On appeal from a Final Decision of the Commissioner of Education, Agency Docket No. 135-5/07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
The State Operated School District of the City of Newark (District) appeals from a final decision of the Commissioner of Education (Commissioner) rendered on September 4, 2008 adopting an administrative law judge's (ALJ) initial decision ordering that petitioner's salary be recalculated for the 2006-07 and 2007-08 school years in accordance with the method outlined in the Commissioner's decision.
Petitioner Thomas Morris has been employed as a teacher in the District since February 1995 and is tenured. His salary increment was withheld for the 2004-05 school year because of poor performance. This appeal focuses on the calculation of his salary subsequent to the 2004-05 school year.
The District salary guide is based on the employee's number of years of service in a given school year. The chart below illustrates the salary guide:
Petitioner was on the eleventh step in 2004-05, representing his eleventh year teaching in the District. His performance for that year was deficient and his pay increment was withheld for the following school year, 2005-06, pursuant to N.J.S.A. 18A:29-14. Consequently, petitioner remained on step eleven of the salary guide, earning $55,448, rather than $58,387 he would have been entitled to receive but for the increment withheld because of his poor performance in 2004-05. The amount of the withheld increment was $2,939.
Petitioner contends that he was entitled to be placed on step thirteen for the 2006-07 school year because it was his thirteenth year in the District and his salary should be calculated at $79,900 minus the $2,939 increment withheld for the 2004-05 deficient performance. According to petitioner, his 2006-07 salary should be $76,961.
The District, however, maintains that petitioner's salary for the 2006-07 school year should remain at step twelve, resulting in a salary of $59,900. Thus, he would remain a step behind his colleagues with the same number of years experience.
In May 2007, petitioner filed his verified petition with the Commissioner, appealing the District's calculation of his 2006-07 salary. Because there were no disputed facts, the parties cross-moved for a summary decision and both relied on Probst v. Bd. of Educ. of the Borough of Haddonfield, 127 N.J. 518 (1992), in support of their respective positions. The ALJ rendered a written decision on June 23, 2008, in which it determined that the District erred in calculating petitioner's 2006-07 salary. The ALJ concluded that Probst does not require that a teacher whose increment is withheld for one year remain a full step behind on the salary guide until the District determines that he can resume the step consistent with his number of years teaching.
The District appealed and the Commissioner adopted the ALJ's interpretation of Probst along with his conclusion and recommendation. Accordingly, the Commissioner calculated petitioner's salary as follows:
Application of the Probst holding to the present case results in the following calculations. First, going into the 2006-2007 school year, the district salary guide shows an increase of $21,513 for district employees with petitioner's years of service. Adding this increment to the salary petitioner actually made in 2005-2006 (i.e., $55,448), as opposed to the salary guide figure for 12-year employees in 2005-2006 ($58,387) results in wages of $76,961 for petitioner's 2006-2007 school year. ...