Ali O. Kesim v. Board of Education of the Borough of New Providence, Union County, 4/23/19, (#109-19)

New Jersey Commissioner of Education
Final Decision
Ali Kesim,
Petitioner,
v.
Board of Education of the Borough of
New Providence, Union County,
Respondent.
Synopsis
The petitioner challenged the Board’s decision to terminate his employment as a custodian in the school
district following a physical altercation with another employee; petitioner had also been involved in other
repeated incidents of conduct that resulted in discipline. The petitioner asserted that the Board’s action
violated the tenure laws, N.J.S.A. 18A:17-3. 	The Board contended that petitioner’s employment was
subject to a Custodial Collective Bargaining Agreement (CBA), and that there is no grant of tenure in the
CBA of this district. The parties filed cross motions for summary decision.
The ALJ found, inter alia, that: there are no genuine issues of material facts in dispute, and the matter is
ripe for summary decision; the issue for determination was whether the Board violated the Tenure Act,
N.J.S.A. 18A:17-3, and the district’s CBA when it terminated petitioner’s employment; 	petitioner was
hired by the Board as a custodian in October 1998; in each year of his employment, petitioner received
and signed an Employment Contract containing a clause which allows for the termination of the contract
by either party with 30 days’ notice in writing; 	all custodians and bus drivers in the district, as tenure
ineligible employees, received an employment contract with a fixed term each year; 	the relevant CBA
expired on June 30, 2018, and does not use the word “tenure” in any provision; petitioner received written
notice on or about February 8, 2018 that the Board was terminating his employment effective
January 24, 2018 because of a physical altercation with another employee on January 18, 2018, as well as
prior repeated incidents which resulted in discipline; the notice informed petitioner that he was terminated
pursuant to the notice provision in his contract, and that he would be placed on paid leave through his
termination date of February 22, 2018; 	although the relevant CBA stated that “permanent status” was
given to all custodians after the beginning of their fourth consecutive year of employment, the CBA also
gives the Board the right to relieve employees of their duties for just cause through the notice provision in
the annual contract. The ALJ concluded that petitioner was properly terminated on contractual notice for
just cause. 	Accordingly, summary decision was granted in favor of the Board, and petitioner’s cross-
motion was denied.
Upon comprehensive review, the Commissioner concurred with the findings and conclusions of the ALJ.
Accordingly, the Initial Decision of the OAL was adopted as the final decision in this matter, 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.
April 23, 2019
109-19

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OAL Dkt. No. EDU 8311-18
Agency Dkt. No. 122-5/18
New Jersey Commissioner of Education
Final Decision
Ali Kesim,
Petitioner,
v.
Board of Education of the Borough of
New Providence, Union 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 pursuant to N.J.A.C. 1:1-18.4 by
the petitioner, Ali Kesim, and the New Providence Board of Education’s (Board) reply thereto.
In this matter, the petitioner is challenging the Board’s decision to terminate his employment as a
custodian in the school district.1 	The Administrative Law Judge (ALJ) granted summary
decision in favor of the Board and recommended that the petition of appeal be dismissed. In so
doing, the ALJ found that the petitioner did not have tenure as a custodian under N.J.S.A.
18A:17-3 because he was appointed for a fixed term for each year of his employment with the
District. 	Additionally, the Board did not violate the Collection Bargaining Agreement (CBA)
when it terminated petitioner’s employment because the CBA did not provide custodians in the
District with tenure.
1 The Board acted to terminate the petitioner’s employment based on a physical altercation with another employee,
as well as other repeated incidents that have resulted in discipline.

2
In his exceptions, the petitioner maintains that the Initial Decision should be
rejected 	because the ALJ 	failed 	to 	apply the 	plain 	language of 	N.J.S.A. 	18A:17-3 	and
misinterpreted the holding in Wright v. Board of Educ. of E. Orange, 99 N.J. 112 (1985). 	The
petitioner argues that he held tenure when he was unilaterally terminated because the CBA that
was in effect at the time states, “[w]hen an employee commences his/her fourth year of
consecutive employment in the district, that employee shall have permanent status under the
agreement.” 	Thus, the CBA effectively accords permanent status to all custodians who are
employed by the Board for a period of over three years and these employees are no longer
subject to the non-renewal procedures of N.J.S.A. 18A:27-4.1. 	The petitioner further contends
that simply because the agreement in Wright, supra, contained the word “tenure” does not mean
that every agreement in every school district throughout the state has to have the word “tenure”
in order for custodians to earn it. 	Accordingly, the Board should be ordered to immediately
reinstate the petitioner at a salary level appropriate for the 2018-2019 school year. 	Finally, if
summary decision is not entered in favor of the petitioner based on the relevant case law and
plain reading of the CBA, this matter should be remanded to the OAL for a hearing as to all
material facts in dispute, including the intent of the parties to the CBA.
In reply, the Board maintains that in the Initial Decision the ALJ properly found
that N.J.S.A. 18A:17-3 grants tenure to custodial employees only if such employees are not
appointed to fixed terms. 	When custodial employment is governed by a CBA, the CBA may
grant tenure to custodial employees. 	Despite the petitioner’s allegations, the ALJ did not
establish a bright line rule requiring all CBAs to contain the word “tenure.” 	Instead, the ALJ
reviewed the terms of the CBA in this case and determined that, unlike in Wright, supra, an
agreement that contains a clear, express provision granting custodian tenure does not exist in the
current CBA. 	Therefore, the ALJ considered extrinsic evidence including the Board’s practice

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of issuing non-tenured employees Employment Contracts, similar to the contract that was signed
annually by the petitioner while tenured employees were issued Salary Statements. Further, the
ALJ properly credited petitioner’s execution of a fixed term employment contract containing a
thirty (30) day notice provision for termination in each of his nearly twenty (20) years of
employment as evidence of petitioner’s non-tenured status. 	Therefore, the Initial Decision
should be adopted as the final decision in this matter.
Upon a comprehensive review of the record in this matter, the Commissioner
concurs with the ALJ – for the reasons thoroughly set forth in the Initial Decision – that the
petitioner did not have tenure as a custodian under N.J.S.A. 18A:17-3, and the Board did not
violate the CBA when it terminated petitioner’s employment. The Commissioner is also in
accord with the ALJ’s determination that there are no material facts in dispute prohibiting the
dissolution of this matter by summary decision.
Pursuant to N.J.S.A. 18A:17-3, boards of education have the discretion to deny
tenure to custodial staff or to confer that status upon them. In order to exercise the discretion to
deny tenure to custodial staff, a board of education must appoint the custodians for a fixed term.
Each year of his employment with the Board, the petitioner entered into a fixed employment
contract that was effective July 1 through June 30. 	Therefore, the petitioner did not acquire
tenure under N.J.S.A. 18A:17-3. The Commissioner is also not persuaded by the petitioner’s
assertion that he acquired tenure based on the language in the CBA, which stated “[w]hen an
employee commences his/her fourth year of consecutive employment in the district, that
employee shall have permanent status under the agreement.” As explained by the ALJ, the word
“tenure” is not used anywhere in the CBA as opposed to the circumstances in Wright, supra,
where the agreement between the board of education and the custodians’ union contained a clear,
express provision that stated: “[a]ll members of the bargaining unit shall receive tenure after

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three years of employment.” Id. at 184. 	Based on the evidence in the record related to the
nature of the petitioner’s employment contracts, coupled with the language of the CBA, the ALJ
properly found that the CBA did not grant petitioner tenure. As a result, the manner in which the
Board terminated the petitioner’s employment was not barred by N.J.S.A. 18A:17-3, nor did it
violate the CBA.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter and the petition of appeal is hereby dismissed.
IT IS SO ORDERED.2
COMMISSIONER OF EDUCATION
Date of Decision: 	April 23, 2019
Date of Mailing: 	April 23, 2019
2 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.

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State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 08311-18
AGENCY DKT. NO. 122-5/18
ALI O. KESIM,
Petitioner,
v.
BOARD OF EDUCATION OF THE BOROUGH
OF NEW PROVIDENCE, UNION COUNTY,
Respondent.
______________________________
Nicholas Poberezhsky, Esq., for petitioner Ali O. Kesim (Caruso Smith Picini,
attorneys)
Anthony P. Sciarrillo, Esq., for respondent New Providence Board of Education
(Sciarrillo Cornell, attorneys)
Record Closed: February 1, 2019 	Decided: March 15, 2019
BEFORE GAIL M. COOKSON, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On or about May 21, 2018, petitioner Ali O. Kesim (petitioner) filed an action with
the Commissioner of the Department of Education against respondent New Providence
Board of Education (respondent or Board) challenging his termination on or about
February 25, 2018, from his position as a custodian employed by the Board for

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approximately twenty (20) years as violative of the tenure laws. N.J.S.A. 18A:17-3. The
Board filed its Answer to the Petition for Relief on or about June 4, 2018.
The matter was transmitted by the Department of Education to the Office of
Administrative Law (OAL), where it was filed on June 11, 2018, for plenary hearing as a
contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. 	I
convened a telephonic case management conference with the parties on July 2, 2018,
to discuss the potential issues in the case, scheduling, and other case management
concerns. 	It became apparent that the matter was amenable to dispositive motion
practice and a briefing schedule was agreed upon, as well as plenary hearing dates
should those be needed. 	After some adjustments to the schedule, the Board filed a
Motion for Summary Decision on or about November 9, 2018. On or about January 21,
2019, petitioner filed a Cross-Motion for Summary Decision. 	Responses and replies
were thereafter submitted. Those motion submissions having been received, the matter
is now ripe for decision.
ISSUE PRESENTED ON THE MOTION
Whether respondent Board violated the Tenure Act, N.J.S.A. 18A:17-3, and the
New Providence Education Association – Custodians Unit (Association) Collection
Bargaining Agreement when it terminated his employment.
UNDISPUTED MATERIAL FACTS
1. 	Petitioner was hired as a custodian by the Board on October 5,
1998. See Certification of Dr. David Miceli, ¶ 4 (Miceli Certification). 	During his
employment, petitioner later served as a “custodian/bus driver.” 	See Miceli
Certification, ¶ 5.
2. 	At the end of each school year, the Board is required to inform all
employees, 	tenured 	or 	non-tenured, 	of 	their 	status 	of 	employment 	for 	the

3
following year. See Miceli Certification, ¶ 7. 	Such notice includes information
regarding salary for the following school year. See Miceli Certification, ¶ 8.
3. 	To distinguish tenured employees from non-tenured employees or
employees not eligible to earn tenure (“tenure ineligible employees”), tenured
employees receive a “Salary Statement” while non-tenured and tenure ineligible
employees receive an “Employment Contract.” 	See Miceli Certification, ¶ 9.
Both documents set forth the employee’s name and salary, and require the
employee to sign the document and return it to the Superintendent’s office. 	See
Miceli Certification, ¶ 10.
4. 	Unlike a Salary Statement, the Employment Contract contains a
termination clause which provides:
It is hereby agreed by the parties hereto that this contract
may at any time be terminated by either party’s giving to the
other 30 days’ notice in writing of intention to terminate the
same, but that in the absence of any provision herein for a
definite number of days’ notice, the contract shall run for the
full term named above.
See Miceli Certification, ¶ 11.
5. 	The Employment Contract contains a fixed term, specifying a start
and end date. 	See Miceli Certification, ¶ 12. 	All custodians and bus drivers, as
tenure ineligible employees, receive an “Employment Contract” each year. 	See
Miceli Certification, ¶ 13.
6. 	District 	custodians 	are 	represented 	by 	the 	New 	Providence
Education 	Association 	– 	Custodians 	Unit 	(“Association”). 	See 	Miceli
Certification, ¶ 21. During his employment with the Board, Petitioner was a
member of the Association. 	See Miceli Certification, ¶ 22. 	The Board and
Association 	are 	parties 	to 	the 	Custodial 	Collective 	Bargaining 	Agreement
(CCBA). See Miceli Certification, ¶ 23.

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7. 	The relevant CCBA expired on June 30, 2018. The CCBA does not
use the word “tenure” in any provision. See Miceli Certification, ¶ 25.
8. 	In each year of his employment, petitioner received and signed an
Employment 	Contract, 	containing 	a 	thirty-day 	notice 	provision. 	See 	Miceli
Certification, ¶ 14. 	In advance of the 2017-2018 school year, petitioner received
an Employment Contract dated June 29, 2017, for the period of July 1, 2017
through June 30, 2018. See Miceli Certification, ¶ 15. On or about July 21, 2017,
petitioner 	reviewed 	and 	signed 	that 	Employment 	Contract. 	See 	Miceli
Certification, ¶ 16.
9. 	On or about February 8, 2018, the Board provided written notice to
petitioner that the Board took action to terminate his employment effective
January 24, 2018. 	See Miceli Certification, ¶ 18. 	The reason stated was a
physical altercation with another employee on January 18, 2018, as well as prior
“repeated incidents that have resulted in discipline.” 	See Miceli Certification,
Exhibit 5. The notice also informed petitioner that he was terminated pursuant to
the notice provision in his Employment Contract, and that he would be placed on
a paid leave of absence through his termination date of February 22, 2018. 	See
Miceli Certification, ¶ 19.
10. 	From 1998 until June 30, 2018, the CCBA stated that “permanent
status” was given to all custodians after the employee began his or her fourth
consecutive year of employment. 	Prior thereto, “[a]ll new employees shall be
hired with fixed term contracts.” 	See Certification of Maryanne Rodriguez, ¶¶ 6-
8.
11. 	Specifically, 	Article 	V 	Employee’s 	Rights, 	Section 	D.3 	of 	the
relevant CCBA sets forth:
When 	an 	employee 	commences 	his/her 	fourth 	year 	of
consecutive employment in the district, that employee shall
have permanent status under the terms of this Agreement
and shall not be disciplined, discharged, or not reappointed
without just cause. Grievances regarding the above shall be

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subject 	to 	binding 	arbitration 	under 	the 	terms 	of 	this
Agreement.
[Miceli Certification, Exhibit 6.]
12. 	Article VI Board’s Rights, Section C.3 of the relevant CCBA sets
forth:
The Board reserves to itself sole jurisdiction and authority
over matters of policy and retains the right through the
Administration, 	in 	accordance 	with 	applicable 	laws 	and
regulations:
* * *
3. To relieve employees from duties for just cause.
[Id.]
LEGAL DISCUSSION
It is well-established that if there is no genuine issue as to any material fact, a
moving party is entitled to prevail as a matter of law. 	Brill v. The Guardian Life
Insurance Co. of America, 142 N.J. 520, 540 (1995). The purpose of summary decision
is to avoid unnecessary hearings and their concomitant burden on public resources.
Under the Brill standard, a fact-finding hearing should be avoided “when the evidence is
so one-sided that one party must prevail as a matter of law.” Brill guides us thusly:
[A] determination whether there exists a "genuine issue" of
material fact that precludes summary judgment requires the
motion judge to 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
factfinder to resolve the alleged disputed issue in favor of the
non-moving party.
[Id. at 540]
In explaining the standard to be applied in summary motion practice, the Brill Court
explained:

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The same standard applies to determine whether a prima
facie case has been established by the party bearing the
burden of proof in a trial. 	. . . If a case involves no material
factual disputes, the court disposes of it as a matter of law
by rendering judgment in favor of the moving or non-moving
party.
[Id. at 536-37]
As a result of the undisputed material facts set forth above, I CONCLUDE that
the issue of whether petitioner was tenured and thereby protected from termination in
the manner in which it was undertaken by the Board can be decided as a matter of law.
The assertions by petitioner in the Certification of Marilyn Rodriguez as to what the
negotiators “understood” or “meant” by the long-standing phrases used in the CCBA of
“fixed term” and “permanent,” which pre-dated her involvement in said negotiations, is
not sufficient to raise a genuine issue of material fact for this case.
The Tenure Act provides in relevant part:
Every public school janitor of a school district shall, unless
he is appointed for a fixed term, hold his office, position, or
employment 	under 	tenure 	during 	good 	behavior 	and
efficiency 	and 	shall 	not 	be 	dismissed 	or 	suspended 	or
reduced 	in 	compensation, 	except 	as 	the 	result 	of 	the
reduction of the number of janitors in the district made in
accordance with the provisions of this title or except for
neglect, misbehavior or other offense ….
[N.J.S.A. 18A:17-3 (emphasis added).]
Separately, a board may confer tenure on a custodial employee “by virtue of the
express terms of the collective bargaining agreement.” 	Camden Bd. of Educ. v.
Alexander, 352 N.J. Super. 422, 447 (App. Div. 2002), rev’d on other grounds by
Camden Bd. of Educ. v. Alexander, 181 N.J. 187 (2004), (citing Wright v. Bd. of Educ.
of E. Orange, 99 N.J. 112 (1985)).
In Wright, the board provided notice to the custodian that his employment would
be terminated. 99 N.J. at 183. 	The CBA between the custodial union and the board
stated: “[a]ll members of the bargaining unit shall receive tenure after three years of

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employment.” Id. at 184. 	The custodian challenged his termination, arguing that the
board permissibly bypassed N.J.S.A. 18A:17-3 when it negotiated a tenure provision. Id.
The Supreme Court determined that although the custodian was appointed to a fixed
term, the CBA explicitly granted the custodian tenure. 181 N.J. at 184-85. Therefore, the
custodian’s termination was improper. Id.
I CONCLUDE that the instant matter is distinguishable from Wright. 	Throughout
his employment with the Board, petitioner was employed for one-year, fixed terms from
July 1 through June 30. 	More specifically, for the 2017-2018 school year, petitioner
reviewed and signed an Employment Contract for the period of July 1, 2017 through
June 30, 2018. 	In Wright, the Supreme Court noted that the CBA between the board
and 	the 	custodians’ 	union 	contained 	a 	clear, 	express 	provision 	that 	stated: 	“[a]ll
members of the bargaining unit shall receive tenure after three years of employment.”
Id. at 184. In the instant matter, no similar express provision exists. As correctly stated
by respondent, the word “tenure” is not used anywhere in the CCBA. Therefore, the
CCBA did not grant petitioner tenure.
By way of contrast, the undersigned is aware that some Collective Bargaining
Agreements for custodians in other districts specifically state: “Effective July 1, 1998,
employees who achieve three (3) consecutive years of employment shall be appointed
for an unfixed term and shall acquire tenure in accordance with N.J.S.A. 18A:17-3.”
See, e.g., Pagan v. Elizabeth Bd. of Educ., OAL Dkt. EDU-6936-17, Initial Decision
(January 2, 2018).
There is no dispute that petitioner was no longer a probationary employee who
could be terminated at will but he was nevertheless employed for a fixed term. There is
no grant of tenure in the CCBA in this district. 	In each year of his employment,
petitioner was provided with an Employment Contract, which he was required to review,
sign, and return to the Superintendent’s office. 	I concur with respondent that each
Employment Contract was for a fixed term and contained the following provision:
It is hereby agreed by the parties hereto that this contract
may at any time be terminated by either party’s giving to the

8
other 30 days’ notice in writing of intention to terminate the
same, but that in the absence of any provision herein for a
definite number of days’ notice, the contract shall run for the
full term named above.
On February 8, 2018, the Board provided written notice to Petitioner of its intent
to terminate his employment because of a physical altercation with another employee
on January 18, 2018, as well as prior “repeated incidents that have resulted in
discipline.” See Miceli Certification, Exhibit 5. That correspondence explicitly stated that
his termination was made in accordance with the notice provision of his Employment
Contract. Therefore, Petitioner was placed on a paid administrative leave effective
January 24, 2018. That paid administrative leave continued for thirty (30) days, in
accordance with his Employment Contract. Petitioner was then terminated effective
February 22, 2018.
In sum, this Board did not negotiate tenure rights for custodians but rather was
granted sole authority to terminate petitioner for just cause subject to the notice
provisions of the annual employment contract. 	I CONCLUDE that petitioner could be
terminated on contractual notice for just cause in the sole authority and jurisdiction of
the Board.
ORDER
It 	is 	ORDERED 	that 	the 	motion 	of 	respondent 	New 	Providence 	Board 	of
Education for an Order Granting Summary decision is hereby GRANTED. 	It is further
ORDERED that the cross-motion of petitioner Ali O. Kesim for an Order Granting
Summary Decision is hereby DENIED.
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

9
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.
March 15, 2019
DATE 	GAIL M. COOKSON, ALJ
Date Received at Agency: 	3/15/19
Date Mailed to Parties:
id