FRANKIE M. NICHOLSON, DR. SONDRA MINUSKIN AND ANNA MARIE GRAF V. BOARD OF EDUCATION OF THE CITY OF ASBURY PARK, MONMOUTH COUNTY, 9/16/13, (#326-13)

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#326-13 (OAL Decision: http://njlaw.rutgers.edu/collections/oal/html/initial/edu9228-10_1.html)
FRANKIE NICHOLSON, SONDRA MINUSKIN 	:
AND ANN MARIE GRAF,
:
PETITIONERS,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE 	DECISION
CITY OF ASBURY PARK, 	:
MONMOUTH COUNTY,
:
RESPONDENT.
:
The three petitioners in this case were employed under tenure as Supervisors of Curriculum by the respondent
Board when their positions were eliminated in a reduction in force (RIF) and district-wide reorganization in
2010. Petitioners asserted entitlement to one of the Assistant Director of Curriculum and Instruction positions
(Assistant Director) created by the school district as part of the reorganization, for which non-tenured teaching
staff members were selected over the petitioners. 	Respondent contended that petitioners neither held the
certifications required for the positions they seek, nor were entitled to these positions by virtue of their tenure
rights.
The ALJ found, inter alia, that: petitioners in this matter are tenured supervisors in respondent’s district;
pursuant to N.J.S.A. 18A:28-1 et seq., they are entitled to any district supervisor positions that are currently held
by non-tenured staff; the district’s new Assistant Director positions do not require the supervision of principals
or other supervisors; therefore, the Commissioner’s holding in Elbert Smith, et al. v. Board of Education of the
City of Orange, Essex County – i.e., that a key component of an assistant director title is the supervision of other
supervisors – is applicable in the instant matter; accordingly, the administrator/principal endorsement was not
required for the positions at issue, and these positions should be re-titled as supervisor; 	the enhanced
certification requirements for the Assistant Directors – i.e., a secondary teacher of English and/or math
endorsement for the grade 9-12 position, and either an elementary teaching endorsement or one of the middle
school endorsements for the grade 4-8 position – bore a logical nexus to the positions, and were appropriate for
the respondent to include in the job requirements; petitioner Graf holds a math and science certification,
qualifying her for the Assistant Director for grades 9-12 position; petitioner Minuskin holds an elementary
teaching certification, qualifying her for the Assistant Director for grades 4-8 position; petitioner Nicholson does
not have the requisite certifications for either of the reconfigured positions at issue in the instant appeal.
Accordingly, the ALJ concluded that petitioner Minuskin and Graf are entitled by tenure to these positions, and
ordered respondent to immediately appoint them with full salary and benefits, retroactive to June 30, 2010.
The Assistant Commissioner, to whom this matter was delegated pursuant to N.J.S.A. 18A:4-34, concurred with
the ALJ’s conclusions in this matter, and adopted the Initial Decision as the final decision in this matter. In so
doing, the Commissioner noted, inter alia, that the unrecognized Assistant Director position titles at issue here
were improperly determined by the Executive County Superintendent not to require approval prior to the
appointment of candidates. However, as the Commissioner has the ultimate authority and responsibility to
determine certification, there is no need to remand this matter to the Executive County Superintendent for
consideration of the merits. Accordingly, the Assistant Commissioner ordered the Board to re-title the positions
as Supervisor of Curriculum and Instruction, and to appoint petitioners Minuskin and Graf to these positions as
directed in the Initial Decision.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.
September 16, 2013

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OAL DKT. NO. EDU 9228-10
AGENCY DKT. NO. 161-7/10
FRANKIE NICHOLSON, SONDRA MINUSKIN :
AND ANN MARIE GRAF,
:
PETITIONERS,
:
V. 	COMMISSIONER OF EDUCATION
:
BOARD OF EDUCATION OF THE 	DECISION
CITY OF ASBURY PARK, 	:
MONMOUTH COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed, as have the exceptions filed pursuant to N.J.A.C. 1:1-18.4 by petitioner
Frankie Nicholson and the Board of Education’s (Board) reply thereto, as well as the Board’s
exceptions and the petitioners’ reply thereto.1 This matter involves claims by three tenured
supervisors whose positions were abolished. 	The petitioners claim an entitlement to the newly
created Assistant Director of Curriculum and Instruction titles, one for grades PreK-3, one for grades
4-8 and one for grades 9-12. 	The Administrative Law Judge (ALJ) determined that a school
administrator/principal endorsement was not required for the Assistant Director positions, and that
the positions should be re-titled as Supervisor positions. The ALJ also concluded that the additional
instructional certificates bore a logical nexus to the positions and it was appropriate for the Board to
include them as a requirement for the positions. As a result, petitioner Sondra Minuskin was entitled
to the position of Assistant Director of Curriculum and Instruction for grades 4-8, and petitioner
Ann Marie Graf was entitled to Assistant Director of Curriculum and Instruction for grades 9-12.
1 The record included a transcript from the hearing at the OAL on September 27, 2012; however there was no
transcript from the hearing conducted on July 26, 2012.

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Finally, because petitioner Nicholson did not hold the necessary instructional endorsement, she was
not entitled to any of the Assistant Director positions.
In her exceptions, petitioner Frankie Nicholson, contends that the ALJ erroneously
determined that she was not qualified to hold any of the Assistant Director titles because she did not
have 	either 	the math 	or 	English 	teaching endorsement 	or 	the 	standard 	secondary teaching
endorsement required for the position of Assistant Director of Curriculum and Instruction for grades
9-12, or the elementary endorsement required for the position of Assistant Director of Curriculum
and Instruction for grades PreK-3 and 4-8. 	Nicholson states that she holds three teaching
endorsements: a teacher of general business studies, a teacher of secretarial studies and a teacher of
typewriting. Nicholson maintains that her K-12 business education certificate qualifies her to teacher
at both elementary and middle school levels, in addition to high school grades. Therefore, contrary
to the ALJ’s determination in the Initial Decision, Nicholson is at the very least qualified to hold the
Assistant Director of Curriculum and Instruction title for grades 4-8. 	Nicolson also notes that the
ALJ determined that petitioner Sondra Minuskin was entitled to the position of Assistant Director of
Curriculum and Instruction title for grades 4-8. Nicholson maintains that Minuskin is also qualified
for the position of Assistant Director of Curriculum and Instruction for grades PreK-3; therefore,
Minuskin can take that position while Nicholson is entitled to reinstatement as Assistant Director of
Curriculum and Instruction for grades 4-8.
In 	reply, 	the 	Board 	argues 	that 	Nicholson’s 	exceptions 	concerning 	the
Assistant Director of Curriculum and Instruction for grades PreK-3 position should not be considered
because the issue of the PreK-3 position was not raised until after the hearing, in the petitioners’
post-hearing submission. 	The Board maintains that since there was no evidence concerning the
PreK-3 position presented at the hearing or even an entitlement to such, the Commissioner cannot
consider the new information at this time. 	Additionally, the Board contends that in her exceptions

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Nicholson attempts to introduce Dr. Lowe’s certification for Commissioner review.2 The Board
asserts that the ALJ refused to introduce Dr. Lowe’s certification into evidence, requiring counsel to
submit a motion if he wished same to be included. 	No motion was filed by the petitioners, and
therefore the certification and its exhibits should not be considered by the Commissioner. 	Even
assuming that the Commissioner considers the new information, the Board argues that the ALJ
properly determined that the instructional endorsement requirements bore a logical nexus to the
Assistant Director positions. 	The Assistant Director of Curriculum and Instruction for grades 4-8
required the employee to hold an elementary teacher, teacher of reading or one of the middle schools
teaching endorsements. The Board stresses that Nicholson does not hold any of these endorsements
and her business studies K-12 endorsement is not an elementary or reading endorsement, nor is it one
of the middle school endorsements. Therefore, the Board contends that the ALJ properly determined
that Nicholson was not entitled to any Assistant Director position.
In its exceptions, the Board argues that the ALJ erroneously concluded that
petitioners Minuskin and Graf are entitled to be appointed as Assistant Directors by virtue of their
previous tenure as a Supervisor. Specifically, the Board contends that the ALJ wrongfully found the
case of Elbert Smith, et al. v. Board of Education of the City of Orange, Essex County, Commissioner
Decision No. 41-12, decided February 1, 2012,3 to be controlling in this case, and she also misread
the holding therein. The Board notes that the ALJ stated in her Initial Decision that the
Commissioner “appears to have determined that a key component of an assistant director title is the
supervision of other supervisors.” The Board argues that this overly simplistic statement is erroneous
as a matter of law, and that the Commissioner was not setting a blanket principle of law that in order
to use the title assistant director the employee must supervise other supervisors.
2 Dr. Lowe’s certification was attached to the petitioners’ motion for summary decision. The ALJ never decided the
motion because the parties later agreed that there were issues of material facts in dispute.
3 The Initial Decision and the parties’ submissions refer to this case as Kohn v. Orange Board of Education;
however the first petitioner in that consolidated case was Elbert Smith.

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The Board also maintains that Smith, supra, is distinguishable because, in that case,
the reorganization of supervisors to assistant directors was a sham, and the responsibilities of the
assistant director in that case did not require a new title. Here the Board stresses that the ALJ found
that Dr. Lowe testified credibly that her reorganization plan was rational and logical and that the
Assistant Directors need more authority to implement pressing curriculum needs. 	Additionally, a
new title was fully warranted to reflect the upgraded requirements and responsibilities of the position.
The Board emphasizes that the ALJ acknowledged that at the time the positions were created,
Dr. Lowe’s plan called for the Assistant Directors to supervise principals – something that
supervisors could not legally do under their supervisor endorsement pursuant to N.J.A.C. 6A:9-12.3.
Therefore, the Board argues that, other than utilizing the title assistant director, there is very little
similarity between Smith, supra, and the instant case, and as a result the Commissioner must reject
the ALJ’s reliance on Smith, supra.
Additionally, the Board contends that the ALJ erred as a matter of law when she
analyzed the Assistant Director positions and evaluated their actual day-to-day duties months after
creation and appointment, as opposed to the duties at the time the positions were created. The Board
maintains that the Commissioner must measure the job duties at the time the positions were created
and filled and it is undisputed that Dr. Lowe’s plan called for the Assistant Directors to supervise the
principals. Further, the plan to have the Assistant Directors supervise the principals continued until
the end of August, when the State Monitor blocked Dr. Lowe from implementing that portion of her
plan. 	The Board asserts that it should not be penalized for the State Monitor’s late game veto.
Finally, the Board argues that the ALJ’s recognition of the significant, distinct differences between
the Supervisor and Assistant Director positions cannot be forgotten. 	Therefore, the Board requests
that the Commissioner reject the Initial Decision and find that the Assistant Director positions are not
substantially similar to the former Supervisor positions, and that the petitioners’ prior tenure rights do
not extend to the same.

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In reply, the petitioners contend that Smith, supra, is controlling precedent in this
matter. 	The petitioners maintain that when it comes to positions and/or titles not enumerated in the
tenure law, the case law has defined the scope of the tenure protection to be afforded by the scope of
the certificate required. See, Duva v. State Operated School District of the City of Jersey City,
Hudson County, State Board Decision No. 56-99, decided March 6, 2002, and Smith, supra. Also the
petitioners argue that as in Duva, supra, and Smith, supra, the Board here decided to ignore the
tenure status of the former supervisors and employ in their place non-tenured staff members in
positions which, in essence, are supervisory in scope and whiich petitioners are qualified to hold.
The ALJ correctly determined that the petitioners’ rights were similarly violated in the instant matter.
Further the petitioners argue that the ALJ properly examined this matter based on the
facts as they existed, not what was in the mind of Dr. Lowe. 	The petitioners point out that the
State Monitor did not give his approval for the Assistant Directors to supervise the principals, and the
Assistant Directors were never actually assigned to supervise and/or evaluate the principals. 	The
petitioners stress that re-titling a position does not by itself give the position more or less authority,
and there was no reason why the Board could not have used the title of supervisor and reconfigure it
to have authority over specific grades, i.e. PreK-3, 4-8 and 9-12. 	Simply reclassifying a title,
recasting the focus of some duties and re-juggling its certification requirements should not be used as
a vehicle to deny tenure. 	Therefore, for the reasons set forth in Nicholson’s exceptions, and the
petitioners’ reply to the Board exceptions, the petitioners submit that their tenure rights entitle them
all to reinstatement and back pay from July 1, 2010.
Initially, the Commissioner4 notes that pursuant to Duva, supra, the Assistant
Director titles are unrecognized position titles and are, therefore, subject to the requirements of
N.J.A.C. 6A:9-5.5. 	That 	regulation 	provides 	that 	the 	district 	must 	submit 	to 	the 	county
superintendent a written request for permission to use the proposed title, together with a detailed job
4 This matter has been delegated to the undersigned Assistant Commissioner pursuant to N.J.S.A. 18A:4-34.

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description, prior to appointing a candidate. 	N.J.A.C. 6A:9-5.5(b)1. 	The county superintendent is
then required to approve or disapprove use of the title and, if approved, to specify the appropriate
certification and identify the actual title under which the teaching staff member will accrue tenure
and seniority rights.
In this case, the Board sent the Executive County Superintendent a letter only after
the Assistant Director positions were created, requesting permission to use the title. The Executive
County Superintendent improperly determined that the Assistant Director title did not require
approval; however, there is no need to remand this matter to the Executive County Superintendent
to consider the merits. See, Duva, supra, and Jack A. Perna v. State-Operated School District of the
City of Paterson, Passaic County, Commissioner’s Decision No. 2-12, decided January 4, 2012.
The Commissioner of Education is the ultimate arbiter of school law disputes and thus has the
ultimate authority and responsibility to determine certification.
With respect to the Assistant Director positions, the Commissioner is in accord with
the ALJ’s determination that the school administrator/principal endorsement was not required for the
Assistant Director positions and directs that the positions be re-titled as Supervisors. 	Although
Dr. Lowe may have envisioned a scenario where the Assistant Directors would supervise principals,
that concept was never implemented or even approved by the State Monitor. 	Additionally, the job
description does not specifically say the Assistant Directors will supervise the building principals,
but rather it says, “[s]upervise assigned personnel, conduct observations and complete annual
performance 	appraisals 	and 	make 	recommendations 	for 	appropriate 	employment 	action.”
(Exhibit 18). 	The job duties of the Assistant Directors were substantially similar to the Supervisor
positions held by the plaintiffs. 	Instead of supervising one subject area for the entire district, the
newly created positions included the supervision of all subject areas for select grade levels.
Further, since 	the 	Assistant 	Directors 	did 	not 	in 	fact 	supervise 	the 	principals, 	the 	school
administrator/principal endorsement was not required for the Assistant Director positions. 	As the

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petitioners correctly point out in their submission, the re-titling of a position does not by itself give
the position more or less authority, and there was no reason why the Board could not have used the
title of supervisor and reconfigured it to have authority over specific grades, i.e. PreK-3, 4-8 and 9-
12.
In its exceptions, the Board’s contends that the ALJ erroneously suggested that Smith,
supra, established a blanket principle of law that in order to use the title of assistant director the
employee must supervise other supervisors. 	It should be noted that the ALJ stated in the
Initial Decision that in Smith, supra, the Commissioner “determined that a key component of an
assistant director title is the supervision of other supervisors.” 	(Initial Decision at 14-15). 	The
Commissioner finds that the ALJ did not misinterpret Smith, supra; and although it is not strictly
required that in order to use the title of assistant director the position must include the supervision of
supervisors, it is a factor to consider when analyzing the appropriate certificate for the unrecognized
title.
The Commissioner also concurs with the ALJ’s determination – for the reasons stated
in the Initial Decision – that the additional instructional certificates bore a logical nexus to the
positions, and it was appropriate for the Board to include them as a requirement for the positions. As
a result, because petitioner Nicholson did not hold the necessary instructional endorsement, she was
not entitled to any of the Assistant Director positions. 	Despite Nicholson’s arguments to the
contrary, the Commissioner is not persuaded that the business endorsement was the equivalent of an
elementary teacher, teacher of reading or one of the middle schools teaching endorsements required
for the Assistant Director of Curriculum and Instruction for grades 4-8 position.5
5 	The Board contends that the petitioners should be barred from asserting an entitlement to the position of
Assistant Director of Curriculum and Instruction for grades PreK-3 because they did not make any argument for that
position at the hearing. 	In the original petition of appeal and the amended petition of appeal, the plaintiffs made a
general claim of entitlement to the Assistant Director positions, and as such the plaintiffs are not barred from making
an argument for the entitlement to the Assistant Director of Curriculum and Instruction for grades PreK-3 position.
The fact that the petitioners did not present any proofs at hearing in connection with that position goes to whether

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Accordingly, the Initial Decision of the OAL is adopted as the final decision in this
matter. The Board is directed to re-title the positions as Supervisor of Curriculum and Instruction
for grades, PreK-3, 4-8 and 9-12. 	Additionally petitioner Minuskin shall be reinstated to the
position of Supervisor of Curriculum and Instruction for grades 4-8, and petitioner Graf shall be
reinstated to the position of Supervisor of Curriculum and Instruction for grades 9-12. Finally, the
Board shall reimburse petitioners Minuskin and Graf for any lost wages, benefits or emoluments,
less mitigation retroactive to June 30, 2010.
IT IS SO ORDERED.6
ASSISTANT COMMISSIONER OF EDUCATION
Date of Decision: 	September 16, 2013
Date of Mailing: 	September 17, 2013
they met their burden of proving an entitlement to that position. It should also be noted that the ALJ included a
footnote in the Initial Decision stating that Intervenor Birdean Clinton, who held the position of Assistant Director
of Curriculum and Instruction for grades PreK-3, withdrew from the matter based on the petitioners’ failure to assert
a claim to that position. 	It appears from the record that Intervenor Clinton actually withdrew from the matter
because she accepted employment in another school district.
6 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1).