JO ANN SICA PAPPALARDO, ETC. VS. PEE WEE PREP, INC. VS. GARY NORGAARD, FISCAL AGENT (L-0899-14, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3765-15T2
HILLSBOROUGH TOWNSHIP
BOARD OF EDUCATION,
Petitioner-Respondent,
v.
HILLSBOROUGH TOWNSHIP
EDUCATION ASSOCIATION,
Respondent-Appellant.
__________________________________
Argued January 10, 2017 – Decided March 2, 2017
Before Judges Fisher, Ostrer, and Leone.
On appeal from the New Jersey Public
Employment Relations Commission, Docket No.
SN-2015-079.
Sanford R. Oxfeld argued the cause for
appellant (Oxfeld Cohen, P.C., attorneys; Mr.
Oxfeld and Randi Doner April, of counsel and
on the brief).
Vittorio S. LaPira argued the cause for
respondent Hillsborough Township Board of
Education (Fogarty & Hara, attorneys; Mr.
LaPira, of counsel and on the brief; Nicholas
A. Soto, on the brief).
Don Horowitz, Senior Deputy General Counsel,
argued the cause for respondent New Jersey
Public Employment Relations Commission (Robin
T. McMahon, General Counsel, attorney; Mr.
Horowitz, on the statement in lieu of brief).
PER CURIAM
Petitioner Hillsborough Township Education Association
(Association) requested arbitration when respondent Hillsborough
Township Board of Education (Board) denied tuition reimbursement
requests from several teachers. The Board based its denial on
N.J.S.A. 18A:6-8.5(c), which allows tuition assistance only for
courses related to the employee's current or future job
responsibilities. On March 31, 2016, the New Jersey Public
Employment Relations Commission (PERC) found N.J.S.A. 18A:6-8.5
preempted arbitration of that issue. We affirm PERC's decision.
I.
In 2013, four employees in the Hillsborough Township school
system submitted forms for "Approval of Graduate Study/CEU
Courses" seeking tuition reimbursement. A Reading Specialist, a
Preschool Assistant, and an Instructional Aid submitted forms for
"Second Language Acquisition" courses at The College of New Jersey
(TCNJ). The Instructional Aid also submitted a form for a
"Teaching English as a Second Language" course at TCNJ. Another
Instructional Assistant submitted a form for a "Clinical Seminar
in Special Education" course at Rowan University. Their requests
were denied.
2 A-3765-15T2
The four employees submitted a grievance form, seeking
tuition reimbursement and movement on the salary guide based on
the courses. On March 24, 2014, the Board denied the grievance,
finding "that the courses for which approval was sought do not
apply to the employee's current or future job responsibilities."
The Association submitted a Request for Submission to a Panel
of Arbitrators. The Board filed a Petition for Scope of
Negotiations Determination. PERC's March 31, 2016 decision found
arbitration was preempted:
[W]e hold that N.J.S.A. 18A:6-8.5 preempts
arbitration. The statute expressly,
specifically, and comprehensively precludes a
board from reimbursing an employee for
coursework that does not meet each requirement
set forth in the law. Here, the coursework
was not approved by the Superintendent as it
did not relate to the employee's current or
future job responsibilities.
The Association appeals.
II.
We must hew to our standard of review. Courts "apply a
deferential standard of review to determinations made by PERC."
City of Jersey City v. Jersey City Police Officers Benevolent
Ass'n, 154 N.J. 555, 567 (1998). "The standard of review of a
PERC decision concerning the scope of negotiations is 'thoroughly
settled. The administrative determination will stand unless it is
clearly demonstrated to be arbitrary or capricious.'" Id. at 568
3 A-3765-15T2
(quoting In re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J.
322, 329 (1989)).
"PERC's interpretation of the [Employer-Employee Relations]
Act is entitled to substantial deference," N.J. Tpk. Auth. v. Am.
Fed'n of State, Cty. & Mun. Emps., Council 73, 150 N.J. 331, 352
(1997), but "no special deference is owed in an interpretation of
a statute outside the agency's charge," Township of Franklin v.
Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 378 (App. Div.
2012). We are not "'bound by the agency's interpretation of a
statute or its determination of a strictly legal issue.'" Bd. of
Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (citation
omitted).
III.
PERC found N.J.S.A. 18A:6-8.5 preempts arbitration of the
Board's denials. N.J.S.A. 18A:6-8.5 provides:
In order for a board of education to provide
to an employee tuition assistance for
coursework taken at an institution of higher
education or additional compensation upon the
acquisition of additional academic credits or
completion of a degree program at an
institution of higher education:
a. The institution shall be a duly
authorized institution of
higher education as defined in
section 3 of P.L. 1986, c. 87
(C.18A:3-15.3);
4 A-3765-15T2
b. The employee shall obtain
approval from the
superintendent of schools
prior to enrollment in any
course for which tuition
assistance is sought. In the
event that the superintendent
denies the approval, the
employee may appeal the denial
to the board of education.
. . . .
c. The tuition assistance or
additional compensation shall
be provided only for a course
or degree related to the
employee's current or future
job responsibilities.
Here, the Board denied tuition assistance based on N.J.S.A.
18A:6-8.5(c).1 Thus, we must consider whether that subsection
falls within the scope of negotiation.
As our Supreme Court recently reiterated,
although "public employees have a legitimate
interest in . . . collective negotiations" in
respect of issues affecting the terms and
conditions of their employment, "the scope of
[such] negotiation[s] in the public sector is
more limited than in the private sector."
Unlike a private employer, a public employer,
as government, has "the unique responsibility
to make and implement public policy." Public
policy . . . properly is determined through
the political process, by which citizens hold
1
Neither N.J.S.A. 18A:6-8.5(a) nor N.J.S.A. 18A:6-8.5(b) are at
issue in this appeal. Thus, we have no need to consider the
validity of PERC's decision in Hainesport Twp. Bd. of Educ. v.
Hainesport Educ. Ass'n, P.E.R.C. No. 2015-41, 41 NJPER 274 (2014),
which held N.J.S.A. 18A:6-8.5(b) preempts arbitration.
5 A-3765-15T2
government accountable, and not through
collective negotiation.
[Borough of Keyport v. Int'l Union of
Operating Eng'rs, 222 N.J. 314, 333 (2015)
(quoting In re Local 195, 88 N.J. 393, 401-02
(1982)).]
"The scope of arbitrability is generally coextensive with the
scope of negotiability." Teaneck Bd. of Educ. v. Teaneck Teachers
Ass'n, 94 N.J. 9, 14 (1983).
"[T]he scope of collective negotiations for public employers
and employees was addressed" in the "seminal case Local 195."
Keyport, supra, 222 N.J. at 332-33.
[A] subject is negotiable between public
employers and employees when (1) the item
intimately and directly affects the work and
welfare of public employees; (2) the subject
has not been fully or partially preempted by
statute or regulation; and (3) a negotiated
agreement would not significantly interfere
with the determination of governmental policy.
[Local 195, supra, 88 N.J. at 404.]
"A subject is preempted, and therefore non-negotiable under
the second factor, when a statute or regulation '"speak[s] in the
imperative and leave[s] nothing to the discretion of the public
employer."'" Keyport, supra, 222 N.J. at 334 (quoting Local 195,
supra, 88 N.J. at 403-04). "Negotiation is preempted only if the
[statute or] regulation fixes a term and condition of employment
expressly, specifically and comprehensively." Id. at 337 (quoting
6 A-3765-15T2
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J.
38, 44 (1982)). "When legislation or a regulation 'establishes a
specific term or condition of employment that leaves no room for
discretionary action, then negotiation on that term is fully
preempted." Id. at 336-37 (quoting Local 195, supra, 88 N.J. at
403). "[W]hen statutes or regulations set minimum or maximum
standards in respect of a subject, the subject is negotiable within
the limits of those standards." Id. at 334.
N.J.S.A. 18A:6-8.5(c) sets an express, specific, and
comprehensive condition for tuition assistance and speaks in the
imperative by mandating that "[i]n order for a board of education
to provide . . . tuition assistance" it "shall be provided only
for a course or degree related to the employee's current or future
job responsibilities." (emphasis added). "Mandatory or
imperative statutes ordinarily are those enactments which set up
a particular scheme which 'shall' be handled as directed." State
v. State Supervisory Emps. Ass'n, 78 N.J. 54, 82 n.7, 84-86
(1978).2 The subsection expressly sets a specific limit on when
2
Cf. Keyport, supra, 222 N.J. at 338-41 (holding a regulation
providing an authority "'may'" institute a temporary layoff does
"not impose a mandate as called for under Local 195's second prong
for preemption" (citation omitted)); Local 195, supra, 88 N.J. at
406 (holding a regulation providing an authority "'may'" lay off
does not preempt because it "grants considerable discretion" and
does not "speak[] in the imperative" (citation omitted)).
7 A-3765-15T2
tuition assistance may be available. See Neptune Twp., supra, 144
N.J. at 25, 29 (holding that an education statute permitting "'a
one, two or three year salary policy'" preempted because it
"specifically provid[ed] in that statute for the prohibition of
increments beyond three years").
The subsection gives the employer no discretion: if a course
is related to the employee's current or future job
responsibilities, the employee meets this condition for tuition
assistance. See State Supervisory, supra, 78 N.J. at 80 (holding
that if statutory or regulatory provisions "speak in the imperative
and leave nothing to the discretion of the public employer," then
"negotiation over matters so set by statutes or regulations is not
permissible").3 Finally, the subsection is comprehensive, leaving
no collective issues for negotiations between the Board and the
Association, only particular issues relating to each individual,
namely whether the employee's proposed course relates to the
employee's current or future job responsibilities. See id. at 86-
87 (holding "there is nothing upon which the parties could agree
concerning these matters, as they are comprehensively regulated").
3
Cf. Hunterdon Cty., supra, 116 N.J. at 331 (holding statutes
providing that employers "may establish and maintain plans for
awards programs" did not preempt arbitration because they
authorize employers "to exercise discretion in choosing to
institute [such] programs").
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Of course, determining whether a particular employee's
proposed course is related to that employee's current or future
job responsibilities may pose issues of fact. However, the need
to determine an issue of fact does not give discretion to the
superintendent.
In City of Newark v. PBA Local 3, 272 N.J. Super. 31, 39
(App. Div.), certif. denied, 137 N.J. 315 (1994), we addressed a
Newark ordinance providing "'[a]ll officers and employees of the
city . . . are hereby required as a condition of their continued
employment to have their place of abode in the city and to be bona
fide residents therein.'" Whether an individual employee has a
place of abode in the city and is a bona fide resident obviously
poses issues of fact. Nonetheless, we held the ordinance did not
give the public employer even a "limited area of discretion" and
that "[t]he matter of residency" was non-negotiable and preempted.
Id. at 39-40.
The Association argues arbitration is not preempted based on
the legislative history of N.J.S.A. 18A:6-8.5(c), which was
enacted in the 214th Legislative Session by Senate Bill 826. L.
2010, c. 13. First, the Association cites the initial version of
an unenacted and markedly different Assembly bill in the 2008-2009
legislative session, Assembly Bill No. 3671. That bill initially
provided: "The tuition assistance or additional compensation shall
9 A-3765-15T2
be provided only for a course or degree related to the employee's
current position or, at the discretion of the board of education
on a case-by-case basis, the employee's future job
responsibilities." Assemb. Bill No. 3671, 213th Leg. Sess., at 2
(Dec. 8, 2009); accord S. Bill No. 2127, 213th Leg. Sess., at 2
(Oct. 3, 2008). However, a subsequent version of that bill
substituted the language ultimately enacted by the next
Legislature in N.J.S.A. 18A:6-8.5(c). See S. Bill No. 2127, 213th
Leg. Sess., at 2 (Jan. 12, 2010) (second reprint); Assemb. Educ.
Comm. Substitute for Assemb. Bill Nos. 3671 & 3228 (Jan. 4, 2010).
The Association argues the initial bill's mention of "discretion"
shows N.J.S.A. 18A:6-8.5(c) is discretionary. To the contrary,
the elimination of this limited grant of discretion from the final
version of the statute suggests the Legislature regarded the
subsection as mandatory rather than discretionary.
Second, the Association argues N.J.S.A. 18A:6-8.5(c) cannot
preempt arbitration because the "thrust" of the legislation was
N.J.S.A. 18A:6-8.5(a), which ended the practice of teachers using
"diploma mills." The Association cites the Governor's "Statement
Upon Signing Senate Bill No. 826," which states the "new law helps
ensure that our teachers are educated through reputable
institutions of higher education, and also provides a small
positive step towards controlling the use and abuse of taxpayer
10 A-3765-15T2
dollars." Governor's Statement on Signing S. Bill No. 826 (May
6, 2010). The Association stresses the first phrase, but the
second phrase's goal of "controlling the use and abuse of taxpayer
dollars" is also accomplished by requiring courses be related to
current or future job responsibilities. That is made clear by the
Governor's explanation:
In our public schools, teachers can
increase their salaries . . . by acquiring
advanced credits or degrees. . . . Teachers,
therefore, have a clear financial incentive
to enroll in advanced courses of study,
whether or not those advanced courses actually
improve their classroom performance.
Yet, recent studies have shown that
graduate degrees by themselves do not
necessarily translate into improved teacher
quality or student achievement. . . . There
is an exception: master’s degrees in math or
science have been linked to improved student
achievement in those areas. Nationwide,
however, ninety percent of graduate degrees
are in education, and not in a subject-
specific area.
. . . .
Therefore, the time is ripe to closely
examine the current teacher compensation
structure in New Jersey to ensure that these
taxpayer dollars do, in fact, translate into
improved teaching and student achievement.
[Ibid. (emphasis added).]
The goals of avoiding abuse of taxpayer dollars, and improving
a teacher's classroom performance and student achievement, are
served by providing tuition assistance or additional compensation
11 A-3765-15T2
"only for a course or degree related to the employee's current or
future job responsibilities." N.J.S.A. 18A:6-8.5(c). Thus, the
Governor's signing statement supports enforcing that requirement
rather than subjecting it to negotiation. A governor's "action
upon a bill may . . . be considered in determining legislative
intent." McGlynn v. N.J. Pub. Broad. Auth., 88 N.J. 112, 159
(1981).
In any event, regardless of the "thrust" of the legislation,
we cannot ignore the provisions the Legislature ultimately enacted
in the statute, including the clear requirement in N.J.S.A. 18A:6-
8.5(c). "If [a statute's] language is unclear, courts can turn
to extrinsic evidence for guidance, including a law's legislative
history," but courts "may not rewrite a statute." State v. Munafo,
222 N.J. 480, 488 (2015).
The Association contrasts N.J.S.A. 18A:6-8.5 with N.J.S.A.
18A:6-8.6, which provides: "Nothing in this act shall be construed
to limit the authority of a board of education to establish more
stringent requirements for the provision of tuition assistance or
additional compensation than the requirements set forth in
[N.J.S.A. 18A:6-8.5]." The Association argues more stringent
requirements can only be established through collective
negotiations. The Board concedes N.J.S.A. 18A:6-8.6 "may afford
some discretion to negotiate" for more stringent requirements, but
12 A-3765-15T2
argues that would not affect the outcome regarding N.J.S.A. 18A:6-
8.5(c). We agree. N.J.S.A. 18:6-8.5(c) sets a maximum on the
rights and benefits an employee can receive by providing that
tuition assistance is available "only" for a course related to an
employee's current or future job responsibilities. Ibid. "[W]here
a statute or regulation sets a maximum level of rights or benefits
for employees on a particular term and condition of employment,
no proposal to affect that maximum is negotiable nor would any
contractual provision purporting to do so be enforceable." State
Supervisory, supra, 78 N.J. at 81-82; see, e.g., Maywood Bd. of
Educ. v. Maywood Educ. Ass'n, 168 N.J. Super. 45, 54-55 (App.
Div.) (reversing an order to negotiate where the "statute sets a
maximum level of rights"), certif. denied, 81 N.J. 292 (1979).4
Under N.J.S.A. 34:13A-5.4(d), "PERC has been designated by
the Legislature as the forum for initial determination of scope
of negotiations matters because of its special expertise in this
area" and has "primary jurisdiction" over such disputes. Bd. of
Educ. v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 316-17 (1979).
4
See also Bethlehem Twp., supra, 91 N.J. at 47 (finding preemption
by regulations requiring actions "'no later than October 1'" and
"'within 10 working days after adoption'"); In re Hackensack Bd.
of Educ., 184 N.J. Super. 311, 317-18 (App. Div. 1982) (holding
that a statute allowing boards to grant more than the minimum-
required sick leave did not permit arbitration over the minimum
requirements for sick leave).
13 A-3765-15T2
Moreover, given PERC's "broad experience" in "scope-of-
negotiations disputes," Newark Firemen's Mut. Benevolent Ass'n v.
City of Newark, 90 N.J. 44, 55 (1982), "'due weight should be
accorded thereto on judicial review,'" Hunterdon Cty., supra, 116
N.J. at 329 (citation omitted). Here, PERC's decision was not
arbitrary or capricious.
We reject the Association's argument that the reference to
N.J.S.A. 18A:6-8.5 in the parties' agreement somehow makes it
negotiable.5 "[S]pecific statutes or regulations which expressly
set particular terms and conditions of employment . . . . are
effectively incorporated by reference as terms of any collective
agreement," but "negotiation over matters so set by statutes or
regulations is not permissible." State Supervisory, supra, 78
N.J. at 80; see Bethlehem Twp., supra, 91 N.J. at 44-45 (providing
that such incorporated statutes preempt negotiations).
The Association argues preemption would leave employees no
avenue to challenge a superintendent's decision finding a course
is unrelated to their present or future job responsibilities.
5
Provisions 18.1 and 24.5 in the "Agreement Between the
Hillsborough Education Association and the Board of Education of
the Township of Hillsborough" provided for tuition reimbursement
for teachers and instructional assistants. Provision 18.1.3 and
Provision 24.5.1 identically stated that "[t]he provisions in this
Article shall only be implemented to the extent permitted by
N.J.S.A. 18A:6-8.5, or any other statutory provision or
administrative regulation."
14 A-3765-15T2
However, N.J.S.A. 18A:6-8.5(b) provides: "In the event that the
superintendent denies the approval, the employee may appeal the
denial to the board of education." The Board concedes there is
the same right of appeal to a board of education of a
superintendent's decision under N.J.S.A. 18A:6-8.5(c). Moreover,
"decisions by a board of education are reviewable in the first
instance by the State Commissioner of Education." Mount Holly
Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319,
342 (2009) (citing N.J.S.A. 18A:6-9). "In turn, decisions of the
State Commissioner of Education are reviewed as of right by the
Appellate Division." Ibid. (citing N.J.S.A. 18A:6-9.1(a)).
Accordingly, employees have an avenue for recourse.
The Association argues the instructors here sought tuition
assistance for courses related to the current and future job
responsibilities, which the Board denies. The Association also
argues a course is related to a teacher's future job
responsibilities if it would enable him or her to teach a new
course or be a better teacher. The Board also determined that
"'current or future job responsibilities' . . . should [not] apply
to future responsibilities for which the employee is not presently
qualified to perform." The Board characterized the Association's
position as "too broad," encompassing "any courses that are
tangentially related to the field of education," rendering
15 A-3765-15T2
N.J.S.A. 18A:6-8.5(c) "largely meaningless." We express no
opinion on such disputes, which should be raised by appeal to the
Commissioner of Education.
The Association's remaining arguments lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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