For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[57 NJ Page 101] By resolution dated August 5, 1969 the defendant Board of Education adopted a salary schedule calling for increases in the pay of its teachers, "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." The resolution added "that the Board of School Estimate be asked for an appropriation of $4,700,000 to implement the salary schedules." The school budget having already been adopted for the year July 1, 1969 through June 30, 1970, the resolution of August 5, 1969, if applicable to that school year, would have called for salary increases beyond the provisions of that budget.
The Board of School Estimate refused to implement the resolution of August 5, 1969 with respect to the current school year (July 1, 1969 through June 30, 1970). Thereupon plaintiff brought this action for a declaration that the new salary schedule was immediately effective with respect to that school year and for a mandatory judgment accordingly. The trial court held for the defendants, 108 N.J. Super. 34 (Law Div. 1969). We certified plaintiff's appeal before it was heard in the Appellate Division.
Plaintiff's argument involves these steps: (1) that c. 236, L. 1965, now N.J.S.A. 18A:29-4.1, under which the Board of Education adopted the resolution of August 5, 1969, required the new policy and salary schedules to be effective immediately; (2) that so much of that resolution as provides that "the effective date" of the policy and salary schedules shall 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" is "offensive" to that statutory mandate and must therefore be ignored; and (3) that the new salary schedule being operative at once, the governing body had to appropriate the additional moneys for the then school year and that the additional appropriation could be and had to be made under N.J.S.A. 18A:22-21, which deals with requests by a board of education for additional appropriations beyond those made in the annual budget.
To prevail, plaintiff must succeed in each of the three steps just stated. In our view, plaintiff cannot negotiate the first two, and hence we do not reach the third.
We may conveniently start with the second step. If plaintiff were correct in its claim that c. 236, L. 1965, requires a salary policy to take effect at once, it would follow that here the Board of Education did not exercise the statutory power, for the Board did not meet the responsibility of adopting a salary schedule thus operative at once. Nor could a court excise the so-called "offensive" portion of the resolution without thereby making a decision the Board alone could make. Hence, upon plaintiff's view that the statute mandates an immediate effectiveness, it would have to be said that the Board of Education failed to make the required decision and sought, without statutory authority, to transfer its responsibility to other agencies.
The Board of Education of course acted upon the premise that a salary schedule could be effective only with respect to an annual budget thereafter adopted. The Board thus rejected what we described above as the first step in plaintiff's case, that the statute required the resolution to be effective at once. We think the Board's view of the statute is correct both under the statute's terms as initially enacted and under the slightly different phrasing in the revision of the statute in N.J.S.A. 18A:29-4.1.
The 1965 statute (c. 236), as originally enacted, read:
1. A board of education of any school district may adopt a salary policy, including salary schedules for all teachers which shall not be less than those required by law. Such policy and schedules shall be binding upon the adopting board of education and upon all future boards of education in the same district for a period of 2 years from the effective date of such policy but shall not prohibit the payment of salaries higher than those required by such policy or schedules nor the subsequent adoption of policies or schedules providing for higher salaries, increments or adjustments. Every school budget thereafter adopted, certified or approved by the board of education, the voters of the school district, the board of school estimate, the governing body of the municipality or municipalities, or the Commissioner of Education, as the case may be, shall contain such amounts as may be necessary to fully implement such policy and schedules for that budget year. (Emphasis is ours.)
The second sentence of section 1 expressly binds the adopting board of education and future boards of education for a two-year period but that sentence speaks only of the board of education. It is the third sentence which deals with the impact of a resolution by a board of education upon the voters, the board of school estimate, the governing body of the municipality, and Commissioner ...