NEWARK TEACHERS UNION LOCAL 481 AFT, AFL-CIO V. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, 5/12/16, (#181-16)

#181-16 (OAL Decision: Not yet available online)
NEWARK TEACHERS UNION LOCAL 481 AFT, 	:
AFL-CIO,
:
PETITIONER,
:
V.
:
STATE-OPERATED SCHOOL DISTRICT OF 	COMMISSIONER OF EDUCATION
THE CITY OF NEWARK, ESSEX COUNTY, 	:
DECISION
RESPONDENT, 	:
AND 	:
IN THE MATTER OF ORLEANA SIMPSON, 	:
ET. AL, NEWARK PUBLIC SCHOOL DISTRICT.
:
SYNOPSIS
This consolidated case arises out of the July 1, 2013 layoff of 136 Newark Public School (District) employees,
including all 46 of the District’s attendance officers. Before the Commissioner is the petition of the
Newark Teachers’ Union alleging that the District violated N.J.S.A. 18A:38-25 to -33 when it abolished the
position of attendance officer; in the other matter, individual employees filed an appeal with the Civil Service
Commission (CSC), claiming the layoff from their full-time positions was in bad faith. The respondent District
contended that the layoff was undertaken for economic reasons, and did not violate the education laws because
the role of the attendance officers had been transferred to school-based “Student Support Teams” (SST). The
cases were consolidated for hearing in the Office of Administrative (OAL), with the Commissioner having
predominant interest over the education law issues, and the CSC having jurisdiction over the remaining issues.
The ALJ found, inter alia, that: instead of appointing attendance officers as mandated by N.J.S.A. 18A:38-32,
the District abolished that position and created the SST – comprised of a principal or vice principal, social
worker, guidance counselor, parent coordinator, school resource officer, nurse, and two teachers, whose duties
on the SST are voluntary and in addition to their primary role at each school; the SST does not warn children,
parents or guardians of persistent absences, as required by N.J.S.A. 18A:38-29, nor do members of the SST –
except for the school resource officer – have authority to make an arrest; moreover, without attendance officers,
no District employee is designated to look for truant students, in violation of N.J.S.A. 18A:38-28. Accordingly,
the ALJ 	determined 	that 	the 	District 	is 	in 	violation 	of 	N.J.S.A. 	18A:38-28, 	N.J.S.A. 18A:38-29, 	and
N.J.S.A. 18A:38-32, and therefore ordered the layoff of the attendance officers reversed.
Upon full review and consideration, the Commissioner found, inter alia, that: a school district is permitted to
designate a team – rather than individuals – to serve as attendance officers; in Newark, the SST now performs
the duties and responsibilities of the attendance officer; the purpose of N.J.S.A. 18A:38-29 and the entire statute
is to promote attendance, and the District’s use of new technology to notify parents and guardians of attendance
issues and truancy advances this cause. The Commissioner concluded that the District did not violate
N.J.S.A. 18A:38-28, N.J.S.A. 18A:38-29 or N.J.S.A. 18A:38-32 when it laid-off 46 attendance officers and
created school-based SSTs to carry out the functions previously performed by the school attendance officers.
Accordingly, the Initial Decision of the OAL was rejected. The remaining aspects of the case were transferred
to the Civil Service Commission for determination.
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 12, 2016

1
OAL DKT. NOS. EDU 17995-13 and CSV 14755-13 (consolidated)
AGENCY DKT. NO. 279-11/13
NEWARK TEACHERS UNION LOCAL 481 AFT, 	:
AFL-CIO,
:
PETITIONER,
:
V.
:
STATE-OPERATED SCHOOL DISTRICT OF 	COMMISSIONER OF EDUCATION
THE CITY OF NEWARK, ESSEX COUNTY, 	:
DECISION
RESPONDENT, 	:
AND 	:
IN THE MATTER OF ORLEANA SIMPSON, ET. AL, :
NEWARK PUBLIC SCHOOL DISTRICT.
:
This consolidated case stems from a layoff of approximately 136 employees by the
Newark School District (District), including 46 attendance officers.1 	In the first action, the individual
employees (petitioners) filed a layoff appeal with the Civil Service Commission (CSC) challenging
whether the layoff from their full-time positions was in good faith. In the second action, the
Newark Teachers Union (NTU) filed a petition of appeal with the Commissioner, alleging that the District
violated education laws when it abolished the position of attendance officer. On February 5, 2015, the
petitions were consolidated for hearing before the Office of Administrative Law (OAL), with the
Commissioner having the predominant interest over the education law issue and CSC having jurisdiction
to determine any remaining issues. 	Thereafter, hearings in this matter were held on June 10 and
September 9, 2015.
With respect to the education issue, the Administrative Law Judge (ALJ) determined that
the District was in violation of N.J.S.A. 18A:38-28, N.J.S.A. 18A:38-29, and N.J.S.A. 18A:38-32 when it
abolished the attendance officer position. 	Specifically, the ALJ found that instead of appointing
1 It is undisputed that the positions of attendance counselor and attendance officer are synonymous. For consistency and ease of
reference, the Commissioner will refer to the position as attendance officer.

2
attendance officers – pursuant to N.J.S.A. 18A:38-32 – the District created a student support team (SST)
comprised of the principal or vice principal, social worker, guidance counselor, parent coordinator, school
resource officer, nurse, and two teachers. 	The ALJ also found that the SST does not warn children,
parents or guardians of persistent absences, as required by N.J.S.A. 18A:38-29, nor do any members of the
SST – except for the school resource officer – have authority to make an arrest. 	Further, the ALJ
determined that without attendance officers, no District employee looks for truant students, in violation of
N.J.S.A. 18A:38-28. Accordingly, the ALJ reversed the layoff of the attendance officers.
The record of this matter and the Initial Decision of the OAL have been reviewed, as
have the exceptions filed pursuant to N.J.A.C. 1:1-18.4 by the District, and the replies thereto filed by the
NTU and petitioners. In its exceptions, the District argues that the ALJ erroneously found that it violated
education laws when it eliminated the position of attendance officer.2 	Specifically, the District takes
exception to the ALJ’s finding that no one in the District is looking for truant students. 	(District’s
Exceptions at 4-6) 	The District contends that there is credible evidence in the record to support the
finding that it carries out its statutory duty to monitor and locate truant students – without the title of
attendance officer – through the power school system of records, which sends out warning notices to
parents and/or schedules meetings when a student is absent for certain periods of time.
The District also argues that Abdul Rahman Saleem’s testimony did not provide a
credible account of his job duties as an attendance officer, and that the ALJ should not have relied upon it.
(Id. at 6) Instead, the District argues that the ALJ should have relied upon the testimony of Eric Ingold,
2 The District also argues that the Commissioner does not have jurisdiction to review this matter as the CSC has sole jurisdiction.
The Commissioner has jurisdiction over all controversies and disputes arising under the school laws of this State.
N.J.S.A. 18A:6-9. Accordingly, the Commissioner has jurisdiction over the issue of whether the District’s layoff of its attendance
officers violated N.J.S.A. 18A:38-28, N.J.S.A. 18A:38-29, or N.J.S.A. 18A:38-32, as this claim arises under the State’s education
statute.
The District further contends that it did not act in bad faith when it eliminated the position of attendance officer. While the
Commissioner has jurisdiction over the education issue, only the CSC has jurisdiction over whether the layoff of the attendance
officers was in bad faith, as that issue does not arise under the State’s school laws. N.J.S.A. 18A:6-9. As this issue will be
transferred to the CSC following the Commissioner’s decision, the Commissioner will not address the District’s arguments with
respect to whether the District acted in good faith.

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the District’s Executive Director for Safety and Security, who testified as to the efforts made by security
guards, rapid response and school resource officers to combat truancy. (Ibid.)
The District contends that while N.J.S.A. 18A:38-32 allows it to “designate” persons to
serve as attendance officers, the word “designate” should have a broad interpretation. 	(Id. at 7) 	“The
discrepancy between the use of the word ‘designated’ and ‘appointment’ further implies that the
legislature permits the District to identify employees to perform the statutory duties of an attendance
officer” – without requiring the specific creation of an attendance officer position. (Ibid.)
The District notes that N.J.S.A. 18A:38-28 does not prohibit the District from laying-off
attendance officers, but rather “provides guidance” for those assigned as attendance officers. (Id. at 8)
Accordingly, the District argues that it did not violate N.J.S.A. 18A:38-28 when it laid off the attendance
officers – a decision that was approved by the Civil Service Commission. (Ibid.)
The District also challenged the timeliness of the petition of appeal. 	(Id. at 12-13)
Specifically, the District argues that the petition was filed with the Commissioner nearly one month
beyond the 90-day filing deadline and that the ALJ erred in relaxing the 90-day rule.3 (Ibid.)
In reply, the NTU contends that the ALJ correctly found the District in violation of the
education statutes when it abolished the position of attendance officer. (NTU’s Reply at 6) 	The NTU
argues that by applying principles of statutory interpretation, it is clear that an attendance officer must be
a separate position with certain job responsibilities. (Id. at 6-11) The NTU points out that the intent of
the statute is to ensure that children attend school. (Id. at 6-7) As such, N.J.S.A. 18A:38-32 requires that
school districts “shall appoint a suitable number of qualified persons to be designated as attendance
officers and fix their compensation.” (Emphasis added) (Id. at 8) The NTU contends that the language is
“crystal 	clear” 	that 	attendance 	officers 	are 	required. 	(Ibid.) 	Further, 	N.J.S.A. 	18A:38-27 	and
3 The ALJ found that because the issues raised in the NTU’s petition of appeal involve matters of significant public interest, a
relaxation of the 90-day filing deadline was warranted under N.J.A.C. 6A:3-1.16. Further, the ALJ noted that the District failed
to raise timeliness as an affirmative defense (with the exception of the generic affirmative defense that NTU failed to state a
claim), nor did it raise the issue before the ALJ in any of the court proceedings – including in the oral argument on the
predominant interest motion – prior to the closing submissions. Considering the circumstances – the importance of attendance
and the fact that the District did not address this issue with the court until after two days of hearing had concluded – a relaxation
of the rules is warranted, and the Commissioner will consider the instant appeal. See N.J.A.C. 6A:3-1.16.

4
N.J.S.A. 18A:38-29 delineate certain job responsibilities and requirements for attendance officers, which
the District seeks to “dilute . . . by implying that the District can designate individuals to assume the
statutory duties.” (Id. at 9)
The NTU additionally points out that the testimony of the District’s own witnesses –
Nadiyah Sa’id, Vanessa Rodriguez, and Eric Ingold – proves that the District does not have any
employees who go into the community to look for truant students, the members of the SST are volunteers,
and the District no longer uses buses to pick up truants. (Id. at 12-13)
Similar to that of the NTU, petitioners’ reply to the District’s exceptions also emphasizes
that the ALJ’s findings are supported by the weight of the evidence, and demonstrates that no one in
Newark Public Schools presently serves as an attendance officer or performs the core functions of that
role. (Petitioners’ Reply at 8-11) Specifically, the District’s own witness – Nadiyah Sa’id – confirmed
that no one holds the attendance officer title, no one replaced the truancy team who formerly went into the
community searching for truants, and the current SST consists of school-based volunteers who have other
responsibilities besides attendance. (Id. at 8-10) Similarly, Vanessa Rodriguez and Eric Ingold testified
that no one in the district was designated as an attendance officer. 	(Id. at 10-11) 	Eric Ingold further
testified that the District no longer utilizes a bus with attendance officers who patrol the streets to combat
truancy, but instead relies on the Newark Police Department to identify and pick up truants. (Ibid.) As
such, petitioners dispute the District’s argument that the ALJ only relied on the unsupported testimony of
Abdual Rahman Saleem. (Id. at 17)
Petitioners contend that the ALJ correctly concluded that the District violated education
statues by failing to have anyone in the statutorily-mandated attendance officer position. (Id. at 13-19)
Petitioners point out that the reason the statute requires attendance officers is part of a larger statutory
scheme to enforce compulsory education. 	(Id. at 13) 	Additionally, petitioners assert that the District
attempted to distribute the job duties of the attendance officer to members of the SST, but that the SST
does not perform the core duties of the attendance officer, ie., “going out into the community and
utilizing…police powers to actually locate and return truant students to school.” 	(Id. at 15-16)

5
Upon review, the Commissioner agrees with the District that the layoff of the 46
attendance officers did not violate N.J.S.A. 18A:38-28, N.J.S.A. 18A:38-29, or N.J.S.A. 18A:38-32.
Specifically, when evaluating a statute, the Commissioner must consider the Legislature’s intent by
considering the plain language of the statute. State v. Munafo, 222 N.J. 480, 488 (2015). When
N.J.S.A. 18A:38-25 to -35 is read as a whole, it is clear that the purpose of enacting this legislation was to
compel children to attend school. 	Specifically, N.J.S.A. 18A:38-25 states that parents or guardians of
school-aged children “shall cause such child regularly to attend the public schools of the district or a day
school in which there is given instruction equivalent to that provided in the public schools[.]” To achieve
that end, districts are required to designate attendance officers. N.J.S.A. 18A:38-32 provides that “[f]or
the purpose of enforcing the provisions of this article, the board of education of each school district . . .
shall appoint a suitable number of qualified persons to be designated as attendance officers, and shall fix
their compensation.”
Considering its plain language, the statute does not require the employment of individual
employees to serve solely in the role of attendance officer, but rather that the district “designate”
attendance offices to enforce the provisions of the statute. Designating a team to perform the core duties
outlined in the statute is acceptable, provided that the ultimate goal of encouraging student attendance at
school is achieved – regardless of whether the team members have additional job duties and
responsibilities. See Ann Quinlan v. Board of Education of the Township of North Bergen, 73 N.J. Super.
40, 47-48 (App. Div. 1962) (permitting a school clerk to serve in the role and perform the duties of both
clerk and attendance officer).
Here, the District has designated the SST – as a whole – as attendance officers. The roles
and responsibilities of the SST were developed through a listening tour of approximately 25 meetings in
which Nadiyah Sa’id, the District’s Deputy Executive Director of College and Career Readiness, met with
a variety of school employees – including principals, students, parents, attendance officers and court
representatives – to develop “a new strategy for how the district would implement attendance support for

6
[its] students.” 	(Testimony of Nadiyah Sa’id, 1T at 8)4 	Specifically, Sa’id sought to “work with the
remaining attendance staff to get a clear understanding of [the] state code on attendance, work with the
existing office staff to determine how things had been functioning, the various roles that contributed to
the district’s delivery of attendance support services” and to identify how the District could support all
areas of attendance following the layoff of the attendance officers. 	(Id. at 9) 	Thereafter, the District
developed the SST as part of a new attendance policy, in accordance with State attendance policy.
(Initial Decision at 10-11)
The designation of the SST as attendance officers does not – in and of itself – violate
N.J.S.A. 18A:38-32. 	The purpose of the SST is to monitor student attendance and combat truancy, the
same function as the former attendance officers. Additionally, although N.J.S.A. 18A:38-32 requires that
attendance officers receive compensation, there is no requirement that the position be full-time. 	It is
undisputed from the record that the members of the SST – principal or vice principal, social worker,
guidance counselor, parent coordinator, school resource officer, nurse, and two teachers – are all
employees of the District and receive compensation. 	As such, the District is permitted to designate a
team – rather than individuals – to serve as attendance officers, and an analysis of whether the SST meets
the statutory responsibilities of the attendance officer is therefore necessary.
In order to ensure that children attend school, N.J.S.A. 18A:38-29 provides that:
The attendance officer shall examine into all violations of this article,
shall warn any child violating any of the provisions of this article and the
parent, guardian or other person having charge and control of the child of
the consequences of the violation if persisted in, and shall notify such
person in writing to cause the child to attend school within five days
from the date on which notice is served, and regularly thereafter. The
attendance officer shall have full police power to enforce the provisions
of this article and may arrest without warrant any vagrant child or
habitual truant or any child who is habitually incorrigible or who is
vicious or immoral in conduct or illegally absent from school.
The record demonstrates – and the ALJ made findings of fact – that the power school clerk system sends
out written notices to parents of children who are absent from school. If a student is absent for one to four
4 This citation refers to a transcript of a hearing held on June 10, 2015.

7
days, the power school clerk mails a warning notice to the parent, and the teacher may also call the parent
to determine the reason for the student’s absence. 	(R-5; Initial Decision at 11; Testimony of Nadiyah
Sa’id, 1T at 17, 19-20) When a student is absent for five to nine days, the SST is activated and invites the
parent to a meeting with the SST to develop an action plan. (R-5; Initial Decision at 11; Testimony of
Nadiyah Sa’id, 1T at 21) 	The SST will make a verbal or written request three times before making a
home visit. (Ibid.) Thereafter, if a student is absent for ten or more days and the parent has not responded
to the intervention efforts of the SST, the SST then reaches out to the court representative. 	(R-5,
Testimony of Nadiyah Sa’id, 1T at 22-23)
As such, the SST performs the duties and responsibilities of the attendance officer with
respect to warning parents and guardians of student absences and notifies parents in writing within five
days, as required by N.J.S.A. 18A:38-29. Further, the school resource officer – a member of the SST – is
a police officer, in accordance with N.J.S.A. 18A:38-29. The fact that the District utilizes technology to
assist with the performance of its statutorily-mandated responsibilities is of no moment. The purpose of
N.J.S.A. 18A:38-29 and the entire statute is to promote attendance, and advancements in technology are
an asset to the cause.
Finally, N.J.S.A. 18A:38-28 requires:
Any attendance officer who shall find any child between six and 16 years
of age who is a truant from school, shall take the child and deliver him to
the parent, guardian or other person having charge and control of the
child, or to the teacher of the school which such child is lawfully
required to attend.
Although the District used four buses to round up truant students prior to the layoff of the attendance
officers, such use of buses and patrolling the streets is not required by N.J.S.A. 18A:38-28. Considering
the plain language of the statute, attendance officers “who shall find” truant students are required to return
them to school or to their home. 	The phrase “who shall find” does not compel districts to develop a
scheme wherein attendance officers are required to canvas the streets searching for truant students. To
the contrary, N.J.S.A. 18A:38-28 does not delineate specifically how attendance officers will find students
and leaves districts with discretion on how to find students. Advancements in technology will naturally

8
result in new and innovative ways to locate truant students. Through the SST and the power school clerk,
the District finds truant students through parent contact and involvement after the student has been absent
as few as one to four times. As such, the District is in compliance with N.J.S.A. 18A:38-28.
Accordingly, the Initial Decision of the OAL is rejected for the reasons expressed herein.
The layoff of the attendance officers does not violate N.J.S.A. 18A:38-28, N.J.S.A. 18A:38-29, or
N.J.S.A. 18A:38-32. In accordance with the predominant interest order, the remaining aspects of the case
are now transferred to the Civil Service Commission for determination.
IT IS SO ORDERED.5
COMMISSIONER OF EDUCATION
Date of Decision: May 12, 2016
Date of Mailing: 	May 12, 2016
5 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).