MAURICE KAPROW V. BOARD OF EDUCATION OF BERKELEY TOWNSHIP, OCEAN COUNTY, ET AL., 8/2/06 (#260-06)

#260-06
OAL DKT. NO. EDU 8887-04 ( http://lawlibrary.rutgers.edu/oal/html/initial/edu08887-04_1.html)
AGENCY DKT. NO. 319-9/04
MAURICE S. KAPROW, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF 	: 	DECISION
BERKELEY TOWNSHIP, OCEAN COUNTY,
DEBRA EVANS AND MARIE KECK, 	:
RESPONDENTS. 	:
:
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. The Board’s exceptions and petitioner’s reply thereto, filed in accordance
with N.J.A.C. 1:1-18.4, were fully considered by the Commissioner in reaching her determination herein.
On exception, the Board essentially renews its arguments advanced below. 	First, it
charges that the positions of Assistant Superintendent and District Director of Elementary Education
(DDEE) (formerly District Supervisor of Education) are not substantially similar. 	Although conceding
that some aspects of the jobs may be analogous, it maintains that a reasoned comparison of the duties of
the two positions demonstrates that the tasks of the now-abolished Assistant Superintendent position were
“qualitatively more expansive, autonomous and of a higher level than the responsibilities of the DDEE.”
(Board’s Exceptions at 1-3) 	Next, the Board again maintains that, inasmuch as there is no substantial
identity of duties between the two positions, because petitioner has never served as a DDEE he cannot
transfer tenure achieved in his separately tenurable position of Assistant Superintendent to lay claim to
the DDEE job. (Board’s Exceptions at 4)
In reply, petitioner points to Exhibit P-3, a side-by-side comparison of the job
descriptions of his prior Assistant Superintendent employment posts with those of the DDEE position,
which, he proposes, demonstrates a “task by task virtual identity between the two positions.” In addition

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to this identity of duties, petitioner points to other corresponding characteristics between the positions
which are of the type, he avers, the Commissioner in Santarsiero v. Parsippany-Troy Hills Board of
Education, 1 1984 S.L.D. 854, found persuasive in determining whether or not the two positions at issue in
that case were substantially similar. These, he submits, include:
l. 	There was only one Assistant Superintendent in the District and
likewise, there is only one District Director in the District now;
2. 	Both positions were “directly responsible to the Superintendent of
Schools”***;
3. Both were twelve (12) month, as opposed to ten (10) month positions;
4. 	Both 	had 	virtually 	identical 	“Minimum 	Requirements 	for
Employment”. 	In fact, as to this item, Ms. Lippincott agreed on cross
examination that the minimum requirements of the two (2) positions
were identical, testifying that although there appeared to be additional
requirements for Assistant Superintendent, in fact, the District Director
had to have those same qualifications in order to qualify for the position;
5) 	Both positions had “district-wide” responsibilities, as opposed to
being a “building-based” position, such as Principal.
(Petitioner’s Reply Exceptions at 2-3)
Petitioner submits that, pursuant to the New Jersey Supreme Court’s decision in Dennery,
supra, it is abundantly clear that former teaching staff members terminated in a RIF are entitled, pursuant
to their tenure and seniority rights, to be re-employed by their former Board not only in the position title
of their prior position but also in any position which is substantially identical to their former job function.
(Id. at 5) Here, petitioner charges, the Board attempted to circumvent his tenure rights by resurrecting the
position of Assistant Superintendent but camouflaging it under what the Board would have us believe is
an “inferior” title, District Director. 	He cites to Viemeister v. Board of Education, 5 N.J. Super. 215
(App. Div. 1949) and Vogel v. Board of Educ., decided by State Board of Education June 5, 1985, as
decisions where the Appellate Division and the State Board, respectively, have considered and reached
1 Cited with approval by the New Jersey Supreme Court in Dennery v. Bd. of Educ., 131 N.J. 626 (1993).

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behind this particular type of façade, finding the job duties of the old and new titles to be substantially
identical. (Id. at 6)
Petitioner, therefore, urges the Commissioner to adopt the decision of the ALJ as it is
supported by the evidence and fully consistent with applicable law.
Upon a full and independent review of the record, which it is noted did not include
transcripts of the hearing conducted below, the Commissioner concurs with the ALJ that summary
decision is appropriately granted to petitioner.
The record in this matter reflects that effective June 30, 1981, petitioner’s employment as
Assistant Superintendent was terminated as a result of a reduction in force (RIF). His future employment
rights in the District as a tenured Assistant Superintendent were protected by N.J.S.A. 18A:28-12 which
specifies that any teaching staff member dismissed as a result of a RIF:
shall be and remain upon a preferred eligible list in the order of seniority
for reemployment whenever a vacancy occurs in a position for which
such person shall be qualified and he shall be reemployed by the body
causing dismissal, if and when such vacancy occurs***”
As the only Assistant Superintendent in the District at the time of the RIF, petitioner was entitled, as a
matter of law, to any assistant superintendency within the scope of his certificate established by the
District in the future. Additionally, it is by now well-established that a riffed individual’s tenure rights
may not be circumvented or defeated by a Board’s assigning of different job titles to positions essentially
subsuming the identical duties performed by such tenured employee under a different job title but, rather,
a Board must extend the teaching staff member’s tenure rights to such newly created position. 	(See
Dennery v. Bd. of Educ., 131 N.J. 626 (1993); Viemeister and Vogel, supra).
With this background in mind, the Commissioner turns to the seminal issue in this matter
- whether when the Board created the job entitled Supervisor of Elementary Education (subsequently
retitled Director of Elementary Education [DDEE]) it created a position whose job functions were
substantially 	identical 	to 	the 	duties 	and 	responsibilities 	of 	petitioner’s 	former 	riffed 	Assistant

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Superintendent position. 2 Pursuant to Dennery, supra, if it is determined that the essential duties of the
two positions are “substantially similar,” petitioner’s tenure rights as Assistant Superintendent subsume
the duties of DDEE and he was, therefore, entitled to the position over those individuals appointed by the
Board. 3 The Commissioner’s considered review of the nature and scope of the essential duties of the jobs
at issue, looking to substance rather than form, persuades her, for the reasons comprehensively detailed on
Pages 12-15 of the Initial Decision, that the two employment posts are functionally equivalent. As such,
the Board was required to notify petitioner of his tenure entitlement to the DDEE position and must
immediately place him in this job.
Notwithstanding this result, the Commissioner declines to grant petitioner’s request for
attorney fees and pre-or post-judgment interest in this matter. With respect to attorney fees, it is by now
well established that, due to the lack of express statutory authority for so doing, the Commissioner does
not have plenary authority to award counsel fees in determining controversies and disputes presented
under Education Law. See Balsley v. North Hunterdon Bd. of Educ., 117 N.J. 434, 442-443 (1990). As
to pre-judgment interest, the Commissioner finds that the ALJ was correct in declining to order such
interest based on petitioner’s failure to satisfy the requirements of N.J.A.C.6A: 3-1.17(a). 	Finally, any
request for post-judgment interest is premature, as the 60-day timeline relative to the granting of this
interest does not even begin to toll until the Commissioner renders her decision in the instant matter.
(N.J.A.C. 6A:3-1.17(c)2).
Accordingly, the Initial Decision is adopted as the final decision in this matter for the
reasons well articulated therein. 	The Board of Education of Berkeley Township is directed to
2 To the extent the Board’s arguments may be interpreted as a claim that the positions of Supervisor and/or Director
are separately tenurable, such a contention is erroneous. 	In that neither of these positions is specifically
eneumerated in N.J.S.A. 18A:28-5, they are not separately tenurable. (See Nicholas Duva v. State-Operated School
District of the City of Jersey City, decided by the State Board of Education March 6, 2002.)
3 The record reflects that Respondent Marie Keck was promoted from Principal to the District Supervisor of
Elementary Education on July 1, 2002; Respondent Debora Evans was appointed to this position on July 1, 2004.
On or about August 18, 2004, the title of the position was changed to District Director of Elementary Education,
although the duties and responsibilities remained the same.

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immediately appoint petitioner to the position of District Director of Elementary Education and
compensate him with back pay, less mitigation, and emoluments due him consistent with this decision.
IT IS SO ORDERED. 4
ACTING COMMISSIONER OF EDUCATION
Date of Decision: 	August 2, 2006
Date of Mailing: 	August 2, 2006
4 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and N.J.A.C.
6A:4-1.1 et seq.