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Dunn v. Elizabeth Board of Education

May 25, 2010

THOMAS G. DUNN, JR., PLAINTIFF-RESPONDENT,
v.
ELIZABETH BOARD OF EDUCATION, RAFAEL FAJARDO, ARMANDO DA SILVA, PASTOR RAUL BURGOS, CARLOS CEDENO, FRANCISCO GONZALEZ, JEREMIAH L. GRACE, MADINAH A. HAWKINS, KATHY L. MOORE, AND EDWARD WHELAN, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3911-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2010

Before Judges Reisner and Yannotti.

Defendants, the Elizabeth Board of Education and the individual board members (collectively the Board), appeal from an April 20, 2009 final judgment in favor of plaintiff Thomas Dunn.

To summarize, Dunn served as the superintendent of the Elizabeth School District until 2005. When the Board indicated that it intended not to renew his contract and wanted to buy out Dunn's tenure rights to the alternate position of assistant superintendent, the parties negotiated an agreement under which Dunn would take administrative leave during his last contract year as superintendent, after which he would serve as assistant superintendent for two years and then retire from the school district. The parties also agreed that Dunn would be compensated for his unused sick and vacation leave. When Dunn retired, a dispute arose as to the method of calculating payment for the unused sick leave.

The contract provided that Dunn would be compensated "at his last Superintendent of School per diem rate in accordance with the District's sick leave policy." The Board contended that Dunn should be compensated in accordance with the method set forth in the Elizabeth Education Association's (EEA) collective bargaining agreement, which by its terms applied to teachers but not to superintendents or assistant superintendents. If the EEA agreement applied, Dunn would be paid $75 for each unused sick day. Dunn argued that he was entitled to be compensated at the per diem rate of his superintendent salary, which was $833.05.

Based primarily on her evaluation of witness credibility, the trial court found that the terms of the contract should be interpreted as allowing payment at the per diem rate of Dunn's salary as superintendent. Because the judge's interpretation of the contract is consistent with applicable law and is supported by substantial credible evidence in the record, we affirm. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

I.

This is the most pertinent evidence introduced at the trial. After working in the Elizabeth school system for a number of years, Dunn became school superintendent in 1991. In 2001, Dunn entered into a five year employment contract with the Board ending in June 2006. At the end of the contract term, the Board could either renew Dunn's contract as superintendent or end his employment in the position. The Board was statutorily required to give Dunn one year's notice prior to the expiration of his contract if it decided against renewing.

Based on his past service with the school district, Dunn had achieved tenure in several positions, including assistant superintendent, director, supervisor and teacher. If his contract as superintendent was not renewed, he would return to the assistant superintendent position which he held immediately prior to becoming superintendent.

On May 13, 2005, Dunn received notice that the Board was not going to renew his contract. The next day, Dunn met with Bob Murray, who served as counsel for Dunn as superintendent and the labor attorney for the Board. Murray informed Dunn that the Board was willing to negotiate an agreement in which Dunn could amicably leave his position as superintendent. Dunn testified that he believed it was unnecessary to have an attorney represent him in the negotiations with Murray because Murray told him that "I'll make sure that nothing happens to you." However, Dunn further testified that he was unaware that Murray would be acting against his interests and would only be representing the Board's interests in the negotiation.

During the course of the meeting, Dunn and Murray established the parameters of the separation agreement. The Board wanted to secure Dunn's resignation before the expiration of his contract so that it could appoint another candidate. Dunn proposed going on paid sick leave on July 1, 2005, at which time he would continue on sick leave until he had used up all of his allotted sick days. Murray rejected that proposal. Murray testified that when it became clear that Dunn did not intend to retire, the idea of a sabbatical administrative leave emerged. The Board indicated that it was receptive to Dunn taking administrative leave for the duration of his contract as superintendent, but that a firm date needed to be established by which Dunn would retire from the school system.

Murray testified that because of a strained relationship with the incoming superintendent, Dunn was concerned about his ability to utilize his sick leave. The two negotiated an agreement whereby Dunn would be entitled to liberally use his sick ...


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