On appeal from the Department of Education, Docket No. 48-2/11.
OT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2012
Before Judges Parrillo, Fasciale and Maven.
This is an appeal by the Ramsey Teachers Association (Association) from the final agency decision of the Commissioner of Education (Commissioner) finding that by adopting a resolution which established salary guides for 2007-2008, 2008-2009, 2009-2010, and 2010-2011, respondent Ramsey Board of Education (Board) exceeded its authority by binding itself and future boards for a total of four years in violation of N.J.S.A. 18A:29-4.1, and therefore declaring the fourth year of the salary policy null and void. The sole issue presented in this appeal is whether a collective bargaining agreement (CBA) that provides for a lump sum retroactive payment covering a two-year period and prospectively establishes the pay scale for the next two years is consistent with N.J.S.A. 18A:29-4.1. We affirm the Commissioner's determination.
The Association is the duly certified majority collective bargaining representative for all non-supervisory certificated employees of the Board. In early 2007, the parties commenced negotiations over the terms of a successor CBA to replace the agreement set to expire on June 30, 2007. After an impasse was declared and an unsuccessful mediation was conducted, the Public Employment Relations Commission appointed a factfinder under N.J.A.C. 19:12-4.2, who issued a report and recommendations on February 2, 2009, nearly two years after bargaining began and the prior CBA expired. The factfinder recommended adding a fourth year to the agreement, as proposed by the Association, reasoning that "some additional time away from the bargaining table may be in the interest of all concerned."
The parties reached an agreement, memorialized in a memorandum executed by the parties on March 19, 2009, along with an addendum prepared by the Association, which contained salary guides for school years 2007-2008, 2008-2009, 2009-2010, and 2010-2011. The memorandum provided for retroactive salary payments for the two previous years (i.e., the period between the expiration of the old CBA and ratification of the new one) and salary increases for the two following years. The retroactive payments were to be made within ninety days of ratification of the agreement. On April 28, 2009, the Board adopted a resolution approving the memorandum of agreement for the period July 1, 2007 through June 30, 2009, and for the period July 1, 2009 through June 30, 2011. On July 1, 2009, the Board executed two separate CBA documents corresponding with each of these time periods. Each CBA contained a two-year salary schedule. As agreed, the salary guides for 2007-2008 and 2008-2009 were distributed in a lump sum payment.
Beginning in 2009-2010, the Board began to face financial constraints that resulted in reductions in staffing and programming. Consequently, on February 23, 2011, the Board filed a petition for a declaratory ruling before the Commissioner, pursuant to N.J.A.C. 6A:3-2.1(a) seeking a determination that the Board's adoption of the fourth year of the salary guide (2010-2011) violated N.J.S.A. 18A:29-4.1 and was therefore void, as ultra vires, because it set a salary policy for four years, beyond the three-year limit imposed by the statute. Following the Association's answer, the Commissioner transferred the contested matter to the Office of Administrative Law (OAL).
On August 25, 2011, the administrative law judge (ALJ) issued an initial decision concluding that the Board was required to honor the salary guides adopted in 2009. The ALJ reasoned that because the Board only bound successor boards for two years through the adoption of salary guides for 2009-2010 and 2010-2011, its action did not violate N.J.S.A. 18A:29-4.1.*fn1
The Commissioner rejected the ALJ's decision, stating that it creates "an exception allowing for retroactive payments as a means to circumvent the three year limit" and declaring the fourth year of the salary policy null and void.
This appeal by the Association follows.
It is well-settled that an agency decision should not be disturbed in the absence of a showing that the decision is arbitrary or capricious, that it lacks support in the record or that it violates legislative policies expressed or fairly to be implied in the statutory scheme administered by that agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Although we are in no way bound by the agency's interpretation of a statute it is charged with administering, Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), we nevertheless respect the agency's expertise in such matters, Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
N.J.S.A. 18A:29-4.1 provides:
A board of education of any district may adopt a one, two or three year salary policy, including salary schedules for all full-time teaching staff members which shall not be less than those required by law. Such policy and schedules shall be binding upon the adopting board and upon all future boards in the same district for a period of one, two or three 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 adopted, certified or approved by the board, the voters of the district, the board of school estimate, the governing body of the ...