Vincenza Olsen-Faivre and Donna Perez v. Board of Education of the Carlstadt-East Rutherford Regional School District, Bergen County, 5/13/19, (#124-19)

New Jersey Commissioner of Education
Final Decision
Vincenza Olsen-Faivre and Donna Perez,
Petitioners,
v.
Board of Education of the Carlstadt –
East Rutherford Regional School District,
Bergen County,
Respondent.
Synopsis
Petitioners – tenured secretaries in the respondent Board’s school district – challenged the Board’s decision
to deny their salary increases, and to rescind petitioner Vincenza’s Olsen-Faivre’s stipend for serving as the
district’s substitute coordinator, based upon an alleged act of fraud. Specifically, the Board contended that
the petitioners conspired to fraudulently deceive the Board in order to receive salary increases.
The ALJ found, inter alia, that: petitioner Olsen-Faivre was and continues to be the confidential secretary to
the district’s Superintendent of Schools; 	petitioner Perez was formerly employed as confidential payroll
clerk and bookkeeper for the district; the allegations herein arose when the Board’s Business Administrator
reviewed newly approved salary revisions for the 2014-2015 school year, and subsequently accused
petitioners of conspiring to include Olsen-Faivre’s substitute coordinator stipend in her pensionable salary
without obtaining Board approval; both the petitioners and the Board presented credible, competent witness
testimony at hearing; based on the totality of the evidence presented, there is no basis to find that petitioners
conspired against the Board; the evidence did not support the conclusion that petitioners committed fraud by
intentionally disobeying a supervisor’s instruction or unilaterally altering Board documents without approval;
on the contrary, the testimony showed that the Superintendent at the time of the incident supported the idea
of Olsen-Faivre’s stipend becoming pensionable. The ALJ concluded that petitioners are entitled to the
Board-approved salary increases they were denied in violation of their tenure rights. Accordingly, the ALJ
reversed the Board’s decision denying said increases and rescinding Olsen-Faivre’s stipend.
Upon comprehensive review, the Commissioner concurred with the ALJ that petitioners did not conspire to
fraudulently deceive the Board in order to receive salary increases; further, the Board’s decision to rescind
their salary increases was a violation of their tenure rights. In so deciding, the Commissioner found no basis
in the record to reject either the ALJ’s recitations of testimony or his determinations of witness credibility.
Accordingly, the Commissioner determined that petitioners are entitled to their approved salaries for the
2014-15, 2015-16 and 2016-17 school years, but found that petitioner Olsen-Faivre is not entitled to
reimbursement for the stipend she claimed as substitute coordinator because she never obtained tenure in that
position.
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.
May 13, 2019
124-19

OAL Dkt. No. EDU 9612-15
Agency Dkt. No. 108-5/15
New Jersey Commissioner of Education
Final Decision
Vincenza Olsen-Faivre and Donna Perez,
Petitioners,
v.
Board of Education of the Carlstadt –
East Rutherford Regional School District,
Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. 	The petitioners, tenured secretaries in the Carlstadt-East
Rutherford Regional School District, are challenging the Board’s decision to deny their salary
increases, 	and 	to 	rescind 	petitioner 	Vincenza 	Olsen-Faivre’s 	stipend 	for 	the 	substitute
coordinator position, based upon an alleged act of fraud. Following three days of hearings at the
OAL, the Administrative Law Judge (ALJ) found that the petitioners did not conspire to
fraudulently deceive the Board in order to receive salary increases. The ALJ also found that the
Board’s decision to rescind their salary increases was a violation of their tenure rights.
Therefore, the petitioners were entitled to their Board approved salaries for the 2014-15, 2015-16
and 2016-17 school years. The parties did not file exceptions to the Initial Decision.
Upon a comprehensive review of the record in this matter, the Commissioner
concurs with the ALJ that the petitioners did not conspire to fraudulently deceive the Board to

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receive salary increases, and that the Board’s decision to rescind their salary increases was a
violation of their tenure rights.1 	Importantly, the Commissioner finds no basis in the record to
reject either the ALJ’s recitations of testimony or his determinations of witness credibility. The
ALJ found that the petitioners’ testified credibly and that the evidence presented does not support
the conclusions that a conspiracy was committed by the petitioners. 	The ALJ had the
opportunity to assess the credibility of the witnesses who appeared before her and made findings
of fact based upon their testimony. It is well established that the Commissioner must defer to the
credibility findings of the ALJ unless these prove to be arbitrary, capricious or unreasonable or
are not supported by sufficient, competent and credible evidence in the record. N.J.S.A. 52:14B-
10(c).
Accordingly, the petitioners are entitled to their approved salaries for the 2014-15,
2015-16 and 2016-17 school years.2
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	May 13, 2019
Date of Mailing: 	May 14, 2019
1 The ALJ discussed various other potential issues in the Initial Decision, including the fact that the secretaries were
given contracts for a three-year term. The facts in this case are extremely case specific and it is not necessary to
posture on the length of the petitioners’ contracts in order to resolve this matter. The Commissioner is, however, in
accord with the ALJ’s determination that N.J.S.A. 18A:29-4.1 does not apply to the petitioners because they are not
teaching staff members, nor do they hold any certificates.
2 Petitioner Olsen-Faivre did not obtain tenure in the substitute coordinator position, and as such she is not entitled
to reimbursement for the stipend amount.
3 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. EDU 09612-15
AGENCY REF. NO. 108-5/15
VINCENZA OLSEN-FAIVRE
AND DONNA PEREZ,
Petitioners,
v.
BOARD OF EDUCATION OF THE
CALRSTADT-EAST RUTHERFORD
REGIONAL SCHOOL DISTRICT,
BERGEN COUNTY,
Respondent.
__________________________________
Vincenza Olsen-Faivre and Donna Perez, appearing pro
Dennis McKeever, Esq., for Respondent (Sciarrillo, Cornell, Merlino, McKeever
& Osborne, LLC, attorneys)
Record Closed: February 15, 2019 	Decided: February 19, 2019
BEFORE LELAND S. MCGEE, ALJ:

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STATEMENT OF THE CASE AND PROCEDURAL HISTORY
This matter arises from the denial of salary increases to Vincenza Olsen-Faivre
(Olsen-Faivre or Faivre) and Donna Perez (Perez), Petitioner employees of the Board of
Education of Carlstadt-East Rutherford (Respondent), and rescission of a stipend from
Faivre due to an alleged act of fraud committed by Petitioners. Petitioners contend that
Respondent violated the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 and the
Teach-NJ Act, N.J.S.A. 18A:17-1.
On April 11, 2015, counsel to Petitioners filed a Petition of Appeal and supporting
documents to the Director, Bureau of Controversies and Disputes (Bureau) of the New
Jersey State Department of Education. 	This petition challenged the salary-increase
rescission of Olsen-Faivre and Perez and loss of stipend to Olsen-Faivre.
On May 11, 2015, notarized verifications were sent by Petitioners to the Bureau.
These verifications were received on May 12, 2015.
On June 30, 2015, Respondent filed a Motion to Dismiss in lieu of an Answer
pursuant to N.J.A.C. 6A:3-1.5(g).
On July 2, 2015, this matter was transmitted to the Office of Administrative Law
for a hearing pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
On July 13, 2015, Petitioners filed their letter brief opposing Respondent’s Motion
to Dismiss. 	On July 20, 2015, Respondent submitted its response to the Motion to
Dismiss.
On October 1, 2015, this tribunal denied Respondent’s Motion to Dismiss and
held that Petitioners had a vested right to receive their salary increases due on
December 10, 2014. 	This tribunal determined that rescission of the salary increases

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was 	a 	prohibited 	compensation reduction which 	violated Petitioners’ 	tenure 	rights
pursuant to N.J.A.C. 18A:17.2.
Following a telephone prehearing conference, this tribunal issued an Order
requiring Respondent to file its Answer on or before October 30, 2015. 	The Order
specified that discovery be completed by February 1, 2016.
Respondent submitted its Answer on October 27, 2015.
On July 8, 2016, Petitioners filed a Motion for Partial Summary Decision. On July
29, 	2016, 	Respondent 	filed 	a 	letter 	brief 	opposing 	Petitioners’ 	Motion 	for 	Partial
Summary Decision.
On September 23, 2016, this tribunal denied Petitioners’ Motion for Partial
Summary Decision because the parties disputed several material facts. These disputes
include: 	1) 	whether 	Petitioners, 	pursuant 	to 	N.J.S.A. 	18A:29-4.1, 	are 	or 	were
considered “full-time teaching staff members”; 2) whether Petitioners’ terms of service
expired before the three-year time period stipulated in their contracts; and 3) whether
Petitioners are entitled to a salary increase for the first year or subsequent years.
A hearing scheduled for September 26, 2016, and September 27, 2016, was
adjourned.
In December 2016, Respondent retained new counsel. 	On or about April 3,
2017, 	Petitioners 	submitted 	a 	Notice 	of 	Substitution 	of 	Attorney 	confirming 	that
Petitioners would appear pro se and that former counsel withdrew its appearance.
On April 18, 2017, Respondent requested an adjournment of the hearings
scheduled in late April. 	An in-person pre-hearing conference was held on April 24,
2017, and hearings were held on May 4, 2017, May 12, 2017, and June 16, 2017.

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Petitioners filed their post-hearing brief and exhibits on September 8, 2017.
Respondent filed its reply brief on September 25, 2017.
A copy of Exhibit P-12 was provided on February 15, 2019, in order to complete
the record.
FACTUAL BACKGROUND
Petitioners 	are 	or 	were 	employed 	by 	Respondent 	Board 	of 	Education 	of
Carlstadt-East 	Rutherford 	as 	tenured 	administrators 	employed 	as 	confidential
secretaries. 	Perez formerly served as confidential payroll clerk and bookkeeper and
Olsen-Faivre served as confidential secretary to the superintendent. 	Olsen-Faivre is,
and 	Perez 	was 	employed 	under 	a 	three-year 	contract 	approved 	by 	the 	Board.
Petitioners were not and are not union members nor members of an employment
association. 	Therefore, terms and conditions of their employment contracts were not
negotiated subject to a collective bargaining agreement. 	Salaries and employment
terms were negotiated on an individual basis.
During the 2013-2014 school year, Perez’s contractual salary as payroll clerk and
bookkeeper was $79,032 plus additional compensation for longevity. 	Olsen-Faivre’s
contractual salary as confidential secretary was $56,787 with additional compensation
for longevity plus a stipend for her job duties as substitute coordinator.
Petitioners’ contracts expired on June 30, 2014. 	Contracts for the upcoming
years had not yet been fully negotiated by the commencement of the 2014-2015 school
year. 	As such, Petitioners’ continued employment in their positions was subject to the
contractual 	terms 	set 	forth 	in 	the 	expired 	employment 	contract 	while 	contract
negotiations continued.
The respective salaries of Petitioners remained the same at the start of the 2014-
2015 school year as they were during the 2013-2014 school year. 	The salaries were

5
approved for Petitioners at the Board’s meeting of May 7, 2014. 	Olsen-Faivre’s total
salary was $60,912 including a base salary of $56,787, plus $1,425 for longevity, and a
$2,700 stipend for her substitute coordinator position. 	The primary function of Olsen-
Faivre’s job position was to contact substitutes to ensure that the district’s classrooms
would have adequate personnel coverage. Perez’s total salary was $79,507 including a
base salary of $79,032, plus $475 for longevity.
The contract negotiations between the Becton Educational Association (BEA)
and the Board concluded with the Board meeting of December 10, 2014, and salaries
and appointments for faculty and support staff were approved. 	At the December 10,
2014, meeting, the salaries for its confidential secretaries for the 2014-2015, 2015-
2016, and 2016-2017 academic years were approved by Respondent, subject to
individual employment contracts for each employee. For the 2014-2015 academic year,
Olsen-Faivre’s salary was set to be raised to $61,487, plus longevity, and Perez’s salary
was set to be raised to $81,032 plus longevity.
After this process concluded, District Business Administrator Nicholas Annitti
(Annitti) reviewed the Board’s payroll records and determined that Olsen-Faivre and
Perez had conspired to include Olsen-Faivre’s substitute coordinator stipend in her
pensionable salary. 	Annitti determined specifically that Olsen-Faivre and Perez logged
into the district’s payroll system using Perez’s system access as payroll clerk to include
Olsen-Faivre’s stipend in her base salary as a district confidential secretary. 	He
determined that this occurred despite the fact that Olsen-Faivre’s employment contract
did not include the amount in her base salary and neither Respondent nor any district
administrator authorized this action.
Following Annitti’s determination, Respondent held a special meeting on January
21, 2015. 	At the meeting, Respondent voted to rescind the salary increases granted to
Petitioners for the 2014-2015 school year. 	Additionally, Respondent directed the
Superintendent of Schools to issue letters of reprimand to the Petitioners for their
actions. 	Respondent 	also 	directed 	the 	administration 	to 	advertise 	the 	substitute

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coordinator position in which Olsen-Faivre had been employed and for which she
received a stipend.
Letters 	of 	reprimand 	were 	issued 	on 	January 	26, 	2015. 	The 	District
Superintendent issued a letter to Olsen-Faivre for her actions, and Annitti as District
Business 	Administrator/Board 	Secretary 	issued 	a 	letter 	to 	Perez. 	They 	were
reprimanded for an alleged conspiracy to roll Olsen-Faivre’s stipend into her base salary
for pension benefits without obtaining Board approval.
Petitioners appealed Respondent’s action.

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TESTIMONY
Nicholas Annitti
Nicholas Annitti testified that he was the School Business Administrative Board
Secretary of the Carlstadt-East Rutherford Regional Board of Education. 	During his
nineteen years employed by Respondent, his job duties were largely financial. 	Annitti
testified that Perez’s position as secretary was not a tenured position, but her position
as bookkeeper was a tenured position. 	Olsen-Faivre’s position was a tenured position.
Annitti further agreed that, as non-union members, Olsen-Faivre and Perez did not
negotiate their contracts subject to a collective-bargaining agreement. 	Perez and
Olsen-Faivre therefore negotiated directly with the Board to create their contract. Annitti
outlined the work duties of the substitute coordinator as someone who arranged for
substitute teachers when a regular teacher was absent. 	Annitti did not believe this
position to be a “tenure-able” position. 	Olsen-Faivre held the duty of 	substitute
coordinator as a stipend position.
Annitti 	further 	testified 	that, 	at 	the 	Board 	meeting 	in 	which 	the 	three-year
contracts for Confidential Secretary was agreed upon, the stipend was not included as
part of a pensionable salary.
Annitti outlined the typical procedure taken when a salary is coordinated and
calculated by the Superintendent’s Office and then sent to the Payroll Department. The
Payroll 	Department 	then 	cross-checks 	the 	adjustment 	made 	and 	puts 	the 	salary
adjustment onto the Board agenda. 	Annitti further testified that the Payroll Department
does not change salaries without prior authorization from the Superintendent, and the
Superintendent never changes salaries without a resolution passed by the Board of
Education.
Annitti further testified that Perez was an efficient employee that knew payroll
policies and had a strong knowledge of which compensation was pensionable and
which was non-pensionable. Annitti continued that he only experienced a stipend being
rolled into an annual salary on one prior occasion. 	In that instance, a Confidential

8
Secretary’s stipend was added to her pensionable salary after she requested that the
stipend be added. 	Following the request, the Board rescinded the Motion which paid
her a stipend, withdrew the stipend, and rolled it into her salary.
The increase to Olsen-Faivre’s salary was not discovered until after the contract
negotiations of the confidential employees had concluded. Annitti discovered the salary
increase, and immediately asked Olsen-Faivre about the increase. His recollection was
that Olsen-Faivre replied that the Board had negotiated and approved the stipend to be
added to her salary, and that Board member, Raymond Muszynksi had approved the
action. 	Annitti reported that Perez also stated that the Board approved of adding the
stipend to Olsen-Faivre’s salary. 	Having no recollection of the Board negotiations and
action, 	Annitti 	questioned 	his 	colleagues 	and 	brought 	up 	the 	salary 	increase 	for
discussion at the next Board meeting. 	None of the other Board members recalled
approving or even discussing the salary increase. 	Annitti stated that after the meeting,
Perez was defensive and told Annitti, “You’ll be hearing from my attorney.”
Raymond Muszynski
Raymond Muszynski testified that he has served on the Board of the Carlstadt-
East Rutherford Board of Education for ten years. 	Muszynski testified that he did not
recall the Board discussing Olsen-Faivre’s stipend rolling into her pensionable salary at
the Board’s May 2014 meeting. 	Muszynski testified that he believed he was the
Chairperson of the Negotiations Committee on the date of the Board meeting in
question. 	As the individual that handled negotiations at that time, all compensation
issues were brought before him.
Renee Engelhardt
Renee 	Engelhardt 	testified 	that 	she 	was 	employed 	by 	the 	Carlstadt-East
Rutherford Regional Board of Education as a Confidential Secretary to the Business
Administrator, a position which she held for fifteen years. 	Engelhardt testified that she
was not a member of a collective bargaining unit, and as such, that she was usually

9
subject to three-year contracts. When discussing her duties, Engelhardt stated that she
prepares exhibits for Board meetings. 	When asked about the procedure regarding
approval of stipend positions, Engelhardt stated, based upon her recollection, that
stipend positions are approved under separate Resolutions. 	Her job duties included
attending all Board meetings and did not recall discussion of Olsen-Faivre’s stipend
being rolled into her pensionable salary. 	Engelhardt further testified that the meeting in
question was extremely tumultuous.
Engelhardt testified that during her time as an employee with the Board of
Education, she received a stipend for attending Board of Education meetings. 	She
stated that her stipend was made pensionable by the Board of Education by rolling her it
into her salary. 	This occurred in November of 2011, when a new contract was
negotiated.
Vincenza Olsen-Faivre
Olsen-Faivre testified that she is currently employed as the Superintendent’s
Secretary for the Carlstadt-East Rutherford Regional Board of Education. 	She has
been employed by the Board since 1997. 	Olsen-Faivre testified that she worked under
a three-year employment contract beginning July 1, 2014. 	Olsen-Faivre testified that
she essentially “took on” the role of substitute coordinator in 2008. 	As a substitute
coordinator, Olsen-Faivre worked outside the Superintendent’s office with the Principal’s
secretary. She called substitute teachers, as a previous outside vendor had done.
Olsen-Faivre testified that she had a discussion with previous Superintendent
James Jencarelli, wherein he stated that she would receive payment for coordinating
substitute teachers at some point prior to 2008. 	Olsen-Faivre began performing these
duties when the outside vendor stopped performing this function. Olsen-Faivre testified
that she wrote a memo to him in which she requested payment for the role of substitute
coordinator, and he presented that memo to the Board of Education. 	She testified that
the Board agreed via a resolution to pay a stipend of $2,350 for coordinating the
substitutes. 	She testified that she additionally gave Superintendent Gary Bowen a

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memo to present to the Board in April of 2014 regarding the stipend. 	Neither party
produced a copy of the memo. 	She testified that when she handed the memo to Dr.
Bowen, he told her to put the stipend in her “pensionable wages” column in the salary
resolution chart for the 2014-2015 school year, to be presented to the Board for
discussion. Additionally, her role should be changed in her job description for the Board
proposal. 	Olsen-Faivre testified that she does not recall seeing any Board minute
meetings that discussed the stipend. 	She was removed from the position of substitute
coordinator following the allegations that are the subject of this hearing.
Olsen-Faivre testified that the allegations that are the subject of this hearing
relate to a formal reprimand she received for directing another employee to add a
$2,700 	stipend 	to 	her 	base 	salary, 	making 	the 	amount 	pensionable, 	without 	the
knowledge of Business Administrator Annitti. 	She testified that the increase from
$2,350 to $2,700 reflected a conversation with a Mr. Mango, Interim Superintendent,
about an increase in the stipend. 	She testified that she did not direct any employee to
commit fraud. 	She testified that since the Board members did not question anything
that she put into the resolution, she had no reason to think that her conduct was wrong.
On cross-examination, Olsen-Faivre testified that she did not carbon copy Mr.
Annitti 	or 	the 	Board 	of 	Education 	in 	the 	memo 	requesting 	that 	her 	stipend 	be
pensionable. 	She testified that she has access to the personnel files that the memo
was kept in. 	She testified that Donna Perez implemented the accounting change to
make the stipend pensionable. 	She testified that after the meeting, she did not talk
about the stipend being pensionable with any of her superiors. She did not sign a paper
that included an altered job description reflecting the new position, which is sometimes
the practice of the Board, after the Board meeting.
Donna Perez
Donna Perez testified that she is currently employed by the Hoboken Board of
Education. 	She worked for the Carlstadt-East Rutherford school district for eleven
years in the Payroll Department, as a bookkeeper, and in accounts payable. 	She

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testified that her supervisor was Nicholas Annitti. Further, that after the Board approved
salaries, she would take the approved agenda and put them into the payroll files. 	If
there were changes to be made for longevity, or to a teacher’s salary, she would make
changes in the payroll accordingly. 	She also kept track of Board approval of bills. 	She
testified that she was in Mr. Annitti’s office when Olsen-Faivre asked him about
including her stipend in her base salary so that it would be pensionable prior to the
Board of Education meeting. 	She testified that she did not conspire with Olsen-Faivre
to include the stipend in her pensionable salary. 	Perez testified that she acted in
accordance with her duties when she adjusted Ms. Olsen-Faivre’s salary, as the
increase was approved in Board Minutes.
On cross-examination, Perez testified that she received a stipend for her role as
Treasurer for Student Activities and Athletics. 	However, the stipend did not become
pensionable 	because 	the 	school 	revoked 	the 	stipend 	on 	January 	21, 	2015, 	for
disciplinary reasons related to this hearing. 	When asked if there was typically a signed
contract presented to her before making modifications to salaries, she stated that there
were plenty of instances that signed contracts were unavailable. 	In those instances,
once the salaries were approved on the agenda, she would look at the Minutes and
implement the changes. 	She testified that since Mr. Annitti, was supposed to review
salaries before the agenda was passed on to her, she would have no reason to
question the salaries in the Minutes.
Mary Vaccaro
Mary Vaccaro (Vaccaro) testified that she is the school Library Media Specialist,
Technology Facilitator, the Virtual High School Site Coordinator, and a Virtual High
School Teacher. 	She receives a pensionable stipend for her role as Technology
Facilitator. 	As a Technology Facilitator, she helps teachers or other employees with
technology issues. 	Vaccaro testified that in April of 2014, she assisted Olsen-Faivre
with a memo. 	She testified she helped create this memo addressed to Dr. Bowen
requesting that Olsen-Faivre’s stipend be pensionable. 	She testified that she did not
save the memo but printed it.

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On cross-examination, Vaccaro testified that she has no knowledge of the Board
deliberations or any other discussions regarding stipend positions. 	She does not know
what happened to the memo once she handed it to Olsen-Faivre.
Louise Clarke
Louise Clarke (Clarke) has been the Superintendent of schools since July 1,
2014 	and 	has 	her 	office 	in 	Becton 	Regional 	High 	School 	in 	the 	Carlstadt-East
Rutherford School District. 	She testified that she has not had a personal conversation
with Olsen-Faivre regarding her stipend. 	Clarke testified that she had a conversation
with the prior Superintendent, Dr. Bowen, regarding the stipend. 	She along with Dr.
Bowen and Olsen-Faivre were in Bowen’s office at the time of the conversation. Bowen
told Clarke that in order to put a stipend into an employee’s pension or to roll it into a
pension, 	the 	best 	way 	is 	to 	change 	the 	job 	description 	on 	a 	Salary 	Exhibit 	for
presentation to the Board. 	Clarke testified that typically, when a Salary Exhibit is
created, both the Superintendent and the Business Administrator review them. 	Once
the Business Administrator signs off on the Exhibit, the agendas are sent out in
packages to the Board members through his office. 	Clarke testified that she had a
conversation with Dr. Bowen regarding Ms. Olsen-Faivre’s pensionable salary, and he
did not remember whether he ever discussed it with the Board.
On cross-examination, Clarke testified that according to the letter of reprimand
regarding Olsen-Faivre, there was no authority given to put the stipend into the base
salary. 	She testified that she was present at the Board of Education action session on
May 7, 2014 and does not recall any discussion regarding Olsen-Faivre’s substitute
teacher coordinator position. 	She testified that subsequent to the discovery of the
stipend being a part of Olsen-Faivre’s salary, she did not have a conversation with
Olsen-Faivre or Annitti about resolving the terms of the investigation against Olsen-
Faivre. 	She also testified that the reprimand letter that she passed down to Olsen-
Faivre was by Board directive, and she wrote the letter using information received from
Mr. Annitti.

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Kevin Felten
Kevin Felten testified that he is employed by the Borough of East Rutherford as a
police officer, and he began serving as a Trustee to the Board of Education in January
of 2016. 	He testified that for employee stipends, the Superintendent recommends the
stipend and Board members vote. 	Stipends are usually approved once a year. 	Felten
stated that a Settlement, a payment to petitioner, was presented to the Board following
the accusations against Olsen-Faivre. He voted “no” to the Settlement because he was
concerned about possible fraud and pension fraud. Felten testified that Mr. Zitomer, the
school 	board 	attorney, 	went 	to 	the 	Prosecutor’s 	Office 	concerning 	Olsen-Faivre’s
actions and the Office did not prosecute the case. 	He testified that to the best of his
knowledge, stipends are not pensionable, and they do not receive tenure. He does not
know of any stipend in the past that has been pensionable for employees. 	He testified
that he would be surprised if that had happened in the school district.
On cross-examination, Felten testified that he was not a Board member at the
time that Dr. Bowen was Superintendent. 	He was not included on any agenda reviews
during Dr. Bowen’s time as Superintendent. 	He testified that he was not aware that
Engelhardt’s stipend became pensionable.
Jeffrey C. Bliss
Jeffrey Bliss testified that he is a partner with Lurch, Vinci, and Higgins, a CPA
firm that specializes in governmental and non-profit accounting. 	He has served as an
auditor for the Carlstadt-East Rutherford Board of Education for five years. 	As an
auditor for the district, he is responsible for auditing their financial statements, books,
and records. He also reports on compliance with government accounting standards and
Department of Education compliance requirements. 	He testified that he received a
phone call from Business Administrator Annitti regarding Olsen-Faivre’s case. 	Upon
review, he told Annitti that Olsen-Faivre’s stipend had been included as part of her

14
pensionable base wage salary. 	He testified that in New Jersey, stipends are usually
pensionable if the duties concerning the stipend are performed as part of the regular
work period, and if the role is part of the employee’s normal job duties. 	If the job is
outside the normal duties of the position, it is not pensionable. 	He testified that to his
understanding, 	the 	Board 	approved 	the 	substitute 	coordinator 	position 	as a 	non-
pensionable stipend, as the duties were performed outside the normal workday hours of
her normal position. 	Bliss testified that unlike a “salary increase,” a stipend does not
increase year after year. Rather, it is usually for a term of a contract.
LEGAL DISCUSSION
I. 	Credibility
Where facts are contested, the trier of fact must assess and weigh the credibility
of the witnesses for purposes of making factual findings. 	Credibility is the value that a
finder of fact gives to a witness’s testimony. 	It requires an overall assessment of the
witness’s story in light of its rationality, its internal consistency, and the manner in which
it “hangs together” with the other evidence. 	Carbo v. United States, 314 F.2d 718, 749
(8th Cir. 1963). There is no mechanical formula for determining the truth, to the extent it
can be discerned, and many factors may be considered and weighed. 	These include
the demeanor of the witness and the manner of testifying, the interest a witness may
have in the outcome, and the reasonableness and coherence of the testimony. Dawson
v. R.W. Vogel, CRT 4501-00, Initial Decision (April 25, 2002), adopted as modified, Dir.,
Division on Civil Rights (Aug. 28, 2002), <http://njlaw.rutgers.edu/collections/oal/>.
“Credible testimony” must proceed from the mouth of a credible witness and
must be such as our common experience, knowledge, and common observation can
accept as probable under the circumstances. 	State v. Taylor, 38 N.J. Super. 6, 24
(App. Div. 1955); see also Gilson v. Gilson, 116 N.J. Eq. 556, 560 (E. & A. 1934). A fact
finder is expected to base decisions of credibility on his or her common sense, intuition,
or experience. 	Barnes v. United States, 412 U.S. 837 (1973). 	The determination of

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credibility 	must 	be 	made 	based 	upon 	the 	totality 	of 	the 	evidence, 	including 	an
assessment of the witnesses by the trial judge who has had the opportunity to see and
hear the witnesses at hearing. See, e.g., In re Final Agency Decision of Bd. of Exam’rs
of Elec. Contractors, 356 N.J. Super. 42 (App. Div. 2002).
In the present matter, both the petitioners and respondent have presented
credible, competent witnesses. 	Based on the totality of the evidence presented before
this Court, there is no basis to find that petitioners conspired against the Board to make
Olsen-Faivre’s stipend pensionable without approval. 	Perez, who is responsible for
changing employees’ salaries once the Board approves, had worked for the Board of
Education of Carlstadt-East Rutherford for eleven years without any disciplinary action
before this incident. 	Olsen-Faivre was also highly experienced at her position, having
been designated the substitute coordinator when the vendor hired by the school backed
out. 	Notably, as of the date of the hearing Olsen-Faivre was still employed by the
Board. 	The evidence does not support the conclusion that Olsen-Faivre committed
fraud by intentionally disobeying her supervisor’s instruction or unilaterally altered Board
Documents without approval. 	On the contrary, testimony shows that Dr. Bowen, the
Superintendent at the time of the incident, supported the idea of Olsen-Faivre’s stipend
becoming pensionable.
Mary Vaccaro testified that she helped Olsen-Faivre create a memo addressed
to Dr. Bowen to present to the Board, requesting that Olsen-Faivre’s pension be
pensionable. 	This evinces Olsen-Faivre’s efforts to follow proper protocol, although it
may not have been the “best” way to have her concerns addressed. 	Notably, Kevin
Felten testified that the Prosecutor’s Office did not find evidence of fraud by petitioners
sufficient to pursue a case against them.
Witnesses testified that the Board meeting in question was hectic because of a
conflagration that occurred during the meeting. 	No one can recall, whether or not
Olsen-Faivre’s pensionable stipend was actually discussed. 	Perez testified that there
were 	numerous 	occasions 	that 	signed 	contracts 	were 	unavailable 	when 	making
modifications to salaries. 	In those instances, once the salaries were approved on the

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agenda, she would look at the meeting Minutes and implement the changes so
employees were paid according to the changes. 	She testified that since Business
Administrator Annitti was supposed to review salaries before the agenda was passed on
to her, she would have no reason to question the salaries in the Minutes following the
meeting. 	Ms. Perez was doing her job the same as she had for the past eleven years,
and I FIND that there is no evidence of misconduct.
The Board cannot be permitted to hold petitioners accountable for a possible
error that resulted from a failure in the checks and balances of the system; particularly
where multiple people were responsible for ensuring that appropriate protocols were
followed. 	Ms. Clarke testified that once the Business Administrator signs off on an
exhibit, agendas are sent out in packages to the Board members through his office.
Annitti, the Superintendent, and the Board members had ample opportunity to discover
a “mistake,” “error,” or “fraud” in the salary proposals presented. 	Instead, the proposed
salary changes were approved. 	Accordingly, I FIND, that the evidence presented does
not support the conclusion that a conspiracy was committed by Olsen-Faivre and Perez.
II. 	Enforcement of the Contracts
The gravamen of respondent’s argument involves petitioners’ attempts to enforce their
respective three-year-employment contracts approved by the Board on December 10,
2014. 	Respondent argues 	that permitting these 	contracts 	to be 	enforced 	would
improperly bind future boards. 	Multi-year salaries of full-time “teaching staff members”
of a Board of Education are governed by N.J.S.A. 18A:29-4.1:
A board of education of any district may adopt a one, two,
three, 	four, 	or 	five 	year 	salary 	policy, 	including 	salary
schedules for all full-time teaching staff members which shall
not 	be 	less 	than 	those 	required 	by 	law. 	The 	policy
schedules shall be binding upon the adopting board and
upon all future boards in the same district for a period of one,
two, three, four, or five years from the effective date of the
policy but shall not prohibit the payment of salaries higher
than those required by the policy or 	schedules nor 	the

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subsequent adoption of policies or schedules providing for
higher salaries, increments, or adjustments.
Furthermore, N.J.S.A. 18A:1-1 defines a teaching staff member as:
. . . a member of the professional staff of any district or
regional board of education, or any board of education of a
county 	vocational 	school, 	holding 	office, 	position 	or
employment of such character that the qualifications, for
such office, position, or employment, require him to hold a
valid 	and 	effective 	standard, 	provisional, 	or 	emergency
certificate, appropriate to his office, position or employment,
issued by the state board of examiners and includes a
school nurse.
Teachers 	and 	principals 	are 	among 	the 	several 	positions 	that 	require
certification. 	N.J.S.A. 	18A:1-1. 	The 	record 	indicates 	that 	Petitioner 	Perez 	was
previously 	employed 	by 	the 	Board 	as 	the 	confidential 	payroll 	clerk/bookkeeper.
Petitioner Olsen-Faivre is currently employed by the Board as the confidential secretary
to the District’s Superintendent. 	No evidence was presented to demonstrate that
petitioners are teaching staff members or hold State-issued certificates.
Petitioners argue that past practice has been to enforce three-year contracts for
non-certified staff. 	However, the “past practice” doctrine provides that where “contract
terms are unspecific or vague, extrinsic evidence mat be used to shed light on the
mutual understanding of the parties.” 	Hall v. Bd. of Educ. of Jefferson, 125 N.J. 299,
301 (1991). The contracts in question are not vague, as they were explicitly for a three-
year period.
Since 	petitioners 	are 	not 	“teaching 	staff 	members” 	as 	defined 	by 	N.J.S.A.
18A:29-4.1, common law rule governs the validity of the contracts. 	“The common-law
rule is that a public body empowered to appoint a public officer ‘may not forestall the
rights and obligations of [its] successor by making an appointment’ where the term of
the appointee will not take effect until after the expiration of the term of the appointing
[body].” 	Georgia v. Suruda, 154 N.J. Super. 439, 448 (Law Div. 1977). 	The Court’s
analysis of this principal was determined in Gonzalez v. Board of Education of Elizabeth

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School District, Union County, 325 N.J. Super. 244, 252 (App. Div. 1999). In Gonzalez,
the main issue before the Court was whether appellee, a local school board, had the
power to appoint a superintendent whose term would begin during the term of office of
the succeeding board. 	Ibid. 	In its analysis, the Court reasoned that a board of
education is a “non-continuous body whose authority is limited to its own official life and
whose actions can bind its successors only in those ways and to the extent expressly
provided by statute.” 	Id. at 253; see also Skladzien v. Board of Educ., 12 N.J. Misc.
602, 604-05 (Sup. Ct. 1934). 	Since Appellant appointee’s term would not take effect
until after the expiration of the term of the Board of Education, the appointment was
void. Gonzalez, 325 N.J. Super. at 252.
Notwithstanding the above cases, the doctrine of equitable estoppel is relevant to
whether the Board may rescind the approved three-year employment contracts for
petitioners. Equitable estoppel embodies the doctrine that “one shall not be permitted to
repudiate an act done or position assumed where that course would work injustice to
another who, having the right to do so, has detrimentally relied thereon.” 	Anske v.
Borough of Palisades Park, 139 N.J. Super. 342, 348 (App. Div. 1976) (citing NJ
Suburban Water Co. v. Harrison, 122 N.J.L. 189, 194 (E. & A. 1939)). 	The test for
equitable estoppel requires that the petitioner “show that the alleged conduct was done,
or representations made, intentionally or under such circumstances that it was both
natural and probable that it would induce action. Further, the conduct must be relied on,
and the relying party must act so as to change his or her position to his or her
detriment.” 	Miller v. Miller, 97 N.J. 154, 163 (1984). 	Indeed, equitable estoppel is
applied “only in very compelling circumstances.” 	Timber Properties v. Chester Twp.,
205 N.J. Super. 273, 278 (Law Div. 1984). 	Furthermore, in those instances when it is
invoked, equitable estoppel is not applied against the State to the same extent that it is
applied against private individuals. Garcia v. Snedeker, 199 N.J. Super. 254, 264 (App.
Div. 1985) (citing Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)). 	The policy
reason behind this is that allowing equitable estoppel against the State may be
detrimental to the public interest and could interfere with the performance of essential
government functions. O’Malley v. Dep’t of Energy, 109 N.J. 309, 317 (1987).

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Parties asserting equitable estoppel against the State are, therefore, required to
satisfy a higher burden. Thus, in analyzing equitable estoppel claims against the State,
“New Jersey state courts [ ] require a showing of intentional misrepresentation or other
intentional misconduct—or at least a negligent disregard as to the consequences
(detrimental reliance) of the acts—by the government in order for a claimant to be able
to assert equitable estoppel against the government.” 	Kane v. Bd. of Tr., Teachers’
Pension and Annuity Fund, 96 N.J.A.R.2d (TYP) 25, 29. 	A party seeking to invoke
estoppel against a government entity has the burden of establishing that “an officer of
the 	state, 	conscious 	of 	the 	State’s 	true 	interest 	and 	the 	private 	[party]’s
misapprehension, stood by while the private [party] acted in detrimental reliance.”
Newark v. Nat’l Resource Council, 82 N.J. 530, 545 (1990). Accordingly, the focus is on
intent.
In the present case, respondent approved three-year-employment contracts for
both petitioners. 	The contracts included a salary increase for each of the three years.
The unambiguous three-year duration of contracts for confidential employee’s conflicts
with N.J.S.A. 18A:29-4.1 and the principles established in Gonzalez and Skladzien.
The Board’s successors would be bound to a decision to increase salaries, which would
“usurp and limit” their authority. 	Petitioners’ three-year contracts went beyond the term
of the Board itself that created them.
The Board argues in its brief, that the three-year contracts that it awarded to
petitioners were void ab initio. 	As such, they acted in bad faith and their conduct might
rise to the level of a blatant misrepresentation or conduct beyond the scope of its
authority. 	In either case, respondent’s action to award three-year contracts that it
believed were void ab initio was an affront to all notions of fundamental fairness.
Although there may not have been a clearly defined “detriment” immediately flowing
from its actions, equity dictates in favor of petitioners in this case.
Accordingly, I CONCLUDE, that respondent should be estopped from denying
petitioners’ salary increases for their employment during the three-year contract period.

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I further CONCLUDE that petitioners are entitled to the Board-approved salaries
for the 2014-2015, 2015-2016, and 2016-2017 school years, or portion thereof.
CONCLUSION
Based 	on 	the 	totality 	of 	the 	circumstances 	and 	voluminous 	testimony, 	I
CONCLUDE that petitioners did not conspire to fraudulently deceive the Board to
receive 	salary 	increases. 	Further, 	since 	petitioners 	are 	not 	employees 	requiring
certification, like teaching staff, the Board should not have entered into a three-year
contract with petitioners. 	However, past practice appears to have been to the contrary
and respondent may have awarded three-year contracts to employees who were not
statutorily entitled to contracts of such duration. 	I am not persuaded by respondent to
now deny petitioners compensation that they had reason to believe they were under
contract to receive. Respondent’s bad faith should not go unrequited.
ORDER
It is hereby ORDERED that respondent’s decision to deny salary increases for
petitioners and to rescind a stipend from Olsen-Faivre due to an alleged act of fraud is
hereby REVERSED.
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.

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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, P.O. 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.
February 19, 2019
DATE 	LELAND S. MCGEE, ALJ
Date Received at Agency: 	February 19, 2019
Date Mailed to Parties: 	February 19, 2019
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APPENDIX
WITNESSES
For Petitioners:
Raymond Muszynski
Vincenza Olsen-Faivre
Donna Perez
Loise Clarke
Mary Vaccaro
For Respondent:
Nicholas Annitti
Rene Engelhardt
Kevin Felten
Jeffrey C. Bliss
EXHIBITS
For Petitioners:
P-1 	Opening Statement – Olsen-Faivre
P-8 	Job Description for Confidential Secretary
P-12 	Executive Session Minutes of 1/21/15
P-19 	Paycheck for pay period ending 6/15
P-20 	District Policy: Discipline
For Respondent:
R-1 	Job Description – Confidential Secretary in Superintendent’s Office
R-2 	6/1/11, Work Session Agenda
R-3 	Not admitted
R-4 	7/13/11, Work Action Session Minutes
R-5 	Olsen-Faivre Contract for period from 7/11-6/30/14

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R-6 	11/9/1,1 Work Action Session Minutes
R-7 	5/7/14, Work Action Session Minutes
R-10 	4/4/12, Work Action Session Minutes
R-11 	5/8/13, Regular Action Session Minutes
R-12 	5/7/14, Work Session Minutes
R-13 	2014 PERS Pension Report
R-14 	12/10/14, Work Action Session Minutes
R-15 	1/21/15, Special Action Minutes
R-16 	Olsen-Faivre’s Letter of Reprimand
R-17 	Perez’s Letter of Reprimand
R-18 	Not admitted
R-19 	6/9/10, Executive Session Minutes