Michael Smurro v. Board of Education of the Township of Neptune, Monmouth County, 12/14/22, (#335-22)

335-22
New Jersey Commissioner of Education
Final Decision
Michael Smurro,
Petitioner,
v.
Board of Education of the Township of
Neptune, Monmouth County,
Respondent.
Synopsis
This matter stems from tenure charges of unbecoming conduct that were brought against petitioner by the
Board following a single incident that occurred off school grounds at a restaurant in April 2021. Pursuant to
N.J.S.A. 18A:6-16, tenure charges against petitioner were assigned to an arbitrator, who found that
petitioner was guilty of one charge of unbecoming conduct which did not warrant his removal; rather, the
arbitrator imposed a penalty of suspension without pay for six months. Petitioner, a tenured Vice Principal
in the Neptune School District, sought an order finding that his motion to dismiss in lieu of an answer to the
charges did not constitute a “delay” that would otherwise toll a 120-day unpaid suspension period under
N.J.S.A. 18A:6-14. The respondent Board opposed the petitioner’s motion, contending that petitioner had
caused the delay.
The ALJ found, inter alia, that: there are no material facts at issue here, and the matter is ripe for summary
decision; it is evident from the plain language of 6A:3-5.3(a)1 that a motion to dismiss in lieu of an answer
is expressly permitted as a response by an individual against whom tenure charges are certified; therefore,
a filing specifically set forth in the regulations governing this process does not constitute a delay of the
proceedings before the arbitrator. Accordingly, the ALJ granted summary decision in favor of petitioner
and denied the respondent Board’s motion for summary decision. Further, the ALJ ordered the Board to
reimburse petitioner for the full amount of time he was suspended without pay beyond the six-month
period that the arbitrator imposed.
Upon review, the Commissioner agreed with the ALJ that petitioner’s motion to dismiss the tenure charges
filed against him was not a delay requested by petitioner within the meaning of N.J.S.A. 18A:6-14.
Accordingly, the Commissioner adopted the Initial Decision of the OAL as the final decision in this matter,
granted petitioner’s motion for summary decision and denied the Board’s motion for summary decision.
The Board was ordered to reimburse petitioner for the full amount of his salary for thirty-one days, the
amount of time he was suspended without pay beyond the six-month period of suspension imposed by the
arbitrator.
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.

OAL Dkt. No. 00198-22
Agency Dkt. No. 218-11/21
New Jersey Commissioner of Education
Final Decision
Michael Smurro,
Petitioner,
v.
Board of Education of the Township of
Neptune, Monmouth County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner agrees with the Administrative Law Judge that
petitioner’s motion to dismiss the tenure charges filed against him was not a delay requested
by petitioner within the meaning of N.J.S.A. 18A:6-14.
Accordingly, the Initial Decision is adopted as the final decision in this matter.
Petitioner’s motion for summary decision is granted and respondent’s motion for summary
decision is denied. The Board is ordered to reimburse petitioner for the full amount of his
salary for thirty-one days, the amount of time he was suspended without pay beyond the six-
335-22

2
month period of suspension imposed by the arbitrator.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
December 14, 2022
December 14, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
CROSS-MOTIONS FOR
SUMMARY DECISION
OAL DKT. NO. EDU 00198-22
AGENCY DKT. NO. 218-11/21
MICHAEL SMURRO,
Petitioner,
v.
TOWNSHIP OF NEPTUNE BOARD OF
EDUCATION, MONMOUTH COUNTY,
Respondent.
Andrew L. Schwartz, Esq., for petitioner (Schwartz Law Group, LLC, attorneys)
Stephen J. Edelstein, Esq., for respondent (Weiner Law Group, attorneys)
BEFORE JACOB S. GERTSMAN, ALJ t/a:
Record Closed: September 28, 2022 	Decided: November 17, 2022

OAL DKT. NO. EDU 00198-22
2
STATEMENT OF THE CASE
Petitioner seeks an order finding that his motion to dismiss in lieu of an answer did
not constitute a “delay” that would otherwise toll the 120-day unpaid suspension period
under N.J.S.A. 18A:6-14. 	Respondent opposes the petition contending that petitioner
caused the delay.
PROCEDURAL HISTORY
The petition was filed on November 23, 2021, and the matter was transmitted to
the Office of Administrative Law (OAL), where it was filed on January 6, 2022, as a
contested case and assigned to the undersigned. N.J.S.A. 52:14B-1 to N.J.S.A. 52:14B-
15; N.J.S.A. 52:14F-1 to N.J.S.A. 52:14F-13. 	Petitioner filed a motion for summary
decision on February 16, 2022, and the initial telephone prehearing conference was held
on the March 8, 2022. 	During the prehearing conference, respondent notified the
undersigned that they would be filing a cross-motion for summary decision, and a briefing
schedule was established. 	Respondent’s cross-motion was filed on March 25, 2022,
petitioner’s reply brief was filed on April 5, 2022, and the joint stipulation of facts was filed
on April 7, 2022. Oral argument was held on May 16, 2022.
On July 25, 2022, petitioner submitted a letter to the undersigned advising of
“certain actions the District appears poised to take at its next meeting of Wednesday, July
27, 2022.” 	The record was reopened, and a telephone status conference was held on
July 27, 2022, where the parties agreed to submit a supplemental joint stipulation of facts.
Following the submission of the stipulation on August 19, 2022, a telephone status
conference was held to discuss outstanding issues with the submission. The revised and
executed supplemental joint stipulation was submitted on September 28, 2022, and the
record once again closed.

OAL DKT. NO. EDU 00198-22
3
FACTUAL DISCUSSION AND FINDINGS
JOINT STIPULATION OF FACTS1
The following Joint Stipulation of Facts was duly submitted by the parties and are
hereby FOUND as FACT:
1. 	Pursuant to N.J.S.A. 18A:6-10 et seq., the District served tenure charges
upon petitioner Smurro on May 26, 2021 (the “tenure charge matter”).
(Exhibit 1, at ¶4; Exhibit 2, at ¶4.)
2. 	Petitioner filed his Answer with the Board on June 10, 2021. (Exhibit 1, at
¶5; Exhibit 2, at ¶5.)
3. 	The Board, by way of a special meeting held on June 28, 2021, voted to
certify tenure charges against Smurro to the Commissioner of Education
(“Commissioner”). (Exhibit 1, at ¶6; Exhibit 2, at ¶6.)
4. 	Pursuant to N.J.S.A. 18A:6-14, at the special meeting of June 28, 2021, the
Board also voted to suspend Smurro without pay for 120 days or until final
determination of the tenure charges, effective June 29, 2021. (Exhibit 1, at
¶7; Exhibit 2, at ¶7.)
5. 	The District filed its certified tenure charges with the Commissioner on June
29, 2021 (“Commissioner’s Receipt of Certified Charges”). (Exhibit 4.)
6. 	Petitioner was receiving his full salary as well as his concomitant medical
benefits from the District up until it suspended him without pay. (Exhibit 1,
at ¶8; Exhibit 2, at ¶8.)
1 ¶1 though ¶25 were submitted by the parties on March 24, 2022. ¶26 through ¶35 were submitted on
September 28, 2022. The Joint Stipulations were modified by the undersigned for stylistic purposes.

OAL DKT. NO. EDU 00198-22
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7. 	Despite voting to suspend Smurro’s pay effective June 29, 2021, the District
actually began Smurro’s unpaid suspension on July 16, 2021. (Exhibit 1, at
¶9; Exhibit 2, at ¶9.)
8. 	On July 14, 2021, Smurro filed a motion to dismiss the tenure charges in
lieu of an answer pursuant to N.J.A.C. 6A:3-5.3(a)(1). 	(Exhibit 1, at ¶12;
Exhibit 2, at ¶12.)
9. 	On July 19, 2021, the Commissioner of Education assigned an arbitrator to
the tenure charges pursuant to N.J.S.A. 18A:6-16. (Exhibit 1, at ¶13; Exhibit
2, at ¶13.)
10. 	By letter dated July 19, 2021, the arbitrator assigned to the matter asked
counsel to the District how long it needed to respond to the motion to
dismiss, to which the District requested two weeks. (Initial Motion Timeline
Email; Exhibit 5.)
11. 	On August 2, 2021, the District sought, and the arbitrator granted, a request
for a seven-day extension of time to respond to Smurro’s motion to dismiss.
(Exhibit 1, at ¶15; Exhibit 2, at ¶15.) (Extension Request Email; Exhibit 6.)
12. 	The District submitted its opposition to the motion to dismiss on August 9,
2021. (Exhibit 1, at ¶16; Exhibit 2, at ¶16.)
13. 	Petitioner submitted his reply brief on August 16, 2021. (Exhibit 1, at ¶17;
Exhibit 2, at ¶17.)
14. 	The arbitrator assigned to the tenure charges issued her Decision denying
the motion on October 17, 2021, and ordered that the tenure charges
proceed to a hearing. 	(Exhibit 1, at ¶18; Exhibit 2, at ¶18.) 	(Decision on
Motion; Exhibit 7.)

OAL DKT. NO. EDU 00198-22
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15. 	On October 28, 2021, counsel for petitioner Smurro sent the District a letter
inquiring about the resumption of petitioner’s salary. 	(Exhibit 1 at ¶18;
Exhibit 2, at ¶24.) (Letter re Resumption of Salary; Exhibit 8.)
16. 	On November 2, 2021, the District sent a letter indicating that the District
would not consider resuming the payment of Smurro’s salary before
February 14, 2022, because it contended that petitioner’s motion to dismiss
operated as a request for a delay of the proceedings. (November 2, 2021,
District Letter; Exhibit 9.)
17. 	The District’s November 2 letter asserted that the time period between
Smurro’s filing of the motion to dismiss on July 14, 2021, and the arbitrator’s
determination of that motion on October 17, 2021, should not count for
purposes of the 120-day period under N.J.S.A. 18A:6-14. (Exhibit 9.)
18. 	Petitioner responded to the District’s November 2 letter that same day
contending that the District violated N.J.S.A. 18A:6-14 and that the arbitrator
appointed to preside over the underlying tenure matter had the authority to
order the resumption of petitioner’s salary. (Petitioner’s November 2, 2021,
Reply Letter; Exhibit 10.)
19. 	The District then responded on November 4, 2021, contending that based
upon N.J.S.A. 18A:6-9 only the Commissioner of Education had jurisdiction
to decide issues under N.J.S.A. 18A:6-14. 	(November 4, 2021, District
Letter; Exhibit 11.)
20. 	After further letters on this issue, along with oral arguments before the
arbitrator, the arbitrator on November 11, 2021, signed an order determining
“that she lacks jurisdiction over the issue of the resumption of [petitioner’s]
salary pursuant to N.J.S.A. 18A:6-14[.]” (Executed Order - Resumption of
Salary; Exhibit 12.)

OAL DKT. NO. EDU 00198-22
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21. 	The arbitrator’s November 11, 2021, order was “without prejudice to
[petitioner’s] right to file a Petition of Appeal before the Commissioner of
Education seeking an order requiring that the District reinstate Mr. Smurro
to the payroll pursuant to N.J.S.A. 18A:6-14.” (Exhibit 12.)
22. 	Also on November 11, 2021, the arbitrator sent her first request to the
Commissioner of Education, Office of Disputes and Controversies, for an
extension of time regarding the forty-five-day period from which to hold the
hearing after the assignment of the arbitrator pursuant to N.J.S.A. 18A:6-
17.1(b)(1). (Exhibit 1, at ¶34; Exhibit 2 at ¶34.)
23. 	Thereafter, on November 16, 2021, Office of Disputes and Controversies
granted the arbitrator’s request for an extension to hold the hearing beyond
forty-five days from the arbitrator’s assignment. (Exhibit 1 at ¶37; Exhibit 2,
at ¶37.) (Email re Extension of forty-five-day timeline; Exhibit 13.)
24. 	By way of email dated, February 11, 2021, the District confirmed that
petitioner would be reinstated to the payroll effective February 14, 2022.
(Email Confirming Resumption of Pay Feb. 14, 2022; Exhibit 14.)
25. 	One hundred and twenty-one days following the receipt of the certified
tenure charges by the Commissioner, which occurred June 29, 2021, is
October 28, 2021. 	(Commissioner’s Receipt of Certified Charges; Exhibit
4.)
26. 	The merits of the tenure charge matter were decided by Decision of
Arbitrator Deinhardt dated July 11, 2022 (the “Decision”).
27. 	That 	Decision 	imposed 	a 	six-month 	unpaid 	suspension 	on 	petitioner
Smurro.

OAL DKT. NO. EDU 00198-22
7
28. 	During the pendency of the tenure charge matter, the District suspended
petitioner Smurro without pay for a total of 213 days, from July 16, 2021,
until February 14, 2022.
29. 	Of those 213 days, ninety-five days were during the pendency of a motion
to dismiss filed in lieu of an answer, from July 14, 2021, until it was decided
on October 17, 2021.
30. 	Among the original issues before this tribunal is whether the filing of a
motion to dismiss in lieu of an answer pursuant to N.J.A.C. 6A:3-5.3(1)(1)
operates to toll the 120-day time period for which a district filing tenure
charges is permitted to suspend an employee without pay pursuant to
N.J.S.A. 18A:6-14.
31. 	Petitioner Smurro takes the position that the filing of a motion to dismiss in
lieu of an answer pursuant to N.J.A.C. 6A:3-5.3(1)(1) does not operate to
toll the 120-day unpaid suspension time period set forth by N.J.S.A. 18A:6-
14.
32. 	Respondent District takes the position that the time during which a motion
to dismiss in lieu of an answer pursuant to N.J.A.C. 6A:3-5.3(1)(1) is
pending does operate to toll 120-day unpaid suspension time period set
forth by N.J.S.A. 18A:6-14.
33. 	Despite the District’s resumption of petitioner Smurro’s regular salary
effective February 14, 2022, he remained suspended with pay until August
15, 2022, when the District ended his suspension and provided him with an
assignment.
34. 	If this tribunal determines that petitioner Smurro’s legal position is correct,
given that the arbitrator imposed a six-month unpaid suspension and he
was suspended without pay for a total of 213 days during the pendency of
the tenure charge matter, this tribunal should order that the District is

OAL DKT. NO. EDU 00198-22
8
required to reimburse petitioner Smurro for the full amount of time he was
suspended 	without 	pay 	beyond 	the 	six-month 	period2 	the 	arbitrator
imposed, his full salary for thirty-one days, or the difference between 213
days and 182 days.
35. 	If this tribunal determines that respondent District’s legal position is correct,
meaning that the time during the pendency of petitioner’s motion to dismiss
pursuant to N.J.A.C. 6A:3-5.3(1)(1) did not count as part of the 120-day
unpaid suspension time period set forth by N.J.S.A.18A:6-14 and the
additional unpaid suspension of petitioner beyond 120 days was due to
petitioner’s strategic choice and cannot count against the District, then this
tribunal should order that petitioner is required to serve an additional sixty-
four days of unpaid suspension to the District, representing the difference
between 182 days and 118 days3, to satisfy the requirements of the
arbitrator’s six-month unpaid suspension penalty.
LEGAL ANALYSIS AND CONCLUSION
Summary Decision Standard
Summary decision may be granted “if the papers and discovery which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to prevail as a matter of law.”
N.J.A.C. 1:1-12.5(b).
The standard for granting summary judgment (decision) is found in Brill v. Guardian
Life Insurance Company of America, 142 N.J. 520 (1995):
a determination whether there exists a “genuine issue” of
material fact that precludes summary judgment requires the
2 For purposes of this matter, the parties agree that six-months is 182 days.
3 One hundred and eighteen days represents the difference between the 213 days that petitioner has been
on unpaid suspension with the ninety-five days that the District claims should not count as part of that
unpaid suspension because they were during the pendency of the motion to dismiss.

OAL DKT. NO. EDU 00198-22
9
motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable
to the non-moving party, are sufficient to permit a rational fact-
finder to resolve the alleged disputed issue in favor of the non-
moving party. The “judge’s function is not himself [or herself]
to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.”
[Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, 477
U.S. 242 (1986).]
In addressing whether the Brill standard has been met in this case, further
guidance is found in R. 4:46-2(c):
An issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on
the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of
the issue to the trier of fact.
Accordingly, the undisputed facts and the arguments of both parties will be
evaluated utilizing the Brill standard.
N.J.S.A. 18A:6-14 provides in pertinent part that
Upon certification of any charge to the commissioner, the
board may suspend the person against whom such charge is
made, with or without pay, but, if the determination of the
charge by the arbitrator is not made within 120 calendar days
after certification of the charges, excluding all delays which
are granted at the request of such person, then the full salary
(except for said 120 days) of such person shall be paid
beginning on the one hundred twenty-first day until such
determination is made . . . . (emphasis added)
The Legislature’s intent in enacting the statute was “to alleviate ‘the economic hardship
endured by teachers . . . suspended without pay pending the outcome of charges filed
against them and certified for [a] hearing. . . .’” Pugliese v. State-Operated Sch. Dist. of
City of Newark, 454 N.J. Super. 495, 505 (App. Div. 2018) (quoting In re Grossman, 127
N.J. Super. 13, 35-36 (App. Div. 1974)).

OAL DKT. NO. EDU 00198-22
10
The issue before this tribunal is whether petitioner’s filing of a motion to dismiss in
lieu of an answer otherwise constitute a delay that would toll the 120-day unpaid
suspension period under N.J.S.A. 18A:6-14.4
N.J.A.C. 6A:3-5.3(a) provides
Except as specified in N.J.A.C. 6A:3–5.1(c)(5), an individual
against whom tenure charges are certified shall have 15 days
from the date such charges are filed with the Commissioner
to file a written response to the charges. Except as to time for
filing, 	the 	answer 	shall 	conform 	to 	the 	requirements 	of
N.J.A.C. 6A:3–1.5(a) through (d).
1. 	Consistent 	with 	N.J.A.C. 	6A:3–1.5(g), 	nothing 	in 	this
subsection precludes the filing of a motion to dismiss in
lieu of an answer to the charges, provided the motion is
filed within the time allotted for the filing of an answer.
Briefing on the motions shall be in the manner and within
the time fixed by the Commissioner, or by the arbitrator if
the motion is to be briefed following transmittal to an
arbitrator.
Petitioner argues that N.J.S.A. 18A:6-10 et seq. “has numerous references to the
timelines and how to request an extension of time. 	However, not once in the statue is
there any reference, or suggestion, that a motion to dismiss in lieu of an answer
constitutes such a request. 	The specific section that discusses extensions of time
N.J.S.A. 18A:6-17.4 provides only that the ‘commissioner shall have the authority to
extend the timelines in the tenure charge process upon a showing of exceptional
circumstances.’ 	However, this section makes no mention of the filing of a Motion to
Dismiss constituting a request for an extension.” (Petitioner motion at 11.) Respondent
contends that the Board did not cause the delay and “[t]he one and only reason that the
4 The petition additionally sought an order that “the arbitrator appointed to the underlying tenure proceeding
had the authority to make that determination and order the respondent-District to resume petitioner’s salary
on the 121st day following the certification of the tenure charges—October 28, 2021.” (Petitioner motion at
17.) The Commissioner has transmitted this matter to the OAL which maintains jurisdiction pursuant to
N.J.A.C. 1:1-3.1 and 3.2. This tribunal takes no position on the merits of petitioner’s argument, as it is
purely a question of law that should be addressed by the Appellate Division. (See Wendling v. New Jersey
Racing Comm’n, 279 N.J. Super 477, 484). Accordingly, I CONCLUDE that the OAL is not the proper forum
for consideration of this issue.

OAL DKT. NO. EDU 00198-22
11
arbitration of this case was delayed for just over three months is because Mr. Smurro’s
counsel chose to file an ill-fated Motion to Dismiss.” (Respondent motion at 4.)
The parties agree that if petitioner prevails, respondent will reimburse petitioner for
the full amount of time he was suspended without pay beyond the six-month period the
arbitrator imposed, his full salary for thirty-one days, or the difference between 213 days
and 182 days. 	If respondent prevails, petitioner is required to serve an additional sixty-
four days of unpaid suspension to the District, representing the difference between 182
days and 118 days, to satisfy the requirements of the arbitrator’s six-month unpaid
suspension penalty. (Joint Stipulation at ¶¶ 34, 35)
First and foremost a court’s analysis begins with the plain language of a statute.
State v. Smith, 197 N.J. 325, 332 (2009) (citing State v. Brannon, 178 N.J. 500, 505-06
(2004)). 	The language of statute should be given its ordinary meaning and used to
determine intent of the legislature; the courts cannot arbitrarily expand the scope of a
statute beyond plainly expressed legislative intent. 	DiProspero v. Penn, 183 N.J. 477,
492 (2005); Smith, 197 N.J. at 332 (it is not the function of the court to rewrite a plainly
written enactment of the Legislature or presume that the Legislature intended something
other than that expressed by way of the plain language).
The language of both N.J.S.A. 18A:6-14 and N.J.A.C. 6A:3-5.3(a) is clear and
unambiguous. The individual against whom the charges have been certified must file a
written response within fifteen days of the charges being filed and N.J.A.C. 6A:3-5.3(a)1
provides that “nothing in this subsection precludes the filing of a motion to dismiss in lieu
of an answer to the charges, provided the motion is filed within the time allotted for the
filing of an answer.” Put simply, it is evident from the plain language of 6A:3-5.3(a)1 that
a motion to dismiss in lieu of an answer is expressly permitted as a response by an
individual against whom tenure charges are certified. Therefore, it stands to reason that
a filing specifically set forth in the regulations governing this process does not constitute
a delay of the proceedings before the arbitrator.
Based upon the foregoing, I CONCLUDE that petitioner’s motion to dismiss in lieu
of an answer was not a delay requested by petitioner as set forth in N.J.S.A. 18A:6-14.

OAL DKT. NO. EDU 00198-22
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ORDER
I 	ORDER 	that 	petitioner’s 	motion 	for 	summary 	decision 	be 	and 	hereby 	is
GRANTED and respondent’s motion for summary decision be and hereby is DENIED. I
FURTHER ORDER that respondent shall reimburse petitioner for the full amount of time
he was suspended without pay beyond the six-month period the arbitrator imposed, his
full salary for thirty-one days, or the difference between 213 days and 182 days.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 00198-22
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Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
November 17, 2022
DATE 	JACOB S. GERTSMAN, ALJ t/a
Date Received at Agency:
Date Mailed to Parties:
JSG/jm