This is a motion by plaintiff for summary judgment. The essential facts are not in dispute.
Plaintiff is the duly certified bargaining agent of the teaching employees of the Newark Board of Education (board). On June 19, 1967 plaintiff and the board entered into an agreement in which they set forth the terms and conditions of employment of the teachers, including a salary schedule. The contract became effective as of February 1, 1967, and is to remain in force until February 1, 1970. Among its provisions is one which recognizes the right of plaintiff, by written request made after December 1 of each year of the contract, to negotiate with the board over all budget items concerning teachers' salaries and other related matters in the school budget for the following fiscal year. Such negotiations are to terminate, however, as between plaintiff and the board on February 1 of each year, the statutory date for submission of the budget to the board of school estimate. If these negotiations reach an impasse, either party may request the New Jersey Commissioner of Education to appoint a mediator to help the parties resolve their differences.
Newark is a type I school district (N.J.S.A. 18A:9-2). As such it has a board of school estimate consisting of two members of the board of education, appointed by it, two members of the governing body of the municipality, appointed by it, and the mayor.
The statutory plan for initiating, determining the amount of, approving and funding the annual budget of a type I district is as follows: The board of education prepares and delivers to each member of the board of school estimate, on or before February 1 in each year, a budget for the ensuing year (a school year begins on July 1 and ends on June 30) and fixes a date for a public hearing, which is to be held before the board of school estimate on published notice between
February 1 and February 15 next ensuing. At the hearing, taxpayers may be heard with respect to the budget and the various items and purposes for which the moneys are to be appropriated. Then, at or after the public hearing, but not later than February 15, the board of school estimate must fix and determine, by official action taken at a public meeting, the amount of money necessary to be appropriated for the ensuing school year and must make two certificates therefor, delivering one to the board of education and the other to the governing body of the municipality. Upon receipt of the certificate that body must appropriate the amount so certified and include that amount in its tax ordinance, but it is not required to appropriate any amount in excess of 1 1/2% of the assessed valuation of the ratables of the municipality. See N.J.S.A. 18A:22-7, 10, 11, 13, 15 and 17.*fn1
In December 1968 plaintiff and the board began to negotiate over a demand for an increase in teachers' salaries and a revision of the salary schedule. Negotiations continued until February 1, 1969, when they were terminated as required by the contract. The board then submitted a budget of $65,000,000 for the year beginning July 1, 1969, which contemplated no change in the existing salary schedule. The
board of school estimate reduced the budget to $63,000,000 and certified that amount to the governing body of Newark (city). Since the certified amount exceeded 1 1/2% of the valuation of the assessed valuation of Newark's ratables and therefore was not binding on the city without its consent, the city, upon consideration of the matter, reduced the budget to $61,000,000. The cut was later restored and the city ultimately approved the budget at $63,000,000.
After the budget was adopted, plaintiff invoked the procedures of the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-1 et seq.), which authorizes the New Jersey State Board of Mediation, upon request of a party to a negotiation that has reached an impasse, to take steps through a designated division (in this case the Public Employment Relations Commission) to mediate the dispute and, in case of failure, to invoke fact-finding with a recommendation for settlement. A mediator and a fact-finder were successively designated and each recommended an increase in salaries and a revision of the salary schedules. On August 5, 1969 the board approved the following motion and resolution:
Whereas, the Board deems that salary increases for all its employees are both warranted and necessary for the best interests of this school district, and
Whereas, in order to implement this policy, I hereby move that the Board adopt the following salary schedules, the effective date of both this policy and salary schedules to be the date of receipt of a proper appropriation or the receipt of funds from such other sources which may be available for the implementation of this policy.
Schedule I -- Single Salary Schedule for Teachers
Schedule II -- Supervisory and Administrative Personnel
Schedule III -- Teacher Clerks, Pianists, Laboratory Assistants
Salary Schedule for Board Assigned Substitutes
Salary Schedules for Civil Service Personnel
Resolved, that the Board of School Estimate be asked for an appropriation of $4,700,000 to implement the salary schedules.
Plaintiff and the board estimate that of the amount requested, about $3,500,000 is required for teachers. The balance is for nonprofessional employees.
The board submitted the resolution and a statement of the amount of money necessary therefor to the board of school estimate, which, on August 13, 1969, rejected the request. It did not determine the amount necessary to implement the new salary schedules and hence did not certify any amount to the city.
Plaintiff commenced this action after the board informed it on September 8, 1969 that the new salary schedule would not go into effect until the city appropriated and provided funds to implement it. The complaint is in four counts. The first, which is directed against the board, seeks a judgment (a) declaring void that portion of the board's resolution which states that "the effective date of both this policy and salary schedules to be the date of a proper appropriation or the receipt of funds from such other sources which may be available for the implementation of this policy" (labelled "offensive language" by plaintiff), and (b) further declaring that the effective date of the policy and schedule was August 5, 1969, the date of their passage. The second count seeks a judgment commanding the board to pay the teachers in accordance with the salary Schedule I of August 5, 1969, a copy of which is annexed to the complaint. The third count asks for a judgment commanding the board of school estimate to fix and determine the amount necessary for the purpose contained in the board's statement and to certify this amount separately to the board and to the city. The ...