GLENN CIRIPOMPA VS. BOARD OF EDUCATION OF THE BOROUGH OF BOUND BROOK, SOMERSET COUNTY (NEW JERSEY COMMISSIONER OF EDUCATION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5458-18
GLENN CIRIPOMPA,
Petitioner-Appellant,
v.
APPROVED FOR PUBLICATION
BOARD OF EDUCATION OF
THE BOROUGH OF BOUND February 26, 2021
BROOK, SOMERSET COUNTY, APPELLATE DIVISION
Respondent-Respondent.
___________________________
Submitted December 15, 2020 – Decided February 26, 2021
Before Judges Fisher, Moynihan, and Gummer.
On appeal from the New Jersey Commissioner of
Education, Docket Nos. 5-1/15 and 89-5/17.
Mellk O'Neill, attorneys for appellant (Arnold M.
Mellk, of counsel; Edward A. Cridge, on the brief).
Apruzzese, McDermott, Mastro & Murphy, attorneys
for respondent Board of Education of the Borough of
Bound Brook (Robert J. Merryman, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Jaclyn M.
Frey, Deputy Attorney General, on the statement in
lieu of brief).
The opinion of the court was delivered by
GUMMER, J.S.C., (temporarily assigned)
Plaintiff appeals the Commissioner of Education's final administrative
decision denying his claim for back pay for an unpaid suspension period that
occurred before the resolution of tenure charges filed against him by the Board
of Education of the Borough of Bound Brook, Somerset County. The
Commissioner determined the Board could use unemployment benefits and
payments from other employment plaintiff had received during the suspension
period to offset outstanding back pay. We disagree that the Board could use
unemployment benefits and reverse the Commissioner's decision in that
respect. We otherwise affirm.
On July 17, 2014, the Board in accordance with the Tenure Employees
Hearing Law, N.J.S.A. 18A:6-10 to -18.1, certified to the Commissioner of
Education charges in a two-count complaint seeking plaintiff's termination
from a tenured-teaching position. See N.J.S.A. 18A:6-11. Pursuant to N.J.S.A
18A:6-14, which permits a board to suspend a charged person without pay for
120 days, the Board suspended plaintiff without pay from the July 17, 2014
certification date to and including November 14, 2014. During that initial
suspension period, plaintiff received unemployment benefits.
On October 20, 2014, an arbitrator found in the Board's favor only as to
the first count, dismissed the second count, and, instead of termination,
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imposed as a penalty a separate 120-day suspension without pay, which would
have ended on March 9, 2015. Sometime after the first suspension period late
in 2014, plaintiff began employment with a bus company as a driver.
According to the undisputed testimony of the bus-company president and
records of the bus company, plaintiff's bus routes took place at least in part
during his normal school hours and he regularly worked hours that would have
conflicted with his teaching-position hours. Plaintiff also worked as an umpire
in 2015 and 2016 while he was suspended.
The Board filed a summary action to vacate the arbitration award. On
January 8, 2015, the trial court found in favor of the Board, vacating the
arbitration award in its entirety and remanding the matter for arbitration before
a different arbitrator. The next day, plaintiff appealed that order and filed with
the Commissioner a verified petition seeking reinstatement of his salary
retroactive to November 15, 2014,1 on the basis that the arbitrator's suspension
had been vacated by the trial court's order and, thus, the Board's charges were
not resolved within 120 days from certification as required by N.J.S.A. 18A:6 -
14.
On October 29, 2015, we reversed the trial court in the Board's summary
action and reinstated the initial arbitration award. Bound Brook Bd. of Educ.
1
Plaintiff also sought emergent relief, which was denied.
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v. Ciripompa, 442 N.J. Super. 515 (App. Div. 2015), rev'd, 228 N.J. 4 (2017).
The Board resumed payment of plaintiff's salary on November 1, 2015.
Because the arbitration award was reinstated, plaintiff no longer had a claim
for back pay from November 15, 2014, through March 9, 2015, the arbitration -
ordered suspension, but maintained a claim for back pay from March 10, 2015,
through October 31, 2015. Finding the arbitrator had incorrectly analyzed and
improperly dismissed the second count of the complaint, the Supreme Court on
February 21, 2017, reversed our decision, thereby vacating the arbitration
award, and remanded the case for arbitration before a different arbitrator.
Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 15-18 (2017).
On April 28, 2017, an administrative law judge issued an initial decision
regarding plaintiff's petition, awarding plaintiff back pay from March 10,
2015, through October 31, 2015. Because plaintiff's claim for back pay for
November 15, 2014, through March 9, 2015, was revived when the Supreme
Court vacated the arbitration award, plaintiff filed a second verified petition
seeking back pay for that time period.
On June 16, 2017, the second arbitrator issued a decision and award,
finding in the Board's favor on both counts and terminating plaintiff from his
position. That day, the Board stopped paying plaintiff's salary, which it had
resumed paying on November 1, 2015.
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On July 27, 2017, the Commissioner issued a final agency decision
rejecting the administrative law judge's April 28, 2017 initial decision
awarding plaintiff back pay from March 10, 2015, through October 31, 2015,
because he believed due to the second arbitrator's decision, plaintiff's two
petitions should be decided in one proceeding. He remanded the first petition
and recommended plaintiff's petitions be consolidated.
After the petitions were consolidated and the parties conducted
discovery, an administrative law judge on May 23, 2019, issued an initial
decision granting the Board's request for a "summary decision." He found that
plaintiff was not entitled to receive any back pay for the period September 1,
2014,2 through June 16, 2017, because the amount of back pay plaintiff sought
was less than the amount of mitigation to which the Board was entitled. The
administrative law judge held that pursuant to N.J.S.A. 18A:6-14, the Board
was entitled to deduct from the back-pay amount ($63,886) the amount of
unemployment benefits plaintiff had received during his unpaid suspension
($16,514) and payments he had received after his initial suspension from
"substitute" employment as a bus driver during the 2014-15 and 2015-16
2
Plaintiff's statutory suspension began with the certification of charges
against him on July 17, 2014. The administrative law judge stated that the
statutory suspension "effectively" began on September 1, 2014, presumably
the first pay period of the school year.
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school terms ($46,335.44), including the summers of 2015 and 2016
($4,509.65), and as an umpire ($3,105). The administrative law judge
concluded that plaintiff's bus-driving job was "substitute" employment because
plaintiff had obtained the bus-driving job in late 2014 after his statutory
suspension; the bus-driving job during the school year was "inconsistent" with
plaintiff's obligations to the Board, meaning that his working hours as a bus
driver would have conflicted with his working hours as a teacher and he could
not hold both jobs at the same time; and although the summer bus-driving
hours did not conflict with his teaching obligations, the bus-driving job that
plaintiff held in the summer was not separate employment but was the same
continuous job 3 he had acquired in late 2014 – a job he could not have had if
he was working as a teacher.
Plaintiff filed exceptions to that decision, arguing the administrative law
judge had erred by using his unemployment benefits and bus-driver earnings to
reduce his back-pay entitlement. The Commissioner noted that the "facts
themselves are not in dispute" and found that the judge's "disposition of this
case via summary decision was proper." The Commissioner concluded that
3
The bus company president testified that the company did not hire summer
employees. The administrative law judge found based on her testimony that
"[i]nstead, the work is performed by the same drivers who work for the
company during the school year."
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N.J.S.A. 18A:6-14 permitted the Board to deduct from a back-pay calculation
"'any sums received' during the 'period of suspension.'" Accordingly, the
Commissioner adopted the administrative law judge's decision as the final
decision, granted summary judgment in favor of the Board, and dismissed with
prejudice plaintiff's claim for back pay.
In his appeal plaintiff does not assert any factual disputes that would
render the summary decision improper. Cf. L.A. v. Bd. of Educ. of City of
Trenton, Mercer Cnty., 221 N.J. 192, 203-05 (2015) (finding agency's
summary decision was inappropriate when material factual disputes existed).
The parties do not dispute the amount of back pay at issue or the amount of
unemployment benefits and bus-driver or umpire payments plaintiff received.
Plaintiff does not contest the use of the umpire payments to reduce the back-
pay award. Instead, plaintiff challenges the Commissioner's legal
determination that the Board could deduct the unemployment benefits and bus -
driver payments from the back-pay award.
We generally apply a deferential standard when reviewing a final
administrative-agency action. In re State & Sch. Emps. Health Benefits
Comm'ns' Implementation of Yucht, 233 N.J. 267, 279 (2018). We consider
whether the agency acted arbitrarily, capriciously, or unreasonably,
specifically whether the agency's decision "conforms with relevant law," is
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supported by "substantial credible evidence in the record as a whole," and
reaches a conclusion based on a correct application of "the relevant law to the
facts." Id. at 279-80. We review de novo an agency's statutory interpretation
or legal determination. In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17
(2020).
The resolution of this appeal depends on the meaning of language
contained in N.J.S.A. 18A:6-14. In addition to authorizing a board of
education to suspend without pay a charged tenured teacher for 120 days
pending a determination of a charge, N.J.S.A. 18A:6-14 establishes what
salary-payment obligation a board has to a charged teacher pending resolution
of the charge. The statute provides that if the arbitrator does not decide the
charge within 120 days of certification of the charge, the board has to resume
paying the charged teacher his "full salary," beginning the day after the initial
statutorily-authorized 120-day suspension ends. N.J.S.A. 18A:6-14. From
then
[s]hould the charge be dismissed at any stage of the
process, the person shall be reinstated immediately
with full pay from the first day of such suspension.
Should the charge be dismissed at any stage of the
process and the suspension be continued during an
appeal therefrom, then the full pay or salary of such
person shall continue until the determination of the
appeal. However, the Board of Education shall deduct
from said full pay or salary any sums received by such
employee or officers by way of pay or salary from any
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substituted employment assumed during such period
of suspension. Should the charge be sustained on the
original hearing or an appeal therefrom, and should
such person appeal from the same, then the suspension
may be continued unless and until such determination
is reversed, in which event he shall be reinstated
immediately with full pay as of the time of such
suspension.
[Ibid.4]
Our "paramount goal" in interpreting a statute is to determine the
"Legislature's intent." DiProspero v. Penn, 183 N.J. 477, 492 (2005). To
achieve that goal, "we start with the words the Legislature used." Simadiris v.
Paterson Pub. Sch. Dist., ___ N.J. Super. ___, ___ (App. Div. 2021) (slip. op.
at 7). In reviewing the Legislature's words, we follow the "bedrock
assumption that the Legislature did not use 'any unnecessary or meaningless
language.'" Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,
586 (2013) (quoting Patel v. New Jersey Motor Vehicle Comm'n, 200 N.J. 413,
418-19 (2009)). We "must presume that every word in a statute has meaning
4
We note that the Legislature in N.J.S.A 18A:6-14 spoke of "charge" in the
singular, e.g., "[s]hould the charge be dismissed at any stage of the process and
the suspension be continued during an appeal there from, then the full pay or
salary of such person shall continue until the determination of the appeal."
This case involved two charges. In his decision, the first arbitrator found that
the Board had proven the first charge but dismissed the second charge because
he believed the Board had not met its burden of proof as he applied the law.
During the appeals of that decision, plaintiff remained suspended. Thus,
despite the procedurally complexities of the case, the parties do not dispute
that N.J.S.A. 18A:6-14 applies.
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and is not mere surplusage," In re Attorney Gen.'s "Directive on Exit Polling:
Media & Non-Partisan Pub. Int. Grps.", 200 N.J. 283, 297-98 (2009), and we
"give effect to every word" so that we do not "construe the statute to rend part
of it superfluous," Medical Soc'y of N.J. v. New Jersey Dep't of Law & Pub.
Safety, 120 N.J. 18, 26-27 (1990). We also "ascribe to the statutory words
their ordinary meaning and significance." DiProspero, 183 N.J. at 492.
Although the procedural history of this case is complicated, the language
of the statute is clear. The Legislature determined that a board of education
"shall deduct from said full pay or salary any sums received by such employee
or officers by way of pay or salary from any substituted employment assumed
during such period of suspension." N.J.S.A. 18A:6-14 (emphasis added). The
Commissioner disregarded the language we emphasized above as demonstrated
by his final decision in which he replaced that important language with an
ellipsis, stating: "[b]ecause the statute plainly requires that 'any sums received
. . . during such period of suspension' must be deducted from the back pay
owed, the unemployment benefits received by the petitioner during the 120 -
day unpaid suspension must be deducted." Relying on that partial quote, the
Commissioner ignored the express language of the statute limiting the board's
deduction authority based on the source of the sums received by the employee.
The Legislature did not authorize boards to deduct any sums received during
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the period of suspension – which is how the Commissioner applied the
statutory language – but any sums the employee received "by way of pay or
salary from any substituted employment assumed during such period of
suspension."
Unemployment benefits are not "pay or salary from any substituted
employment." Unemployment is not "substituted employment"; it isn't
employment at all. Unemployment benefits are not "pay or salary."
"[U]nemployment compensation is a benefit conferred by the Legislature."
Self v. Bd. of Rev., 91 N.J. 453, 460 (App. Div. 1982).
The Board's fear that plaintiff will be made "more than whole" if the
Board does not deduct the unemployment benefits is baseless. Plaintiff asserts
that he is not seeking back pay for the initial 120-day suspension period when
he received unemployment benefits. Defendants do not dispute that assertion.
The Board's reliance on City of Newark v. Copeland, 171 N.J. Super. 571(App. Div. 1980), and Willis v. Dyer, 163 N.J. Super. 152 (App. Div. 1978), is
misplaced because those cases did not involve a tenured teacher and, thus, did
not address N.J.S.A 18A:6-14, the statute that governs this case.
If the Legislature wanted to authorize boards to deduct from back-pay
calculations unemployment benefits, it could have and would have included
"unemployment benefits" in the language of N.J.S.A. 18A:6-14. Instead, it
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expressly limited the deductions to any sums the employee received "by way
of pay or salary from any substituted employment assumed during such period
of suspension." Id. Applying the actual and complete statutory language, we
find that the Commissioner erred in concluding that the Board could deduct the
unemployment benefits from the back-pay calculation.
We find no error in the Commissioner's determination that plaintiff's
employment as a bus-driver, during the school years and in the summer, and as
an umpire was "substituted employment" plaintiff assumed during his period
of suspension in accordance with the language of N.J.S.A. 18A:6-14 and
consistent with the Legislature's intent. Credible evidence in the record, which
was undisputed, supported the factual conclusions that plaintiff began the bus-
driving job in late 2014 after the initial statutory suspension; his working hours
as a bus driver would have conflicted with his working hours as a teacher and
he could not have held both jobs at the same time, rendering the bus-driving
job "inconsistent" with plaintiff's teaching-position obligations; and the bus-
driving job that plaintiff held in the summer was not separate employment but
was the same continuous job he had acquired in late 2014. Given those facts,
the Commissioner reasonably concluded that the bus-driving job was
"substitute employment."
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In sum, we find that the Commissioner erred in finding the Board could
deduct the unemployment compensation from the back-pay award but correctly
held that the Board could deduct the bus-driver and umpire payments. The
Board may deduct from the amount of pay plaintiff should have received
between the end of the statutory suspension and the reinstatement of his salary
($63,886) the payments he received as a bus driver ($50,845.09) and an umpire
($3,105) because those payments constitute sums received "by way of pay or
salary from any substituted employment assumed during such period of
suspension." Thus, plaintiff is entitled to a back-pay award of $9,935.91.
Reversed in part; affirmed in part.
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