NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1611-17T1
MOSHE ROZENBLIT, and
WON KYU RIM,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants/
August 21, 2019
Cross-Respondents,
APPELLATE DIVISION
v.
MARCIA V. LYLES, in her
official capacity as Superintendent
of the Jersey City Board of Education;
VIDYA GANGADIN, in her official
capacity as President of the
Jersey City Board of Education; and
JERSEY CITY PUBLIC SCHOOLS
OF THE CITY OF JERSEY CITY,
Defendants,
and
JERSEY CITY BOARD OF
EDUCATION, and JERSEY CITY
EDUCATION ASSOCIATION, INC.,
Defendants-Respondents/
Cross-Appellants.
________________________________
Argued March 27, 2019 – Decided August 21, 2019
Before Judges Fuentes, Vernoia, and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No. C-
000002-17.
Jonathan Riches (Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute) of
the Arizona bar, admitted pro hac vice, argued the cause
for appellants/cross-respondents (Law Offices of G.
Martin Meyers, PC, and Jonathan Riches, attorneys;
Justin A. Meyers, Aditya Dynar (Scharf-Norton Center
for Constitutional Litigation at the Goldwater Institute)
of the Arizona bar, admitted pro hac vice, and Jonathan
Riches, on the briefs).
Kenneth I. Nowak argued the cause for respondent/
cross-appellant Jersey City Education Association, Inc.
(Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
attorneys; Richard A. Friedman and Flavio L.
Komuves, on the briefs).
David I. Solomon argued the cause for respondent/
cross-appellant Jersey City Board of Education (Florio
Perrucci Steinhardt & Capelli, LLC, attorneys, join in
the brief of respondent/cross-appellant Jersey City
Education Association, Inc.).
Mark Miller argued the cause for amicus curiae Pacific
Legal Foundation (Mark Miller and Deborah J. LaFetra
(Pacific Legal Foundation) of the California bar,
admitted pro hac vice, attorneys; Mark Miller and
Deborah J. LaFetra, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
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This appeal challenges the legality of a section in the collective bargaining
agreement (CBA) entered into between the Jersey City Board of Education
(Board) and the Jersey City Education Association, Inc., (JCEA) for the period
covering September 1, 2013 to August 31, 2017. Specifically, as construed by
the JCEA and the Board, Article 7, Section 7-2.3 of the CBA denoted
"Association Rights," requires the Board to pay the salaries and benefits of two
teachers selected by the members of the JCEA to serve as "president . . . and his
/her designee," and to allow them to devote all of their work-time to the business
and affairs of the JCEA. The Board must also continue to grant the president of
the JCEA "adequate office and parking facilities."
Section 7-2.3 does not on its face address whether the president of the
JCEA and his or her designee are entitled to receive their full salaries and
benefits as teachers during the time they exclusively serve the needs of the
JCEA. It is undisputed, however, that the two teachers selected by the members
of the JCEA to serve in this capacity received their full salaries and benefits
from the Board during the three-year term of this CBA. Moreover, the Board
conceded during oral argument before this court that this practice predates the
term of this particular CBA.
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We now hold this practice is not sanctioned by Title 18A and declare this
Section of the CBA unenforceable as against public policy.
I
Plaintiff Moshe Rozenblit is a resident of Jersey City who pays real estate
taxes to the City. Plaintiff Won Kyu Rim1 is a resident of this State who pays
New Jersey income tax. Plaintiffs argue this contractual arrangement by the
Board violates Article VIII, § 3, ¶ 3 of the New Jersey Constitution, which
provides: "No donation of land or appropriation of money shall be made by the
State or any county or municipal corporation to or for the use of any society,
association or corporation whatever." They also argue that N.J.S.A. 18A:30-7,
which permits the Board to pay the salary of an employee in cases of absence
not constituting sick leave, does not authorize the Board to reassign two teachers
to devote their entire professional time as the "exclusive and sole bargaining
representative[s] for all certificated personnel, attendance counselors, and
teacher assistants" employed in this school district.
Amicus Curiae Pacific Legal Foundation's legal argument echoes
plaintiffs' constitutional argument. Amicus also argues that the General Equity
1
Plaintiffs' standing to bring this action is unchallenged. See Stubaus v.
Whitman, 339 N.J. Super. 38, 48-51 (App. Div. 2001).
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4
Judge's finding that the Board "receives a substantial benefit from employing
the [release] employees in the form of facilitating labor peace" is not supported
by the record. Amicus notes that on March 16, 2018, JCEA members went on
strike as a negotiating tactic, in defiance of our State's long-established common
law principle denying all public employees, including school district employees,
the right to strike. See In re Block, 50 N.J. 494, 499-500 (1967).
Relying on Roe v. Kervick, 42 N.J. 191 (1964), the JCEA argues plaintiffs
have not presented sufficient grounds to impugn the constitutionality of this
contractual arrangement on its face. The Board did not submit its own
independent brief in this appeal, opting instead to adopt the JCEA's position.
The Chancery Division, General Equity Part rejected plaintiffs' argument. The
judge applied the Court's holding in Roe and found "that these release time
provisions serve the dual public purposes of facilitating the collective
negotiations process and keeping labor peace in the Jersey City Public Schools."
II
We start our analysis guided by the long-settled jurisprudential principle
that admonishes judges to "strive to avoid reaching constitutional questions
unless required to do so." In re Plan for the Abolition of the Council on
Affordable Hous., 214 N.J. 444, 461 (2013) (quoting Comm. to Recall
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Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 95 (2010)).
Here, we are satisfied there are sufficient statutory grounds to definitively
decide this appeal. We thus decline to reach the constitutional arguments
advanced by plaintiffs and amicus.
As a creature of the State, a local board of education "may exercise only
those powers granted to them by the Legislature -- either expressly or by
necessary or fair implication." Fair Lawn Educ. Ass'n v. Fair Lawn Bd. of Educ.,
79 N.J. 574, 579 (1979); see also Edmondson v. Bd. of Educ. of Elmer, 424 N.J.
Super. 256, 261 (App. Div. 2012). We are satisfied that in adopting N.J.S.A.
18A:30-7, the Legislature did not expressly or implicitly intend to authorize the
Board to enter into the contractual arrangement reflected in Article 7, Section 7-
2.3 of the CBA.
N.J.S.A. 18A:30-7 provides:
Nothing in this chapter shall affect the right of the board
of education to fix either by rule or by individual
consideration, the payment of salary in cases of absence
not constituting sick leave, or to grant sick leave over
and above the minimum sick leave as defined in this
chapter or allowing days to accumulate over and above
those provided for in section [N.J.S.A.] 18A:30-2,
except that no person shall be allowed to increase his
total accumulation by more than 15 days in any one
year.
[(Emphasis added).]
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The Legislature adopted this statute effective January 11, 1968. Fifty-one
years later, our research has revealed only one reported opinion from this court
that tangentially addressed the issues raised in this appeal. In Board of
Education of Piscataway Township v. Piscataway Maintenance & Custodial
Association, this court addressed the legality of a provision for extended total
disability benefits contained in a contract between the Board of Education of the
Township of Piscataway and the Piscataway Maintenance & Custodial
Association and whether it exceeded the board of education's authority under
Title 18A. 152 N.J. Super. 235, 238 (App. Div. 1977). The legal question in
Piscataway concerned whether an agreement to pay the salary of an employee,
in whole or in part, for prolonged absence beyond the allowable annual and
accumulated sick leave in N.J.S.A. 18A:30-6 violated the school board's
managerial prerogative. Id. at 246. We held that "[b]y granting its employees
extended total disability leave benefits as a matter of right, the board in this case
surrendered its statutory obligation to deal with each case on an individual
basis." Ibid.
N.J.S.A. 18A: 30-7 to -13 addresses additional sick leave and other forms
of leaves of absence such as "accrued vacation and sick leave bank." For
example, N.J.S.A. 18A:30-8 provides:
A-1611-17T1
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Any school district employee who qualifies as a
member of the United States team for athletic
competition on the world, Pan American or Olympic
level, in a sport contested in either Pan American or
Olympic competitions, shall be granted a leave of
absence with pay and without loss of rights, privileges
and benefits and without interruption of membership in
any retirement system for the purpose of preparing for
and engaging in the competition. The paid leave
granted pursuant to this act shall be no more than 90
calendar days in 1 year or the combined days of the
official training camp and competition, whichever is
less.
Any school district which grants employees leaves of
absence pursuant to the provisions of this act shall be
reimbursed by the State, for the full amount of the
actual cost of employing substitutes for said employees.
[(Emphasis added).]
N.J.S.A. 18A:30-9 and N.J.S.A. 18A:30-9.1 limit the accumulation of
unused vacation time. N.J.S.A. 18A:30-10 sanctions the establishment of a "sick
leave bank" to permit employees to voluntarily donate "sick leave days or any
other leave time" to a colleague in need. The establishment of a sick leave bank
must be "agreed upon by the board and the majority representative." Sick leave
banks are administered by a six-member committee comprised of three
representatives from the board of education and three representatives "selected
by the majority representative or majority representatives of those employees of
the board who are eligible to participate in the sick leave bank." N.J.S.A.
A-1611-17T1
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18A:30-11. The Legislature also made clear that the benefits provided through
and by the sick leave bank did not authorize boards of education to reduce or
negatively affect more favorable sick leave, disability pay or other benefits
obtained through collective bargaining agreements, or prohibit future
negotiations to enhance these benefits. N.J.S.A. 18A:30-12. Finally, the
Legislature directed how these statutory provisions should be construed:
No provision of this act [N.J.S.A. 18A:30-10 et seq.]
shall be construed as limiting the authority of a board
of education to provide an employee with additional
days of salary pursuant to [N.J.S.A] 18A:30-6 after all
sick leave available to the employee, including days
provided under this act, has been used.
[N.J.S.A. 18A:30-13.]
"The Legislature's intent is the paramount goal when interpreting a statute
and, generally, the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005). Furthermore, "words and phrases
shall be read and construed with their context, and shall, unless inconsistent with
the manifest intent of the legislature or unless another or different meaning is
expressly indicated, be given their generally accepted meaning, according to the
approved usage of the language." N.J.S.A. 1:1-1. Courts must also construe the
words in a statute "in context with related provisions so as to give sense to the
legislation as a whole." Garden State Check Cashing Serv. v. State Dep't of
A-1611-17T1
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Banking & Ins., 237 N.J. 482, 489 (2019) (quoting Spade v. Select Comfort
Corp., 232 N.J. 504, 515 (2018)).
Mindful of the principles of statutory construction, we conclude that
N.J.S.A. 18A:30-7 does not empower the Board in this case to continue to pay
the salaries and benefits of the president of the JCEA and his or her designee,
while they devote their entire work-time to the business and affairs of the union.
A plain reading of the operative language in N.J.S.A. 18A:30-7 shows the
Legislature authorized the Board:
to fix either by rule or by individual consideration, the
payment of salary in cases of absence not constituting
sick leave, or to grant sick leave over and above the
minimum sick leave as defined in this chapter or
allowing days to accumulate over and above those
provided for in section [N.J.S.A.] 18A:30-2 . . . .
The employees who fall within this class must be absent from work for
reasons unrelated to sick leave. Here, the two teachers who serve the JCEA as
president and designee were not absent. They reported to work every day to an
office located on property provided by the school district to attend to the affairs
of the JCEA. Jersey City is our State's second largest city. Its school district
operates a vast, educationally diverse school system. As of May 2019, the
district employed 2,993 instructional staff, 1,317 non-instructional personnel,
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and 151 administrators, and enrolled 26,993 students.2 Its brick and mortar
educational infrastructure consists of fourteen elementary schools
accommodating children from pre-kindergarten to the fifth grade; thirteen
grammar schools accommodating children from pre-kindergarten to eighth
grade; four middle schools accommodating children from sixth to eighth grade;
six high schools; one secondary school accommodating children from sixth to
twelfth grade; one Alternative Program, accommodating children from sixth to
twelfth grade; and three Early Childhood Centers. 3
The two teachers selected by the members of the JCEA to serve as
president and designee, are required to travel throughout the school district to
attend meetings, participate in disciplinary matters to advocate the interests of
JCEA members, attend to the affairs of the union, and negotiate the terms of the
next CBA. These two teachers, who are paid their fulltime salaries, do not report
to any school administrator or school district official, and are not subject to any
administrative oversight. In short, while serving as president and designee of
2
See Quick Links, Vital Facts, JCBOE.ORG,
www.jcboe.org/boe2015/index.php?option=com_content&view=article&id=16
6&Itemid=650 (last visited Aug. 13, 2019).
3
See Schools, JCBOE.ORG,
www.jcboe.org/boe2015/index.php?option=com_content&view=article&id=44
9&Itemid=1090 (last visited Aug. 13, 2019).
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the JCEA, these two teachers act exclusively as labor leaders. Despite this, their
salaries and benefits are commensurate to the teachers who serve the day-to-day
educational needs of the students of the district.
N.J.S.A. 18A:30-7, which is the only authority the Board and the JCEA
cite in support of their position, does not authorize the Board to disburse public
funds in this fashion. However, the CBA at issue here contains several sections
that exemplify the proper exercise of the Board's statutory authority to grant
leaves of absence for various reasons unrelated to sick leave. Under Article 31,
denoted "Other Absences" when there is a death in the teacher's family, "the
teacher shall be excused without loss of pay or accumulated leave for death
related absences taken within seven (7) calendar days of the date of death." This
Section also allows the faculty of an entire school, or if not practical a
representative number of the faculty, a paid half-day off to attend the funeral
services of an active colleague. The Board may also authorize paid absence to
an employee who is quarantined as ordered by an official action. Article 31 also
provides for paid absence in response to a court order.
Article 33, denoted "Sabbatical Leave for Study or for Rest and
Recuperation," authorizes the Board to grant a leave of absence for rest and
recuperation. However, a teacher on leave of absence for rest and recuperation
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receives only one-half of his or her "monthly salary for each month during the
continuance of such leave." A leave of absence for study or for rest and
recuperation must begin on September 1st and is limited to twelve months.
Teachers seeking a leave of absence for rest and recuperation must submit their
application to the Superintendent "at least three (3) months before the beginning
of the desired leave."
Article 33 also allows a teacher to apply for a leave of absence to study.
This application should be presented to the Superintendent four months in
advance. A teacher granted this academic leave of absence must also "sign a
contract to serve in the public schools of the District for at least two (2) years
after the expiration of a leave." If the teacher is unable to honor this contractual
obligation, "the teacher shall reimburse the School District in direct proportion
to the unfilled time except in case of death or permanent disability." (Emphasis
added).
Finally, teachers who are granted a leave of absence for rest and
recuperation or for study, must refrain from engaging in any remunerative
occupation during the continuance of the leave of absence. Teachers on leave
to study must present to the Superintendent documentation attesting to their
attendance and successful completion of the course of study offered by these
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academic institutions. Violations of these requirements will be considered by
the Board to constitute evidence of conduct unbecoming a teacher. A maximum
of fifteen "teaching staff members" are permitted to take a sabbatical or leave
for rest and recuperation.
The public policy underpinning these leaves of absence is reflected in the
reasonableness of the underlying bases for the requests and in the reciprocal
benefits they confer. Both the Board and the teacher benefit from these hiatuses
of limited-duration. They serve to relieve the teacher from the pressures and
emotional exhaustion experienced throughout a lengthy career. The teacher is
given the opportunity to separate from his or her day-to-day activities without
risk of being unemployed; the Board gives a valuable and experienced teacher
the opportunity to "refresh" and return to the profession with a renewed sense
of commitment. By contrast, the contractual arrangement which permits the two
teachers to devote their entire professional time to exclusive service of the
interests of the JCEA confers no reciprocal benefit to the school district. In
fulfilling their duties to the JCEA, the teachers' role is to advocate the interests
of the JCEA, even when such interests may conflict with the educational and
administrative polices of the Board. The JCEA does not cite to any statutory
authority permitting the Board to pay the salaries of teachers whose job duties
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are exclusively devoted to the service of another organization, in this case the
JCEA.
Article 7, denoted "Association Rights" aptly and candidly describes its
only purpose – to assure and promote the interests of the JCEA. Article 7
contains a total of eleven sections. We limit our recitation to the four sections
most germane to the issue raised here:
Section 7-1: The [JCEA] shall have the right to
distribute, through the use of the teachers' mailboxes,
material dealing with the proper and legitimate business
of the [JCEA].
Section 7-2: The principal and/or his/her designee
shall be notified prior to the distribution of such
materials.
Section 7-2.1: Representatives of JCEA, NJEA, and
NEA shall have the right to enter the schools to meet
with teachers during their preparation periods or lunch
periods or after school to carry our appropriate [JCEA]
business.
Section 7-2.2: The president or his [or her] designee
shall have the right to enter the school and meet with
teachers at any time. This right shall not be abused.
Section 7-2.3: The president of the JCEA and his/her
designee, shall be permitted to devote all of his/her time
to the [JCEA] business and affairs. The President shall
continue to be granted adequate office and parking
facilities.
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Section 7-2.4: The president's designee shall carry out
appropriate [JCEA] business, provided that the
aforesaid business shall not disrupt the educational
process. The designee shall notify the Superintendent
or his/her designee as to where and when he/she is
carrying out such [JCEA] business during school time.
[(Emphasis added).]
We emphasize Section 7-2.3 to show the absence of any language
obligating the Board to pay the salaries and benefits of the two teachers ser ving
in this capacity for the JCEA. Inexplicably, the Board does not dispute that the
language in Section 7-2.3 implicitly requires the Board to pay these two teachers
their full salaries and benefits. We find no textual support in the CBA for this
conclusion and no legal authority in Title 18A for the Board to sanction this
disbursement of public funds.
In N.J.S.A. 18A:30-8, the Legislature clearly stated that a school district
employee who qualifies as a member of the United States team for athletic
competition on the world level "shall be granted a leave of absence with pay and
without loss of rights, privileges and benefits and without interruption of
membership in any retirement system for the purpose of preparing for and
engaging in the competition." The Legislature made equally clear the
limitations of this public generosity: "paid leave granted pursuant to this act
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shall be no more than 90 calendar days in 1 year or the combined days of the
official training camp and competition, whichever is less." Ibid.
The intent of the Legislature in N.J.S.A. 18A:30-7 was also made clear by
the conspicuous omission of language similar to N.J.S.A. 18A:30-8. We thus
hold Section 7-2.3 of the CBA covering the period from September 1, 2013 to
August 31, 2017, is against public policy and unenforceable. The actions taken
by the Board that caused the disbursement of public funds pursuant to Section
7-2.3 were ultra vires.
Reversed.
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