioner argues that Dr. Harvest conducted her evaluations of petitioner in bad faith as she
failed to give him any credit for improvements he had made at Healy. Petitioner agrees with the
ALJ that Dr. Harvest failed to provide clear direction about what was expected of petitioner, so
the increment holding was unjust, unfair, and arbitrary. As such, petitioner asks the
Commissioner to adopt the Initial Decision.
Upon a comprehensive review of the record, the Commissioner finds that the
Board did not act in an arbitrary, capricious, or unreasonable manner when it withheld
petitioner’s increment for the 2018-19 school year. Pursuant to N.J.S.A. 18A:29-14, a board may
withhold “for inefficiency or other good cause, the employment increment, or the adjustment
increment, or both, of any member in any year.” Teachers are not entitled to salary increments;
rather, increments are a reward for meritorious service. North Plainfield Education Association
v. Board of Education of the Borough of North Plainfield, 96 N.J. 587, 593 (1984). The decision

4
to withhold an increment for teachers who have not performed well is a management
prerogative. Ibid. As such, when challenging an increment withholding, a teacher has the
burden to demonstrate that the board acted arbitrarily, without rational basis or induced by
improper motives. Kopera v. Board of Education of the Town of West Orange, 60 N.J. Super.
288, 294 (App. Div. 1960).
Here, there is sufficient evidence in the record to support the Board’s decision to
withhold petitioner’s increment for the 2018-19 school year based on performance. Petitioner
had three evaluations during the 2017-18 school year – two by Dr. Harvest and one by another
administrator – which resulted in a summative rating of 2.65, or a performance ranking of
“partially effective.” The evaluations use a rubric with scores of “ineffective,” “developing,”
“effective,” or “highly effective” for a variety of domains. In examining all three of his
evaluations, petitioner received a combination of “developing” and “effective” ratings, with one
“ineffective” rating and no “highly effective” ratings. The rubric scores were supported with
notes from the evaluators justifying the rating and providing guidance on how to improve. The
evaluators conducted site visits of the school prior to completing the evaluations. Dr. Harvest
testified that the purpose of the site visit is to go through the building and visit classrooms to gain
a visual perspective on what is occurring in the school and how that relates to the domains in the
principal’s evaluation. For example, during her site visit on February 20, 2018, Dr. Harvest
conducted a walk-through of the building and classrooms, and testified that:
[T]his was the worst that it has ever, ever been. Just room to every
single room that I went in I was not able – it was just totally mind
boggling. I did not observe any instruction at all in about 6 or 7
rooms. The kids were absolutely out of control. And not only
were they out of control, the teachers weren’t doing anything. It
was like they were just sitting there and just letting it happen. So
halfway through it, his assistant principal joined me. And so, she
was there, after room after room after room that we visited. I

5
wasn’t able to observe instruction because there were extreme
discipline concerns. And we spent about 15 minutes in one
teacher’s classroom, who had two teacher assistants in there with
her. And that classroom was tote – I had to take over the
classroom. It was totally out of control. Totally.
[Testimony of Deborah Harvest, T2 at 195-96, December 16,
2020.]
What Dr. Harvest witnessed on the site visit was reflected on petitioner’s subsequent evaluation,
as petitioner was rated “ineffective” with respect to the school’s learning environment and a note
describing what Dr. Harvest observed during her school walk-through of the classrooms
appeared beneath the rating. Accordingly, upon consideration of the comprehensive evaluations,
which included justifications for the ratings that resulted in a “partially effective” final
summative assessment, the Commissioner cannot find that the Board was arbitrary, capricious,
or unreasonable in its decision to withhold petitioner’s increment for the 2018-19 school year.
The Commissioner disagrees with the ALJ’s conclusions. The ALJ focused on
the limited amount of time available to petitioner to become acclimated to his new assignment at
Healy before he was evaluated. The Commissioner agrees with the Board that, as in Nortiza
Andino, et al. v State Operated School District of the City of Jersey City, Hudson County,
petitioner’s duties and responsibilities as a principal remained the same, regardless of which
school he was assigned to lead. With petitioner’s more than ten years of experience as a
principal, this position was not new to him and he was aware of his job expectations. The
Commissioner also notes that the increment at issue in this matter was based on petitioner’s
performance in the 2017-18 school year, which was his second year assigned as principal at
Healy.
The ALJ also found that petitioner “never received a true explanation of what
criteria were being utilized to evaluate his work at Healy.” The Commissioner finds that, with

6
respect to his evaluations, petitioner had been a principal since the 2004-05 school year and had
been evaluated in that role for many years. As such, he should have been well aware of the
criteria used in evaluations of principals. Additionally, the ALJ insinuates that a personality
conflict between Dr. Harvest and petitioner contributed to Dr. Walker’s poor evaluations;
however, the Commissioner notes that one of petitioner’s evaluations was conducted by another
administrator, whose ranking of petitioner was similar to that of Dr. Harvest. With respect to his
CAP, there is ample evidence in the record that petitioner had many meetings to develop and
discuss his CAP, and that he only completed 63% of his demonstrable goals. However,
regardless of whether Dr. Walker understood the CAP or completed the CAP, the Commissioner
notes that Dr. Harvest testified that the CAP was not the reason petitioner’s increment was
withheld; rather, that determination was made based on Dr. Walker’s evaluations. (T2 at 118,
206-207).
The ALJ also discusses that petitioner made efforts to improve the school, which
resulted in Healy being removed from the “comprehensive” list in January 2019. Additionally,
the ALJ notes that following the 2017-18 school year, superintendent Dr. Kevin West was
assigned as petitioner’s evaluator, and his evaluations improved. The Commissioner notes that
while it is positive news that the school was removed from the “comprehensive” list,
improvements in petitioner’s evaluations conducted by Dr. West in 2018-2019 and the fact that
school operations had improved by January 2019 could not have impacted the Board’s increment
decision at the end of the 2017-18 school year because these improvements had not yet occurred.
As such, those factors have no bearing on whether the Board was arbitrary, capricious, or
unreasonable in deciding in June of 2018 to withhold petitioner’s increment for the 2018-19
school year. Finally, the ALJ found that petitioner is a good educator who is dedicated to

7
improving the performance of students and the community. While that may be true, the
Commissioner notes that petitioner’s good intentions fail to demonstrate that his actual
performance during the 2017-18 school year did not warrant the withholding of his increment for
the 2018-19 school year.
Accordingly, the Initial Decision of the OAL is rejected for the reasons expressed
herein. The petition 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.
October 7, 2021
October 7, 2021

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 15251-18
AGENCY DKT. NO. 202-8/18
HOWARD WALKER,
Petitioner,
v.
CITY OF EAST ORANGE, BOARD OF
EDUCATION, ESSEX COUNTY,
Respondent.
_____________________________________
Robert M. Schwartz, Esq., petitioner, (Schwartz Law Group, attorneys)
Erdal Turnacioglu, Esq., for respondent (Keenan and Doris, attorneys)
Record Closed: March 10, 2021 	Decided: July 16, 2021
BEFORE ANDREW M. BARON, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner Dr. Howard Walker contests the 2018 withholding/denial of his annual
salary increment in in connection with his employment as a principal by the East Orange
School District at the conclusion of the 2018 school year. 	Among other things, he also
contests the manner in which the evaluation process was handled, and the decision to
withhold the increment which he contends was arbitrary and capricious.

OAL DKT. NO. EDU 15251-18
2
On or about August 21, 2018, petitioner filed an appeal with the Department of
Education regarding the decision by the East Orange School District to withhold his
annual salary increment.
On October 5, 2018, East Orange filed an Answer to the petition.
The petition alleges that respondent acted in an arbitrary and capricious manner
by withholding Dr. Walker’s annual increment at the end of the 2017-18 school year.
The 	Department 	of 	Education 	transmitted 	the 	matter 	to 	the 	Office 	of
Administrative Law for a determination as a contested case. 	Hearings were conducted
on December 3, 2019, and December 16 and 17, 2019. Final submissions were filed on
March 5, 2020 and March 10, 2020, then Covid ensued. 	Oral argument was held on
March 10, 2021.
TESTIMONY AND DISCUSSION
Based upon a review of the documentary and testimonial evidence presented
and having had the opportunity to observe the demeanor and assess the credibility of
the witnesses who testified, I FIND the following pertinent FACTS and accept as FACT
the testimony set forth below.
Petitioner has been employed by the East Orange School District, starting out as
In 2004, as a math supervisor since 1989. In 1996, petitioner was promoted to serve as
Director of Secondary Education.
While serving in this position, petitioner was then appointed to serve as principal
of the Truth Middle School. Shortly after, he became the permanent principal, serving in
that position for a year, until he was reassigned to serve as principal of the Garvin
Elementary School, where he remained until 2017.

OAL DKT. NO. EDU 15251-18
3
While at Garvin, virtually all of his annual reviews were favorable, and he
received normal salary increments each year, until the 2015-16 school year. His review
that year was conducted by Assistant Superintendent Deborah Harvest, who had risen
through the ranks of administrative positions within the district with Dr. Walker, and now
served as Assistant Superintendent. 	These personnel recommendation accepted by
the East Orange Board of Education at its June 17, 2017 meeting. 	However, the day
after the Board acted on Dr. Walker’s recommendations, he testified he was called into
a meeting with Dr. Harvest and another assistant superintendent. 	At this meeting, he
was told that a recommendation was being made to withhold his increment for the 2017-
18 	school 	year 	due 	to 	what 	Dr. 	Harvest 	characterized 	as 	“less 	than 	effective
performance.”
Dr. Harvest also determined that for the first time in his long career in East
Orange, Dr. Walker should be placed on a Corrective Action Plan, otherwise known as
CAP for the coming school year. 	It should be noted here that during her testimony, Dr.
Harvest gave a somewhat evasive answer on why this decision was made, for which Dr.
Walker had no means of appeal, and even after he completed the Corrective Active
Plan, which included several seminars, her view of his performance did not change.
According to Dr. Walker, when he would frequently ask Dr. harvest for feedback or
some indication of how he could meet her expectations, he either got silence or little if
anything in return to indicate if she viewed his performance as having improved.
One thing which is undisputed, is Dr. Harvest left Dr. Walker little time to adjust to
his 	new 	surroundings, 	including 	all 	new 	staff 	and 	parents, 	in 	one 	of 	the 	lowest
performing schools in the district prior to the time Dr. Walker was re-assigned there.
Despite his frustration with how he was being treated by the Administration, and
particularly Dr. Harvest, Dr. Walker testified he set out to do what he was asked to do,
which is make Healy a better school. 	After his personnel changes were accepted, he
created a school newspaper, the Hart Herald, which was designed to let students,
parents and faculty know what was going on at Healy and make the school more a part
of the community. (This was also done to overcome one of the criticisms by Dr. Harvest
that Dr. Walker needed to do a better job of promoting the mission of the school.).

OAL DKT. NO. EDU 15251-18
4
Also important here and something which stood out during the proceeding which
was not noted anywhere by Dr. Harvest is the fact that Dr. Walker testified that when he
noticed a student out of the school for an extended period, not knowing if it was truancy
or illness, he would actually get in his car and visit the child’s home and the parents
after school hours to see if he could improve the overall attendance at the school.
Thus, it seems clear that while both Dr. Walker and Dr. Harvest are both
dedicated educators who had worked their way up the ranks in the East Orange School
District. When Dr. Harvest became Dr. Walker’s evaluator, it changed the dynamic of
their professional relationship in a dramatically negative way.
Other actions Dr. Walker said he took during the 2017-2018 school year while
serving as principal of Healy was to develop a school improvement plan because Healy
was what the State refers to being in Comprehensive status, provide more in service
and professional development programs for Healy’s teachers, conduct walkthroughs of
all classrooms to obtain a better understanding of how teachers and students were
performing, and train teachers in how to develop new lesson plans.
None of these changes were noted by Dr. Harvest as part of Dr. Walker’s
yearend review in which she gave him a low score of “2” in 24 out of 31 areas and an
increment withholding.
Dr. Harvest is a veteran educator, who like Dr. Walker, spent a majority of her
years in education working her way up the ranks of administration with the East Orange
School District. 	Having achieved the position of Assistant Superintendent, among her
duties was to evaluate principals throughout the district, monitor their progress and
make recommendations on how it improve performance.
Dr. Harvest said she had been Dr. Walker’s evaluator since 2010, most of the
time being when he was the principal at Garvin. 	Dr. Harvest earned a Doctorate in
Educational Leadership and had been employed by the district for thirty-seven (37)
years.

OAL DKT. NO. EDU 15251-18
5
According to Dr. Harvest, State law requires a principal to be placed on a
Corrective Action Plan, when part or all of their performance is deemed “partially
effective.” 	At the end of the 2016-17 school year, because of this evaluation that she
prepared, Dr. Walker was required to complete a CAP. 	Dr. Walker said following her
evaluation for that year, she forwarded a document to Dr. Walker entitled; “Areas of
Concern Dr. Howard Walker.” She said the purpose of the document was to provide Dr.
Walker with a roadmap as to the areas that were in need of improvement for the next
school 2017-18 school year.
In describing the document further, Dr. Harvest testified that she asked him to
focus on at least three areas to improve, including but not limited to: Mission, Vision and
Core 	Values, 	Ethics 	and 	Professional 	Norms, 	and 	Curriculum, 	Instruction 	and
Assessment of the teachers at Healy.
It is undisputed that with Healy being one of the lowest performing schools
in the district, Dr. Harvest’s decision to place Dr. Walker in a CAP, did not
account for the fact that he was new to the school, nor was he given additional
time before she arrived at the conclusion that he was now performing at lower
than acceptable standards in these areas.
Not taking well to the criticisms which he felt were unjust and unfair, Dr. Walker
said he started to document everything, at times sending multiple emails the same day
to Dr. Walker. 	Dr. Walker, who felt she was being harassed, asked the board attorney
to get involved because she felt Dr. Walker was interfering with her responsibility of
assessing his performance which was within her duties and responsibilities.
She said this pattern of what she deemed “over documenting” every exchange
between them by Dr. Walker continued through the Summer of 2017, into the start of
the new school year, when two weeks after school started, Dr. Harvest said Dr. Walker
resisted efforts to comply with the CAP on the basis of his belief that her evaluation was
“too vague” to comply with the CAP.

OAL DKT. NO. EDU 15251-18
6
In early October 2017, Dr. Harvest commenced site visits to Healy so in her
words, “she could get a feel for what was going on in the classrooms” where Dr. Walker
was serving as principal. 	One area she noted was lacking was posting recent student
work on bulletin boards, as well as student data on State standardized tests know as
PARCC.
Instead of complying with the areas of improvement as outlined in the CAP, Dr.
Harvest was of the view that Dr. Walker increased the adversarial nature of her
supervisory relationship over him by including a union representative in their meetings
who was being copied on all correspondence. Among other things, she assigned him a
book on “body language” but did not explain in detail why it was being assigned. In her
testimony, Dr. Harvest candidly stated that she believed although she and Dr. Walker
worked their way up the administrative ranks in East Orange, together, he resented her
supervisory role, and felt Dr. Walker felt his knowledge and experience should not be
challenged. 	(This 	was 	evident 	throughout 	the 	proceeding 	by 	Dr. 	Walker’s
demeanor, method of speaking, and by virtue of his refusal to meet with Dr.
Harvest as requested towards the end of October 2017, when the CAP was due to
expire.) 	Though he came across at times as having a superior attitude, it also came
across they he is very dedicated to his job, and has the best interests of his students,
parents and teachers in mind as he implemented certain changes at Healy once he
reluctantly accepted the decision to reassign him there.
There is no dispute that the conflict in the relationship between Dr. Harvest and
Dr. Walker continued through the end of the 2018 school year. 	The record indicates
that Dr. Harvest prepared another memorandum in February 2018 regarding her site
visit to Healy, and another memorandum on April 5, 2018 summarizing her meeting with
Dr. Walker the previous day, as to what areas of the CAP he had successfully
completed, and which areas still needed improvement. 	Despite fulfilling certain CAP
criteria, she warned him “it did not necessarily mean his increment for 2017-18 would be
awarded.
In 	fact, 	on 	April 	9, 	2018, 	Dr. 	Harvest 	informed 	Dr. 	Walker 	that 	the
recommendation was for another increment withholding due to “gaps in leadership and

OAL DKT. NO. EDU 15251-18
7
inability to take responsibility for his own learning.” In early May 2018, as the school
year was nearing completion, Dr. Walker was served with a third evaluation, essentially
giving him a 2.65 rating, resulting in a finding of being partially effective, placing him on
CAP status for the next 2018-19 school year, and generating a “Rice” notice which
meant the Board of Education would be discussing his employment status with the East
Orange School District at an upcoming meeting.
Concerned for his reputation, and his status within the district as well as another
salary increment withholding, Dr. Walker asked for and was granted a new evaluator,
Dr. Kevin West, who was the Superintendent of Schools. 	Dr. West, who had already
served as superintendent in another district, as well as assistant superintendent in
Newark, and as a principal in Irvington, came across as a veteran educator who better
understood and appreciated the challenges Dr. Walker faced when he was moved from
his position as principal at Garvin, to becoming principal at Healy. 	And it appears from
Dr. West’s testimony that during the two years that Dr. Walker was in charge of Healy
while simultaneously being placed on CAP status by Dr. Walker, Healy, the school
where Dr. Walker had been reassigned over his objection was starting to improve.
Among other things, during the 2018-19 school year, with Dr. Walker at the helm, Healy
was removed by the State from “comprehensive status” to “Focus status” still in need of
improvement, but showing better results for the teachers, and, of course, the students.
During 	this 	period, 	teacher 	and 	student 	attendance 	improved, 	student
misconduct decreased, and better communication between parents and the school was
noted by virtue of Dr. Walker’s home visits and efforts to make Healy more of a
“community.”
These achievements were noted in a letter written to Dr. West dated January 31,
2019, from the Commissioner of Education taking Healy, which had been in the bottom
5 percent performing school in the State for almost eighteen (18) years and removing it
from comprehensive status only two and a half years into Dr. Walker’s tenure at the
school. 	(Interesting, it is also undisputed that in the same letter, Garvin, the school
which Dr. Walker was transferred from to take over Healy, was now lowered to
comprehensive status, which was not the case while Dr. Walker was there).

OAL DKT. NO. EDU 15251-18
8
When asked about the January 2019 letter from the Commissioner of Education,
upgrading Healy’s status out of comprehensive, Dr. Harvest minimized Dr. Walker’s role
in the improvement, attributing most of it to the former principal Ms. Coleman, who was
replaced by Dr. Walker over two years earlier. 	While Dr. Harvest came across as a
dedicated educator, one of the things that seemed inconsistent and did not make sense
in her testimony was her statement that “student achievement is not the primary goal of
the evaluation process.” 	If that were the case, I FIND Dr. Walker never received a true
explanation of what criteria were being utilized to evaluate his work at Healy, which in
and of itself is arbitrary and capricious.
As a result of the noted improvements at Healy by the State and Dr. West, the
new evaluator, the CAP which Dr. Harvest had put into effect for two school years
shortly after Dr. Walker was reassigned to Healy was removed.
Viewed and evaluated from the eyes of an equally experienced educator, whose
testimony came across as more objective than Dr. Harvest, also a dedicated educator
but perhaps stricter in her assessments, without more guidance and direction from Dr.
Harvest or other district officials about what was expected of him upon being transferred
to Healy, and without giving Dr. Walker an extended period of time to demonstrate a
turn around at a low performing school, the increment withholding was unjust and unfair
to Dr. Walker.
FINDINGS OF FACT
1. 	Petitioner Howard Walker is a veteran educator with over thirteen years of
experience serving as a school principal in the East Orange School District.
2. 	Prior to the 2016-17 school year, he served as principal of the Garvin School.
3. 	At the beginning of the 2016-17 school year, Dr. Walker was transferred to
serve as principal of the Healy School, one of the lowest performing schools
in the East Orange School District, which was on comprehensive watch by
the State Education Department.
4. 	At the time of the transfer, which Dr. Walker objected to, he did not know any
of the staff, parents or students who were part of the Healy community.

OAL DKT. NO. EDU 15251-18
9
5. 	Part of Dr. Deborah Harvest’s duties and responsibilities was to evaluate the
performance of principals with the school district.
6. 	Both she and Dr. Walker knew each other and had worked their way up the
ranks of administration within the East Orange School District.
7. 	As Assistant Superintendent, Dr. Harvest was responsible for evaluating Dr.
Walker after he was transferred to become principal at Healy.
8. 	No adjustments were made to the evaluation process for Dr. Walker, who was
now the principal at one of the lowest performing schools in the district.
9. 	After a brief period at Healy, Dr. Harvest placed Dr. Walker on a Corrective
Action Plan CAP, which required him to make several adjustments and meet
certain criteria before he could be removed from this status.
10. Almost immediately after being placed on the CAP, Dr. Walker and Dr.
Harvest clashed, thereby causing a breakdown in communication and lack of
trust between them.
11. To her annoyance, Dr. Walker started documenting everything he did, which
only made the situation between them worse.
12. At the end of the 2017-2018 school year, Dr. Harvest recommended that Dr.
Walker’s salary increment be withheld, as in her opinion, he had not met the
criteria of the CAP, which he continued on during the next school year.
13. The Board of Education adopted Dr. Harvest’s recommendation and withheld
the increment, from which this appeal was filed.
14. Frustrated with the way he was being treated. Dr. Walker asked for, and was
granted a new evaluator, Dr. Kevin West, who served as the Superintendent
of Schools.
15. In January 2019, Dr. West received a letter from the Commissioner of
Education 	removing 	Healy 	from 	comprehensive 	status 	and 	noting 	the
improvement at the school. 	Without naming Dr. Walker, it is clear from this
letter from the State, that Dr. Walker had started to achieve improvement at
Healy, which though not expressed directly was the reason why he was
reassigned there.
16. Dr. West determined that the Corrective Action Plan which Dr. Harvest
created for Dr. Walker should be terminated.
17. No increment withholding was recommended by Dr. West.

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LEGAL ANALYSIS AND CONCLUSION
In this matter, petitioner was employed as a principal by the East Orange school
district for thirteen years. 	The pivotal issue concerns the propriety of a series of
evaluations by his supervisor, an assistant superintendent who had been a colleague, to
withhold a salary increment for the 2017-18 school year, place petitioner on a Corrective
Action Plan, CAP, and compel petitioner to take classes, read books and do other
remedial things, shortly after the district reassigned petitioner to one of the lowest
performing schools in the district.
Pursuant to N.J.S.A. 18A:6-9, the Commissioner of the Department of Education
has jurisdiction to hear and determine, without cost to the parties, all controversies and
disputes arising under the school laws. 	N.J.A.C. 6A:3-1.1 to 1.17. 	sets forth the rules of
procedure for the filing of petitions with the Commissioner of Education to hear and decide
controversies and disputes arising under school laws in accordance with N.J.S.A. 18A:6-9.
N.J.A.C. 6A:3-1.1(a).
The procedure for withholding salary increments in an educational setting are set
forth in N.J.S.A. 18A:29-14, which applies to situations where an employee is considered
inefficient or for other good cause shown.
A school employee challenging such a decision has the burden of showing by a
preponderance of the evidence that the action was arbitrary and capricious or lacks a
rational basis. Mullennaphy v. Bd. of Ed. of Twp.of Marlboro, A-0052-18T3, 2019 WL
5788326 (App. Div. November 6, 2019).
Increment withholding “is a matter of essential managerial prerogative which has
been delegated by the legislature to the board” See Bernards Twp. Bd. of Ed. v. Bernards
Twp. Educ. Ass’n, 79 N.J. 311 (1979). Notwithstanding that policy, a board of education
cannot withhold a salary increment from a tenured employee without providing that
employee with minimum procedural due process. See: Basile v. Bd. of Ed. of Elmwood
Park, 1 N.J.A.R. 199 (Dept. of Ed. 1980).

OAL DKT. NO. EDU 15251-18
11
In determining whether a decision to withhold a salary increment in an educational
setting was arbitrary and capricious and without rational basis, it a court should examine
whether the underlying facts made by the evaluator were correct and whether it was
unreasonable for the evaluator to reach the conclusion that the increment should be
withheld, bearing in mind their expertise. Without something more, a board’s action in this
regard is entitled to a presumption of validity, absent a showing of bad faith, illegal motive
or lack of rational basis. 	See: Quinlan v. Bd. of Ed. 73 N.J. Super, 40 (App. Div. 1962),
And see: Raimondi v. Westwood Reg’l Bd. of Ed. EDU 5904-04 Initial Decision Sept. 25,
2005, aff’d State Bd. of Ed. (June 7, 2006).
The Petition requests that the undersigned set aside the Board’s adoption of a
salary increment withholding for the 2017-18 school year, and to determine that the
assistant superintendent Dr. Deborah Harvest acted in an arbitrary capricious and
discriminatory manner in placing him on a CAP for two consecutive years and for
withholding his salary increment.
“School Law vests the management of the public schools in each district in the
local boards of education, and unless they violate the law or act in bad faith, the
exercise of their discretion in the performance of the duties imposed upon them is not
subject to interference or reversal.”
Boards have broad discretionary authority to decide whether a teacher, or in this
case a principal should or should not be re-engaged. Donaldson v. N. Wildwood Bd. of
Educ., 65 N.J. 236 (1974). 	No obligation exists on the part of board to renew non-
tenured teachers. 	Wyckoff Twp. Bd. of Educ. v. Wyckoff Educ. Ass’n, 168 N.J. Super.
497 (App. Div. 1979).
There are some limits and procedural safeguards afforded to school employees
when their employment status is due to be considered. A board of education is required
to send a “Rice notice” any time it has placed on its agenda any matters involving the
employment, evaluation appointment, evaluation of performance or discipline. 	N.J.S.A.
10:4-12(b)(8). 	This provides the affected employee with an opportunity to decide
whether they desire a public discussion and prepare and present an appropriate request

OAL DKT. NO. EDU 15251-18
12
in writing. 	See Rice v. Union Cty. Reg’ High Sch. Bd. of Educ., 155 N.J. Super. 64
(App. Div. 1977).
There was little, if any information about the extent to which the recommendation
to withhold Dr. Walker’s increment was discussed prior to adoption, and who made the
presentation. 	But assuming the board relied just on Dr. Harvest’s evaluation, and her
report that Dr. Walker had not completed his CAP, then there was nothing put before
the board about the status of Healy itself, that over his objection Dr. Walker had been
reassigned to Healy purportedly to improve performance in a low performing school, or
how little time he had been given to change the culture at Healy.
Despite Dr. Harvest’s long and dedicated career, I CONCLUDE that in this case,
her evaluation and recommendation for increment withholding was subjective, not
objective, and, as such was done in an arbitrary and capricious manner.
I FURTHER CONCLUDE that while Dr. Walker may present some personal traits
that make him appear that he is better or smarter than those around him, (which at
times he exhibited during the hearing), that does not mean he is not a good educator,
dedicated to improving the performance of his students, and the community around him.
I ALSO CONCLUDE, that the decision to almost immediately place him on CAP
status, shortly after he was reassigned to Healy, without a clear and transparent
directive from the Administration about what was expected of him, was unfair and
prejudicial to his ability to do the job the district had placed him in.
I THEREFORE CONCLUDE that there was no rational basis for the increment
withholding and that Dr. Walker has met his burden that the decision to withhold his
increment at the conclusion of the 2017-18 school year was arbitrary and capricious and
should be REVERSED.

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13
ORDER
It is ORDERED that the East Orange Board of Education’s determination as to the
increment withholding filed against petitioner is deemed void, and it is further ORDERED
that the decision by the East Orange Board of Education, the result of which was to
withhold petitioner’s increment for the 2017-2018 school year, is REVERSED.
I 	hereby 	FILE 	this 	Initial 	Decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This order on application for emergency relief may be adopted, modified or
rejected 	by 	the 	COMMISSIONER 	OF 	THE 	DEPARTMENT 	OF 	EDUCATION,
who/which by law is authorized to make a final decision in this matter. 	The final
decision shall be issued without undue delay, but no later than forty-five days following
the entry of this order. 	If (title of agency head) does not adopt, modify or reject this
order within forty-five days, this recommended order shall become a final decision on
the issue of emergent relief 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, P.O. 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.
July 16, 2021
DATE 	ANDREW M. BARON, ALJ
Date Received at Agency: 	July 16, 2021
Date Mailed to Parties: 	July 16, 2021
mm

OAL DKT. NO. EDU 15251-18
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APPENDIX
Witnesses
For Petitioner:
Dr. Howard Walker
For Respondent:
Dr. Deborah Harvest
Dr. Kevin West
Exhibits
For Petitioner:
P-1- 9/6/11 Letter
P-2- 6/2015
P-3- 5/2016 Evaluation
P-4- 3/17 Memo
P-5- 9/17 Action Plan
P-6-Emails
P-7- 2/22/18 Action Plan
P-8-2017-18 Evaluation
P-9- 2018-19 Evaluation
P-10- Action Plan
P-11- DOE Letter
P-12- 5/11/18 Memo
P-13- 5/11/18 Memo
P-14- CAP

OAL DKT. NO. EDU 15251-18
15
For Respondent:
R-1- Evaluations
R-2- 9/2/17 Email
R-3- Post conference summary email
R-4- Professional Standards
R-5- 8/17 Memo
R-6- 8/9/17 email chain
R-7- 8/17 Email chain
R-8-Dr. Harvest areas of concern
R-9- 9/15/17 CAP Progress
R-10- Dr. Walker 9/20/17 email
R-11- Dr. Harvest response amil
R-12- (Not used)
R-13- 10/3/17 Site visit form
R-14- 10/4/17 Meeting notes
R-15- 10/7/17 email re; book
R-16- 10/13/17 email
R-17- 10/30/17 email
R-18- 11/7/17 Email re: Bulletin boards
R-19-11/10/17 Walker email
R-20- 12/19/17 email
R-22- 2/9/18 Memo
R-23-2/14/18 Harvest email
R-24-2/18 Revised CAP
R-25-Workshops email
R-26-3/22/18 Harvest email
R-27- 4/5/18 Harvest memo
R-28- 4/9/18 Increment review
R-29-4/26/18 Harvest email
R-30- 5/18 Final CAP
R-31- 6/11/18 Rice Notice
R-32- 6/20/18 Determination